United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-1812

___________ United States of America, * * Appellee, * * Appeal from the United States District v. * Court for the Eastern District of Missouri

. * LeRoy Harris, Jr., * * Appellant. *

___________ Submitted: September 8, 1997 Filed: December 10, 1997

___________ Before RICHARD S. ARNOLD, Chief Judge, HEANEY and BEAM, Circuit Judges.

___________ BEAM, Circuit Judge.
LeRo yHarris challenges his conviction for being a felon in possession of a firearm, arguing that the

jury should not have been informed of the number and nature of his multiple prior felonies because he offered to stipulate to his felon status. Because we find that any error was harmless, we affirm.

I. BACKGROUND

While executing a valid search warrant for a Cape Girardeau, Missouri , residence, police seized a Revelation twelve-gauge shotgun. LeRoy Harris, whomThe Honorable Catherine D. Perry, United States District Judge for the Eastern 1 District of Missouri. OldChief had been argued at the time of Harris's trial, and was decided afte r 2 his conviction, but before his sentencing. -2- police believed resided at the house, was charged with being a felon in possession of a firearm. See18 U.S.C. § § 922(g)(1) and 924(e). The indictment listed six predicate feloni es: carnal knowledge of a female under sixteen, attempt to burn property, rape , forgery , and two convictions for breaking and entering. Harris entered a plea of no t guilty and was tried by a jury. Before trial, Harris offered to stipul ate to his felon status, and moved in limine to exclude referen ce to the name and nature of his convictions, or, in the alternative, to limit the government to proving only the forgery conviction. The district co urt ruled that evidence of the sex crimes would be unduly prejudicial, bu t

1 denied Harris's motion

as to the other convictions. In its case in chief, the government off eredcertified copies of the sentence and judgment forms for four of Harris's prio r felonie s. The government also presented the testimony of three police officers stating that Harris h ad told them that the gun was his; a witness who reported that she ha d observed her husb and trade the gun to Harris in exchange for drugs; and evidence that Harris had listed this address as his residence on his driver's license, hunting license , and automobile registration. In defense, Harris testified that he did not actually reside in the house, but simply stayed there several nights per week and that, in any event, the gun was not his. The jury convicted Harris, who appeals.

II. DISCUSSION

Harris argues that the court's refusal to accept his offer to stipulate violates the Supreme Court's directive in Old Chief v. United States , 11 7 S. Ct. 644 (1997). In Old 2 Chief , the Court held that when a defendant makes an offer to stipu late which is specific enough to establish felon sta tus for purposes of 922(g), and when "the prior conviction is for an offense likely to support conviction on some improper ground, . . .Cont

rary to the dissent's assertion, it is Harris, not the government, who bears 3 the burden of establishing that this nonconstitutional error was harmful. The Court in Old Chief held that the district court had violated Federal Rule of Evidence 403, no t any provision of the United States Constitution. Old Chief , 117 S. Ct. at 652-55. See also , United States v. Moore , No. 97-1351, 1997 WL 694568 at *2 (8th Cir. Nov. 4, 1997) ( Ol d Chief

violation is nonconstitutional evidentiary error). Thus, th e appropriate standard for ascertaining harmfulness is Federal Rule of Crimina l Procedure 52(a). Under Rule 52(a) "[t]he party asserting the error has the burden of de monstrating that his or her substantial rights were affected." Moore , 1997 W L 694568 at *2. The dissent's reliance on Sullivan v. Louisiana , 508 U.S. 275, 278-79 (1993) and Seiler v. Thalacker , 101 F.3d 536, 539-40 (8th Cir. 1996), cert. denied , 117 S. Ct. 1447 (1997) is misplaced because the appellees in these cases alleged error of cons titutional magnitude. The only other case cited by the dissent on this point is a Ninth Circuit opinion that asserts, without cited authority, that the government has the burden of establishing harmlessness on direct appeal. United States v. Hernandez , 109 F.3d 1450, 1453 (9 th Cir. 1997). With due respect to our sister circuit, we are bound by a long line of precedents to t he contrary. See , e.g. , Moore , 1997 WL 694568 at *2 (party asserting harmful error has burden of proof); Lowe v. United States , 389 F.2d 108, 112 (8th Cir. 1968) (defendant claiming error in reception of evidence has burden to show prejudice). -3- the risk of unfair prejudice . . . substantial ly outweigh[s] the discounted probative value of the record of conviction." Id. at 655.
Although the parties argue about whether Harris's offer to stipulate was sufficient to trigger Old Chief

, we do not need to reach that issue. To be eligible for relief under Old Chief , a defendant must establish that the asserted error was not harmless. United 3 States v. B lake , 107 F.3d 651, 653 (8th Cir. 1997). See also , Old Chief , 117 S. Ct. at 656 n.11 (expressing no opinion on whether failure to exclude record of conviction was harmless). Harr

is has not made this showing. When evidence of a defendant's guilt is overwhelming, the Old Chief violation is harmless. See, e.g. , Redding v. United States , 105 F.3d 1254, 125 5 (8th Cir. 1997) (habeas petitioner not entitled to relief under Old Chief given the overwhelming evidence of guilt). Here, the testimony of the polic e officers, to whom Harris admitted owning the gun, and the testimony of the witness-4-

who saw Harris purchase the g un, in combination with other evidence that Harris lived at the house, w as overwhelming evidence that Harris did, in fact, possess the weapon. Thus, we fi nd any error in rejecting Harris's offer to stipulate to felon status wa s harmless.

III. CONCLUSION
We have carefully considered the rem ainder of Harris's arguments and find them to be without merit. The judgment of the district court is affirmed.
HEANEY, Circuit Judge, dissenting.

I respect fully dissent. The trial court erred by admitting evidence of Harris’ s prior felony convictions under the Supreme Court’s ruling in Old C hief v. United States , 117 S. Ct. 644, 652 (1991). Thus, his conviction can only be affirmed if t he government carried its burden of showing that the error infecting the trial was harmless. I do no t believe that the government has carried its burden.

We mustreverse a conviction where the jury might have been “substantiall y swayed” by improperly adm itted evidence. United States v. Davis , 936 F.2d 352, 355 (8th Cir . 1991) (citation omitted). Old Chief dictates that the risk of such prejudice is “substantial whenever the official r ecord offered by the government would be arresting enough to lure a juror into a sequence of bad character reasoning.” Id. at 652. There is little doubt that the introduction of four of Harris’s felony convictions could lead the jury to do this. See United States v. Blake , 107 F.3d 621, 652-53 (8th Cir. 1997 ) (consideri ng evidence of four prior felony convictions with other errors in reversin g conviction). Here the government’s case was based solely on circumstantial evidenceThe evidence upon which the go vernment relied to convict Harris consisted of: 4 controverted testimony of th e officers that Harris admitted ownership and of a woman who claimed she saw Harris purcha se the gun; testimony that Harris periodically lived at the house where police found the gun; and the fact that Harris had a hunting license. The r ecord shows no evidence of Harris’s fingerprints on the weapon, see Unite d States v. H ernandez , 109 F.3d 1450, 1453 (9th Cir. 1997) (considering a lack o f fingerpr ints on a weapon as a significant factor in determining whether evidence o f possession of a weapon was overwhelming), nor did any of the officers see Harris in possession of the weapon. -5- and controverted testimony. Thus, exposing the jury to the number and t ype of Harris’s 4 prior convictions was arresting enough to lure jurors into a sequence of bad character reasoning. See Old Chief , 117 S. Ct. at 652.

I am also in complete disagreement with the majority’s assertion that Harri s “must establish that the as serted error was not harmless.” Ante at 3 (citing Blake , 107 F.3d at 653). The court’s citation to Blake to support its statement is misplaced because that case states only that “[i]n determining whether evidentiary rule violations require reversal the Court applies the Fed. R. Crim. P. 52(a) harmless error analysis.” Blake , 10 7 F.3d at 653 (citation omitted). Blake makes no statement whatsoever that a defendant has the burden to show an error was not harmless under Rule 52(a).

The court further attempts to support its contention by citing two cases, neither of whic h stand for the proposition offered. In United States v. Moore , No. 97-1351 , 19 97 WL 694568 (8th Cir. Nov. 4, 1997), this court properly stated that a part y asserting a n onconstitutional error has the burden of demonstrating that his substantial rights were affected by the error. Id. at *2. Stating that a defendant mu st show the error to have affected “substantial rights” is far afield from requiring the defendant to carry the burden to show the effect to be “not harmless” under Rule 52(a).Despite our citation of Thomas indicatingthat a defendant must show error and 5 “prejudice,” it is clear that the burden of persua sion regarding prejudice where the trial court commits nonconstitutional error rests with the government. See United States v. Olano , 507 U.S. 725, 734-35 (1993) (“harmless error” inquiry under Rule 52(a) differs from“plain error” inquiry under Rule 52(b) in that defendant bears the burden o f persuasion with respect to prejudice in claim under plain error rule).
-6- In Lowe v. United States , 389 F.2d 108 (8th Cir. 1968), we stated that a de fendant asserting error has a burden “to show both error and prejudice.” Id. at 112 (quoting Thomas v. United States 281 F.2d 132, 136 (8th Cir. 1960)). We c larified that 5 statement by explaining that an evidentiary error that would warrant a reversal in a close
case “m ay be disregarded as harmless where the evidence of guilt is strong.” Id

. (citation omitted). Lowe

sim ply requires that a defendant asserting error show that the trial court erred in admitting evidence and that t he evidence would tend to prejudice the fa ctfinder against the defendant before requiring the reviewing court to conside r whether the er ror was harmless. Neither Moore nor Lowe places the burden on th e defendant to show the error was not harmless where the defendant claim s nonconstitutional error.

In Darden v. Wainwright , Justice Blackmun stated that:
Every harmless-error standard that [the Supreme] Court ha s employed . . . s hares two salient features. First, once serious error has been identified, the burden shifts to the beneficiary of the error to sh ow that the conviction was not tainted. Second, . . . th e question before a reviewing court is never whether the evidenc e would h ave been sufficient to justify conviction, absent an error , but , rather, whether the error undermines its confidence in th e outcome of the proceeding to an unacceptable degree.Section 391 provided, in pertinent part: 6 On the hearing of any appeal, certiorari, writ of er ror, or motion for a new trial, in any case, civil or criminal, the court shall give judgment after an examinati onof the entire record before the court, without regard t o technical errors, defects, or exceptions whi ch do not affect the substantial rights of the parties. 28 U.S.C. § 391 (1928). -7- 477 U.S. 168, 197 (1986) (Blackmun, J., dissenting) (citation s omitted). This statement is consistent with Kotteakos v. United States , 3 28 U.S. 750 (1945), where the Supreme Court held that, even where the claimed error is nonconstitutional in nature, if th e
erro r’s “natural effect is to prejudice a litigant’s substantial rights,” the party wh o benefitte dfrom the error bears the burden of sustaining the verdict. Id. at 760-6 1 (citations omitted).
Congress pas sed Rule 52(a) as a restatement of 28 U.S.C. § 391, which wa s 6 enacte dto “prevent matters concerned with the mere etiquette of trials and with th e formalities and minutiae of procedure from touching the merits of a verdict.” Bruno v. UnitedStates , 308 U.S. 287, 294 (1939). The Supreme Court distinguishes a defendant’s right to a trial free from mere technical error s as being “[of] a very different order of importance” than the defendant’s right “to ins ist on a privilege which Congress has given him,” id ., such as the right to be free of overly prejudicial evidence unde r Federal Rule of Evidence 403.

The majo rity attempts to defend its errant standard by distinguishing th e applicati onof the harmless-error rule in the present case from those in which th e claimed error is constitutional in nat ure. See Sullivan v. Louisiana , 508 U.S. 275, 278- 79 (1993) (constitutional error is harmless if government can show beyond a reasonable dou bt that the error did not contribute to the challenged verdict); Seiler v. Thalacker , 101 F.3d 536, 539-40 (8th Cir. 1996) (“The state has a heavy burden in proving thatT he majority dismisses the Ninth Circuit’s holding in Hernandez as bein g 7 “without cit ed authority.” Ante at 3, note 3. The likely reason for the absence o f citatio ns by our sister circuit is the well-established principle that the beneficiary of a trial court ’s error bears the burden to show the error was harmless. The line o f precedents alluded to by the majority is neither long, nor to the contrary of the rule in Hernandez

. -8- [aconstitutional] error is harmless beyond a reasonable doubt.”) (citation omitted). I agree that the h armless-error standard for nonconstitutional errors differs from that for constitutional ones, but the difference is that a claim of constitutional error automatically
warr ants harmless-error review, where a complaining party must show a nonconstitut ional error to be more than merely technical to receive such review. I n either case, however, the party receiving the benefit of the error carries the burden of showing that the error did not affect the verdict.

In United States v. Hernandez , 109 F.3d 1450, 1453 (9th Cir. 1997), the Ninth Circuit correctly appli ed the standard, holding that the government bears the burden to show harmlessnes s in a trial court’s error of admitting prior felonies under Old Chief

. 7 The majority has cited no cases contrary to Hernandez , and I have been unable to find any. I n any event, our court must be guided by the decisions of the Supreme Court , which clearly dictate that the beneficiary of the trial court’s error, the government, bears the burden to show that the error was harmless. The government has failed to meet its burden, and for that reason, Harris’s conviction should not stand.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.