### *T he HONORABLE DONALD D. ALSOP, United States Distric t

Ju dge for the District of Minnesota, sitting b y designation. No. 96-2933

UNITED STATES OF AMERICA, * *

Appellee, *

* v. * Appeal from the United States * District Court for the Eastern KEITH H. BLAKE, * District of Missouri * Appellant. * * *
Submitted: January 13, 1997 Filed: February 26, 1997

Before RICHARD S. ARNOLD, Chief Judge, BEAM, Circuit Judge, and ALSOP,* District Judge.
ALSOP, District Judge.

I. BACKGROUND Keith H. Blake (“Blake”) was indicted for being a felon in poss ession of a fire arm, in violation of 18 U.S.C. § 922(g)(1), and for possessin g methamphetamine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1). After a two-day jury trial he was found guilty on both counts

. Blake appeals his conviction, offering four arguments in support o f reversal. First, Blake argues that the district court abused its discretio n whe n it permitted the Government to introduce evidence of Blake’s prio r felony convictions to prove his felony status for purposes of 18 U.S.C. § 922(g)(1) after Blake had offered to stipulate to his status as a felon. Second, Blake argues that the district court abused its

### S ee , e.g. , United States v. Diggs , 82 F.3d 195, 197 (8th Cir

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### 1996) cert. denied , 65 USLW 3309 (U.S. Oct. 21, 1996); Unite d States v. Franik , 7 F.3d 811, 813 (8th Cir. 1993).
2 discretion by allowing a detective to testify ab out an informant’s out-ofco urt statement identifying Blake as someone who was sellin g metham phetamine. Third, Blake argues that the district court abused it s discretion when it permitted a narcotics officer to provide expert witnes s testimony about the significance of the firearm and the amount of drug s seized when Blake was apprehended. Fourth, Blake argues that a statement made b y the prosecutor in closing argument amounted to prosecutoria l misconduct.

II. ADMISSION OF FELONY CONVICTIONS

Blake ar gues that the district court abused its discretion when i t permitted the Governm ent to introduce evidence of his four prior felonies after Blake had agree d to stipulate to his status as a felon for purposes of establishing the § 922(g) violation. At trial the Government offere d cert ified copies of felony convictions for burglary, stealing, drivin g while intoxicated, and stealing a motor vehicle, as well as fingerprints linking Blake to the four felony convictions. Bl ake argues that under Fed. R. E vid. 403 the evidence of his felony convictions should have bee n excluded because the probative value given his offer to stipulate to his statu s as a felon was substantially outweighed by the danger of unfai r pre judice on the controlled substance charge. The district court , consistent with prior Eighth Circuit precedent, ruled that the Government
was not required to accept Blake’s stipulation and could introduce evidenc e of the co nvictions but not evidence of the facts underlying th e convictions.

Shortly before oral argument on Blake’s appeal, the Supreme Cour t issue d a decision in Old Chief v. United States , 117 S. Ct. 644 (1997 ) which reverses well-established Eighth Circuit law and 1

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lend s substantial support to Blake’s argument that it is an abuse o f discr etion to admit the record of conviction when an admission i s availabl e. In Old Chief a majority of the Supreme Court agreed that § 922(g)(1) and its pri or conviction element present a problem in that “the
name or nature of the prior offense generally carries a risk of unfai r prejudice to the defendant.” Id. at 652. The ma jority observed that while the risk of prejudice posed by the evidence of prior convictions may vary from case to case, the risk “will be substantial whenever the officia l record offered by the government would be arrest ing enough to lure a juror into a sequence of bad character reasoning.” Id.

In the instant case the Court finds that the record of Blake’s prior convictions was enough to lure jurors into “a sequence of bad characte r reasoning” on the companion charge of possession with intent to distribute

. The record of convictions showed Blake had four prior felonies, an d although no convictio n was for distribution of a controlled substance the number a nd nature of his prior felonies, especially given that th e Government did not offer abundant evidence to show intent to distribute,
was sufficient to create a substantial risk of unfair prejudice. Accordin g to Old Chief when there is a substantial risk of unfair prejudice and ther e is no cognizable difference between the evidentiary significance of a n admiss ion and of the legitimately probative component of the officia l record, under Rule 403 the risk of unfair prejudice outweighs the probativ e value of the official record, and it is an abuse of discretion to submit the record when an admission is available. Id. at 655. The Court finds tha t the evidentiary value of the official record offered to show Blake’s prio r felony convictions was not cognizably different than that of an admission, and according to Old Chief as Blake had offered to stipulate to his status as a felon, admitting the record of conviction into evidence was an abuse of discretion.

### 4 In determ ining whether evidentiary rule violations require reversal the Court applies the Fed. R. Crim. P. 52(a) harmless error analysis. See United States v. DeAngelo , 13 F.3d 1228, 1233 (8th Cir. 1994). In Old Chie f the S upreme Court expressed no opinion on whether failing to exclude a record of conviction is harmless error. Under Rule 52(a) “[o]nly if th e jury may have been ‘s ubstantially swayed’ by improperly admitted evidence
mus t we reverse the conviction.” Id. (citing United States v. Davis , 93 6 F.2d 352, 355 (8th Cir. 1991)). Before making a determination on whether the admission was harmless error, the Court will examine Blake’s secon d argument for reversal.

III. ADMISSION OF INFORMANT’S OUT-OF-COURT STATEMENT

Blake ar gues that the court abused its discretion when it admitte d
an out of court statement from an unidentified confidential informant whic h purpor ted to identify Blake as a methamphetamine dealer. The governmen t offered the confident ial informant’s statement through a deputy who spoke with the informant prior to obtaining a search warrant for Blake’ s residence. The govern ment maintains that it offered the testimony to show the basis for commencing a police investigation, not as evidence of Blake’ s guilt, and that accor ding to United States v. King , 36 F.3d 728, 732 (8th Cir. 1994) such an ou t-of-court statement is not considered hearsay. The jury was instructed on two different occasions to consider the statement only a s background information explaining the issuance of the searc h warrant and not for its truth or as evidence of Blake’s guilt.

Although an out-of-court statement m ay be admissible for the limited pu rpose of explaining to the jury why a police investigation wa s undertake n, the Court finds nothing in the record to show that th e prop riety of the investigation was in issue or that the evidence wa s relevant to an issue at trial. Where the

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only possible relevance of the out-of-court statement is to show th e defendant committed the act he has been charged with, the statement is not properly admissible for a non-hearsay purpose. S ee United States v. Azure , 845 F.2d 1503, 1507 (8th Cir. 1988).

IV. CONCLUSION
Having found that evidence pertaining to Blake’s prior felon y
con viction and the informant’s out-of-court statement were improperl y admitted, and considering the other evidence off ered at trial to show that Blake possessed methamphetamine with an intent to distribute, the Cour t cannot conclude that the jury may not have been substantially swayed by th e improperly admitted evidence, and therefore the errors are not harmless an d
revers al is required. The Court need not address Blake’s remainin g arguments for reversal, however on retrial the Court is confident that wit h respect to the admission of expert testimony from the narcotics officer, Corporal Wakefield, the district court will admit relevant opinio n testimon y only to the extent it is within the expert’s specialize d kno wledge and consistent with our prior decisions. See United States v

. Boykin , 986 F.2d 270, 275 (8th Cir. 1993).

For the reasons stated herein, we reverse the judgment of th e district court and remand the case for further p roceedings consistent with this opinion.

A true copy.

Attest:

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