*The HONORABLE DONALD D. ALSOP, United States District

Judge for the District of Minnesota, sitting by

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 possession

of a firearm, in violation of 18 U.S.C. § 922(g)(1), and for possessing

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 of

reversal. First, Blake argues that the district court abused its discretion

when it permitted the Government to introduce evidence of Blake’s prior

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

1

1996) cert. denied, 65 USLW 3309 (U.S. Oct. 21, 1996); United

States v. Franik, 7 F.3d 811, 813 (8th Cir. 1993).

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discretion by allowing a detective to testify about an informant’s out-ofcourt statement identifying Blake as someone who was selling

methamphetamine. Third, Blake argues that the district court abused its

discretion when it permitted a narcotics officer to provide expert witness

testimony about the significance of the firearm and the amount of drugs

seized when Blake was apprehended. Fourth, Blake argues that a statement

made by the prosecutor in closing argument amounted to prosecutorial

misconduct.

II. ADMISSION OF FELONY CONVICTIONS

Blake argues that the district court abused its discretion when it

permitted the Government to introduce evidence of his four prior felonies

after Blake had agreed to stipulate to his status as a felon for purposes

of establishing the § 922(g) violation. At trial the Government offered

certified copies of felony convictions for burglary, stealing, driving

while intoxicated, and stealing a motor vehicle, as well as fingerprints

linking Blake to the four felony convictions. Blake argues that under Fed.

R. Evid. 403 the evidence of his felony convictions should have been

excluded because the probative value given his offer to stipulate to his

status as a felon was substantially outweighed by the danger of unfair

prejudice 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 evidence

of the convictions but not evidence of the facts underlying the

convictions.

Shortly before oral argument on Blake’s appeal, the Supreme Court

issued a decision in Old Chief v. United States, 117 S. Ct. 644 (1997)

which reverses well-established Eighth Circuit law and 1
3

lends substantial support to Blake’s argument that it is an abuse of

discretion to admit the record of conviction when an admission is

available. In Old Chief a majority of the Supreme Court agreed that §

922(g)(1) and its prior conviction element present a problem in that “the

name or nature of the prior offense generally carries a risk of unfair

prejudice to the defendant.” Id. at 652. The majority 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 official

record offered by the government would be arresting 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 character

reasoning” on the companion charge of possession with intent to distribute.

The record of convictions showed Blake had four prior felonies, and

although no conviction was for distribution of a controlled substance the

number and nature of his prior felonies, especially given that the

Government did not offer abundant evidence to show intent to distribute,

was sufficient to create a substantial risk of unfair prejudice. According

to Old Chief when there is a substantial risk of unfair prejudice and there

is no cognizable difference between the evidentiary significance of an

admission and of the legitimately probative component of the official

record, under Rule 403 the risk of unfair prejudice outweighs the probative

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 that

the evidentiary value of the official record offered to show Blake’s prior

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. 
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In determining 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 Chief

the Supreme Court expressed no opinion on whether failing to exclude a

record of conviction is harmless error. Under Rule 52(a) “[o]nly if the

jury may have been ‘substantially swayed’ by improperly admitted evidence

must we reverse the conviction.”Id. (citing United States v. Davis, 936

F.2d 352, 355 (8th Cir. 1991)). Before making a determination on whether

the admission was harmless error, the Court will examine Blake’s second

argument for reversal.

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

Blake argues that the court abused its discretion when it admitted

an out of court statement from an unidentified confidential informant which

purported to identify Blake as a methamphetamine dealer. The government

offered the confidential informant’s statement through a deputy who spoke

with the informant prior to obtaining a search warrant for Blake’s

residence. The government maintains that it offered the testimony to show

the basis for commencing a police investigation, not as evidence of Blake’s

guilt, and that according to United States v. King, 36 F.3d 728, 732 (8th

Cir. 1994) such an out-of-court statement is not considered hearsay. The

jury was instructed on two different occasions to consider the statement

only as background information explaining the issuance of the search

warrant and not for its truth or as evidence of Blake’s guilt. 

Although an out-of-court statement may be admissible for the limited

purpose of explaining to the jury why a police investigation was

undertaken, the Court finds nothing in the record to show that the

propriety of the investigation was in issue or that the evidence was

relevant to an issue at trial. Where the
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only possible relevance of the out-of-court statement is to show the

defendant committed the act he has been charged with, the statement is not

properly admissible for a non-hearsay purpose. See United States v. Azure,

845 F.2d 1503, 1507 (8th Cir. 1988).

IV. CONCLUSION

Having found that evidence pertaining to Blake’s prior felony

conviction and the informant’s out-of-court statement were improperly

admitted, and considering the other evidence offered at trial to show that

Blake possessed methamphetamine with an intent to distribute, the Court

cannot conclude that the jury may not have been substantially swayed by the

improperly admitted evidence, and therefore the errors are not harmless and

reversal is required. The Court need not address Blake’s remaining

arguments for reversal, however on retrial the Court is confident that with

respect to the admission of expert testimony from the narcotics officer,

Corporal Wakefield, the district court will admit relevant opinion

testimony only to the extent it is within the expert’s specialized

knowledge 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 the

district court and remand the case for further proceedings consistent with

this opinion.

A true copy.

Attest:

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