NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a1091n.06 No. 11-6448

UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNITED STAT ES O F AMERICA, P laintif f-App ellee,

v. GA RY MC DOWELL , Defendan t-Appellant, / ON AP P EAL FR OM THE UNITE D STATE S DIST RICT COURT F OR THE WEST ERN DISTRICT OF TENNESS EE

BEFORE: CLAY and WHIT E, Circuit Judges; HOOD, District Judge. * CLAY, Circuit Judge. A jury convicted Def endant Gar

y M cD o we l l o f b eing a felon in possession of a fir ear

m, in violation of 18 U.S.C . § 922(g ), and the district court sente nced him to 120 months in prison to be followed by three year s of supervised rele ase. Def endant contends on appea l that the district court improperly admitted, as res gestae or background, evidenc e reg arding the home invasion robber

y that prec ipitated him being charg ed with the g un possession offe nse. For the re asons set for

th below, we AF F IRM Def endant’ s conviction.

The Honora

ble J oseph M

. Ho od, United States District J udg e for the Easter n District of * Kentucky , sitti ngby

designation.No. 11-6448 BACK GR OUND At about 12:20 a.m. on J une 18, 2010, De fenda nt, alongwith two other people , broke into

a residenc e at 1737 South Trezeva nt Street in Memphis, Tenne ssee. Def endant, wea

ring a ski mask and g loves, and his c ohorts went to this addre ss in order to c ollect on an unpaid debt. At the same time, an unrelated individual, Travis W o o d s , was at a near by bar watching a basketba ll g ame. Woods met a woman at the bar, who invited him back to h er home following the g ame. Despite

rec eiving direc tions to this woman’s home, Woods inadver tently ended up at 1737 South Trezeva nt. When Woods approa ched the house, De fenda nt pointed his gun at Woods , and Woods fled. Woods flag g ed down Memphis police officers Gar y Wil liams and Durre ll Gra y , who had

arr ived at the scene in response to a 911 call about the robber y . Woods told the office r that a man, who he identified at trial as Def endant, had threatened him with a g un at 1737 South Trezeva nt. Upon rea ching 1737 South Trezeva nt, Wil liams observe d two black men run from the house; Gra y , who was stationed at a differ ent location by the house, saw one man run past him and hear d Wil liams eng ag ed in a strug g le with Def endant. Wil liams and Gra y both later i dentified one of the men as Def endant and confirme d that Def endant was wea

ring a ski mask and gloves and had a handgun. The officer s appre hended Defe ndant and rec overe d a gun—a .40 caliber Smit h & Wesson p i stol. The other flee ing ma

n succe ssfully

evade d appre hension by

police. The following day , Def

endant, afte r having been advised of his Mirand a ri gh t s , ag ree d to provide police with a statement. A reda cted version of this statement was later enter ed into evidenc e at Def endant’ s trial. In the statement, Def endant admitted to participating in a robber y at 1737 South Trezeva nt on J une 18, 2 0 1 0 possessing a g un during the robber y , and having been previously

2No. 11-6448

convicted of a felony

. At trial, the g overnme nt submitt ed p ro o f o f t hat Def endant’ s prior felony convictions. On September 21, 2011, a fede ral g rand jury for the Western District of Tenne ssee returne d

a one-c ount indictment of Def endant, char g ing him with being a felon in possession of a firea rm, in violation 18 U.S.C. § 922(g ). Prior to trial, the g overnme nt g ave notice to Def endant that it intended to introduce e vidence related to the hom e invasion robber y in which Defenda

nt was invol ved that prec ipitated him being c harg ed with the g un possession of fense

. Def

endant then filed a motion in limine to e x clude such evidenc e. On J uly 11, 2011, the district c ourt held a he aringon the motion at which the court conclude d that the evidenc e was admissible as res gestae or background evidenc e. In the course of denying Def endant’ s motion, howeve r, t h e d i strict court limit ed the scope of the robber y evidenc e that the g overnme nt could introduce a s background. At trial, Def

endant rene wed his objections to the introduction of the h o me in v a s ion evidenc e. Specifica lly , Def

endant took issue with questioning about a ski mask and g loves that wer e admitted into evidenc e; the introduction of an envelope found on Def endant containi n g $900; questioning about Def endant’ s statement to police on the night of the robber ; and the introduction of Def endant’ s reda cted statement to the police on the night of the robber y . During the course of trial and then ag ain in the char g e to the jury , the district court instructed the jurors that they wer e not to consider acts not char g ed in the indictment, such a s the robber y . The jury convicted Def

endant on J uly 13, 2011 on the sole § 922(g ) count. The district court sentenc ed Def

endant to 120 months in prison to be followed by three year s of supervised rele ase. Def endant timely

appea led, invoking this Court’s jurisdiction under 28 U.S.C. § 1291.

3No. 11-6448 DISCUSSIO N We revie w evidentiary

ruling s of the district cour t for abuse of discre tion, United St ates v. Maybe rry , 540 F.3d 506, 515 (6th Cir. 2008), subject to harmless err or revie w, United States v. Bell , 516 F.3d 432, 447 (6th Cir. 2008); see Fe d. R. Crim. P. 52(a)

. Under harmless err or, “the question is whether there is a rea sonable possibili ty that the evidenc e complained of might have contributed t o t he conviction.” Bell , 516 F.3d at 447 (citation internal quotation marks omitted). W h en excluding the evidenc e complained of, there is nonetheless o v er whelming evidenc e of the defe ndant’s guilt, harmless e rr o r m ay b e found. Id

. Moreove r, curative ins tructions g iven by the district court may

also rende r an e videntiary err or har mless. Id

. The c rime of be ing a

felon in possession of a f irea rm under 18 U .S.C. § 922(g) consists of three elements: (1) the defe ndant had a previous felony conviction; (2) t h e d ef endant knowing ly possessed the firea

rm specifie d in the indictment; and (3) the firea rm trave led in or aff

ecte d interstate

commerc e. United States v. Morrison , 594 F.3d 543, 544 (6th Cir. 2010). Even assuming that the admission of evidenc e of the home invasion was err oneous, we are convince d that “that the judgme nt

was not substantially swayed by err or” and was there fore harmless beca use the g overnme nt’s proof

on eac h of the three elements of § 922(g ) was overwhelming. B el l , 516 F.3d at 447 (citation and internal quotation marks omitted). On the first element, the g overnme nt introduced cer tified copies of De fenda

nt’s prior fe lony

convictions into evidence , as we ll as De fenda nt’s admission in his incustody statement that he had been previously convicted of a fede ral felony “[ f] o r distribution of drug s.” As t o p o s s essi on, Def endant did not challeng e the g overnme nt’s proof on this element, which consisted of multipl e ey ewitness statements identifying Def endant as possessing the g un and

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Def endant’ s own admission to that eff ect. Finally , as to the interstate nexus, the g overnme nt put on

an expert—Special Ag ent Fr ederic Wins ton of the Bur eau of Al cohol, Tobac co, Fire arms, and Ex plosives—w

h o testified that Smit h & Wesson guns, including Def endant’ s g un, are manufa cture d in Springf ield, Massac husetts. Additionally , the g un specific ally had the manufa cture r’s inscription and “Spring field, MA, USA” labeled on it. The expert’s testimony and manufa cture r’s inscription

on the g un, combined with the fac t that Def endant possessed t h e gu n i n T ennesse e, leads to the inexorable conclusion that Def endant’ s g un trave led in interstate commerc e. See, e.g. , United States

v. Murphy , 107 F.3d 1199, 1211–12 (6t h C i r. 1 9 97) (listing case s); see also United States v. Robinson , 205 F. App’x 415, 417 (6th Cir. 2006) (“[A] manufa cture r’s inscription on a firea rm can be sufficie nt e vidence to pr ove that the firea rm trave led in inter state commerc e.”)

. There fore , it is clea r that reg ardles s o f wh et her the evidenc e reg arding the home invasion robber y was proper ly admitted, the g overnme nt has shown any such er ror to be ha

rmless. Our conclusion is further bolstered by the fac t that during the course of trial and then ag ain in the char g e to the jury , the district court instructed the jurors that they wer e not to consider acts not ch ar g ed in the indictment, such as the robber y , in deter

mining Def

endant’ s g uilt on t h e gu n possession char g e. See United States v. Layne , 192 F.3d 556, 573 (6th Cir. 1999) (finding harmless

err or wher e “t he evidenc e ag ainst Def endant was overwhelming, and the district court g ave a

curative instruction”); cf. United States v. Harve y , 653 F.3d 388, 396 (6th Cir. 2011) (“Jurors are presumed to f

ollow instructions.”). CONCLUSION For the fore g oing r easons, we AF F IRM Def endant’ s conviction.

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