United States Court of Appeals

For the Eighth Circuit

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No. 16-2157

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Roman D. Hellems, also known as Jest Roman

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Southern District of Iowa - Des Moines

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 Submitted: April 7, 2017

 Filed: August 4, 2017

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Before SMITH, Chief Judge, SHEPHERD, Circuit Judge, and FENNER, District 1

Judge.

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SHEPHERD, Circuit Judge.

Roman D. Hellems was convicted of being a felon in possession of a firearm,

in violation of 18 U.S.C. § 922(g)(1), and sentenced to 120 months imprisonment. 

The Honorable Gary A. Fenner, United States District Judge for the Western 1

District of Missouri, sitting by designation.
He now challenges three of the district court’s evidentiary rulings at trial. Hellems

also claims that the court violated his constitutional and procedural right to be present

at trial. We affirm the district court on all grounds and deny Hellems’s appeal.

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I. Background

The facts of this case begin with a physical altercation between three men. On

the day of the altercation, Hellems called his adult son, DeAndre Brown, and asked

to meet him at a park. DeAndre asked Rondale Brown, his brother, to accompany

him. DeAndre and Rondale arrived first, followed by Hellems. Hellems then

punched both men without provocation and a fight soon broke out. 

DeAndre later testified that Hellems had three guns on his person during the

fight, but no shots were fired. An eye witness, Shirley Bolden, called for police as

the fight continued. She later testified to seeing Hellems with three guns.

Officer Matt Harkin responded to the call for police. Upon his arrival, Officer

Harkin saw the three men near a Ford Explorer. On the ground near the Explorer was

a Taurus .40 caliber pistol and a nine-millimeter magazine. Officer Harkin ordered

the men to the ground, and DeAndre and Rondale both complied. Hellems jumped

into the Explorer and fled the park.

Officers Adam Lemek and Sidik Becirovic, driving in separate squad cars,

chased Hellems through a residential area. During the chase, Officer Becirovic

observed Hellems tossing a black object out of his window. As he drove by that

object seconds later, he saw it was a black handgun. The chase continued for several

minutes until Hellems stopped, jumped out of the Explorer, and ran into his house. 

The Honorable John A. Jarvey, Chief Judge, United States District Court for

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the Southern District of Iowa.

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A short while later, police arrested Hellems. Officer Becirovic returned to where he

had seen the black handgun and recovered a .38 caliber Smith & Wesson revolver.

The next day, Officer Lemek received a report of a firearm located along the

route of the previous day’s chase. Along the street, near the sidewalk, he located a

Hi-Point nine-millimeter pistol without its magazine.

Later, Hellems was charged with felony possession oftwo firearms (the Taurus

.40 caliber pistol and the .38 caliber Smith & Wesson revolver) in violation of 18

U.S.C. § 922(g)(1). Hellems invoked his constitutional right to represent himself. 

The court appointed standby counsel under the Criminal Justice Act.

During a pretrial conference, the court asked Hellems if he would like to

stipulate to element one of the charge—that he had a prior felony conviction—so that

the jury would not hear the nature of his prior convictions. Hellems declined, stating

that he “would like to invoke all [his] rights on the record [and] remain silent at this

point in time.” 

On the morning of the first day of trial, prospective jurors were brought into

the courtroom and seated in the gallery. The district court began to explain the jury

selection process when Hellems objected. Hellems proceeded to repeatedly interrupt

the court, even after multiple instructionsto remain quiet. The court advised Hellems

that he would have an opportunity to speak later, and that courtroom procedures

required him to remain silent for the time being. Hellems ignored the court and

continued to loudly interrupt. The court warned Hellems that if he continued to speak

he would be excluded from the courtroom. Hellems replied, “That’s fine,” and

continued to speak. The court removed the prospective jurors from the courtroom

and offered Hellems one final opportunity to comply with its instructions. Hellems

refused and continued his verbal outbursts. Finally, the court removed Hellems from

the room and appointed standby counsel to represent him for the trial. As marshals

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escorted Hellems from the courtroom, the court advised that he could return at any

time as long as he abided by court rules.

Every half hour for the rest of that day, marshals asked Hellems if he (1) would

like to view the trial via closed circuit TV and (2) wished to attend the trial in person. 

Hellems offered no response to these repeated offers. The next day, Hellems refused

to leave his cell at the county jail. The court told the marshals that, under these

circumstances, they should not forcibly remove Hellems from his cell. The court did

not converse directly with Hellems.

At trial, several eye witnesses and law enforcement officers testified as to the

physical altercation and the guns found at the scene. Because Hellems refused to

stipulate, the government also presented evidence that Hellems had prior felony

convictions. A federal law enforcement agent testified that Hellems was convicted

of (1) delivery of a controlled substance and/or possession of a controlled substance

with intent to deliver, in violation of Iowa Code section 124.401(1)(c)(3) and

punishable by a termof more than one year; and (2) receipt, transportation, dominion,

and control of firearms and offensive weapons by a felon, in violation of Iowa Code

section 724.26 and punishable by a termofimprisonment exceeding one year. Before

this evidence was admitted at trial, Hellems’s standby counsel requested that the

government stipulate to the prior felony convictions. The government declined to do

so in the absence of Hellems’s consent to such a stipulation.

After a two-day trial, the jury returned a guilty verdict, finding that Hellems

possessed the .38 caliber Smith & Wesson revolver. The jury did not find that

Hellems possessed the Taurus .40 caliber pistol. The court delayed sentencing

because Hellems again refused to appear in court. Ultimately, the district court

sentenced Hellems, in abstentia,to the statutorymaximum120 months imprisonment.

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II. Evidentiary Rulings

Our analysis begins with Hellems’s challenge to the district court’s evidentiary

rulings. “Evidentiary rulings are reviewed for abuse of discretion, and we afford

deference to the district judge who saw and heard the evidence.” United States v.

Johnson, 860 F.3d 1133, 1139 (8th Cir. 2017) (internal quotation marks omitted). An

appellate court may reverse “only when an improper evidentiary ruling affected the

defendant’s substantial rights or had more than a slight influence on the verdict.” 

United States v. Picardi, 739 F.3d 1118, 1124 (8th Cir. 2014) (internal quotation

marks omitted).

A. Name and Nature of Prior Felony Convictions

Hellems argues that the district court abused its discretion in allowing the name

and nature of his prior felony convictions into evidence. He identifies two reasons

why the name and nature should not have been identified. First, the prior conviction

for possession of a firearm by a felon—a similar offense to the present

charge—would potentially “lure a juror into a sequence of bad character reasoning”

and create unfair prejudice in violation of Federal Rule of Evidence 403. See Old

Chief v. United States, 519 U.S. 172, 185 (1997). Second, the prior drug conviction

is, allegedly, highly prejudicial because it indicates a willingness to break laws. See

United States v. Corsmeier, 617 F.3d 417, 422 (6th Cir. 2010). The district court,

Hellems continues, should have accepted his trial counsel’s offer to stipulate and

declined to admit the name and nature of his prior felony convictions into the record.

The first element of 18 U.S.C. § 922(g)(1) is a showing that the defendant has

previously been convicted of a crime punishable by a term of imprisonment

exceeding one year. See United States v. Daniels, 625 F.3d 529, 532-33 (8th Cir.

2010). “The government need only prove a prior felony conviction—not its specific

circumstances.” United States v. Jenkins, 792 F.3d 931, 934 (8th Cir. 2015). In Old

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Chief, the Supreme Court held that a district court abuses its discretion if it rejects a

defendant’s offer to stipulate as to his prior felony conviction “when the name or

nature of the prior offense raises the risk of a verdict tainted by improper

considerations, and when the purpose of the evidence is solely to prove the element

of prior conviction.” 519 U.S. at 174. The Court reasoned that the prior-conviction

element of § 922(g)(1) raised a substantial “risk of unfair prejudice to the defendant,”

especially when “a prior conviction was for a gun crime.” Id. at 185. Generally,

therefore, if a defendant is willing to stipulate to his prior felony conviction, the

district court must keep evidence of the name and nature of the conviction out of the

record.

The district court did not abuse its discretion in admitting the name and nature

of Hellems’s prior felony convictions because Hellems never agreed to a stipulation. 

Old Chief involved a rejection by the trial court of the defendant’s stipulation to a

prior felony, not a rejection by the defendant of the trial court’s offer to allow a

stipulation. Here the district court, at a pretrial conference, asked Hellems if he

would like to enter a stipulation so that the jury would not know the name or nature

of his prior felonies. Hellems refused. As a result, he lost the protections of Old

Chief. When a defendant refuses to stipulate, the government may introduce the

name and nature of the prior convictions to prove the prior-conviction element of the

charge. See United States v. Banks, 553 F.3d 1101, 1106-07 (8th Cir. 2009). Indeed,

testimony at trialrevealed only two things about Hellems’s prior convictions:(1) their

names; and (2) the fact that violation of either was punishable by a term of

imprisonment longer than one year. Both are admissible to prove that the prior

conviction falls within the ambit of § 922(g)(1). Id. at 1106 (recognizing that the jury

needed to hear the names of the prior convictions because federal law excludes

certain prior convictions from triggering § 922(g)(1)); United States v. Jones, 266

F.3d 804, 811 (8th Cir. 2001) (permitting testimony about the term of imprisonment

exceeding one year because it is an essential element of felony possession of a

firearm).

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The argument that the district court should have accepted trial counsel’s offer

to stipulate, without any evidence of Hellems’s consent, fails to pass constitutional

muster. This court has long held that a stipulation is the “functional equivalent of a

guilty plea,” requiring the district court “to determine whether [the defendant]

knowingly and voluntarily agreed to the stipulation.” Cox v. Hutto, 589 F.2d 394,

396 (8th Cir. 1979). To admit into evidence a stipulation without first inquiring into

a defendant’s knowledge and consent would violate his constitutional rights. Id.; see

also Robinson v. Leapley, 26 F.3d 826, 830 (8th Cir. 1994) (“Treating a defendant’s

admission of his prior offenses as a guilty plea is constitutional so long as the

admission was knowing and voluntary.”). Hellems never consented to the stipulation,

nor is there evidence in the record that trial counsel had his consent to enter into a

stipulation. As a result, the district court did not abuse its discretion in refusing to

accept trial counsel’s offer to stipulate. See United States v. Holman, 314 F.3d 837,

844 (7th Cir. 2002) (noting that trial counsel may not stipulate to a defendant’s prior

conviction—one of the elements of the offense—absent the defendant’s consent).

B. Admission of Two Prior Felony Convictions

Hellems next argues that the district court abused its discretion in admitting

two prior felony convictions when federal law requires just one. The first element of

18 U.S.C. § 922(g)(1) is a showing that the defendant has been convicted of “a crime

punishable by imprisonment for a term exceeding one year.” (emphasis added). 

Hellems contends that the evidence of a second prior felony conviction was both

irrelevant under Federal Rule of Evidence 401 and unfairly prejudicial under Rule

403. 

Contrary to Hellems’s argument, it is settled law in this circuit that the

government can introduce evidence of multiple prior felony convictions. See United

States v. Garner, 32 F.3d 1305, 1311 (8th Cir. 1994). We permit the introduction of

such evidence “to ensure that the government [can] satisfy its burden of proof in the

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event [the defendant is] successful in contesting one or more of the convictions in

front of the jury.” Jones, 266 F.3d at 812. In Jones, we upheld the introduction of

five prior felonies into evidence. Id. at 811-12. Accordingly, the district court acted

within its discretion in allowing two prior felony convictions into evidence.3

C. Admission of the Hi-Point Pistol

The last evidentiary ruling challenged by Hellems is the district court’s

admission of a third gun—the Hi-Point nine-millimeter pistol—into evidence. The

Hi-Point pistol was recovered by Officer Lemek the day after the altercation and

chase, but did not serve as a basis for the charge of felony possession of a firearm. 

Because of this, Hellems argues that the gun was irrelevant evidence under Rule 401

because it did not make any fact of the crime charged more or less probable. See Fed.

R. Evid. 401(a) (“Evidence is relevant . . . if it has any tendency to make a fact more

or less probable than it would be without the evidence.”). He further alleges that the

introduction of a third gun permitted the jury to engage in bad character reasoning

against him. See Fed. R. Evid. 403 (“The court may exclude relevant evidence if its

probative value is substantially outweighed by a danger of . . . unfair prejudice,

confusing the issues, [or] misleading the jury . . . .”).

Declining to address Hellems’s argument on the merits, we find that any error

in admitting this evidence was harmless. See Johnson, 860 F.3d at 1145. “An error

is harmless if, after reviewing the entire record, we determine that the substantial

rights of the defendant were unaffected, and that the error did not influence or had

only a slight influence on the verdict.” United States v. Adams, 820 F.3d 317, 324

Hellems acknowledges, in his reply brief, that Eighth Circuit precedent

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permits the introduction of multiple prior felony convictions. He asks us to overrule

our prior decisions. But “[t]his panel is bound by Eighth Circuit precedent, and

cannot overrule an earlier decision by another panel.” Wong v. Wells Fargo Bank

N.A., 789 F.3d 889, 898 (8th Cir. 2015) (internal quotation marks omitted).

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(8th Cir. 2016) (internal quotation marks omitted). As recounted above, the

government presented substantial evidence that Hellems possessed the .38 caliber

Smith & Wesson revolver. Several eye witnesses testified to seeing Hellems with

multiple guns during the altercation with DeAndre and Rondale. DeAndre testified

that he had seen Hellems with a revolver just a few days before the altercation. 

Officer Becirovic witnessed Hellems toss a gun out of his car during the chase. 

Minutes later, Officer Becirovic retrieved that gun—the Smith & Wesson revolver. 

In view of this considerable evidence, whatever impact the Hi-Point pistol had on the

jury was undoubtedly slight. The jury’s verdict, which found that Hellems possessed

only the revolver and not the Taurus pistol, reveals how slight the influence of the HiPoint pistol was. Such a finding marshals against the argument that introducing the

third gun encouraged the jury to engage in bad character reasoning. Instead, the jury

considered all of the evidence and came to a reasonable conclusion. “[Hellem’s]

substantial rights were not affected and therefore reversal is unwarranted.” Johnson,

860 F.3d at 1145.

III. Removal of Hellems from the Courtroom

We review the district court’s decision to remove a recalcitrant defendant under

an abuse of discretion standard. United States v. Ward, 598 F.3d 1054, 1058 (8th Cir.

2010). “This court reviews the lower court’s finding of voluntary absence for clear

error, and the decision to continue with the trial in absentia for an abuse of

discretion.” United States v. Washburn, 728 F.3d 775, 786 (8th Cir. 2013). A

violation of Rule 43 of the Federal Rules of Criminal Procedure may be subject to

harmless error analysis. Id. 

Hellems contends that the district court violated his rights under the U.S.

Constitution and Federal Rules of Criminal Procedure when the court ordered him

removed fromthe courtroomduring jury selection. Hellems submits that his behavior

was “merely disruptive” and therefore insufficient to justify removal. See Ward, 598

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F.3d at 1058. The court’s decision to remove him, he concludes, violated his Sixth

Amendment right to be present at every stage of his trial. Hellems further argues the

court violated the Federal Rules of Criminal Procedure by allegedly removing him

before trial had commenced. See Crosby v. United States, 506 U.S. 255, 262 (1993)

(noting that Rule 43 “prohibits the trial in absentia of a defendant who is not present

at the beginning of trial”). Lastly, Hellems claims that the district court failed to

make a sufficient finding in the record that his continued absence from trial was

voluntary.

A criminal defendant has the constitutional right to be present at every stage

of his trial. See Ward, 598 F.3d at 1058. But he forfeits that right if, “after he has

been warned by the judge that he will be removed . . . he nevertheless insists on

conducting himself in a manner so disorderly, disruptive, and disrespectful of the

court that his trial cannot be carried on with him in the courtroom.” Illinois v. Allen,

397 U.S. 337, 343 (1970). And trial judges “must be given sufficient discretion” to

deal with unruly defendants and maintain the proper dignity and decorum of a

courtroom.” Id. Though, to be sure, “[b]ehavior that is merely disruptive is

insufficient under Allen to justify removal.” Ward, 598 F.3d at 1058 (alteration in

original) (internal quotation marks omitted). Rule 43 also protects a defendant’s right

to be present at every stage of his trial. Similar to the Sixth Amendment right,

however, “[a] defendant who wasinitially present at trial” can waive that right “when

the court warns the defendant that it will remove the defendant from the courtroom

for disruptive behavior, but the defendant persists in conduct that justifies removal

from the courtroom.” Fed. R. Crim. P. 43(c)(1)(C).

When a court decides whether to proceed with trial in absentia, it “must

determine and make appropriate findings (1) whether the defendant’s absence is

knowing and voluntary, and (2) if so, whether the public interest in the need to

proceed clearly outweighs that of the voluntarily absent defendant in attending the

trial.” Washburn, 728 F.3d at 786 (internal quotation marks omitted). In addition,

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a “district court should, at the time make a record inquiry to attempt to ascertain the

explanation for the absence of the accused.” United States v. Crites, 176 F.3d 1096,

1097-98 (8th Cir. 1999) (internal quotation marks omitted). “However, it is clear that

a violation of Rule 43 may in some circumstances be harmless error.” United States

v. Wallingford, 82 F.3d 278, 280 (8th Cir. 1996) (internal quotation marks omitted).

After a careful review ofthe trialrecord, we determine that Hellems voluntarily

forfeited his constitutional right to be present at his trial. Hellems’s conduct went

well beyond the merely disruptive conduct we found insufficient for removal in

Ward. 598 F.3d at 1059 (holding that a defendant loudly conversing with his trial

counsel, in the absence of the jury, did not warrant removal). Hellems repeatedly

interrupted and objected to every statement the district court made, all in full view of

the jury. His unruly conduct prevented the court from continuing the process of jury

selection that had just begun. See United States v. Williams, 431 F.3d 1115, 1120

(8th Cir. 2005) (noting that “generally objecting to every question and statement the

judge made . . . threatened the continuation of the trial”). When confronted with such

disruptive behavior, a court is well within its discretion to remove the defendant. See

Ward, 598 F.3d at 1058 (recognizing that we will uphold decisions to remove a

defendant froma criminal trial when that defendant’s “conduct threatened the court’s

ability to conduct the trial”). 

We also dismiss Hellems’s Rule 43 argument that he was removed before his

trial began. As Hellems admits in his brief, “a trial has commenced when the jury

selection process has begun.” See United States v. Bradford, 237 F.3d 1306, 1310

(11th Cir. 2001) (internal quotation marks omitted). The record shows the district

court brought the jury members into the courtroom, greeted the jurors, and started to

explain the case when Hellems began to interrupt the proceedings. We have little

trouble finding that these actions constitute the beginning of jury selection and

commencement of trial. Thus the district court’s removal of Hellems at that time

failed to violate Rule 43.

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Turning to the court’s decision to proceed with trial in absentia, we find that

the record demonstrates Hellems’s absence was both knowing and voluntary. When

the court warned Hellems that continued disruptions would force the court to remove

him, he replied, “That’s fine. Exclude me from the court.” After the court decided

to remove Hellems, it explained that he could return at any time so long as he abided

by the court’s rules. Hellems responded, “No, I will not.” Throughout the first day

of trial, marshals asked Hellems every half hour if he would like to watch the

proceedings on TV or return to the courtroom. He never gave a response. Then the

next morning, he refused to leave his jail cell. These actionsrepresent a knowing and

voluntary decision by Hellems to remain absent from his trial. Cf. Crites, 176 F.3d

at 1098. We therefore find that the court did not abuse its discretion in continuing the

trial in absentia.

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Hellems counterswith an argument that the district court’s reliance on the word

of the marshals guarding Hellems, rather than Hellems himself, prevented Hellems

from reclaiming his right to be present, resulting in a constitutional violation. 

Hellems relies on our decision in Ward, where we concluded that the lower court had

violated the defendant’s Sixth Amendment right, in part, because the judge never

conversed with the defendant again after removal. 598 F.3d at 1059-60. Instead, the

court relied on defense counsel to act as an intermediary. Id. at 1059. Here, the

district court relied on a phone call fromthe marshals explaining that Hellems refused

to leave his cell. The court then told the marshals not to forcibly remove Hellems

from his cell.

Even if we were to find that the court erred in failing to make a sufficient

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record regarding Hellems’s continued absence, such error was harmless because

Hellems has never made a showing, or even attempted to show, that his absence was

involuntary. See Wallingford, 82 F.3d at 280 (finding harmless error when the

defendant could not show that his absence was involuntary, even assuming that the

court had made an insufficient record finding on the issue).

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Hellems’s reliance on Ward is misplaced. Our opinion in Ward briefly

addressed how to deal with an unruly defendant who refuses to leave his cell. “There

may be situations when it is appropriate to obtain a reliable waiver of the right to be

present without returning a dangerous or recalcitrant defendant to the courtroom.” 

Id. at 1060 n.4. Considering Hellems’s behavior in court the day before, and the

marshals’ report of his refusal to even leave his cell for the second day of trial, we

find no error in the court’s decision.

IV. Conclusion

For all the reasons discussed herein, we affirm the district court and deny

Hellems’s appeal.

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