The Honorable Rodney S. Webb, Chief United States District Judge for the 1 District of North Dakota, sitting by designation. United States Court of Appeals FOR THE EIGHTH CIRCUIT

__________ No. 97-2640

__________ United States of America, * * Appellee, *

* Appeal from the

United States vs. * District Court for the Southern * District of Iowa Sylvester Quincy Barry, * * Appellant. *

__________
Submitted: October 24, 1997 Filed: January 7, 1998

__________ Befor e McMILLIAN and BEAM, Circuit Judges, and WEBB, 1 Chief District Judge.

__________ WEBB, Chief District Judge.
Sylvester Quincy Barry appeals his conviction fo r co nspiracy to distribute cocaine base (“crack”) i n violation of 21 U.S.C. §§ 841 and 846. Barry argues thatThe Honorable Harold D. Vietor, Senior United States District Judge for the 2 Southern District of Iowa.
-2- the d istrict court committed reversible error when i t 2 admitted gun evidence that, accordingRule 12(d)(2) provides: 3 (2) At the Request o f the Defendant. At the arraignment or as soon ther eafter as is practicable the defendant may, in order to afford a n opportunity to move to suppress evidence under subdivision (b)(3) of this rule, request notice of the government’s intention to use (in its evidence in chief at trial) any evidence which the defendant may be entitled t o disc over under Rule 16 subject to any relevant limitations prescribe d under Rule 16.
-3- to Barry, was unfairly prejudicial pursuant to Rule 40 3 of the Federal Rules of Evidence. Barry further argue s that the district court should have kept the gun evidence from t he jury as a sanction for the government’ s violation of Rule 12(d)(2) of the Federal Rules o f Criminal Procedure. We affirm.

I. BACKGROUND
Sylvester Quincy Barry was indicted for conspiracy t o dist ribute cocaine base (“crack”) in violation of 2 1 U.S.C

. §§ 841 and 846. The indictment charged that th e conspiracy began on or about March 1, 1994, a nd continued to March 1 , 1995. Barry turned eighteen on November 27, 1994.

Prior to trial, Barry made a request, pursuant t o Rule 12(d)(2), seeking notice of whether the government 3 intende d to offer in its case in chief evidence relate d to a gun that was seized from Barry on August 3, 1994

. The government did not respond to Barry’s request

. Shortly before trial, Barry filed a motion in limine t o prev ent the government from presenting the gun evidenc e due to the government’s failure to respond to Barry’ s-4-

Rule 12(d)(2) request. The district court grante d Barry’s motion based on the Rule 12(d)(2) violation, a s well as the nature of the gun evidence. Shortl y thereafter, the district court revisited its decision and found that the proper remedy for the Rule 12(d)(2 ) viola tion, in light of the lack of bad faith by th e government, was a-5-

suppression hearing rather than exclusion of th e evidenc e. The district court then held a suppressio n hearing and found the gun evidence admissible despite the Rule 12(d)(2) violation.
During the trial, Barry offered to stipulate to hi s invo lvement in the drug conspiracy prior to hi s eigh teenth birthday in an effort to foreclose th e government from proving the events prior to November 27, 1994. The government refused to accept Barry’s offere d stipulation and presented evidence of Barry’s involvement in t he conspiracy prior to his eighteenth birthday , including evidence related to the gun seized on August 3, 1994. On March 19, 1997, a jury found Barry guilty. On June 6, 19 97, Barry was sentenced to serve 188 months in prison.

II. DISCUSSION

Barry first argues that the district court erred whe n it admitted the gun evidence over his Rule 40 3 objection. Acco rding to Barry, because he stipulated to hi s invo lvement in the conspiracy prior to his eighteent h birthday, the gun seized prior to his eightee nth birthday was irrele vant. We are not convinced. The law is clear in this Circuit that “as a general rule, the governmen t is no t bound by a defendant’s offer to stipulate.” Se e United States v. DeAngelo , 13 F.3d 1228, 1232-33 ( 8 Cir. th 1994) (q uoting United States v. Hiland , 909 F.2d 1114, 1134 (8 Cir. 1990))

. th Additionally, it is clear that evidence of a defendant’s use of a gun is relevant to hi s involvement in a drug distributio n conspiracy. See United States v. Milham , 590 F.2d 717, 721 (8 Cir. 1979). Such evidence supports an inference that the possesso r

th needed to protect his drugs and money, and theref ore, had an intent to distribute drugs.-6-

See United States v. Houston , 892 F.2d 696, 704 (8 C ir. 1989). The district court has th broad discretion in decidin g to admit evidence over a Rule 403 objection. See United States v. Roach , 28 F.3d 729, 733 (8 Cir. 1994). In this instance, it is clear that the th district court’s decision was not an abuse of discretion.See United States v. de la Cruz-Paulino , 61 F.3d 986, 992-95 (1 Cir. 1995); 4 st United States v. Valencia , 656 F.2d 412, 414-16 (9 Cir. 1981). The district court’s th holding is further supported by the Advisory Committee’s notes to Rule 12(d)(2). The notes read in part:
No sanction is provided for the government’s failure to comply with the court’s order because the committee believes that attorneys for th e governm ent

will in fact comply and that judges have ways of insurin g compliance. An automatic exclusion of such evide nce, particularly where the failure to give notice was not deliberate, seems to create too heavy a burden upon the exclusionary rule of evidence, espec ially when defendant has oppor tunity for broad discovery under rule 16. . . . A failure t o comply with the duty of giving notice could lead to the suppression o f
ev idence. Nevertheless, the standards make it explicit that the rule i s in tended to be a matter of procedure which need not under appropriat e ci rcumstances automatically dictate that evidence otherwise admissibl e be suppressed. Rule 12(d)(2) advisory committee’s note (citations omitted).
-7- Barry next argues th at the gun evidence should have been kept from the jury as

asanction for the government’s failure to comply with Rule 12(d)(2). Again, we are not convin ced by Barry’s argument. The government has forthrightly admitted that it violated Rule 12(d)(2). However, as the government argues, there i s no evidence in the record to support Barry’s argument that the R ule 12(d)(2) violation was a result of bad faith. Additionally, it is clea r that Barry was not prejudiced by the government’s Rule 12(d)(2) violation because he was afforded a suppression hearing during which th e admissibil ity of the gun evidence was determined. See United States v. Lanier , 57 8 F.2d1246, 1254 (8 Cir. 1978) (discussing Rule 12(d)(2) generally and commenting th on the defendant’s failure to make a showing of prejudice) . The remedy afforded Barry by the district court is in line with the language of Rule 12(d)(2) and is supported by the case law of oth er circuits. Therefore, the district court’s decision not to suppress 4 the gun evidence as a sanction for the government’s Rule 12(d)(2) violation was not-8-

reversible error.

III. CONCLUSION

For the aforementioned reasons, we affirm the judgment of the district court in all respects.

A true copy.

Attest:

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