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

__________

Before McMILLIAN and BEAM, Circuit Judges, and WEBB,1

Chief District Judge.

__________

WEBB, Chief District Judge.

Sylvester Quincy Barry appeals his conviction for

conspiracy to distribute cocaine base (“crack”) in

violation of 21 U.S.C. §§ 841 and 846. Barry argues that
The Honorable Harold D. Vietor, Senior United States District Judge for the 2

Southern District of Iowa.

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the district court committed reversible error when it

2

admitted gun evidence that, according
Rule 12(d)(2) provides: 3

 (2) At the Request of the Defendant. At the arraignment or as soon

thereafter as is practicable the defendant may, in order to afford an

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 to

discover under Rule 16 subject to any relevant limitations prescribed

under Rule 16.

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to Barry, was unfairly prejudicial pursuant to Rule 403

of the Federal Rules of Evidence. Barry further argues

that the district court should have kept the gun evidence

from the jury as a sanction for the government’s

violation of Rule 12(d)(2) of the Federal Rules of

Criminal Procedure. We affirm.

I. BACKGROUND

Sylvester Quincy Barry was indicted for conspiracy to

distribute cocaine base (“crack”) in violation of 21

U.S.C. §§ 841 and 846. The indictment charged that the

conspiracy began on or about March 1, 1994, and continued

to March 1, 1995. Barry turned eighteen on November 27,

1994. 

Prior to trial, Barry made a request, pursuant to

Rule 12(d)(2), seeking notice of whether the government 3

intended to offer in its case in chief evidence related

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 to

prevent the government from presenting the gun evidence

due to the government’s failure to respond to Barry’s
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Rule 12(d)(2) request. The district court granted

Barry’s motion based on the Rule 12(d)(2) violation, as

well as the nature of the gun evidence. Shortly

thereafter, the district court revisited its decision and

found that the proper remedy for the Rule 12(d)(2)

violation, in light of the lack of bad faith by the

government, was a
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suppression hearing rather than exclusion of the

evidence. The district court then held a suppression

hearing and found the gun evidence admissible despite the

Rule 12(d)(2) violation.

During the trial, Barry offered to stipulate to his

involvement in the drug conspiracy prior to his

eighteenth birthday in an effort to foreclose the

government from proving the events prior to November 27,

1994. The government refused to accept Barry’s offered

stipulation and presented evidence of Barry’s involvement

in the 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, 1997, Barry was sentenced to serve 188 months in

prison.

II. DISCUSSION

Barry first argues that the district court erred when

it admitted the gun evidence over his Rule 403 objection.

According to Barry, because he stipulated to his

involvement in the conspiracy prior to his eighteenth

birthday, the gun seized prior to his eighteenth birthday

was irrelevant. We are not convinced. The law is clear

in this Circuit that “as a general rule, the government

is not bound by a defendant’s offer to stipulate.” See

United States v. DeAngelo, 13 F.3d 1228, 1232-33 (8 Cir. th

1994) (quoting 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 his

involvement in a drug distribution conspiracy. See United States v. Milham, 590 F.2d

717, 721 (8 Cir. 1979). Such evidence supports an inference that the possessor

th

needed to protect his drugs and money, and therefore, had an intent to distribute drugs.
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See United States v. Houston, 892 F.2d 696, 704 (8 Cir. 1989). The district court has th

broad discretion in deciding 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 the

government will in fact comply and that judges have ways of insuring

compliance. An automatic exclusion of such evidence, particularly where

the failure to give notice was not deliberate, seems to create too heavy a

burden upon the exclusionary rule of evidence, especially when defendant

has opportunity for broad discovery under rule 16. . . . A failure to

comply with the duty of giving notice could lead to the suppression of

evidence. Nevertheless, the standards make it explicit that the rule is

intended to be a matter of procedure which need not under appropriate

circumstances automatically dictate that evidence otherwise admissible

be suppressed.

Rule 12(d)(2) advisory committee’s note (citations omitted).

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Barry next argues that the gun evidence should have been kept from the jury as

a sanction for the government’s failure to comply with Rule 12(d)(2). Again, we are

not convinced by Barry’s argument. The government has forthrightly admitted that it

violated Rule 12(d)(2). However, as the government argues, there is no evidence in the

record to support Barry’s argument that the Rule 12(d)(2) violation was a result of bad

faith. Additionally, it is clear that Barry was not prejudiced by the government’s Rule

12(d)(2) violation because he was afforded a suppression hearing during which the

admissibility of the gun evidence was determined. See United States v. Lanier, 578

F.2d 1246, 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 other 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
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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.