KEVIN THOMAS FORD, PETITIONER V. UNITED STATES OF AMERICA

   In The Supreme Court Of The United States

   October Term, 1990

   No. 89-7852

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Sixth Circuit

   Brief For The United States In Opposition

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-10a) is not
reported, but the decision is noted at 902 F.2d 35 (Table).  The
district court's memorandum and order (Pet. App. 13a-25a) is not
reported.  An opinion of the court of appeals in a prior appeal (Pet.
App. 28a-47a) is reported at 872 F.2d 1231.

                             JURISDICTION

   The judgment of the court of appeals was entered on May 29, 1990.
The petition for a writ of certiorari was filed on June 25, 1990.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether the court of appeals erred in concluding that the
government's conduct in this case demonstrated no realistic likelihood
of prosecutorial vindictiveness.

   2. Whether it was reversible error to introduce two of petitioner's
six prior felony convictions to establish that he was a convicted
felon prohibited under 18 U.S.C. 922(g)(1) from possessing a firearm.

                               STATEMENT

   After a jury trial in the United States District Court for the
Southern District of Ohio, petitioner was convicted on one count of
receiving a firearm after having been convicted of a felony and two
counts of possessing a firearm after having been convicted of a
felony, in violation of 18 U.S.C. 922(g)(1).  The district court held
that the conviction on the first count merged into the conviction on
the second, and the court of appeals vacated the conviction on the
third count and remanded for resentencing.  Upon remand from the court
of appeals, petitioner was sentenced on Count 2 to twenty years'
imprisonment.  App., infra, 1a-3a.

   1. On November 2, 1986, petitioner purchased a revolver from a gun
shop in Powell, Ohio.  In making the purchase, petitioner falsely
identified himself as Andre J. Small, presented a driver's license in
Small's name, and falsely denied on the requisite firearms
registration form that he had ever been convicted of a felony.  On
August 10, 1987, petitioner shot himself in the hand with this gun
while driving a car.  A little more than a month later, on September
28, 1987, petitioner's wife reported to the police that petitioner had
a gun and was threatening to kill her.  When the police arrived at
petitioner's residence, they did not find a gun on his person, but did
discover one upstairs.  The gun the police recovered was the same one
petitioner had purchased in November 1986.  Pet. App. 2a.

   In the original indictment, petitioner was charged with three
offenses:  (1) furnishing false identification and making a false
statement in connection with the acquisition of a firearm from a
licensed dealer of firearms, in violation of 18 U.S.C. 922(a)(6);  (2)
producing a false identification document in a manner affecting
interstate commerce, in violation of 18 U.S.C. 1028(a)(1) and (c)(3);
and (3) possessing a firearm "(o)n or about September 28, 1987" (the
date on which petitioner had threatened his wife) after having been
convicted of a felony, in violation of 18 U.S.C. 922(g)(1).  Pet. App.
48a-51a.  Petitioner was convicted on all counts.  The district court
sentenced him to five-year terms of imprisonment on each of the first
two counts and a twenty-year term on the third count, all of which
were to run concurrently.  Pet. App. 32a.

   The court of appeals affirmed the convictions on the first two
counts.  (This Court subsequently denied certiorari, 110 S. Ct. 1946
(1990), and those counts are no longer at issue.) The court of appeals
vacated the conviction on the third count, which alleged possession of
the weapon on September 28, 1987.  The court held that the district
court had constructively amended the indictment when, in response to
an inquiry from the jury regarding what range of time could be
considered reasonably near (and thus "on or about") September 28,
1987, the court instructed that "the time frame could include any date
from November 2nd 1986, the date (petitioner) allegedly purchased the
firearm, up until the date of September 28th, 1987, the date of the
alleged domestic violence in his home." Pet. App. 34a.  /1/

   2. Upon remand, the government obtained another indictment charging
petitioner with two additional violations of 18 U.S.C. 922(g)(1).
Pet. App. 26a-27a.  The new counts alleged that petitioner had
received a firearm on November 2, 1986 (the date he purchased it) and
possessed the weapon on August 10, 1987 (the date he shot himself in
the hand).  These counts and the count remanded by the court of
appeals were consolidated for purposes of trial.  Id. at 13a-14a.

   The district court denied petitioner's motion to dismiss the new
counts on the ground of prosecutorial vindictiveness.  Pet. App.
17a-25a.  The court found that "a realistic likelihood of
vindictiveness does not exist here, and that, even assuming a
realistic likelihood of vindictiveness has been shown, it has been
disproved by the government." Id. at 19a.  Based upon testimony
received at a pretrial hearing, the court found that the government
had not been aware until shortly before the first trial that a hostile
witness would provide testimony supporting a charge of possession on
August 10, 1987.  Id. at 21a-23a.  The court also concluded that the
second indictment was a reasonable response to the first jury's
apparent confusion regarding the dates of possession and the
possibility that one or more of the jurors may have had difficulty in
accepting the testimony of petitioner's wife regarding the threat on
September 28, 1987.  See note 1, supra.  Because the government
appeared to have "miscalculated the strength of its case" at the first
trial, the court explained, it was not vindictive to charge additional
counts to improve the likelihood petitioner would be convicted on at
least one possession count.  Pet. App. 24a.

   The district court also denied a motion in limine in which
petitioner sought to preclude the government from introducing more
than one prior felony conviction to prove that he had been a convicted
felon when he possessed the gun.  Pet. App. 15a-17a;  see 18 U.S.C.
922(g)(1) (requiring proof that the defendant "has been convicted * *
* of a crime punishable by imprisonment for a term exceeding one
year").  The court found that evidence of the two felonies charged in
the indictment would not be "excessive" and would not "result in undue
prejudice to (petitioner)." Pet. App. 17a.  The district court
prohibited the introduction of "evidence as to the factual
circumstances behind the convictions." Ibid.

   At trial, the government proved that petitioner had been convicted
of two felonies -- holding a correctional officer hostage and assault
with a baseball bat.  Evidence of petitioner's convictions was limited
to the general nature of the charges;  the jury was not exposed to the
details of petitioner's actions.  See C.A. Jt. App. 168-190.  When the
evidence was introduced, the court advised the jury of its limited
purpose and continued (C.A. Jt. App. 177):

         You should not use this evidence for any other purpose.
      Specifically, you should not in any way consider this evidence
      as bearing on the question of whether or not (petitioner) did or
      did not possess a gun on the three times he is alleged to have
      done so.  Nor should you attach any particular significance to
      the kind of criminal offense that he may have been convicted of
      in the past.

Before the jury retired to begin deliberations, the court again
instructed the jury that it could consider evidence of petitioner's
prior convictions only in determining whether petitioner was a
convicted felon and not "as evidence of a general propensity on the
part of (petitioner) to commit crimes, or for any purpose other than
whether the government has proved the previous conviction elements of
Counts 1, 2 and 3." Id. at 465-466.

   The jury returned guilty verdicts on all three counts.  The court
ruled that the conviction on Count 1 (which charged petitioner with
receiving the gun in November 1986) merged into the conviction on
Count 2 (which charged him with possessing it on August 10, 1987);
the court imposed a 15-year term of imprisonment on Count 2.  Pet.
App. 11a.  The court imposed a consecutive term of 15 years'
imprisonment on Count 3 (the count, on which petitioner had previously
been tried, that charged possession on September 28, 1987).  Id. at
52a.

   3. The court of appeals vacated the conviction on Count 3.  Finding
that petitioner's possession of the gun had been continuous and
uninterrupted from the time he had purchased it through the date of
the last possession count, the court held that petitioner was subject
to prosecution only for a single offense.  Pet. App. 5a.  The court
upheld the conviction on Count 2 (the possession count arising out of
the August 10, 1987, incident in which he shot himself), but remanded
for resentencing.  Id. at 5a-9a.

   The court rejected petitioner's contention that he was entitled to
relief from his conviction on the ground of prosecutorial
vindictiveness.  The court held that it was unnecessary to consider
whether the addition of the count alleging receipt of the gun on
November 2, 1986, was vindictive, since the conviction on this count
had been vacated by the district court.  Pet. App. 7a.  With respect
to the other new count, the court noted that the government became
aware of testimony supporting a charge of possession on August 10,
1987, only shortly before the first trial.  In view of that
circumstance, the court concluded, "the government acted reasonably by
not amending the (original) indictment before the first trial," but
"was justified in relying upon this testimony" in adding a new count
prior to the retrial.  Id. at 8a.  "After the jury's apparent
confusion about dates of possession in the first trial," the court
continued, "it was certainly reasonable for the government to wish to
clarify the dates of receipt and possession in separate counts to
ensure a conviction." Ibid.

   The court of appeals also held the district court had not committed
reversible error when it allowed the government to prove two prior
felony convictions in order to demonstrate that petitioner was a
convicted felon.  Pet. App. 8a-9a.  /2/ Noting that evidence of six
prior convictions had been admitted during petitioner's first trial,
the court concluded that it was bound to follow the prior panel's
ruling that introduction of evidence of more than one felony did not
constitute prejudicial error.  Id. at 9a.  /3/

   4. On June 22, 1990, following the court of appeals' remand,
petitioner was resentenced to a 20-year term of imprisonment on Count
2, the count upheld on appeal.  App., infra, 1a-3a.  This was the same
term of imprisonment imposed on the count that had been vacated in
petitioner's earlier appeal.  /4/

                               ARGUMENT

   1. Petitioner contends (Pet. 10-19) that the government's decision
to prosecute him on two additional counts after his first appeal was
prosecutorial vindictiveness.

   At this juncture, however, it is clear that petitioner has suffered
no injury justifying relief from his remaining conviction.  In his
first trial, petitioner was convicted on one count of possession of a
firearm and was sentenced to 20 years' imprisonment on that count.
Although petitioner was tried on three counts in the second trial, he
now stands convicted on one count of possession of a firearm and has
been sentenced to 20 years' imprisonment.  App., infra, 1a-3a.  /5/
Petitioner's contention that he was unlawfully exposed to additional
charges and an increased term of imprisonment in retaliation for his
earlier appeal is now moot.

   In any event, the court of appeals and the district court correctly
rejected petitioner's vindictive prosecution claim.  It is
well-established that a presumption of vindictiveness arises only
where the "sequence of events suggest(s) 'a realistic likelihood of
vindictiveness,'" Thigpen v. Roberts, 468 U.S. 27, 30 (1984) (quoting
Blackledge v. Perry, 417 U.S. 21, 27 (1974)).  See Alabama v. Smith,
109 S. Ct. 2201, 2205 (1989).  Further, that presumption is rebuttable
in a particular case.  Thigpen v. Roberts, 468 U.S. at 32 n.6;  United
States v. Goodwin, 457 U.S. 368, 376 n.8 (1982).  As the court of
appeals found, "an objective analysis of the government's actions
reveals no realistic likelihood of vindictiveness." Pet. App. 6a.  At
the first trial, the lengthy jury deliberations and the jury's inquiry
regarding the date charged in the indictment suggested that the jury
had difficulty in fixing petitioner's possession of the gun at the
point originally charged.  It was reasonable for the government to
bring new charges to avoid this problem -- which had resulted in the
reversal of petitioner's prior conviction for possession.  In
addition, as the district court found, the government did not become
aware until 10 days before the first trial that a hostile witness
would provide testimony supporting a charge of possession on August
10, 1987.  Those circumstances provided a reasonable explanation,
unrelated to petitioner's pursuit of his appeal, for the government's
decision to pursue additional charges in the second trial.

   When it considered petitioner's claim of prosecutorial
vindictiveness, the court of appeals applied the framework recognized
in this Court's cases.  Pet. App. 5a-6a.  The court of appeals'
application of well-established principles to the particular facts
here -- under circumstances making it clear that petitioner has
suffered no injury from the alleged vindictiveness -- presents no
question calling for this Court's review.

   2. Petitioner also contends that the district court committed
prejudicial error when, after petitioner had offered to stipulate that
he was a convicted felon (an element of the offenses for which he was
tried), it allowed the government to submit evidence of two felony
convictions.  Pet. 19-29.

   Petitioner presented the same question in his petition (No.
88-7446) seeking further review of the court of appeals' decision in
his prior appeal, and this Court denied certiorari.  110 S. Ct. 1946
(1990).  As we explained in our brief in opposition in that case, a
defendant has no absolute right to stipulate to facts in order to
prevent the government from presenting its proof.  See, e.g., United
States v. O'Shea, 724 F.2d 1514, 1516 (11th Cir. 1984);  United States
v. Williams, 612 F.2d 735, 740 (3d Cir. 1979), cert. denied, 445 U.S.
934 (1980);  United States v. Brickey, 426 F.2d 680, 686 (8th Cir.),
cert. denied, 400 U.S. 828 (1970);  Parr v. United States, 255 F.2d
86, 88 (5th Cir.), cert. denied, 358 U.S. 824 (1958).  This general
rule is fully applicable to prosecutions under the firearms statutes.
Accordingly, the courts of appeals have often held that trial judges
have the discretion to allow the government to prove prior felony
convictions even when the defendant offers to stipulate that he is a
convicted felon.  See, e.g., United States v. Quintero, 872 F.2d 107,
111 (5th Cir. 1989);  United States v. O'Shea, 724 F.2d at 1516-1517;
United States v. Flenoid, 718 F.2d 867, 868 (8th Cir. 1983);  United
States v. Williams, 612 F.2d at 740;  United States v. Kalama, 549
F.2d 594, 596 (9th Cir. 1976), cert. denied, 429 U.S. 1110 (1977);
United States v. Burkhart, 545 F.2d 14, 15 (6th Cir. 1976).  See also
United States v. Brinklow, 560 F.2d 1003, 1006 (10th Cir. 1977), cert.
denied, 434 U.S. 1047 (1978).

   Under Fed. R. Evid. 403, a district court has discretion to
determine whether relevant evidence should be excluded on the ground
that "its probative value is substantially outweighed by the danger of
unfair prejudice * * * or by considerations of * * * needless
presentation of cumulative evidence." A defendant's willingness to
enter a stipulation that he is a convicted felon and the nature and
number of the offenses offered by the government can be factors
relevant to the exercise of that discretion, /6/ but Rule 403 confers
broad authority on the trial court to determine whether and to what
extent evidence of prior felonies is admissible in a prosecution of
this type.  As the petition notes, the Seventh Circuit has ruled
(apparently as an exercise of its supervisory authority) that a
district court may not admit evidence of more than one felony to prove
a defendant's status as a convicted felon.  United States v. Romero,
603 F.2d 640 (1979).  See also United States v. Lowe, 860 F.2d 1370,
1381-1382 (7th Cir. 1988), cert. denied, 109 S. Ct. 1639 (1989).
However, the Seventh Circuit has never reversed a conviction based
upon a violation of that per se rule, and the Seventh Circuit's
approach does not warrant this Court's attention.  /7/ The Court has
denied review in other cases presenting this question.  See, e.g.,
United States v. Savage, 863 F.2d 595, 599 (8th Cir. 1988), cert.
denied, 109 S. Ct. 2105 (1989);  United States v. Blade, 811 F.2d 461,
466 (8th Cir.), cert. denied, 484 U.S. 839 (1987).

   The district court did not abuse its discretion in admitting
evidence of petitioner's prior felony convictions on the facts of this
case.  Only two prior felonies were proved.  The evidence was limited
to the general nature of the offenses for which petitioner was
convicted.  There was no indication that either offense involved the
use of a firearm.  The district court carefully instructed the jury,
both at the time the evidence was introduced and just before the jury
began its deliberations, that the evidence was being introduced for a
limited purpose and could not be considered as evidence of
petitioner's propensity to commit crimes or of his possession of a
firearm.  The district court did not exceed its broad discretion under
Fed. R. Evid. 403.

   Finally, even if the district court should have accepted
petitioner's stipulation and excluded the government's evidence, any
error was harmless.  In view of the abundant evidence of petitioner's
guilt and the court's limiting instructions, the evidence of
petitioner's prior convictions could not have affected petitioner's
substantial rights.  See Fed. R. Crim. P. 52(a).

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   EDWARD S.G. DENNIS, JR.

      Assistant Attorney General

   SEAN CONNELLY

      Attorney

   AUGUST 1990

   /1/ Before the jury retired to deliberate at petitioner's first
trial, it was instructed that it could return a guilty verdict on the
possession count if it concluded that petitioner had possessed the gun
"on a date reasonably near the date alleged" in the indictment.  Pet.
App. 33a.  After the jury had deliberated for portions of two days,
the judge delivered a modified Allen charge.  The jury then requested
further instruction as to what constituted a date reasonably near the
date charged.  The court instructed that the time frame could include
any date between November 2, 1986, and September 28, 1987.  The jury
returned a guilty verdict on all three counts 35 minutes later.  Pet.
App. 33a-34a.

   /2/ In a short concurring opinion, one member of the panel
"question(ed) the extent to which the government may introduce
evidence as to the number or nature of the felonies supporting a
charge of violating 18 U.S.C. 922(g)(1) in the face of an unambiguous
willingness by a defendant to stipulate to his or her status as a
convicted felon." Pet. App. 10a.  However, the concurring judge
continued, "the record is simply not that clear as to (petitioner's)
willingness to stipulate to such status." Ibid.

   /3/ Because the court of appeals had vacated petitioner's
conviction and sentence on the September 28, 1987, possession count
and remanded for resentencing, the court did not reach the issue
whether the combined 30-year sentence imposed by the district court
was vindictive.  Pet. App. 9a.  The court of appeals also found it
unnecessary to address petitioner's challenge to the sufficiency of
the evidence on that count.  Ibid.

   /4/ The petition, which states that "there is still looming a third
sentencing by the district court" (Pet. 18), was served on the same
day as that sentencing (well in advance of the date it was due in this
Court).  At this point, petitioner faces no possibility of a sentence
greater than that imposed at the conclusion of his first trial.

   /5/ Petitioner claims that although the district court merged two
counts for purposes of sentencing, it did not vacate either of the two
convictions.  Pet. 17 n.5.  Although the judgment entered in
petitioner's case before his most recent appeal did not reflect
vacation of one of the convictions (Pet. App. 11a-12a), petitioner
advised the court of appeals that one conviction had been vacated
(Pet. C.A. Br. 2);  the court of appeals stated that the conviction on
Count 1 had been vacated (Pet. App. 4a);  and the judgment order
entered in connection with the resentencing reflects only a single
conviction (App., infra, 1a-3a).

   /6/ See United States v. Quintero, 872 F.2d at 111 (suggesting that
willingness to stipulate may "weigh in the balance" relevant to the
admissibility of more than one conviction).  See also United States v.
Timpani, 665 F.2d 1, 6 (1st Cir. 1981) (reserving question whether
court would have been obligated to accept a defendant's stipulation,
but suggesting that a stipulation "would have gone far" toward showing
that proof of two prior felonies was unnecessary).

   /7/ Petitioner's reliance (Pet. 22-25) on United States v. Poore,
594 F.2d 39 (4th Cir. 1979), and United States v. Daniels, 770 F.2d
1111 (D.C. Cir. 1985), is misplaced.  The court in Poore held that "in
the context of (that) case" it was an abuse of discretion not to
strike from the indictment language describing the nature of the
defendant's prior conviction.  594 F.2d at 41.  The Poore court
emphasized that the prior conviction involved the same type of
firearms offense with which the defendant was charged.  Ibid.  In
Daniels, the issue was whether a firearms count requiring proof of the
defendant's status as a convicted felon should have been severed from
other counts not requiring such proof.  The court noted that a
consolidated trial did hold some potential for prejudice, but declined
to rule that a severance was required.  See 770 F.2d at 1118.  Both
Poore and Daniels are consistent with the proposition that the
district courts may exercise discretion granted by the Federal Rules
of Criminal Procedure and the Federal Rules of Evidence in addressing
claims of prejudice like that advanced by petitioner.

   APPENDIX