KEVLIN D'MAR BRADLEY, PETITIONER V. UNITED STATES OF AMERICA No. 90-6397 In The Supreme Court Of The United States October Term, 1990 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. 1-5) is not reported, but the judgment is noted at 912 F.2d 466 (Table). The memorandum and order of the district court (Pet. App. 14-19) is not reported. JURISDICTION The judgment of the court of appeals was entered on August 27, 1990. The petition for a writ of certiorari was filed on November 26, 1990 (a Monday). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether, in a case in which petitioner was charged with possession of a weapon by a convicted felon, the district court abused its discretion by admitting evidence that petitioner had been convicted of three prior felonies. STATEMENT Following a jury trial in the United States District Court for the Eastern District of Tennessee, petitioner was convicted of unlawful possession of a firearm by a previously convicted felon, in violation of 18 U.S.C. App. 1202(a)(1) (1982 & Supp. III 1985). The district court sentenced him to a term of 15 years' imprisonment. The court of appeals affirmed. Pet. App. 1-5. 1. At 4 a.m. on April 25, 1986, petitioner was a passenger in a car that was pulled over by an officer of the Chattanooga, Tennessee police department. The car matched the description of a vehicle that had been reported stolen. A backup officer searched petitioner and discovered a .32 caliber Smith & Wesson handgun inside petitioner's left sock, on the inside of his leg. Pet. App. 1; Gov't C.A. Br. 1. Petitioner was charged with violating 18 U.S.C. App. 1202(a)(1) (1982 & Supp. III 1985), which prohibited convicted felons from possessing firearms. /1/ A superseding indictment listed ten felonies -- nine burglaries and an attempted robbery -- of which petitioner had previously been convicted. Pet. App. 12-13. At a pretrial conference, petitioner argued that the government should be allowed to introduce evidence of only one felony conviction. After the prosecutor expressed an intention to offer evidence of three convictions, the district court denied petitioner's motion. Id. at 18-19. At trial, petitioner and the government stipulated that petitioner had been convicted of two burglaries and an attempted robbery. The stipulation provided no details of those offenses; in particular, it did not indicate whether any of them had involved a firearm. Pet. App. 2, 20-21. /2/ Petitioner testified on his own behalf as part of his defense. He testified that the firearm belonged to the driver of the car; that the driver had tossed it to him when the police pulled the car over; and that the gun had fallen to the street, where the police recovered it, when petitioner opened the car door. On cross-examination, the government impeached petitioner, in accordance with Fed. R. Evid. 609, by questioning him concerning his ten prior felony convictions. Pet. App. 2; 8/9/89 Tr. 78-85. 2. The court of appeals affirmed. Pet. App. 1-5. The court rejected petitioner's contention that the district court had erred in admitting the stipulation regarding three of his prior felony convictions. Relying on the Sixth Circuit's decisions in United States v. Burkhart, 545 F.2d 14 (1976), and United States v. Ford, 872 F.2d 1231, 1238 (1989), cert. denied, 110 S. Ct. 1946 (1990), the court explained that "(a)lthough only one prior conviction is needed for a conviction under section (1202(a)(1)), this Court has previously held that the prosecution is not limited to proving only one." Pet. App. 3. /3/ ARGUMENT Petitioner contends (Pet. 7-11) that the district court erred in allowing the government to introduce evidence that petitioner had been convicted of three prior felonies. The court of appeals correctly rejected that contention, and its decision presents no question calling for this Court's review. To establish the offense with which petitioner was charged, the government had the burden of proving that petitioner "ha(d) been convicted by a court of the United States or of a State or any political subdivision thereof of a felony." 18 U.S.C. App. 1202(a)(1) (1982). Each of petitioner's prior convictions was relevant to that element of the offense charged. Neither the statute nor the Rules of Evidence limited the government to the bare minimum of evidence necessary to sustain a conviction. To the contrary, Fed. R. Evid. 402 provides that "(a)ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by (the Rules of Evidence), or by other rules prescribed by the Supreme Court." Under the Rules of Evidence, the district court had discretion to determine whether to permit evidence of more than one felony conviction. Fed. R. Evid. 403 provides that a court may exclude relevant evidence when "its probative value is substantially outweighed by the danger of unfair prejudice * * * or by considerations of * * * needless presentation of cumulative evidence." The court did not abuse that discretion on the facts of this case. The government limited itself to proof of only three prior felony convictions. Those convictions were proved by means of a brief stipulation providing no details of the offenses involved. Significantly, in view of the offense with which petitioner was charged, the stipulation did not indicate that any of those prior offenses had involved the use of a firearm. See Pet. App. 20-21. With one exception, the courts of appeals have recognized that district courts have discretion to admit evidence that the defendant has been convicted of more than one felony in cases of this kind. The Sixth and Eighth Circuits have repeatedly held that the government is permitted to offer evidence of more than one felony conviction. E.g., United States v. Ford, 872 F.2d at 1238; United States v. Burkhart, 545 F.2d at 15; United States v. Savage, 863 F.2d 595, 599 (8th Cir. 1988), cert. denied, 109 S. Ct. 2105 (1989); United States v. Bruton, 647 F.2d 818, 824-825 (8th Cir.), cert. denied, 454 U.S. 868 (1981). In United States v. Timpani, 665 F.2d 1, 6 (1st Cir. 1981), the First Circuit rejected a defendant's claim that an indictment's reference to more than one felony conviction was reversible error, while observing in dicta that a stipulation that the defendant had been convicted of a felony "would have gone far" towards showing that proof of more than one felony was unnecessary. Similarly, the Fifth Circuit has "recognize(d) that under certain circumstances a court may have discretion to admit evidence of more than one prior conviction when necessary to establish an element of an offense charged," but has observed that a defendant's offer to stipulate that he is a convicted felon will "weigh in the balance in determining the probative value of additional convictions." United States v. Quintero, 872 F.2d 107, 111 (5th Cir. 1989), cert. denied, 110 S. Ct. 2586 (1990). /4/ Only the Seventh Circuit has ruled -- apparently as an exercise of its supervisory authority -- that "under normal circumstances" the government is limited to proof of a single felony. United States v. Romero, 603 F.2d 640, 641-642 (1979). See also United States v. Lowe, 860 F.2d 1370, 1381-1382 (7th Cir. 1988), cert. denied, 490 U.S. 1005 (1989). However, in our view, the conflict between the Seventh Circuit's approach and decisions of other circuits does not call for this Court's attention. The Seventh Circuit has never reversed a conviction based upon a violation of its rule. Further, that rule is operative only "under normal circumstances" (603 F.2d at 641-642), and the Seventh Circuit has not had occasion to specify those cases in which evidence of multiple convictions would be permitted. This Court has denied review of the question presented by the petition in several other cases, most recently in Ford v. United States, 111 S. Ct. 124 (1991). See also United States v. Savage, supra; United States v. Blade, 811 F.2d 461, 466 (8th Cir.), cert. denied, 484 U.S. 839 (1987). Finally, even if the district court abused its discretion in refusing to limit the government to proof of a single felony, any such error was harmless. The stipulation provided no inflammatory details concerning the three offenses to which it referred. See Pet. App. 20-21. When petitioner took the stand in his own defense, he was cross-examined, in accordance with Fed. R. Evid. 609, concerning his ten felony convictions. Against that background, a stipulation that petitioner had been convicted of three felonies -- rather than just one -- could not have affected petitioner's substantial rights. Fed. R. Crim. P. 52(a). See, e.g., United States v. Quintero, 872 F.2d at 111-113; United States v. Lowe, 860 F.2d at 1381-1382; see also United States v. Pirovolos, 844 F.2d 415, 421-422 (7th Cir.), cert. denied, 488 U.S. 857 (1988). CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General THOMAS M. GANNON Attorney JANUARY 1991 /1/ Section 1202(a)(1) now appears, with amendments not material to this case, at 18 U.S.C. 922(g)(1). /2/ The petition can be read to suggest that the court ordered petitioner to enter the stipulation. See Pet. 7-8. That was not the case. After the court had denied petitioner's request to limit the government to proof of a single felony and had indicated a willingness to allow the government to introduce proof of three felonies, petitioner agreed to the stipulation -- presumably to avoid introduction of other evidence of the convictions. /3/ The court of appeals also rejected petitioner's claims that Section 1202(a)(1) did not apply to unloaded and arguably inoperable weapons; that the "stop and frisk" that led to discovery of the firearm violated his Fourth Amendment rights; and that, as a result of preindictment delay, petitioner was deprived of his rights to a speedy trial and to due process. Pet. App. 2-3, 3-5. Petitioner does not seek further review of those rulings. /4/ Contrary to petitioner's suggestion (Pet. 9), United States v. Barfield, 527 F.2d 858 (5th Cir. 1976), did not disapprove the introduction of evidence of more than one felony. Rather, the court "assume(d) arguendo * * * that the Government may prove only one conviction under normal circumstances," and held that the conviction should be affirmed in any event.