IN THE UNITED STATES COURT OF APPEALS

for the Fifth Circuit

__________________________

No. 93-8775 __________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

WILL ARTHUR PALMER, Defendant-Appellant.

_______________________________________________

Appeal from the United States District Court for the Western District of Texas _______________________________________________ (October 27, 1994)

Before REAVLEY, DeMOSS and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Palmer was tried and convicted by jury of being a convicted

felon in possession of a firearm (Count 1), in violation of

(g), 924(e), and of possessing an unregistered sawed-

off shotgun (Count 2), in violation of

. He

appeals his conviction, asserting that (1) after the parties had

stipulated that he had a prior felony conviction, the district

court impermissibly allowed the government to present evidence of

his prior felony conviction and parole term, and (2) some of the

prosecutor's comments during oral argument deprived him of a fair

trial. We affirm.

FACTS

On November 19, 1992, two San Antonio Police Department patrol

officers observed Will Palmer walking toward them on Micklejohn Street. Palmer was wearing a dark colored trench coat, and it

appeared to the officers that he carried something underneath his

coat. As the officers stopped and got out of their patrol car,

Palmer ran. The officers chased him and observed him throw down a

long dark object as he jumped over a fence. They apprehended

Palmer shortly thereafter. One of the officers returned to the

area where the dark object was thrown down and found a sawed-off

shotgun.

Will Palmer had been convicted previously of murder without

malice and was on parole for life. He was indicted for count one,

being a felon in possession of a firearm, in violation of

(g), and count two, being in possession of an unregistered

sawed-off shotgun, in violation of

.

Relative to the § 922(g) offense, the parties stipulated that

Palmer had a prior felony conviction and that Palmer "is guilty of

the prior conviction element of Count One of the instant

indictment."

Palmer filed a motion in limine "seeking to exclude any

evidence of prior conviction, or other crimes, wrongs, and acts and

the fact of the prior conviction," on grounds of the stipulation.

In the supporting memorandum, he argued that such evidence was

irrelevant under Fed.R.Evid. 402, but that "if relevant to a

particular issue, pursuant to Rule 404(b), such evidence is

excludable at the court's discretion, under Rule 403, for reasons

2 of prejudice."1 Prior to trial, the defense objected to the

introduction of testimony by Palmer's state parole officer and

evidence of his parole-release conditions, citing Rules 401, 403,

and 404(b) and this Court's opinion in United States v. Beechum,

(5th Cir. 1978) (en banc), cert. denied,

(1979). The government responded: "We're offering [the parole

officer's] testimony as circumstantial evidence the Defendant knew

he could not possess a gun . . . as a condition of his parole. He

also knew that he couldn't violate local, state, municipal, and

federal laws. It also goes to show why he ran from the police that

night." The court overruled the defense objections.

The first government trial witness was Palmer's state parole

officer, Maria Ramirez. She testified about the fact of Palmer's

status as a felon and about his knowledge of the conditions of

parole. The government then offered into evidence Palmer's

certificate of parole as government Exhibit 1. The certificate

indicated that he was aware of the rules. It also stated that his

parole term was "Life" and that he was required to undergo drug and

alcohol treatment as a special condition of parole.

Defense counsel objected to introduction of the certificate

based on the grounds stated in the motion in limine, particularly

the stipulation of admission that's of record in this case. The

1 Federal Rule of Evidence 403 provides as follows:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

3 court overruled this objection. Upon completion of all the

evidence, charging of the jury, and closing arguments of counsel,

the jury found Palmer guilty as charged. The district court

sentenced him on count one to 262 months, to be followed by five

years of supervised release, and on count two to 120 months, to be

followed by three years of supervised release. Both the terms of

imprisonment and the terms of supervised release are to be served

concurrently. Palmer appeals his convictions.

DISCUSSION

Palmer contends first that the stipulation rendered irrelevant

all evidence of his prior conviction and that the admission of this

evidence was reversible error. We review a trial court's

evidentiary rulings and determinations of relevance for abuse of

discretion.2 United States v. Lopez,

(5th Cir.

1992), cert. denied sub nom., Ramirez v. United States, __ U.S. __

,

(1993); United States v. Williams,

(5th Cir. 1990).

2 The government points out that (1) Palmer did not present to the district court his argument that the contents of the certificate are prejudicial, and (2) regarding the parole certificate, Palmer requested neither redaction of irrelevant portions nor any limiting instruction. For these reasons, the government asserts that "plain error" is the correct standard of review for Palmer's objection to specified contents of the certificate. We disagree because Palmer's objection included references to the Fed.R.Evid. 403 balancing test which we find sufficiently specific to preserve for appeal the issue of the certificate's prejudicial effect. See and compare, United States v. Jiminez Lopez,

(5th Cir. 1989); Fed.R.Evid. 103(a)(1). Given Palmer's timely objections to the admission of this certificate, Palmer was not required to attempt to make the certificate properly admissible. See and compare, United States v. Morrow,

, 145 n.38 (5th Cir. 1976).

4 The Effect of the Stipulation

As a general rule, a party may not preclude his adversary's

proof by an admission or offer to stipulate. United States v.

Spletzer,

(5th Cir. 1976); United States v.

Ponce,

(5th Cir. 1993). Nonetheless, this

principle, like all rules of evidence, is subject to the provision

that where the probative value of relevant evidence is

substantially outweighed by its potential for unfair prejudice, it

should be excluded. Spletzer, Id.; Fed.R.Evid. 403. An important

consideration relating to probative value is the prosecutorial need

for such evidence. Spletzer,

Another central consideration in

determining probative value is how strongly the proffered evidence

tends to prove an issue of consequence in the litigation. See

United States v. Beechum,

(5th Cir. 1978) (en

banc) cited in United States v. Grassi,

(5th Cir.

1979), vacated and remanded,

,

,

, on remand,

(5th Cir. 1980).

As stated by the First Circuit (en banc), "[a] decision to

honor a stipulation concerning the predicate crime in a felon-in-

possession case in no way trenches upon the right of the

prosecution to make a full presentation of the crime currently

charged." United States v. Tavares,

(1st Cir. 1994).

After a stipulation of the fact of a predicate conviction for the

felon in possession of a firearm offense, the legal question of

status is still a relevant issue; however, the predicate crime is

significant only to demonstrate status, and the issue of status

5 does not depend upon the probative value of the evidence. See and

compare, United States v. Chapman,

(5th Cir. 1993);

see also, Tavares,

.

Admissibility of the Stipulation and Ramirez' Testimony

Ramirez testified that as Palmer's parole supervisor, she had

explained to him the rules by which he had to abide as a parolee.

These included the condition that he obey all municipal, county,

and federal laws and that he may not possess or have any type of

weapon or illegal weapon, that can cause bodily injury. Ramirez

testified about whether Palmer knew he was not to possess a weapon,

but she did not testify about the nature of the predicate offense.

We find no abuse of the district court's discretion in its

determination that Ramirez' testimony was admissible with regard to

Palmer's parole status. Ramirez' testimony about Palmer's

conditions of parole went beyond the question of the "fact" of the

prior conviction, but did not embrace either the nature or other

details about that offense. The government carefully tailored the

testimony elicited from Ramirez to avoid any impermissible

reference to the predicate offense, as well as to avoid any

information which related to Palmer's character or propensity

toward criminal behavior. For this reason, we find no error in the

admission of Ramirez' testimony.

Likewise, we find no error in the admission of the stipulation

itself. The stipulation apprised the jury that Palmer had a prior

felony conviction, thus it was evidence of Palmer's status. The

district court later instructed the jury that "The parties have

6 stipulated that defendant has been convicted of a crime punishable

by imprisonment for a term in excess of one year, and you should

regard this second element as proven beyond a reasonable doubt."

The stipulation was neither irrelevant nor inadmissible, regardless

of Palmer's reasons for stipulating.3

Admissibility of the Parole Certificate

Neither the stipulation nor Ramirez' testimony included

evidence about the nature of the prior conviction. This is not so

regarding the parole certificate. The government argues that the

parole certificate was admissible to show that Palmer fled from the

police officers because he knew that he was not permitted to

possess a firearm.4 However, Ramirez' testimony established

Palmer's awareness that he could not legally possess a firearm.

Through her testimony, the jury heard evidence of the parole

conditions prior to introduction of the parole certificate; the

jury heard further evidence that Palmer knew these conditions

before he ran from these police officers. Thus, at the time the

parole certificate was offered, the government already had

accomplished what it set out to do.

Unsatisfied with just having the testimony before the jury,

the government introduced the certificate and, in so doing,

overlooked language on the certificate which told the jury that

3 Palmer asserts that he entered the stipulation in order to keep from the jury all evidence about his prior conviction. 4 Palmer concedes that the evidence introduced provides, "at best, an attenuated inference that Palmer fled because he was on parole."

7 Palmer's prior conviction was one for which he received parole for

life, and for which he was required to undergo drug/alcohol

treatment.5

This information is similar to information about the nature of

the predicate offense. Given the parties' stipulation, evidence of

the predicate offense has no probative value apart from

establishing Palmer's status. See, Chapman,

, and

Tavares,

. The fact that Palmer was on parole for life

and was subject to drug and alcohol treatment improperly focused

part of the jury's attention toward matters which were not

probative of the elements of the charged offenses. Though we find

clear error in admission of the unredacted parole certificate, for

the reasons more fully stated herein we conclude that the error was

harmless under the unique facts of the case.

Prosecutorial Misconduct

Palmer asserts that the prosecutor (1) accused the defense

counsel of attempting to deceive the jury, (2) attempted to shift

the burden of proof to Palmer, and (3) argued outside the record

evidence.

Counsel is accorded wide latitude during closing argument, and

this court gives deference to a district court's determination

regarding whether those arguments are prejudicial and/or

inflammatory. United States v. Willis,

(5th Cir.

5 The record gives no indication that the jury did not receive the parole certificate as part of the case exhibits at the end of the trial. Moreover, defense counsel's assertion that the certificate was also published to the jury during the testimony of Ramirez was not rebutted by the government.

8 1993) (citation and internal quotation marks omitted). Our task in

reviewing a claim of prosecutorial misconduct is to decide whether

the misconduct casts serious doubt upon the correctness of the

jury's verdict.

The three factors we consider in deciding

whether to reverse the defendant's conviction due to improper

prosecutorial argument are as follows: (1) the magnitude of the

prejudicial effect of the prosecutor's remarks, (2) the efficacy of

any cautionary instruction by the judge, and (3) the strength of

the evidence supporting the conviction. United States v. Casel,

(5th Cir. 1993) (citation and internal

quotation marks omitted), cert denied, ___ U.S. ___,

,

(1994). The magnitude of the prejudicial

effect is tested in part by looking at the prosecutor's remarks in

the context of the trial in which they are made and attempting to

elucidate their intended effect. Willis,

; Casel,

.

The first challenged comment is as follows:

Defense counsel wants you to focus on these little discrepancies: was [Palmer] ten feet away, was he fifteen feet away. Did he take two steps this way and then go north or did he run straight north. He wants you to focus on those little, tiny, immaterial matters, because he wants to confuse you. He wants to throw up a smoke screen.

According to Palmer, this was a comment on the exercise of his

right to counsel or a claim that defense counsel used his skill to

manipulate or mislead the jury. Palmer cites as support for this

argument United States v. McDonald,

(5th Cir.

1980). Palmer also asserts that the prosecutor's comment that the

9 defense asked the jury to believe that the officers lied was a

mischaracterization and was error. We disagree.

We find McDonald inapposite. There, the prosecutor's comments

about defense counsel's presence during a search were improper

because they likely gave rise, in the average juror's mind, to

inferences which included (1) the attorney aided in or tolerated

destruction of evidence, and (2) the defendant would not have

gotten a lawyer unless he was guilty. By contrast, the context of

the instant statements reveals that the prosecutor merely outlined

his view of the defense strategy. See and compare, United States

v. Wisenbaker,

(5th Cir. 1994); United States v.

Frascone,

(5th Cir. 1984). Moreover, the

testimony of the officers was such that the prosecutor's comment

did not amount to a mischaracterization. We find no error in these

comments.

Palmer also argued that the district court's comment to the

jury, that argument of counsel was of no concern and was not

evidence, exacerbated the error from the prosecutor's comments. We

disagree. Viewed in its context, this comment was not error.

Prior to oral argument, the prosecutor asked the district

court to prohibit defense counsel from referring to witnesses who

did not testify. The district court ruled that, if the defense

says the government did not subpoena the witnesses, then the

government can say that the defense did not subpoena them.

Defense counsel responded "All right. That's fine, judge . . . I

mean, I'll agree to that." Defense counsel stated that he would

10 talk about the burden of proof, but would not talk about the

government's failure to produce witnesses. In closing argument,

defense counsel twice referred to unsubpoenaed witnesses. The

second time, defense counsel further stated "You can ask yourself,

well, what version would they have given if they were here? . . .

If they're not subpoenaed, they're not going to be here." Palmer's

second and third categories of alleged prosecutorial misconduct

occurred during rebuttal when the prosecutor stated the following:

[Prosecutor]: Ladies and gentlemen, defense counsel has the exact same subpoena power that the government has.

[Defense Counsel]: Objection, your honor. Counsel is attempting to shift the burden of proof.

The Court: Overrule the objection.

[Prosecutor]: If he wanted to subpoena those police officers that weren't here, he could have done it. Why didn't he? They would have told you the same story that the two officers that were here told you.

[Defense Counsel]: Objection, your honor. That's outside the record. It's improper.

The Court: Overrule the objection.

[Prosecutor]: Domingo and Bobby? He could have subpoenaed them if he wanted you to hear their stories. I didn't subpoena them, it's not necessary. You have the evidence, the facts that you need to convict Will Palmer, right here.

There was no further comment on the unsubpoenaed witnesses or the

subpoena power of the respective parties. Viewed in context, we

find no error in the prosecutor's response regarding the subpoena

power of the defendant. Rather than an impermissible shift of the

burden of proof, these comments were a response to defense

counsel's argument. However, we do find that the prosecutor's

comment on evidence outside the trial was impermissible even though

11 it was provoked. It was error for the prosecutor to tell the jury

what witnesses who did not testify would have said had they

testified.

Harmless Error Analysis

We have determined that through the parole certificate, the

jury received information which had a tendency to suggest a

decision on an improper basis. We have also found that the

prosecutor's reference to evidence outside the record was an

improper and unnecessary comment. We now turn to examine whether

these errors were harmless or warrant reversal.

An error is harmless if the reviewing court is sure, after

viewing the entire record, that the error did not influence the

jury or had a very slight effect on its verdict. United States v.

Quintero,

(5th Cir. 1989) cert. denied,

,

,

(1990), quoting United States

v. Heller,

(5th Cir. 1980). Reversal based on

improper argument by the prosecutor is not called for when there

has not been a strong showing of a deleterious effect upon the

right to a fair trial. Casel,

.

The jury heard evidence of the following: Two experienced

police officers saw Palmer at approximately 9:45 p.m. He was about

fifteen feet from them in the street when they first saw him and,

for a moment, the headlights on their patrol car illuminated him.

It appeared to both officers that Palmer was holding a weapon

underneath his trench coat. When they stopped to contact him, he

turned to run. His trench coat opened just enough for one of the

12 officers to see a weapon inside the coat. During the brief chase,

the other officer saw Palmer throw or toss a long, dark object.

When the chase ended, Palmer was handcuffed on the ground. The

officer returned to the exact area where he had seen the object,

only a few feet away from where Palmer lay on the ground, and found

a sawed off shot-gun.

Palmer attempted to point out conflicts between the officers'

testimony and argued that the officers were mistaken in what they

thought they saw. Palmer did not assert that the officers lied.

Instead, his defense was that the police officers were mistaken in

that although they found a firearm in Palmer's vicinity, Palmer had

not possessed it. Palmer highlighted differences in the officers'

testimony, such as whether his hand held the weapon inside or

outside the trench coat and the distance between Palmer and the

officers when they saw him.

The officers' testimony was not identical. However, the

variances were due to the different vantage points and different

duties they exercised during the brief chase. One officer chased

Palmer and never lost sight of him until the end of the chase.

That officer saw Palmer toss the long dark object. The other

officer saw the gun under the trench coat but had taken a different

route than Palmer and the first officer in order to cut off

Palmer's path of escape. The first officer did not say the object

was a gun; the second officer did not say he saw Palmer throw down

the gun. Nevertheless, the direct testimony between the two

officers was such that the jury had a clear picture of what

13 occurred between the time the officers saw Palmer and the time he

was apprehended.

To the extent that the jury's ability to believe the defense

version of the facts was curtailed by the prejudicial information

on the parole certificate, the admission of this evidence was

harmless. However, in light of the direct evidence that the

officers saw Palmer with the shotgun, we are sure that any effect

upon the jury's verdict from this prejudicial information was very

slight. For this reason, we find that the error in admitting this

prejudicial information was harmless. Under different

circumstances, the admission of the information on this parole

certificate would require reversal.

For the same reason, we find it unlikely that the comment made

during closing argument influenced the jury verdict. Moreover,

Palmer has made no showing of a deleterious effect upon his right

to a fair trial based upon this comment. We find that the

prosecutor's comment does not rise to the level of reversible

error. Accordingly, Palmer's conviction is affirmed.

CONCLUSION

The government concedes in brief that the parties' stipulation

rendered irrelevant any specific evidence of the prior conviction,

but contends that the stipulation does not remove from the jury's

consideration the stipulated element of the offense. We have

determined that the existence of the stipulation does not mean that

evidence of the fact of Palmer's predicate offense is inadmissible.

For this reason, we have no quarrel with the district court's

14 ruling on admission of Ramirez' testimony or admission of the

stipulation. The admission of the unredacted parole certificate

was error, as was the prosecutor's comment on evidence which had

not been presented to the jury. Nevertheless, we find that

Palmer's convictions must be AFFIRMED because under the

circumstances of this case, these errors were harmless.

15