UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-20423
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD KEITH BLACK,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(CR-H-95-169)
_________________________________________________________________
June 9, 1997
Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Richard Keith Black appeals his conviction for being a felon
in possession of a firearm, in violation of 18 U.S.C. § 922(g),
basing error on the admission of evidence that the firearms found
in the trunk of his car had been acquired by a burglary, and on the
jury being instructed on deliberate ignorance. We AFFIRM.
*
Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
I.
On 20 October 1994, Houston Police Department Officer Simien
was conducting plainclothes surveillance in an unmarked car, due to
a high incidence of burglaries in the area. Late that morning, he
observed two men, subsequently identified as Black and Thomas
Kennedy Zachary, standing behind a car parked near a dumpster in a
shopping center parking lot; they appeared to be changing the
vehicle’s license plate. When they left the lot in the car,
Officer Simien followed them because they were not wearing seat
belts; and, even though a metal license plate was beneath the
vehicle’s bumper, a paper dealer’s license was also in its window.
When a marked police car drove by, Officer Simien observed
Black and Zachary give it a “real hard stare”; and Black, who was
driving, made an erratic lane change. Officer Simien called for a
marked police unit to stop the car for the traffic violations he
had observed. Three such vehicles responded. Upon seeing them,
Black attempted to take evasive action.
Black’s car was stopped, and he was arrested because he could
not produce proof of insurance or registration for it. Zachary
also was arrested on outstanding traffic warrants. In an inventory
search of the vehicle, the police found five rifles in the trunk,
together with a pair of gloves, a screwdriver, and a pry bar with
wood chips on it.
Black was indicted for being a felon in possession of
firearms. At trial, Kenneth Boot testified that the rifles found
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in the trunk had been stolen from his home the morning that Black
was arrested; and that the door to his house had been pried open.
Boot’s house is located approximately three or four miles from the
place of Black’s arrest. An automobile wholesaler testified that
he had sold the vehicle involved in the incident to Black 13 days
before Black’s arrest; and that there were no guns in the trunk
when he sold it to Black.
Marion Martinez testified as follows for the defense: that
Zachary had driven Black’s car to her home at 9:15 a.m. the day of
his and Black’s arrests; that Zachary remained for about an hour;
and that, as he was leaving, he asked if she “knew where to get rid
of some guns”.
The jury found Black guilty. He was sentenced to 293 months
imprisonment.
II.
Black contends that Boot’s testimony about the theft of the
guns was inadmissible under FED. R. EVID. 404(b), and that the
district court erred by instructing on deliberate ignorance.
A.
According to Black, Boot’s testimony should have been excluded
under Rule 404(b) because there was no evidence that Black
committed the burglary and because it was unfairly prejudicial.
Evidence of other crimes or acts is admissible under the Rule if it
is relevant to an issue other than the defendant’s character, and
it has probative value that is not substantially outweighed by its
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undue prejudice and meets the other requirements of FED. R. EVID.
403 (relevant evidence may be excluded if probative value
substantially outweighed by danger of confusion of issues,
misleading jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence). See United
States v. Buchanan, 70 F.3d 818, 831 (5th Cir. 1995), cert. denied,
___ U.S. ___, 116 S. Ct. 1340, 1366 (1996).
On the other hand, the Rule does not apply to evidence of an
act that is “inextricably intertwined” with evidence of the crime,
or to evidence of an uncharged offense arising out of the same
transaction or series of transactions as the charged offense,
because such evidence is intrinsic, rather than extrinsic, within
the meaning of Rule 404(b). See United States v. Garcia, 27 F.3d
1009, 1014 (5th Cir.), cert. denied, 513 U.S. 1009 (1994); United
States v. Dula, 989 F.2d 772, 777 (5th Cir.), cert. denied, 510
U.S. 859 (1993). Intrinsic evidence is admissible to allow the
jury to evaluate all of the circumstances under which the defendant
acted. United States v. Royal, 972 F.2d 643, 647 (5th Cir. 1992),
cert. denied, 507 U.S. 911 (1993).
At trial, Black objected to Boot’s testimony on the grounds
that it was cumulative because the jury had already heard that the
Officer learned that the firearms had been stolen in a burglary; it
was prejudicial because Black was not on trial for burglary; and
the prejudicial effect outweighed its probative value because the
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evidence was too tenuous to link Black to the burglary. But, most
important for our purposes, Black did not object on the basis that
the evidence was extrinsic or that it was not relevant to an issue
other than his character; in fact, he did not even mention Rule
404(b).
In short, Black’s objection was not sufficiently specific to
put either the district court or the Government on notice that he
objected on Rule 404(b) grounds. Accordingly, we review for abuse
of discretion his objections on the grounds presented at trial and
raised on appeal (prejudicial, insufficient evidence connecting him
to the burglary); but, we review only for plain error his Rule
404(b) claim raised for the first time on appeal. See United
States v. Pace, 10 F.3d 1106, 1115 (5th Cir. 1993), cert. denied,
511 U.S. 1149 (1994) (evidentiary rulings reviewed for abuse of
discretion); United States v. Allen, 76 F.3d 1348, 1367 (5th Cir.)
(reviewing Rule 404(b) claim for plain error where trial objection
not on Rule 404(b) grounds), cert. denied, ___ U.S. ___, 117 S. Ct.
121 (1996); United States v. Greenwood, 974 F.2d 1449, 1462-63 (5th
Cir. 1992) (reviewing Rule 404(b) claim for plain error where trial
objection based on general “relevancy” grounds), cert. denied, 508
U.S. 915 (1993); United States v. Marrero, 904 F.2d 251, 259 (5th
Cir.) (reviewing Rule 404(b) claim for plain error where trial
objection based on relevancy, materiality, and Government’s alleged
failure to produce the challenged evidence during discovery), cert.
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denied, 498 U.S. 1000 (1990). But see United States v. Rocha, 916
F.2d 219, 240-41 & n.26 (5th Cir. 1990) (applying Rule 404(b)
analysis even though trial objection was a general assertion of
prejudice and Rule 404(b) not mentioned), cert. denied, 500 U.S.
934 (1991).
There was neither an abuse of discretion nor plain error. The
evidence regarding the burglary was inextricably intertwined with
that necessary to prove Black knowingly possessed the guns.
Contrary to his assertion, there was other circumstantial evidence
connecting him to the burglary. When first observed by Officer
Simien, Black appeared to be changing a license tag on the back of
his car; a screwdriver, the type tool needed to change the license
tag, was found in the trunk of his car, along with the stolen guns.
Black drove his car in an evasive manner after observing marked
police cars. The door to Boot’s home, from which the guns were
stolen, was pried open; and the stolen guns and a pry bar with wood
chips on it were in the trunk of Black’s car when he was arrested
three or four miles from Boot’s house. Evidence of the burglary
was relevant to Black’s knowledge of the presence of the guns in
his trunk, and its probative value was not substantially outweighed
by undue prejudice.
B.
The only contested issue at trial was whether Black knew that
the rifles were in his trunk. The court instructed the jury that,
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to convict Black, the Government had to prove beyond a reasonable
doubt, inter alia, that Black knowingly possessed the firearms.
“Knowingly” was defined as meaning “that the act was done
voluntarily and intentionally and not because of mistake or
accident or other innocent reason.” Pursuant to the Government’s
request, and over Black’s objection, the district court gave the
following deliberate ignorance instruction:
You may find that a defendant had
knowledge of a fact if you find that the
defendant deliberately closed his eyes to what
would otherwise have been obvious to him.
While knowledge on the part of a defendant
cannot be established merely by demonstrating
a defendant was negligent, careless, or
foolish, knowledge can be inferred if the
defendant deliberately blinded himself to the
existence of a fact.
Black contends that there was no evidentiary basis for the
instruction.
Because a deliberate ignorance instruction may confuse the
jury and creates a risk that it might convict for negligence or
stupidity, it should be given rarely; it is proper only when the
defendant claims a lack of guilty knowledge and the evidence
supports an inference of deliberate ignorance. United States v.
Cartwright, 6 F.3d 294, 301 (5th Cir. 1993), cert. denied, 513 U.S.
1060 (1994). The Government concedes error, but asserts that it
was harmless. Black claims that the error was not harmless because
knowledge was a contested issue and the evidence of his guilt was
not overwhelming.
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Black did not make a statement to the police after he was
arrested, and did not testify at trial. There is no evidence that
he consciously avoided knowledge of the rifles in the trunk; as he
maintains, the evidence permits only two inferences -- either he
knew the firearms were there, or he did not. In such cases, an
erroneous deliberate ignorance instruction is harmless error
because it is “surplusage” and does not create a risk that the jury
will convict the defendant for negligence. See United States v.
Boutte, 13 F.3d 855, 859 (5th Cir.), cert. denied, 513 U.S. 815
(1994); Cartwright, 6 F.3d at 301.
Black contends, however, that the error was structural, and
not subject to harmless error analysis. He relies on Sullivan v.
Louisiana, 508 U.S. 275 (1993), in which the Court held that an
unconstitutional reasonable-doubt instruction is a structural error
not subject to harmless-error review.
This contention is foreclosed by our post-Sullivan decisions
which have applied harmless-error analysis to improper deliberate
ignorance instructions. See Boutte, 13 F.3d at 859; Cartwright, 6
F.3d at 301. Post-Sullivan decisions in other circuits also apply
harmless-error analysis in such instances. See United States v.
Fulbright, 105 F.3d 443, 447 (9th Cir.), cert. denied, ___ U.S.
___, 1997 WL 221622 (1997); United States v. Tokars, 95 F.3d 1520,
1541 (11th Cir. 1996), cert. denied, ___ U.S. ___, 117 S. Ct. 1282,
1328 (1997); United States v. Mari, 47 F.3d 782, 786 (6th Cir.),
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cert. denied, ___ U.S. ___, 115 S. Ct. 2626 (1995); United States
v. Scott, 37 F.3d 1564, 1578-79 (10th Cir. 1994), cert. denied, 513
U.S. 1100, and cert. denied, ___ U.S. ___, 115 S. Ct. 1323, 1324
(1995); United States v. Perez-Tosta, 36 F.3d 1552 (11th Cir.
1994), cert. denied, ___ U.S. ___, 115 S. Ct. 2584 (1995); United
States v. Adeniji, 31 F.3d 58, 62-63 (2d Cir. 1994).
This notwithstanding, Black asserts that Cartwright and Boutte
are not controlling because, even though they were decided post-
Sullivan, our court did not consider it in applying harmless-error
analysis. But, it is well-settled that one panel may not overrule
the decision--right or wrong--of a prior panel, absent en banc
reconsideration or a change in the law, such as a decision by the
Supreme Court. E.g., Matter of Dyke, 943 F.2d 1435, 1442 (5th Cir.
1991). To adopt Black’s assertion would circumvent this well-
established and most necessary rule; it would require us to hold
that Cartwright and Boutte were wrongly decided because they did
not follow Sullivan. For our rule to have efficacy, a subsequent
panel must assume that a prior panel was aware of Supreme Court
decisions even if they were not discussed in the prior panel’s
opinion. Otherwise, a panel could always circumvent a prior panel
by looking for issues not addressed expressly in that earlier
opinion, even if the controlling issue, as here, is the same.
Moreover, Sullivan is distinguishable. In that case, the
defective reasonable-doubt instruction violated the Sixth Amendment
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right to a jury trial because it did not produce a jury verdict of
guilty beyond a reasonable doubt. 508 U.S. at 278. Accordingly,
there was no jury verdict of guilty beyond a reasonable doubt to
which harmless-error review could be applied. Id. at 279. Here,
in contrast, the jury was instructed that, in order to convict
Black, it must find, beyond a reasonable doubt, that, inter alia,
he knowingly possessed the rifles. The jury was given two
alternatives on which to base a finding of knowledge: actual
knowledge; and deliberate ignorance. Because we presume that the
jury followed its instructions to convict only if it found the
element of knowledge beyond a reasonable doubt, see Zafiro v.
United States, 506 U.S. 534, 540 (1993), it follows that the jury
disregarded the deliberate ignorance theory for that element, which
was not supported by any evidence; and that the guilty verdict was
based on the only remaining theory -- Black’s actual knowledge, for
which Black does not contend there was insufficient evidence.
Accordingly, unlike in Sullivan, there is a verdict of guilty
beyond a reasonable doubt to which harmless-error review can be
applied.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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