United States v. Hines

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 5 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-7095
(D.C. No. CR-97-47-B)
CARL EUGENE HINES, (E.D. Okla.)

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-7097
(D.C. No. CR-97-47-B)
DANIEL ROBERT MARTIN, (E.D. Okla.)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before BRORBY , PORFILIO , and LUCERO , Circuit Judges.

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
 These appeals arise from the same trial in which both appellants were

jointly accused and convicted. 1
We combine them here for ease of disposition.

We must determine whether appellants’ convictions for violations of the Resource

Conservation and Recovery Act (“RCRA”), 42 U.S.C. §§ 6901-6992, should be

overturned because the government failed to prove that they “knowingly”

committed the environmental crimes. We must also decide whether the district

court erred in denying appellant Carl Eugene Hines’s motion to sever his RCRA

counts from his drug conspiracy counts, and in failing to declare a mistrial for

allegedly prejudicial remarks by several witnesses and by his co-defendant’s

counsel, and whether, in the case of appellant Daniel Robert Martin, the district

court improperly admitted firearm and drug evidence. We exercise jurisdiction

pursuant to 28 U.S.C. § 1291 and affirm.

I

Hines owned a business in Marshall County, Oklahoma, named H&J Auto.

Danny Jones, the Marshall County emergency manager director, noticed numerous

fifty-five gallon drums standing outside H&J Auto and informed Hines that

the barrels were a “danger,” and that Hines had “to get rid of them properly.”

1
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). These cases are
therefore ordered submitted without oral argument.

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(R. at 66.) Jones later filed a complaint with the Oklahoma Department of

Environmental Quality (“ODEQ”) about the barrels, stating they were leaking and

the owner would not retrieve them. ODEQ investigator Kelly Davis went to H&J

on February 4, 1997, to inspect and discovered approximately 34 barrels behind

the H&J building. The barrels were old and rusted. Some were leaking; some

were bulging, indicative of hazardous waste; some contained methylethyl ketone

labels; and some emitted a strong paint-thinner-like odor. Hines told Davis that

another business, Bullard Oil, had left the barrels there and that he had no

knowledge of how or why the barrels were placed in his salvage yard. Davis told

Hines the barrels had characteristics of hazardous waste and that he should stay

away from them pending further investigation.

The ODEQ investigated and determined Bullard Oil had not placed the

barrels at H&J Auto. It then notified Hines that he was the party responsible for

the clean-up. ODEQ inspector Johnson returned to H&J on February 14, 1997,

to test the material inside the barrels, but they had disappeared. Hines told

Johnson that Bullard Oil had removed them. Later, when recounting this story to

a friend, Hines laughed and said, “You should have seen the look on her face.”

(R. at 73-74.)

Shortly after ODEQ investigator Davis’s visit to H&J Auto, Hines

instructed his friend Martin, and two other associates, Victor Lucas and Billy Jack

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Orange, to remove the barrels. Hines assisted Lucas and Orange with loading the

barrels onto a truck trailer. Martin told Lucas and Orange to first attempt to take

the barrels to the house of one Ronnie Hickman, but if Hickman would not take

the barrels, to take them to Martin’s home and place them in his carport.

Hickman took only a few of the barrels, but would not allow Lucas and Orange to

set them on the ground, stating he was afraid the barrels would ruin his water

supply. Lucas testified he thought Hickman’s concern was “extremely realistic,”

because the barrels were “old and rotten and rusted out, had holes in them . . .

[and] were going to leak.” (R. at 1618.)

Lucas and Orange unloaded the barrels in Martin’s carport late that night.

Martin then paid a neighbor $80 to haul some of the barrels from his carport and

dump them in a vacant lot near Martin’s home. Hines told his associates to say

nothing about moving the barrels and instructed them to state, if asked, that they

had gone away for the weekend and the barrels were gone when they came back.

(Id. at 1619-20.)

When the ODEQ learned the barrels had disappeared from Hines’s salvage

yard at H&J Auto, investigators from the Environmental Protection Agency

(“EPA”) and the Federal Bureau of Investigation (“FBI”) launched an

investigation into their disappearance. Eventually investigators discovered the

barrels in Martin’s carport and neighboring lot. The FBI then informed the local

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county sheriff, Decco Baxter, of the investigation. The materials in the barrels

were tested by ODEQ and found to contain hazardous waste, as defined by

regulations promulgated pursuant to RCRA.

In addition to participating in the foregoing activities, Hines was the leader

of an extensive conspiracy to manufacture and distribute methamphetamine. All

of the individuals involved in moving the barrels containing hazardous waste

from Hine’s salvage yard were also all involved with Hines in the drug

conspiracy. The county sheriff, Decco Baxter, who was a methamphetamine

addict, also participated in the drug conspiracy. In exchange for

methamphetamine and money from Hines, Baxter agreed to protect Hines from

local law enforcement. When the FBI notified Baxter of their investigation into

the missing barrels, Baxter, Hines and Martin concocted a false story in an

attempt to divert the FBI’s suspicion away from Hines.

Baxter filed a false report with the FBI two days after the FBI notified him

of its investigation of the barrels. The report claimed Martin had called and asked

to meet with Baxter alone. Baxter reported that, at that meeting, Martin

confessed to stealing the barrels from Hines. Baxter also indicated Martin had

reported looking into Hines’s house and seeing what appeared to be

methamphetamine in a clear plastic bag and a set of scales. Baxter claimed in the

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report to have then gone to Hines’s house, obtained Hines’s consent to search the

premises, and discovered only a bag of cooking flour and a calculator.

The FBI did not deem Baxter’s report to be credible and became suspicious

of his involvement. Eventually, Baxter was arrested and confessed his report was

a fabrication by Hines and Martin for the purpose of exculpating Hines from

suspicion of criminal activity with respect to both hazardous waste violations and

drug conspiracy. Hines and Martin were also charged. Martin was released on

bail, fled, and was ultimately captured in Tennessee while in possession of drugs

and firearms. Baxter and Orange pled guilty and testified for the government at

Hines and Martin’s trial.

Hines was convicted of illegally transporting hazardous waste to an

unpermitted facility, in violation of 42 U.S.C. § 6928(d)(1) and 18 U.S.C. § 2;

illegally transporting hazardous waste without a manifest, in violation of

42 U.S.C. § 6928(d)(5) and 18 U.S.C. § 2; and conspiring to transport hazardous

waste, in violation of 18 U.S.C. § 371. He was also convicted of witness

intimidation, in violation of 18 U.S.C. § 1512(b)(2)(A) and 18 U.S.C. § 2;

conspiracy to manufacture and distribute methamphetamine, in violation of

21 U.S.C. §§ 846 and 841(a)(1) and 18 U.S.C. § 2; being a felon in possession of

a firearm, in violation of 18 U.S.C. § 922(g) and 18 U.S.C. § 2; and use of a

firearm in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c)

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and 18 U.S.C. § 2. The district court sentenced Hines to 420 months

imprisonment.

Martin was convicted of two counts of illegally transporting hazardous

waste to an unpermitted facility, in violation of 42 U.S.C. § 6928(d)(1) and

18 U.S.C. § 2; one count of illegally storing a hazardous waste without a permit,

in violation of 42 U.S.C. § 6928(d)(2)(A) and 18 U.S.C. § 2; two counts

of illegally transporting hazardous waste without a manifest, in violation of

42 U.S.C. § 6928(d)(5) and 18 U.S.C. § 2; and conspiring to transport hazardous

waste, in violation of 18 U.S.C. § 371. Martin was also convicted of two counts

of conspiracy to manufacture and distribute methamphetamine, in violation of

21 U.S.C. § 846 and 18 U.S.C. § 2. He was sentenced to 240 months

imprisonment.

II

On appeal, Hines and Martin challenge their RCRA convictions on the

ground that the government failed to prove by sufficient evidence that each

“knowingly” committed the environmental violations. The relevant statutory

provisions are as follows: Section 6928(d)(1) prohibits “knowingly transport[ing]

or caus[ing] to be transported any hazardous waste . . . to a facility which does

not have a permit. . . .”; Section 6928(d)(2)(A) prohibits “knowingly treat[ing],

stor[ing], or dispos[ing] of any hazardous waste . . . without a permit. . . .”; and

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Section 6928(d)(5) prohibits “knowingly transport[ing] without a manifest, or

caus[ing] to be transported without a manifest, any hazardous waste . . .

required . . . to be accompanied by a manifest.” 2

Hines argues the government failed to prove that he knew the barrels stored

in his salvage yard contained hazardous waste, that the truck which transported

the barrels lacked the required manifest, and that Martin lacked the required

permit to store hazardous waste in his carport and vacant lot. Martin, for his part,

likewise argues the government failed to prove he knew the barrels contained

hazardous waste.

We review the record for sufficiency of the evidence de novo, determining

whether, “‘after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of

the crime[s] beyond a reasonable doubt.’” United States v. Dozal , 173 F.3d 787,

797 (10th Cir. 1999) (alteration in original) (quoting Jackson v. Virginia ,

443 U.S. 307, 319 (1979)). Instead of examining the evidence piecemeal,

we consider the collective inferences drawn from the evidence as a whole.

See United States v. Wilson , 107 F.3d 774, 778 (10th Cir. 1997). We may neither

use this evaluation to second-guess the jury’s credibility determinations, nor may

2
A “manifest” is “the form used for identifying the quantity, composition,
and the origin, routing, and destination of hazardous waste.” 42 U.S.C.
§ 6903(12).

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we reassess the jury’s conclusions about the weight of the evidence presented.

See United States v. Yoakam , 116 F.3d 1346, 1349 (10th Cir. 1997). Rather, if

the jury’s resolution of the evidence is within the bounds of reason, we must

accept it. See id.

The knowledge requirement in § 6928(d) does not require proof that the

defendant knew the materials at issue were identified or listed as a hazardous

material under the RCRA regulations. United States v. Self , 2 F.3d 1071, 1091

(10th Cir. 1993). The government need only prove the defendant knew the

material was hazardous in the sense of being potentially harmful to persons or the

environment. See id. ; see also United States v. Goldsmith , 978 F.2d 643, 645

(11th Cir. 1992) (the government need only prove the defendant had knowledge of

the general hazardous character of the materials). Nor is the government required

to prove defendants knew their actions were unlawful. See United States v.

International Minerals & Chem. Corp. , 402 U.S. 558, 565 (1971) (“[W]here . . .

dangerous or deleterious devices or products or obnoxious waste materials are

involved, the probability of regulation is so great that anyone who is aware that he

is in possession of them or dealing with them must be presumed to be aware of

the regulation.”); United States v. Fiorillo , 186 F.3d 1136, 1155-56 (9th Cir.

1999), cert. denied , 120 S. Ct. 991 (2000). Moreover, “in a RCRA criminal

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prosecution, the government may prove guilty knowledge by circumstantial

evidence.” Self , 2 F.3d at 1087 (internal quotation and citation omitted).

After reviewing the record, we conclude the evidence in this case was

sufficient for the jury to infer that both Hines and Martin knew the material in

the barrels was potentially harmful to others or to the environment. The barrels

emitted noxious fumes and showed characteristics of hazardous materials, some

were leaking, and some contained the label of a hazardous waste (methlyethl

ketone). Ronnie Hickman refused to place the barrels on the ground for fear they

would ruin his water supply. A rational juror could conclude that the

environmental risk from the barrels was obvious. Hines had been warned both

by Danny Jones and by the ODEQ that the materials in the barrels might be

dangerous or contain hazardous materials, and that the barrels should not be

moved. Both Hines and Martin were implicated in promulgating and

disseminating the false story about Martin stealing the barrels, a story Baxter then

reported to the FBI. All of this evidence is sufficient for the jury to conclude

Hines and Martin were aware that the waste inside the barrels had the potential to

be harmful to others or to the environment. See Self , 2 F.3d at 1091; see also

United States v. Williams , 195 F.3d 823, 825 (6th Cir. 1999).

We also find the evidence was sufficient for the jury to conclude that Hines

knew the truck and trailer used to transport the hazardous waste lacked the

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required manifest and that Martin lacked a permit to store hazardous waste at his

home. The truck and trailer used to transport the barrels were owned by Hollis

Jones, Hines’s business partner in H&J Auto. Neither Hines, Jones, nor H&J

Auto were licensed to store, treat, transport, or dispose of hazardous waste. Hines

did not provide the required manifest to the driver who picked up the barrels, nor

did Hines provide the driver with any other information or documentation

indicating the contents of the barrels. Hines, therefore, was in a position to know

that the truck and its driver lacked the required manifest to transport hazardous

waste.

After being warned by ODEQ not to move the barrels because of the

possibility they contained hazardous waste, Hines ordered his associates to

dispose of the barrels. He did not tell his associates to transport the barrels to a

facility with a permit to store, treat, or dispose of hazardous waste; he merely told

them he wanted to dispose of the barrels. Hines helped load them, rusted and

leaking, onto a truck and trailer after regular business hours. He told the driver

and the others involved in transporting the barrels to tell no one what had

happened to the barrels and to say they had just disappeared one day. He then

lied to ODEQ, stating Bullard Oil had removed the barrels. Hines neither paid his

associates to transport the barrels nor Danny Martin to store them.

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 “It is common knowledge that properly disposing of wastes is an expensive

task, and if someone is willing to take away wastes at an unusual price or under

unusual circumstances, then a juror can infer that the transporter knows the

wastes are not being taken to a permit facility.” United States v. Hayes Int’l

Corp. , 786 F.2d 1499, 1504 (11th Cir. 1986). The jury could infer from Hines’s

unusual, clandestine, and deceptive behavior that he knew the barrels were

not being transported under the requisite hazardous waste manifest and were not

being taken to a permitted facility. Based on this evidence, a rational juror could

conclude Hines knew that the truck and its driver did not have the required RCRA

manifest, and knew that his friend, Danny Martin, did not possess a permit to

store hazardous waste in the carport of his home or in the vacant lot behind his

house. See Self , 2 F.3d at 1088 (“[T]he government may prove a defendant had

actual knowledge of a material and operative fact by proving deliberate acts

committed by the defendant from which actual knowledge can be logically

inferred.) (quotation omitted). There was more than sufficient circumstantial

evidence from which a reasonable juror could conclude that Hines knew the

material in the barrels was potentially harmful and that he did not transport the

waste to a permitted hazardous waste facility pursuant to a hazardous waste

manifest.

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 III

Hines raises three claims distinct from those raised by Martin.

A

Arguing he was unfairly prejudiced, Hines challenges as an abuse of

discretion the district court’s denial of his motion to sever the RCRA

environmental violations from the drug-related offenses. Fed. R. Crim. P. 8,

governing joinder of offenses, permits the joinder of offenses that “are of the

same or similar character or are based on the same act or transaction or on two or

more acts or transactions connected together or constituting parts of a common

scheme or plan.” Even if offenses may be joined pursuant to Rule 8, the district

court retains authority to grant severance under Fed. R. Crim. P. 14 if defendant

will be prejudiced by joinder of the offenses. Defendant filed a motion for

severance, which was denied.

“The alleged misjoinder of offenses under Rule 8 is a question of law

subject to de novo review.” United States v. Johnson , 130 F.3d 1420, 1427

(10th Cir. 1997). However, “we construe Rule 8 broadly to allow liberal joinder

to enhance the efficiency of the judicial system.” Id. “[T]he decision whether to

sever counts of an indictment for separate trial is a matter committed to the sound

discretion of the trial court.” United States v. Wiseman , 172 F.3d 1196, 1211

(10th Cir.), cert. denied , 120 S. Ct. 211 (1999). “[T]his is an area in which the

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trial judge’s discretion is very broad[; t]hus, we will not reverse absent a strong

showing of prejudice, which means that defendant’s burden to show an abuse of

discretion is a difficult one.” Id. (quotation omitted). “To establish abuse of

discretion, defendant must show that actual prejudice resulted from the denial.”

United States v. Powell , 982 F.2d 1422, 1432 (10th Cir. 1992) (quotation

omitted). “Neither a mere allegation that defendant would have a better chance

of acquittal in a separate trial, nor a complaint of the ‘spillover effect’ . . . is

sufficient to warrant severance.” Id. (quotation omitted).

We are satisfied from our review of the record that the environmental

charges were adequately connected to the drug charges. Hines was the leader of

both the drug conspiracy and the conspiracy to conceal the barrels containing

hazardous waste. All the participants in the improper disposal of the hazardous

materials were involved in the drug conspiracy. The FBI’s discovery of the

barrels at Danny Martin’s house and the false police report by Hines, Martin, and

Sheriff Baxter led to the discovery of the drug conspiracies. The false report

commingled the hazardous waste criminal activity with the drug activities. The

storage of the hazardous materials and many of the methamphetamine “cooks”

both took place at H&J Auto. Numerous witnesses testified at the trial

concerning both the drug conspiracy charges and the RCRA charges. All of these

facts indicate that the RCRA counts and the drug conspiracy counts were part of a

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common scheme, meeting the requirements of Rule 8. See Fiorillo , 186 F.3d at

1145 (the joinder of RCRA and explosives counts is proper where explosives and

hazardous materials were stored in the same warehouse, discovery of the

explosives led to the discovery of hazardous materials, and explosives and

hazardous material were both stored without proper permits).

Nor did the district court abuse its discretion in denying Hines’s Rule 14

motion to sever. We have noted generally that “[t]he joinder of multiple offenses

in a single trial may result in prejudice to a defendant because the jury may use

the evidence of one of the crimes charged to infer a criminal disposition on the

part of the defendant from which is found his guilt of the other crime or crimes

charged.” Lucero v. Kerby , 133 F.3d 1299, 1314 (10th Cir. 1998) (quotation

omitted). “The jury may also confuse or cumulate the evidence of the various

crimes charged and find guilt when, if considered separately, it would not so

find.” Id. (quotation omitted).

Hines suggests that he was prejudiced by the joinder because the

government “boosted its marginal evidence of the environmental counts by

joining it with voluminous and confusing evidence on the drug counts,” and

because the evidence that he was a convicted felon, introduced under the drug-

related counts, would not have been introduced under the RCRA counts.

(Appellant’s Br. at 27.) Contrary to those assertions, however, the RCRA counts

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were supported by strong evidence, as set forth above. See United States v.

Hardwell , 80 F.3d 1471, 1486-87 (10th Cir. 1996) (upholding a denial of

severance where the evidence was sufficiently strong so that any spillover effect

was not prejudicial). Hines’s felony conviction was introduced by stipulation and

no details of the conviction were presented to the jury. See United States v.

Valentine , 706 F.2d 282, 290 (10th Cir. 1983) (holding there was no prejudice

requiring severance where the mention of a prior conviction was brief and limited

to the fact of conviction). As in Lucero , we find “nothing in the record indicating

the jury was unable to compartmentalize the evidence with respect to each count.”

133 F.3d at 1316. The counts involved distinct facts and we find little risk that

the jury confused or cumulated the evidence with respect to the separate counts.

See id. at 1315.

B

On the basis of unprompted remarks by several witnesses suggesting

Hines’s involvement in other crimes, wrongs, or bad acts, Hines challenges the

district court’s refusal to grant a mistrial under Fed. R. Evid. 404(b). Two

witnesses referred to Hines’s prior involvement in a motorcycle gang, a third

witness made a vague and speculative remark that might be construed as implying

Hines might kill a witness against him, and a fourth witness made an uncompleted

remark suggesting lives might be lost if Sheriff Baxter did not “look the other

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way” during Hines’s methamphetamine “cooks.” In each case, the jury was

admonished to disregard the testimony.

“A ruling on a motion for mistrial is within the sound discretion of the

district court and will not be disturbed absent a clear abuse of that discretion.”

United States v. Brooks , 161 F.3d 1240, 1245 (10th Cir. 1998) (internal quotation

omitted). The district court did not abuse its discretion in denying the motion for

mistrial in this case. There was substantial admissible evidence of Hines’s threats

of violence to witnesses. The inadvertent and fleeting inadmissible remarks did

not justify the drastic remedy of mistrial. See United States v. Torres , 959 F.2d

858, 860 (10th Cir. 1992). In each instance, the district court sustained Hines’s

objection, immediately admonished the jury to disregard the testimony, and

repeated that admonition when jury deliberations began. See United States v.

Castillo , 140 F.3d 874, 884 (10th Cir. 1998) (“A central assumption of our

jurisprudence is that juries follow the instructions they receive.”). The district

court did not err in its treatment of the inadmissible testimony.

C

Martin’s counsel stated during his closing argument that “[t]here’s a

difference between these two defendants . . . and I think you know what the

difference is. I think your verdict should reflect that, that there is a difference.”

(R. at 2037.) Martin’s counsel later stated Martin was not “some big successful

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drug dealer.” Id. at 2041. Hines’s counsel made no objection to the remarks, nor

did he move for mistrial. The court properly instructed the jury that counsel’s

comments in closing statements were not evidence. Contrary to Hines’s assertion

of undue prejudice, we conclude the foregoing brief remarks did not so prejudice

the jury as to constitute plain error warranting reversal. See Cooks v. Ward , 165

F.3d 1283, 1292 (10th Cir. 1998) (finding nothing patently erroneous in a habeas

petition with respect to co-defendant’s counsel’s closing comment that his client

was “a young, inexperienced gentleman, led into crime by an older, convicted

criminal”), cert. denied , 120 S. Ct. 94 (1999).

IV

In a claim distinct from claims he brings in conjunction with Hines, Martin

challenges an evidentiary ruling, arguing the admission of evidence showing he

possessed methamphetamine and firearms at the time of his arrest in Tennessee

was erroneous. Martin was arrested in Oklahoma in August 1997 on the RCRA

charges and was released on bond. Shortly thereafter, Martin, Hines, and others

met for a final methamphetamine “cook.” Martin took all of the

methamphetamine produced at that “cook,” and fled to Tennessee. He was

arrested a few weeks later in a Tennessee hotel room, in which police found two

ounces of methamphetamine and two firearms. One of the firearms recovered

during Martin’s arrest in Tennessee was identified by a witness as the same

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firearm Martin carried during the final methamphetamine “cook” prior to his

flight to Tennessee.

Martin claims the evidence of the firearms and methamphetamine recovered

from the Tennessee hotel room was inadmissible as irrelevant under Fed. R. Evid.

402 because there was no connection between the possession of firearms and

methamphetamine in Tennessee and the Oklahoma drug conspiracy charges

against him, arguing that any probative value this evidence may have had was

substantially outweighed by the danger of unfair prejudice.

See Fed. R. Evid. 403.

We review the admission of this testimony for an abuse of discretion. See

United States v. Davis , 40 F.3d 1069, 1073 (10th Cir. 1994). An “erroneous

admission of evidence . . . is harmless unless it had a substantial influence on the

outcome or leaves one in grave doubt as to whether it had such effect.” United

States v. Cass , 127 F.3d 1218, 1225 (10th Cir. 1997) (internal quotations

omitted). We review the record as a whole to evaluate whether the error is

harmless, examining the context, timing and use of any erroneously admitted

evidence and comparing it to properly admitted evidence. See United States v.

Glass , 128 F.3d 1398, 1403 (10th Cir. 1997).

We see no abuse of discretion here. The superceding indictment filed

against Martin after his arrest in Tennessee, in which he was charged with drug

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conspiracies, included his possession of methamphetamine and firearms in

Tennessee. There was substantial evidence concerning Martin’s involvement

in numerous methamphetamine “cooks” and his involvement in an extensive

conspiracy to distribute methamphetamine. The evidence of Martin’s possession

of methamphetamine was relevant to the government’s contention that Martin had

taken with him the gun and methamphetamine from the final “cook” when he fled

to Tennessee. Moreover, in the context of drug distribution offenses, firearms

are viewed as “‘tools of the trade’--that is, means for the distribution of illegal

drugs.” United States v. Martinez , 938 F.2d 1078, 1083 (10th Cir. 1991).

As such, they are probative of a defendant’s participation in the drug distribution

business and in the particular charged drug conspiracy offenses, and it is

immaterial that Martin was not being tried for any offense directly related to

his possession of firearms. See id.

We also conclude this testimony did not unfairly prejudice the jury because

much of the evidence was of a kind similar to evidence of Martin’s involvement

in the Oklahoma drug conspiracies. We cannot say that any of this testimony,

even if erroneously admitted, substantially influenced the trial’s outcome, nor are

we in grave doubt as to whether the testimony had such an effect. See Cass , 127

F.3d at 1225 (internal quotations omitted).

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 V

The judgment of the district court is AFFIRMED.

Entered for the Court

Carlos F. Lucero
Circuit Judge

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