United States v. Hall

FILED
United States Court of Appeals
Tenth Circuit

November 16, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 09-3165
KEVIN TOMMIE HALL,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. NO. 2:06-CR-20162-KHV-1)

Madeline S. Cohen, Assistant Federal Public Defender, (Raymond P. Moore,
Federal Public Defender, with her on the briefs), Denver, Colorado, for Defendant
- Appellant.

Terra D. Morehead, Assistant United States Attorney, (Lanny D. Welch, United
States Attorney, with her on the brief), Kansas City, Kansas, for Plaintiff -
Appellee.

Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.

HARTZ, Circuit Judge.
I. INTRODUCTION

Kevin Tommie Hall was convicted of robbing a bank in November 2006

and committing the related crimes of brandishing a firearm in relation to a crime

of violence and being a felon in possession of a firearm. He was not a novice,

having robbed at least four banks in the past and having twice been convicted of

the offense. He appeals his most recent conviction on the ground that the jury

was improperly told about his prior offenses.

The indictment against Mr. Hall in the United States District Court for the

District of Kansas alleged that he had been convicted of two prior felonies—bank

robberies in 1984 and 1992—as predicate crimes for the charge of being a felon

in possession of a firearm. Mr. Hall stipulated that he had two prior felony

convictions, thereby making it unnecessary for the government to put the two

convictions into evidence. During voir dire of the jury panel, however, the

district court inadvertently read to the jury the entire indictment, including the

specific bank-robbery allegations. Mr. Hall moved for a mistrial, but the motion

was denied. On appeal Mr. Hall challenges that denial. He also complains about

his cross-examination by the government concerning the details of a prior bank

robbery and a prior attempted burglary and about portions of the government’s

closing argument that referred to his bank-robbery history.

We affirm. The denial of the mistrial was harmless error because the 1984

and 1992 bank robberies were admitted into evidence at trial. We reject

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Mr. Hall’s contention that if the district court had not erroneously mentioned the

prior convictions, he would not have testified in his own defense (so that the prior

convictions would not have been admissible). He did not make that contention in

the district court, and the record clearly shows that he had made the decision to

testify even if the prior convictions were admitted. Moreover, even if the district

court’s error induced Mr. Hall to testify, the error was harmless because Mr. Hall

would undoubtedly have been convicted had he not testified. As for Mr. Hall’s

other two issues, neither was raised below and we hold that he has not established

plain error.

II. BACKGROUND

Testimony at the trial established the following.

A. The Robbery, the Chase, and the Physical Evidence

At 1:36 p.m. on November 7, 2006, a masked man carrying a pistol-grip

shotgun robbed the MidAmerican Bank and Trust in Leavenworth, Kansas. The

robber had entered through a rear door, hurried to the teller station, and demanded

money from teller Debbie Smith. Smith gave him money from several different

drawers, including marked bills with prerecorded serial numbers. The robber put

the money in a white plastic bag and left through the rear door. He walked

briskly to a nearby parking lot, got in a car, and drove away.

Mary Garrison, who worked in a neighboring office building, was walking

to her car to get a bottle of water when she noticed a white male sitting alone in

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the passenger seat of a four-door bluish gray car. She then saw a taller white

male wearing dark clothing run to the car, get into the driver seat, and speed

away. When the police arrived a “a minute or two” later, she described the car

and told them the direction in which it had driven off. Trial Tr., Doc. 150 at 125.

At 1:41 p.m. the Lansing, Kansas, Police Department sent out an alert

notifying officers of the bank robbery and describing the suspect vehicle as “a

four-door blue vehicle occupied by two white males.” Id. at 136. At 1:56 p.m.,

20 minutes after the robbery, Manuel Olmos, a Lansing police officer, was

driving in his marked patrol car when he saw a blue sedan with two white males

coming toward him. He made eye contact with its occupants, and his eyes and

theirs “just fixated on each other and . . . we just kept looking at each other . . . as

we passed each other.” Id. at 141. The officer turned his car around and began to

follow the vehicle.

A chase ensued, with speeds exceeding 100 miles per hour. The blue sedan

ran stop signs, sped through intersections, drove in emergency lanes to get around

other vehicles, and passed a funeral procession at a high rate of speed.

Eventually, the blue sedan came to a stop in a parking lot in Kansas City, Kansas,

after officers placed “stop sticks” in the road to deflate the car’s tires. Id. at 191.

The vehicle’s occupants were arrested at gunpoint. Mr. Hall was the driver and

James Morrison was the passenger. The blue sedan was registered to Mr. Hall.

Mr. Hall was clothed almost entirely in Harley-Davidson apparel; he was wearing

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a Harley-Davidson shirt, a pair of Harley-Davidson jeans, and black Harley-

Davidson zip-up boots with a lace on top. He was also wearing a black belt with

a large Harley-Davidson silver buckle on which a gold-colored eagle was

depicted.

Several items related to the robbery were recovered along a rural gravel

road on the route of the chase. One of the pursuing officers had noticed dark

clothing lying by the side of the road and radioed its location. Another officer

searched the area and found a black hooded sweatshirt and a pair of brown gloves.

Farther up the road, members of a Westar Energy crew installing overhead

power lines had seen police cars pursuing a blue sedan. As the sedan raced by,

the crew foreman observed that the passenger “looked like he was changing his

shirt or something he was, kind of humped in the seat, his arms were like

somebody was taking off a shirt or putting one on.” Id. at 215. A crew member

working in an aerial bucket when the sedan passed saw a black object fly out of

the passenger-side window. Police searched the area and recovered a ski mask.

A forensic scientist was able to obtain a DNA profile from the mask that was

consistent with Mr. Hall’s DNA. Only 1 in 35,160 people would have a matching

profile.

Another officer searching along the gravel road found a white plastic bag

containing $14,440, including the marked bills from the bank. (A later audit of

the teller’s drawer showed that $14,541 had been taken.) On the bag was the

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Harley-Davidson logo and the address of a Harley-Davidson store in Blue

Springs, Missouri. The day after the robbery, police officers discovered a dark,

pump-action shotgun with a pistol grip in a roadside ditch by the gravel road.

After arresting Mr. Hall, officers searched his car and found in the back

seat a receipt from a Wal-Mart in Lee’s Summit, Missouri. The receipt showed

that at 11:14 p.m. on November 6, 2006, the night before the robbery, someone

had purchased a three-hole mask, cigarettes, and a pair of gloves. Surveillance

footage from the store showed Morrison and Mr. Hall arriving at the Wal-Mart in

the blue sedan at 10:50 p.m., both men entering and exiting the store, and

Morrison purchasing the items listed on the receipt. Morrison was wearing a

distinctive black-and-orange jacket, which police officers found in the back seat

of Mr. Hall’s car.

Officers also obtained surveillance tapes from the bank. One showed that

Morrison had conducted a transaction at Smith’s teller station only six minutes

before the robbery. Morrison was wearing a Harley-Davidson hat.

B. Mr. Hall’s Alibi

To rebut the case against him, Mr. Hall presented an alibi defense. The

predicate of the defense was that he was not positively identified by any witnesses

at the robbery scene. We therefore summarize the eyewitness descriptions and

other identification evidence before reciting his account of his whereabouts.

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 Mr. Hall is white and 6'2" tall. At the time of his arrest he was 46 years

old, weighed about 210 pounds, had a shaved head, and wore a mustache.

Although most of the eyewitnesses were consistent in their descriptions of the

robber as relatively slender, approximately six feet tall, and wearing dark clothing

and a dark ski mask, and teller Smith said that he was wearing “a black belt with

a silver buckle,” id. at 79, there were some inconsistencies in the eyewitnesses’

physical descriptions of the robber and not all descriptions matched Mr. Hall’s

true appearance.

One eyewitness described Mr. Hall as 5' 10" (but admitted that was just a

guess), and another who admitted to seeing the robber for “[m]aybe about ten

seconds,” id. at 96, estimated that he was between 5' 7" and 5' 10" tall. One

witness estimated that the robber weighed 165 pounds, while another described

him as weighing between 175 and 200 pounds. At least two witnesses described

the robber as young, though one based her opinion on the sound of his voice, and

the other assumed that the robber was in his 20s “because he was so thin.” Id. at

116. Three witnesses described the robber as having hair, but one admitted that

what she thought was hair could have been a hat, another (who reported seeing

hair coming out the back of the mask) testified that she saw the robber only for a

matter of seconds before she got under her desk, and the third stated that because

she “didn’t see any long hair . . . coming out of the ski mask,” she assumed that

he had short hair. Trial Tr., Doc. 151 at 485. Also, neither of the witnesses who

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saw the robber after he had left the bank and rolled up the ski mask mentioned

seeing a mustache. One witness indicated on a police form that the robber wore

tennis shoes, although it was pointed out at trial that the tennis shoe was the only

option on the form depicting a lace-up shoe above the ankle. Finally, two

witnesses observed that the robber had a tan or dark complexion.

In addition, some of the forensic evidence did not implicate Mr. Hall. The

government’s expert identified two “possible” hairs inside the recovered ski

mask, but did not conduct DNA tests on either of them. Id. at 403. She did find

some DNA on the recovered shotgun, but both Mr. Hall and Morrison were

eliminated as being its source. Further, the police were unable to find any

fingerprints on the shotgun, and the recovered money was not examined for

fingerprints.

Mr. Hall filed a notice of alibi defense one week before trial. It said that he

would be the sole alibi witness and that at the time of the robbery he was “near a

halfway house for recently released prisoners” in Leavenworth, Kansas. Suppl.

R., Vol. 1 at 48. Given that he was seen driving the getaway car 20 minutes after

the robbery, he needed to explain how he happened to enter the car in the interim.

His explanation was that the robber was a man named Lee, who (with Mr. Hall’s

permission) had driven off with Morrison about 45 minutes before the robbery

and returned the car to Mr. Hall a few minutes after the robbery. He testified as

follows:

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 In 1992 Mr. Hall pleaded guilty to a bank robbery committed in 1990. He

remained incarcerated until he was released to a halfway house in Leavenworth,

Kansas, in August 2005. A few days later he got a job as a welder, making from

$600 to $700 per week. After three months in the halfway house, although still

on supervised release, he moved to Topeka, Kansas, and lived with his mother

before moving in with a girlfriend, Sherry Lorence. He bought a Harley-

Davidson and a car.

Mr. Hall incurred two DUI charges during the first half of 2006. As a

result, his probation officer required him to wear an electronic monitoring

bracelet and imposed an evening curfew. He lost his job in late September 2006

and borrowed money from his mother.

In early November 2006 Mr. Hall had a fight with Lorence. He went to

Kansas City, Kansas, where he stayed in motels and with his sister, Connie

Lunsford. He was aware that being in Kansas City was a violation of his

supervised release, but he assumed that he would be heading back to prison

anyway because of the pending DUI charges, so he “just left.” Trial Tr., Doc.

148 (Hall Testimony) at 12.

While in Kansas City, Mr. Hall hung out in bars. It was in one such bar, on

Saturday, November 4, three days before the robbery, that he met Morrison. The

two men met again on November 6. During their night of drinking, they met Lee,

who was shorter than Mr. Hall, but taller than Morrison, was “half white, half

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Mexican,” weighed between 165 and 170 pounds, had medium-length brown hair,

and was in his late 20s. Id. at 27. Mr. Hall had never met Lee before.

Mr. Hall drove Morrison and Lee to a hotel. After Lee and Morrison

carried Morrison’s belongings to a room, Morrison returned to the car and asked

Mr. Hall to drive him to the store for cigarettes. On the way Mr. Hall noticed that

the license-plate light on his car was not working, so he decided to drive to a

nearby Wal-Mart to fix it. In addition to cigarettes, he purchased a screwdriver

and a hooded sweatshirt for Morrison. Morrison asked for the sweatshirt because

the jacket he was wearing belonged to Lee and he needed something to keep

warm since “he didn’t have a place to stay.” Id. at 29. For the same reason,

Morrison separately purchased gloves and a ski mask. Mr. Hall then took

Morrison back to the hotel, where Morrison got $18 from Lee to repay Mr. Hall.

Mr. Hall then drove to his sister’s house to spend the night.

Mr. Hall drove back to the hotel the following morning and picked up

Morrison and Lee. Morrison needed a truck to get some of his belongings from

his former residence, so Mr. Hall volunteered to give him a ride to Lansing,

Kansas, where Lee knew someone who would lend them one. En route, they

stopped at the hospital where Mr. Hall’s sister Connie worked, and she gave him

$20. Mr. Hall then drove to a liquor store and purchased a pint of Wild Turkey.

Lee, however, was unable to borrow a truck in Lansing, so they drove to

Mr. Hall’s former halfway house in Leavenworth. Wanda Wing, Mr. Hall’s

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former girlfriend, was staying there. He wanted to speak to her and thought she

might be willing to lend them a truck. Upon their arrival, he asked a woman who

was sitting outside to ask Wing to come out and speak with him. While the three

men waited for Wing, a staff person came outside. Mr. Hall turned away,

knowing that he was not supposed to be associating with residents of the halfway

house. Morrison thought that the staff person was staring at Mr. Hall’s car, so

Mr. Hall suggested that Morrison and Lee take the car elsewhere while he waited

across the street for Wing to come out and talk. Morrison and Lee left between

12:30 and 1:00 p.m. Wing never came out to speak with Mr. Hall, though he saw

her through a window.

Morrison returned with the car, but not Lee, about an hour later. He said

that they were to meet Lee at the Dillons store, so Mr. Hall got in the driver’s seat

and began driving there. While stopped at a red light, he saw Lee a few cars

ahead of them driving a pickup truck, and he tried to follow him.

A few moments later a police car passed Mr. Hall, who noticed that the

officer was looking at him “like he saw something, saw a ghost or whatever,

that’s how hard he looked at me.” Id. at 37. Thinking that there might be a

warrant out for his arrest because he had violated the terms of his supervised

release, he “tried to get away.” Id. at 38. By the time he caught up to Lee’s truck

and pulled along side it, Morrison was “act[ing] like something was really

wrong.” Id. at 39. Morrison “kept looking back and he kept telling me, hurry,

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go, go, go, and that’s what I was doing.” Id. Mr. Hall first asked what was going

on when Morrison pulled out a three-quarter inch stack of five dollar bills and put

it in a tote bag, but Morrison just told him to drive. Without asking any other

questions, he complied. As they passed Lee’s truck, Morrison threw the tote bag

in the bed of the pickup. Just after that Mr. Hall encountered a police vehicle,

which gave chase.

Mr. Hall did not know why he initially was running from the police, but he

was scared. He “started figuring out that something was really wrong” when

Morrison “started throwing stuff out” and continued imploring Mr. Hall to “go,

go, go.” Id. at 42. At one point, without saying a word, Morrison reached into

the backseat, pulled out a shotgun from underneath Lee’s jacket, and brought it

toward the window. Not knowing what Morrison was going to do, Mr. Hall

grabbed his elbow and the gun discharged. Morrison then threw the gun out the

window. He also threw out the window a white, plastic bag that was tied shut. It

was only then that Morrison told him that “Lee might have robbed something.”

Id. at 44. But Mr. Hall did not stop. He knew “that when you run from the

police, that you’re going to get beat down when they pull you over. So I wanted

to go somewhere where there was a lot of witnesses so nobody would get shot or

beat or any of that stuff. I just didn’t want to be stopped out in the country where

there was nobody around.” Id. After his arrest Mr. Hall did not tell the police

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about Lee or that Lee and Morrison had dropped him off at the halfway house; he

is not a “snitch” and does not tell on people. Id. at 47.

Trial testimony corroborated parts of Mr. Hall’s alibi. Lorence confirmed

that he had been living with her from August to November of 2006, and that he

had left without permission from his probation officer after she had a fight with

him in early November. Mr. Hall’s sister Connie remembered his visiting her at

the hospital on November 7, and stated that he was accompanied by Morrison and

a clean-shaven man in his early to mid-30's with dark hair and a dark complexion.

She also testified that Wing had called her in December 2006 and said that, from

a window, she had seen Mr. Hall outside the halfway house on the day of the

robbery, but because it was getting close to count time she was afraid she would

get in trouble if she went out to speak with him.

Despite this corroboration, the alibi had serious holes. For example, how

did Lee get the truck that he was driving just before the police chase, and why

would Lee give all the money to Morrison (except for $101 from the teller’s

drawer not accounted for in the bag found by the road)? But the government did

not rely solely on those holes and the strength of its case in chief; it also

undertook to rebut the alibi through additional evidence.

Wing testified that although she had spoken with Mr. Hall during the

summer of 2006, she had not had any further contact with him before the robbery.

She went back to the halfway house in early November 2006 after having violated

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her supervised release, but she could think of no way that he could have known

she was there on November 7.

Wing also recounted how Mr. Hall had tried to convince her to be an alibi

witness. After he had been arrested for the bank robbery, she saw him while at

the halfway house. As she was smoking outside, he yelled to her from the

recreational yard of the federal detention facility, which is part of the same

complex, telling her that his sister Connie was going to call her. Connie called

the same day and told her that Mr. Hall was in the detention center, that his

mother needed to talk to her “more about it,” and that he “needs you to help him.”

Trial Tr., Doc. 151 at 529.

Mr. Hall’s mother called Wing in early 2007, after she was released from

the halfway house. The two had lunch together and Mr. Hall’s mother handed her

a letter from Mr. Hall. Wing “didn’t really” read the letter. Id. at 531. She later

agreed to meet a second time with Mr. Hall’s mother, who gave her another letter

from Mr. Hall and told her “some things that I needed to do. Like I needed to

have a watch on. . . . And she gave me a watch to wear so I could say something

around two o’clock I was with him, seeing him at the half-way house.” Id. at

531–32. Also, Mr. Hall mailed two or three letters for Wing to her brother’s

house in Kansas City, Kansas. Mr. Hall’s letters said that she “could really help

him out because they couldn’t really identify him at the bank. They had a

description wrong.” Id. at 535. The letters instructed her to say that she was with

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him at the halfway house at approximately 2 p.m. on November 7, 2006, and that

two men had dropped him off and left him talking with Wing. But two o’clock is

count time at the halfway house, so she could not have met with Mr. Hall then;

and she was not about to go along with the story because she “didn’t want to get

up here and lie and go back to prison again.” Id. at 536. Wing denied telling

Connie that she had seen Mr. Hall on November 7. She did, however, admit on

cross-examination that she did not keep Mr. Hall’s letters or give them to her

probation officer or any police officer.

The government also attempted to rebut the alibi testimony using evidence

of Mr. Hall’s prior crimes. Because this evidence goes to the heart of his issues

on appeal, we defer summarizing that evidence until our discussion of those

issues.

III. DISCUSSION

Mr. Hall’s issues on appeal concern disclosure of his prior offenses. He

claims that he was entitled to a mistrial when the district court informed the jury

during voir dire that he had previously been convicted of two bank robberies. He

also argues that the prosecutor engaged in misconduct when she elicited

information about his prior bank robberies and an attempted burglary on cross-

examination, and when she brought up those robberies during closing argument.

A. The Court’s Mention of Prior Convictions During Voir Dire

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 Mr. Hall complains of the district court’s denial of his motion for a mistrial

after it disclosed to the jury during voir dire that he had two prior bank-robbery

convictions. The disclosure was made as the court read the indictment to the jury.

Count 3 of the indictment, the felon-in-possession count, stated that

Mr. Hall “had been convicted in 1984, of Bank Robbery . . . and, in 1992, of

Armed Bank Robbery and Use and Carry of a Firearm in Connection with a Crime

of Violence.” R., Vol. 1 at 31. To avoid the prejudice to him from informing the

jury of the specific offenses that he had been convicted of, Mr. Hall stipulated

with the government that he was a prior convicted felon prohibited under federal

law from owning or possessing firearms. See Old Chief v. United States, 519 U.S.

172 (1997) (defendant charged with being a felon in possession of a firearm may

stipulate to the fact of his prior conviction and thereby preclude the government

from putting on evidence of the conviction to prove the predicate felony). The

court therefore should have informed the jury only of the stipulation. The court,

however, read the indictment to the jury verbatim.

Defense counsel brought the mistake to the court’s attention and moved for

a mistrial. He conceded that he had always intended to bring up Mr. Hall’s 1992

conviction in voir dire, but he was concerned by the court’s reading of the 1984

conviction. The prosecutor did not oppose a mistrial. The court, however,

thought a mistrial was unnecessary. It observed that the evidence of the

convictions might be admitted, because it had not yet ruled on the government’s

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pending motion under Federal Rule of Evidence 404(b), to allow evidence of

Mr. Hall’s prior robberies to prove preparation, common scheme or plan, and

identity. Although the prosecutor then informed the court that she was

abandoning her Rule 404(b) motion, she said that if Mr. Hall testified, she might

seek to elicit the prior convictions to impeach Mr. Hall on cross-examination

under Federal Rule of Evidence 609, which permits evidence of conviction of a

crime to attack a witness’s character for truthfulness. After a recess during which

it reviewed the law, the court decided to deny the motion for a mistrial “on the

assumption that the government’s case is overwhelming,” Trial Tr., Doc. 149

(Excerpts from Voir Dire) at 6; but it left open the possibility that Mr. Hall could

renew his motion.

It is not disputed on appeal that the district court erred in disclosing the

prior convictions. And declaring a mistrial at that very early stage of the trial

would probably have been the advisable course. But that conclusion does not end

our analysis. We will not reverse a conviction if the alleged error was harmless.

See Fed. R. Crim. P. 52(a). An “error is harmless if it did not affect the

substantial right of the accused.” United States v. Patterson, 561 F.3d 1170, 1172

(10th Cir. 2009) (internal quotation marks omitted). A nonconstitutional error

affects a substantial right if it has a “substantial influence” on the trial’s outcome

or creates a “grave doubt” as to whether it had such effect. United States v.

Rivera, 900 F.2d 1462, 1469 (10th Cir. 1990) (internal quotation marks omitted).

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Mr. Hall’s concern is disclosure of the 1984 conviction. But because, as we shall

see, evidence of that conviction was later admitted at trial anyway, the disclosure

of that conviction during voir dire did not affect Mr. Hall’s substantial rights.

The district court’s error was therefore harmless, and its failure to grant a mistrial

did not prejudice Mr. Hall.

Evidence of the 1984 conviction was elicited during Mr. Hall’s testimony.

Just before he began testifying, defense counsel stated his intention to bring out

the 1992 conviction on direct examination (presumably to avoid the evidence

having greater impact if first elicited during the government’s cross-examination)

and asked if the court would be willing to take a break before completion of

direct testimony to rule on whether the government could impeach him under

Rule 609 with the 1984 conviction. The court agreed, and defense counsel then

proceeded to question Mr. Hall about the 1992 conviction for a 1990 bank

robbery. In fact, he also asked Mr. Hall about two other bank robberies in August

1990—which the government had agreed not to prosecute in exchange for his

1992 guilty plea. Mr. Hall admitted that he committed those robberies and that he

had pleaded guilty to using a firearm in connection with one of them.

During the anticipated break the parties debated the admissibility of

evidence of Mr. Hall’s 1984 conviction. In addition to arguing that it was

admissible as impeachment under Rule 609, the prosecutor argued that it was

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admissible to rebut a contention of defense counsel in his opening statement.

Defense counsel had said:

We indicated in voir dire that Mr. Hall had committed bank robberies
before and he’ll tell you that. And he will say that he spent a lot of
time in prison for that. And he would not in 2006 at this time of his
life, rob a bank by using his own car and parking right behind the
bank with his own tag, that there’s no way on earth he would do that.

Trial Tr., Doc. 150 at 23–24. This argument, the prosecutor asserted, opened the

door to questioning Mr. Hall about prior bank robberies that shared similarities

with the MidAmerican Bank robbery. She noted in particular that in two of the

prior bank robberies—the one in 1984 and one in 1990—Mr. Hall had driven his

vehicle to the robberies, had used a mask or otherwise concealed his identity, and

had used a gun.

The court ruled that the 1984 conviction was too old to be admissible for

impeachment under Rule 609, but that evidence of prior robberies could be used

to rebut the contention by defense counsel in his opening statement. When

defense counsel asked for clarification of the ruling, the court stated: “The only

ones I’m letting in are where he was driving a car that he was -- and it would

refute [defense counsel’s] argument.” Id., Doc. 148 (Hall Testimony) at 55

Defense counsel then elected to bring out the 1984 conviction in Mr. Hall’s

direct testimony. He admitted to having used his mother’s car in the 1984 bank

robbery, but asserted that at his present stage in life, he would “never park [his]

own car out back behind a bank and go in and rob it.” Id. at 58.

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 Thus, evidence of both the 1984 and 1992 bank robberies was admitted at

trial. The district court’s mention of these during voir dire told the jury nothing

that it did not later learn, so Mr. Hall was not prejudiced. Denial of his mistrial

motion was harmless.

Perhaps anticipating this response to his argument, Mr. Hall contends that

the prior-crime evidence was elicited only because he elected to testify, and that

he would not have testified if the court had not mistakenly mentioned his 1984

conviction during voir dire. We are not persuaded.

First, Mr. Hall never suggested to the district court that his decision to

testify might be affected by whether it would lead to admission of the 1984

conviction. His pretrial notice of alibi stated that he would testify. At that time

the district court had not ruled on whether the 1984 conviction would be

admissible under either Rule 609 or Rule 404(b). Mr. Hall suggests that if he had

known that the government would abandon its motion to introduce evidence of the

1984 conviction under Rule 404(b), he would have chosen not to testify. But that

suggestion is not credible. He was certainly aware that if he testified, he would

be impeached with evidence of the 1992 conviction (defense counsel never argued

against its use for impeachment and even told the court at the time of the mistrial

motion that he intended to mention the 1992 conviction during voir dire) and

presumably counsel had also been preparing to elicit on direct examination that

Mr. Hall had committed two other bank robberies in 1990. Even if Mr. Hall

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thought that evidence of the 1984 conviction would be harmful and he would

prefer to have it excluded, it is impossible to believe that the threat of the

admission of that evidence would deter him from testifying when the admission of

evidence of his three other bank robberies would not. The additional

impeachment could not have been a significant factor in his deciding whether to

testify.

In any event, were we to assume that Mr. Hall would not have testified if

the district court had not mistakenly mentioned the 1984 conviction in voir dire,

he is still not entitled to relief. The court’s error that allegedly compelled him to

testify is ground for reversal only if there is a “grave doubt” that the outcome of

the trial would have been different had he not testified. Patterson, 561 F.3d at

1172 (internal quotation marks omitted). But we are convinced that he would

have been convicted anyway. As he stated in his notice of alibi, he was the only

witness who would testify to the alibi. And without the alibi defense (probably,

even with it), the evidence was so overwhelming that any reasonable juror would

have found him guilty. In other words, any error in inducing him to testify was

harmless.

B. Evidence of Prior Robberies and Attempted Burglary Elicited
During Cross-Examination

Mr. Hall next contends that his cross-examination by the prosecutor

exceeded the scope of what the district court said it would permit regarding his

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prior offenses. The prosecutorial misconduct, he argues, deprived him of due

process and a fair trial. In our view, however, the complained-of cross-

examination was too trivial in importance to have prejudiced him.

After the prosecutor elicited Mr. Hall’s admission that he had used his

mother’s car to commit the 1984 robbery, she began to question him about other

similarities between the 1984 robbery and the charged offense:

Q. And when you went in there, you had something covering your
head, correct?

A. Uh, I think I had a pillow case over my head, yeah, that’s
correct.

Q. Okay. And you had a gun, correct?

Trial Tr., Doc. 148 (Hall Testimony) at 61. Defense counsel did not object, but

the court called the prosecutor to the bench and advised her that it had not

intended to allow questioning about the details of the prior robberies, only

whether or not Mr. Hall’s cars were used in their commission. The prosecutor

responded that she would “move on.” Id. at 61–62.

The prosecutor then asked Mr. Hall about his attempted burglary of a gas

station in June 1990, two months after completing his prison sentence for the

1984 bank robbery. He admitted that he had parked his own car in the parking lot

of the gas station. She next asked Mr. Hall about the three August 1990 bank

robberies that had already been brought out on direct examination. He admitted

that in committing one of the robberies he had used a car that was registered to

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his mother but belonged to him. He also admitted to having worked with an

accomplice in those robberies, and committing at gunpoint the one to which he

pleaded guilty. Again, defense counsel did not object.

On appeal Mr. Hall argues that this questioning exceeded the limits of what

the district court had set. Defense counsel, however, failed to object in district

court to the cross-examination that he challenges on appeal. Therefore, we

review only for plain error. See United States v. Caraway, 534 F.3d 1290, 1298

(10th Cir. 2008). “Plain error occurs when there is (1) error, (2) that is plain,

which (3) affects [the defendant’s] substantial rights, and which (4) seriously

affects the fairness, integrity, or public reputation of judicial proceedings.” Id.

(internal quotation marks omitted) The defendant has the burden of establishing

all four elements of plain error. See United States v. Gonzales, 558 F.3d 1193,

1199 (10th Cir. 2009).

We agree with Mr. Hall that the prosecutor’s questioning about his prior

offenses went beyond what the district court had approved. But he has failed to

establish the third element of plain error—that the error substantially prejudiced

him. In light of the history of his criminality that was properly presented to the

jury, we fail to see how the jury would be influenced by the additional evidence

that he had an accomplice, used a gun, or wore a mask during a prior robbery.

The obvious reason why defense counsel did not object at trial is that it was not

worth the effort. Cf. United States v. Short, 947 F.2d 1445, 1455 (10th Cir. 1991)

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(prosecutor’s questioning that exceeded the scope of the court’s evidentiary ruling

and brought out details about the defendant’s prior conviction was harmless error

in light of the “overwhelming evidence” against the defendant and defense

counsel’s failure to “request the court to strike the testimony or to give a limiting

instruction”).

C. References in Closing Argument to Prior Convictions

Finally, Mr. Hall takes issue with the prosecutor’s closing argument, which,

he claims, “reinforced the impact of her improper cross-examination,” Aplt. Br. at

49, and impermissibly used the prior convictions to support his guilt. He argues:

In closing argument, the prosecutor reinforced the impact of
her improper cross-examination by arguing, “we know, because of
the testimony yesterday, that he’s committed four prior bank
robberies, two of which he got away with.” She added, “this
argument that he would have been smarter, you know, he had a 50-50
shot at going there, robbing it and getting away.” She later reminded
the jury, “You know that the defendant was a convicted felon, you
know about his past,” then urged the jury to convict Mr. Hall. And
in her rebuttal closing, she argued, “He keeps going and he keeps
going. He thinks he’s going to get away. He’s gotten away before.”
Twice, she referred to Mr. Hall as a “multi-convicted felon.”

Aplt. Br. at 49–50 (citations omitted). Again, however, defense counsel raised no

objection at trial to the closing arguments. We therefore review for plain error.

See Caraway, 534 F.3d at 1298.

The first two remarks quoted in Mr. Hall’s brief are from the following

discussion by the prosecutor:

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 In the defendant’s opening statement there was an argument
that Kevin Tommie Hall would have been smarter than to go to the
bank in Leavenworth, Kansas driving his own vehicle to rob a bank.
Well, we know, because of his past experience, that he has on at least
three occasions driven his own vehicle to go commit serious felony
crimes. Two of those were, in fact, bank robberies by his own
admission. And we know, because of his testimony yesterday, that
he’s committed four prior bank robberies, two of which he got away
with.

And so this argument that he would have been smarter, you
know, he had a 50-50 shot at going there, robbing it and getting
away. And so kind of think through and process all of those thought
processes that the defendant would have had back on November 7th
of 2006.

Trial Tr., Doc. 151 at 592 (emphasis added).

In our view, these comments were not clearly improper. Read in context,

the prosecutor was arguing that Mr. Hall’s prior criminal history would not

necessarily have taught him that it was foolish to take his own car to a bank

robbery, because half the time that he had done that, he had not been caught.

“Prosecutors have considerable latitude to respond to an argument made by

opposing counsel.” United States v. Hernandez-Muniz, 170 F.3d 1007, 1012

(10th Cir. 1999). Because the comments do not satisfy the second condition for a

plain-error reversal (that the error be plain), they do not justify relief for Mr.

Hall.

The third remark was made at the end of the prosecutor’s opening closing

argument. She said:

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 You’ve got the evidence sitting right over there on the table.
You know that the defendant was a convicted felon, you know about
his past, and based upon all of the evidence that you’ve heard in this
case, we’re asking that you find him guilty of all three counts.

Trial Tr., Doc. 151 at 604 (emphasis added). Again, if there was error, it was not

plain. The prosecutor was seeking a conviction on all three counts, one of which

required proof of a prior felony. It was not wholly out-of-bounds to mention an

element of the offense in closing argument.

The remaining challenged remarks arose in the prosecutor’s rebuttal closing

argument. The first mention of Mr. Hall as a “multi-convicted felon” was in the

following passage:

[Defense counsel] said the reason he didn’t tell Agent Gothard about
Lee was because he didn’t want to snitch anybody out. Here you
have an individual who’s a multi-convicted felon and he’s being
accused of a serious offense and he’s not going to tell that there was
a third person there? Knowing full well that he’s a suspect in the
case? How much sense, honestly, does that make?

Id. at 626. We think it within the limits of proper argument to suggest that an

innocent person with a long criminal record would promptly state his alibi to

avoid further legal difficulty.

The next challenged comment was spoken in the following context:

Instruction Number 20 is the aiding and abetting instruction.
If you remember, during the course of the defendant’s testimony, he
said, yeah, we’re driving and there’s all this stuff being thrown out, I
don’t even know it was being thrown out, but at some point he
realized there was stuff being thrown out and so he says something to
Morrison and Morrison said, yeh, well, Lee just robbed something.

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 Does Hall pull over at that moment and say, hold on, whoa, I
don’t want any part of this? You know, he drives by that funeral
procession, you talk about the best place to pull over and say I give
up would have been right there.

And what does he do? He keeps going. He keeps going and
he keeps going. He thinks he’s going to get away. He’s gotten away
before. He ditched the evidence. And it’s not until he’s stop sticked
and he can’t go anymore that he finally stops. Not because that’s the
safest place to stop, but because he can’t get away. He knows he’s
caught.

Id. at 629 (emphasis added). This was proper argument to support an aiding-and-

abetting conviction (obviously a fall-back theory) by pointing out that even after

Mr. Hall knew that Morrison had been involved in a robbery, he continued to

assist in Morrison’s flight.

Finally, the prosecutor again referred to Mr. Hall as a multi-convicted felon

at the end of her rebuttal. She said:

And then he’s talked to, he admits to you or tells you today, I
lied to the police, but you need to believe what I told you under oath
after being a multi-convicted felon. Based upon all the evidence
we’re asking you to find the defendant guilty of the three counts
because he is, in fact, guilty.

Id. at 629–30. The clear import of the comment is that Mr. Hall, as a multi-

convicted felon, is not credible. The comment, which is consistent with the

rationale for Rule 609, was not clearly improper.

IV. CONCLUSION

We AFFIRM Mr. Hall’s conviction and sentence.

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