United States v. Harrison, Davon M.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 29, 1999 Decided February 22, 2000

No. 99-3010

United States of America,
Appellee

v.

Davon M. Harrison,
Appellant

Appeal from the United States District Court
for the District of Columbia
(No. 98cr00216-01)

Beverly G. Dyer, Assistant Federal Public Defender, ar-
gued the cause for appellant. With her on the briefs was A. J.
Kramer, Federal Public Defender. Tony W. Miles, Assistant
Federal Public Defender, entered an appearance.

Florence Pan, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Wilma A. Lewis,

U.S. Attorney, and John R. Fisher, Elizabeth Trosman and
Darrell Valdez, Assistant U.S. Attorneys.

Before: Williams, Sentelle and Garland, Circuit Judges.

Opinion for the court filed by Circuit Judge Sentelle.

Sentelle, Circuit Judge: Appellant Davon M. Harrison
was convicted in a jury trial in the district court for unlawful
possession of a firearm in violation of 18 U.S.C. s 922(g). He
appeals the denial of his motion for a directed verdict for
insufficiency of the evidence on two necessary elements of the
offense. Harrison stipulated to the two elements, but the
stipulations were not formally read to the jury. The prosecu-
tion offered no other evidence on those elements. We hold
that Harrison, by stipulating, waived his right to require the
government to introduce evidence on the stipulated elements.
We therefore affirm the conviction.

I. Background

At approximately 9:45 a.m. on May 25, 1998, Metropolitan
Police Department Officer Raymond Adams heard gunshots
coming from the direction of the 300 block of K Street, S.E.
He began to canvas the area, and drove by Davon Harrison
who was proceeding down the street in his wheelchair. Un-
successful in his search, Officer Adams then returned to
Harrison and asked Harrison if he had a gun. He replied in
the affirmative. In his lap was a newspaper, which Adams
placed on the ground and unwrapped to find a .38 Colt
containing four empty shell casings and two live rounds.
Harrison was charged with a violation of 18 U.S.C. s 922(g),
which prohibits anyone who has been convicted of a crime
punishable by a sentence exceeding one year from possessing
a firearm that has been transported in interstate commerce.1

__________
1 18 U.S.C. s 922(g) provides:

It shall be unlawful for any person ... who has been convicted
in any court of, a crime punishable by imprisonment for a term
exceeding one year ... to ... possess in or affecting com-
merce, any firearm or ammunition....

 Before trial, the district court ordered the parties to submit
a joint pretrial statement including stipulations. The parties
filed a statement with the court which included stipulations of
two necessary elements of a s 922(g)(1) charge: (1) that the
firearm had been transported in interstate commerce and (2)
that the defendant had been convicted of a prior offense
punishable by a sentence of more than one year.

The exact language of the stipulations was:
IV. Stipulations

Stipulation as to Firearm; Movement in Interstate Com-
merce:

The parties agree that the pistol recovered in this case
was a firearm; that the firearm was shipped or moved in
interstate commerce.

Stipulation as to Prior Convictions ...

The parties agree that the defendant was previously
convicted for an offense carrying a potential penalty of
more than one year in case F-7372-95, in the District of
Columbia.

Following the stipulations was a list of a Harrison's prior
convictions.

Government counsel referred to the stipulations in his
opening statement:

[I]n this case the defense counsel and I have stipulated
that this gun did move through interstate commerce
because handguns are not manufactured in the District
of Columbia, and there is only one way that it could come
in the District, by crossing state lines. We've also
stipulated that Mr. Harrison has been convicted [of an
offense] carrying the possible punishment of over a year
in prison. So, what I have to prove to you is that Mr.
Harrison possessed the gun or the ammunition.

No objections were made to the opening statement. Defense
counsel's opening statement described "a case where Mr.
Harrison is being charged with a gun that he did not possess,
it was a gun that was not his."

As forecast, the trial focused on whether Harrison was in
possession of a firearm. The two stipulations were never
read to the jury, nor did the prosecution introduce any other
evidence regarding the stipulated evidence. Before closing
arguments, Harrison moved for a judgment of acquittal based
on the entire record, which was denied. When the prosecu-
tion referred to the stipulations during closing arguments,
defense counsel objected. At a subsequent bench conference,
defense counsel argued that the stipulations, never having
been introduced, could not provide proof of the elements,
although he admitted that the parties had agreed to the
stipulations. He claimed he had not raised the issue earlier
because he hoped to modify the language of the interstate
commerce stipulation to include the fact that guns are not
manufactured in the District of Columbia. The trial judge
stated that the failure to raise this issue earlier could be
considered a waiver, and ultimately denied defense counsel's
motion for a directed verdict.

During jury instructions, the judge referred to the stipula-
tion that the gun had traveled in interstate commerce:

During the trial you were told that the parties had
stipulated, this is had agreed to certain facts, namely that
the gun had travelled in interstate commerce. Any
stipulation of fact is undisputed evidence and you may
consider it undisputed evidence.

....

The parties have stipulated that the firearm which the
defendant allegedly possessed has travelled or been
transported in interstate commerce.

The judge did not give a similar instruction about the prior
conviction stipulation, but referenced the conviction by cau-
tioning the jury that it "is just being presented to you as an
element of the crime. You are not to consider the fact that
the defendant had been convicted of an offense punishable by
imprisonment for a term exceeding one year in any other
way.... [Y]ou're not to take any unfavorable impression of

the defendant from the fact that this element of the crime is
here."

The jury found Harrison guilty. Harrison appeals, assert-
ing that as a result of the prosecution's failure to read the
stipulations, there was insufficient evidence on the interstate
commerce and prior conviction elements to support the ver-
dict of guilty and that his conviction must be reversed.

II. Discussion

A. Issue

When reviewing the sufficiency of the evidence, we deter-
mine as a matter of law whether "any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319
(1979); see also United States v. Harrington, 108 F.3d 1460,
1464 (D.C. Cir. 1997). At first, it might appear that the
standard of review could resolve this case: because the
stipulations were never formally read to the jury, they were
never in evidence (although the jury was aware of them);
there was no other evidence on the stipulated elements and
the jury could not have found them beyond a reasonable
doubt. See, e.g., United States v. Spinner, 152 F.3d 950, 956
(D.C. Cir. 1998). Our real inquiry, however, is whether,
considering the nature and purpose of the stipulations in this
case, Harrison should be able to challenge now the insuffi-
ciency of the evidence covered by those stipulations.

The government in this appeal presents two primary theo-
ries to support the validity of the verdict, in spite of its failure
to formally read the stipulations to the jury or introduce
other evidence. The first we can call the "deemed admitted"
theory. We have held that a technical failure to introduce
evidence that was presented to the trier of fact can be
overlooked in some cases. See, e.g., United States v. Barrett,
111 F.3d 947, 951 (D.C. Cir. 1997) (citing United States v.
Bizanowicz, 745 F.2d 120, 123 (1st Cir. 1984), and United
States v. Stapleton, 494 F.2d 1269, 1270 (9th Cir. 1974)). The
government asks us to apply Barrett on the reasoning that

the jury was clearly made aware of the stipulations through
the opening and closing statements and jury instructions.

The government's second theory is that any error in the
trial was harmless error. Rule 52(a) of the Federal Rules of
Criminal Procedure provides that "[a]ny error, defect, irregu-
larity or variance which does not affect substantial rights
shall be disregarded," and the Supreme Court has stated that
"most constitutional errors can be harmless." Arizona v.
Fulminante, 499 U.S. 279, 306 (1991) (citations omitted). The
government claims that the error here was a failure to take
"the technical steps" needed to make the stipulations evi-
dence.

We will not delve into the details of the government's
arguments on these grounds. Instead, we hold that Harrison
has, by stipulating, waived any right to contest the absence of
proof on the stipulated elements. This waiver theory of
stipulations has been addressed by a number of our sister
circuits, and although the government does not directly ad-
vance it in this case, it is necessarily raised by the nature of
the appeal. By failing to advance it explicitly, we could
perhaps construe the government's brief as having waived the
waiver theory argument, but we will reach the issue because
it is squarely presented by this case and was relied upon by
the trial court. See, e.g., United States Nat'l Bank of Or. v.
Independent Ins. Agents of Am., Inc., 508 U.S. 439, 445-49
(1993) (holding that an appellate court has discretion to
consider an issue not argued by the parties). As the Su-
preme Court stated in Kamen v. Kemper Financial Services,
Inc., 500 U.S. 90, 99 (1991), "[w]hen an issue or claim is
properly before the court, the court is not limited to the
particular legal theories advanced by the parties, but rather
retains the independent power to identify and apply the
proper construction of governing law." Moreover, we do not
deem it unfair to the appellant to rely on this unargued
theory. The arguments made by the government, while not
squarely addressing the question in "waiver" terms, fairly
noticed the application of the theory, and the authorities cited
by the two parties clearly evidence an awareness of it.

 B. Waiver

The premise of the waiver theory is simple: Upon entering
into a stipulation on an element, a defendant waives his right
to put the government to its proof of that element. A
stipulation "constitutes '[a]n express waiver made ... prepa-
ratory to trial by the party or his attorney conceding for the
purposes of trial the truth of some alleged fact ... thereafter
to be taken for granted; so that the one party need offer no
evidence to prove it and the other is not allowed to disprove
it....' " Vander Linden v. Hodges, 193 F.3d 268, 279 (4th
Cir. 1999) (quoting 9 Wigmore on Evidence s 2588, at 821
(Chadbourn rev. 1981)). Because a defendant will often
stipulate to a prior conviction to keep the government from
introducing prejudicial details about prior crimes, see Old
Chief v. United States, 519 U.S. 172, 174 (1997), a number of
cases have discussed the effect of a stipulation to elements of
a crime.

It is well settled that a defendant, by entering into a
stipulation, waives his right to assert the government's duty
to present evidence to the jury on the stipulated element.
See United States v. Meade, 175 F.3d 215, 223 (1st Cir. 1999);
United States v. Melina, 101 F.3d 567, 572 (8th Cir. 1996);
United States v. Mason, 85 F.3d 471, 472 (10th Cir. 1996);
United States v. Keck, 773 F.2d 759, 769-70 (7th Cir. 1985);
United States v. Houston, 547 F.2d 104, 107 (9th Cir. 1976)
(per curiam); see also Vander Linden, 193 F.3d at 279;
Zuchowicz v. United States, 140 F.3d 381, 392 (2d Cir. 1998);
Alamo v. Del Rosario, 98 F.2d 328, 330 (D.C. Cir. 1938); 9
Wigmore on Evidence s 2591, at 824 (Chadbourn rev. 1981).
The only possible point of contention is whether a defendant
can contest the government's failure to read the stipulation
itself to the trier of fact. We conclude that a defendant
cannot.

In two cases directly on point, the Fifth and Eleventh
Circuits have held that a stipulation waives the government's
burden to introduce evidence on that stipulation, including a
reading of the stipulation itself: United States v. Hardin, 139
F.3d 813, 816 (11th Cir.), cert. denied, 119 S. Ct. 225 (1998),

and United States v. Branch, 46 F.3d 440, 442 (5th Cir. 1995).
Those cases closely resemble the case we consider today.

In Hardin, the defendant, like Harrison, was charged with
violating s 922(g), and stipulated to a prior conviction. De-
spite reference to the stipulation during voir dire and argu-
ments, the stipulation was never read to the jury. See 139
F.2d at 814. The court concluded that "[the defendant]
waived his right to have the government produce evidence of
his felon status, including the stipulation itself" and thus had
"no legal or equitable basis to contest the government's
mistake." Id. at 816-17.

The Fifth Circuit reached the same result in Branch. The
defendant was convicted of bank fraud. He had stipulated
that a number of the financial institutions involved were
federally insured, a necessary element of the crime; but the
stipulation was never published to the jury. The court of
appeals affirmed on waiver grounds: "Once a stipulation is
entered, even in a criminal case, the government is relieved of
its burden to prove the fact which has been stipulated by the
parties. Appellant ... cannot now claim that the government
failed to offer evidence on an element to which he confessed."
Branch, 46 F.3d at 442 (citing United States v. Harper, 460
F.2d 705, 707 (5th Cir. 1972), and Poole v. United States, 832
F.2d 561, 565 (11th Cir. 1987)).

Two cases cited by appellant that appear at first glance to
be at odds with Hardin and Branch are, upon further exami-
nation, either reconcilable or unpersuasive. First, in United
States v. James, 987 F.2d 648 (9th Cir. 1993), the Ninth
Circuit reversed a conviction for the complete failure to
introduce evidence on a stipulated element of the crime. The
record showed that the parties had agreed to a stipulation on
an aspect of the case, but the stipulation was not mentioned
to the jury nor placed in the record. The court on appeal
could not, therefore, have inferred that the stipulation was
sufficient to satisfy the element. See id. at 650-51. Although
the court further noted that "the stipulation was never en-
tered into evidence or read to the jury" so that there was "no
fact in evidence that the jury could take as proved," id. at

651, it is not clear to us exactly what distinction the court
meant to draw with this statement. Under the facts of that
case it did not matter because the stipulation was not avail-
able to review on appeal.

Second, in United States v. Muse, 83 F.3d 672 (4th Cir.
1996), the court's opinion includes language that appears to
require that a stipulation be read to the jury, but that
language is dicta. In general, the Muse court spoke approv-
ingly of stipulations. But it also said that a stipulation
"waives the requirement that the government produce evi-
dence (other than the stipulation itself) to establish the facts
stipulated to beyond a reasonable doubt." Id. at 678 (empha-
sis added) (citing United States v. Clark, 993 F.2d 402, 406
(4th Cir. 1993)). Arguably, the italicized phrase contemplates
a formal reading to the jury of all necessary stipulations.
But that issue was not before the court. The stipulation was
read aloud in Muse (and in the case it cited for support), see
id. at 678; the actual issue was the propriety of a jury
instruction. See id. at 677. Therefore, while the Muse court
accurately described normal trial practice to include the
reading of stipulations, it had no occasion to consider the
situation before us today. See Hardin, 139 F.3d at 817
(holding that references to reading stipulations in Muse are
dicta); see also United States v. Jackson, 124 F.3d 607, 616-
17 & n.8 (4th Cir. 1997) (questioning the validity of Muse).

We previously commented on the waiver theory in United
States v. Gilliam, 167 F.3d 628 (D.C. Cir.), cert. denied, 119
S. Ct. 2060 and 120 S. Ct. 118 (1999). In Gilliam, a defen-
dant charged under s 922(g) did not concede the existence of
a prior conviction. Although the prosecutor told the trial
court he had a certified copy of a conviction, it was never
offered into evidence. We held, not surprisingly, that the
defendant did not "essentially stipulate" to the conviction
through his silence. Id. at 639. Although there was no
stipulation involved in Gilliam, we noted that the government
could have met its burden of offering into evidence proof of
every element of the charged offense by obtaining a stipula-
tion or "a waiver by the defendant of his right to put the
government to its proof...." Id. We speculated that, in

addition, the stipulation might need to be formally entered
into evidence. See id. (quoting James, 987 F.2d at 651). But
as the waiver issue was not presented by the facts, and where
no evidence of a prior conviction had been presented to the
jury, we concluded that the s 922(g) conviction must be
reversed. See id. at 640.

Harrison asserts that the government needed to introduce
the stipulations into evidence, relying, in part, on Gilliam.
He contends that his stipulations "did not waive his right to
put the prosecution to its burden of proof of every element of
the crime." Thus, he argues that he may contest the failure
to introduce the stipulations themselves as evidence. Harri-
son acknowledges that Hardin and Branch are in conflict
with his claim, but he fails to present a meaningful method of
distinguishing those cases.

The government's brief is confused on the applicability of
waiver to this case, misreading Gilliam to suggest that our
circuit would require necessary stipulations to be read despite
Gilliam's careful neutrality. For that reason, the govern-
ment's brief does not directly advance the applicability of
waiver, although it discusses the theory. Of course, agree-
ment or stipulation by parties as to the state of the law does
not bind us. See, e.g., Case v. Los Angeles Lumber Products
Co., 308 U.S. 106, 114 (1939); NLRB Union, Local 6 v.
FLRA, 842 F.2d 483, 485 n.6 (D.C. Cir. 1988).

We conclude that there is little to be gained from holding
that a stipulation, which unarguably waives a defendant's
right to require the government to produce any evidence
regarding that stipulation, nevertheless fails to waive the
defendant's right to require that stipulation to be read to the
jury. Surely, the government's failure formally to read stipu-
lations is not "wise trial practice." Hardin, 139 F.3d at 817.
Even if a defendant cannot challenge that error, the potential
for adverse consequences for the prosecution is great: the
jury may become confused and acquit a defendant for lack of
proof on a stipulated element, see id., and a complete failure
to enter the stipulations into the record at all will likely be
fatal, see James, 987 F.2d at 650-51. Publishing stipulations

to the jury or moving to reopen upon an inadvertent failure to
do so is the proper course of action, one which produces a
complete record. However, nothing in either law or logic
compels us to reverse a conviction when the defendant enters
into a stipulation on an element and then seeks a windfall
from the government's failure to formally read the stipulation
to the jury.

Therefore, we join the Fifth and Eleventh Circuits and hold
that a defendant who stipulates to an element of an offense
waives his right to have the government put on evidence to
prove that element. Specifically, we hold that when Harrison
entered into the stipulations that the interstate commerce and
prior conviction elements of the s 922(g) charge were pres-
ent, he waived his right to challenge the sufficiency of the
evidence on those elements, even though the government
failed to introduce any evidence on those elements. This
result retains a primary benefit of this type of stipulation:
when the element is a prior conviction, the defendant is
benefitted because potentially prejudicial facts about the prior
conviction will not be admitted. See Old Chief, 519 U.S. at
185; Hardin, 139 F.3d at 817; Muse, 83 F.3d at 678. Fur-
thermore, stipulations in general are helpful to both parties
because they narrow the scope of the trial to the real issues in
dispute. See United States v. General Motors Corp., 518
F.2d 420, 447 (D.C. Cir. 1975); Zuchowicz, 140 F.3d at 392.

Today's holding, in addition to not condoning the govern-
ment's conduct in this case, does not prevent a defendant
from including explicit language that a stipulation shall only
be valid if it is read to the jury. We do not find any such
requirement in the language of the stipulations in the record
in this case. In this respect, we are guided by the reasoning
of the Supreme Court in New York v. Hill, 120 S. Ct. 659
(2000). In Hill, the defendant claimed that his agreement to
a trial date outside the speedy trial period guaranteed by
applicable law did not serve as a waiver of his speedy trial
rights. The Court disagreed, noting this would make waiver
"turn on a hypertechnical distinction that should play no
part." Id. at 666. Instead, the Court reasoned that defense
counsel's act of accepting the proposed trial date was suffi-

cient to act as a waiver. We similarly conclude that the
stipulations in the instant matter were sufficient to waive the
appellant's right to require the government to introduce any
evidence on the stipulated elements, including the stipula-
tions.

III. Conclusion

We conclude that defendant's stipulation to the interstate
commerce and prior conviction elements of a s 922(g) charge
waived his right to contest the government's failure to intro-
duce any evidence on those stipulations, including a failure to
read those stipulations to the jury. The stipulations were
filed with the district court, the jury was made aware of them,
and the jury found all of the elements to exist. Accordingly,
we affirm the judgment of the district court.2

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2 Harrison also appeals two evidentiary rulings and further claims
that the stipulations were not final. We have examined these
arguments and find them to be without merit.