United States v. Dennis Jamison , 635 F.3d 962 ( 2011 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1515
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D ENNIS JAMISON,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:09-CR-00054—Robert L. Miller, Jr., Judge.
A RGUED D ECEMBER 3, 2010—D ECIDED M ARCH 18, 2011
Before F LAUM, R OVNER, and E VANS, Circuit Judges.
F LAUM, Circuit Judge. Dennis Jamison (“Jamison”)
was convicted of possessing a sawed-off shotgun, in
violation of 26 U.S.C. §§ 5861(d) and 5845(a). During his
trial, the district court permitted the government to
elicit testimony from Jamison’s wife, Michaell Jamison
(“Mrs. Jamison”), on cross-examination regarding
Jamison’s aggressiveness. Jamison appeals his conviction,
arguing that the question and Mrs. Jamison’s response
2 No. 10-1515
were irrelevant, unfairly prejudicial, unduly cumulative,
and lacked foundation. The government claims that the
evidence demonstrated Mrs. Jamison’s bias and motive
to lie. We affirm.
I. Background
Jamison and his wife had a series of domestic disputes
during the week of February 23, 2009. Jamison left their
shared residence on February 23 to stay with his parents.
He returned on February 24 to pick up clothes and other
essentials, taking his double-barreled shotgun and a .22
caliber handgun, but leaving the sawed-off shotgun at
issue in this case (“the shotgun”). Shortly after he left,
Mrs. Jamison took the shotgun to the sheriff’s depart-
ment and turned it in, saying that it belonged to Jamison
and that she did not want it in her home. Jamison came
to the residence again on February 25 to pick up more of
his things. Officer Travis Shively was called to the
scene. Jamison concedes in briefing that Mrs. Jamison
told Officer Shively that Jamison was there for the shot-
gun. At some point during Officer Shively’s visit, Jamison
indicated that the barrel may have been too short.
On March 10, 2009, Federal Agents with the ATF Project
Disarm Task Force, James Dean Vance and Bayne
Bennett, arrived at Jamison’s parents’ home, where
Jamison was at the time, to interview him about the
shotgun. During the interview, Jamison admitted that
he purchased the shotgun eighteen or nineteen years
prior from a private individual at a gun show in Indiana.
A fair reading of the record indicates that he admitted
No. 10-1515 3
that he knew the shotgun was illegal when he purchased
it because it was too short and also that he fired the
shotgun at his parents’ property.
Title 26, Section 5861(d) prohibits possessing an unregis-
tered “firearm.” “Firearm” includes “a weapon made
from a shotgun if such weapon as modified has an
overall length of less than 26 inches or a barrel or barrels
of less than 18 inches in length.” 26 U.S.C. § 5845(a). The
firearm at issue was made from a shotgun. It is only 14
and 1/2 inches long and its barrel 8 and 1/16 inches
long. Jamison never registered the shotgun.
Jamison was indicted on May 14, 2009, on one count
of possessing an unregistered firearm, in violation of 26
U.S.C. §§ 5861(d) and 5845(a). He was also indicted for
being an unlawful user of a controlled substance in pos-
session of a firearm, in violation of 18 U.S.C. § 922(g)(3),
but this count was dismissed at the beginning of trial.
Jamison had a two-day jury trial. The government’s case-
in-chief included testimony from nine witnesses.
Among them, Officer David Curtis testified about
Mrs. Jamison’s visit to the police station on February 24,
2009. The government introduced the shotgun into evi-
dence through Officer Curtis. Jamison’s parents testified
about the occasion on which Jamison fired the shotgun
at their home. Officer Shively discussed his February 25
visit to Jamison’s residence. Finally, Agents Vance and
Bennett testified about their March 10 interview with
Jamison.
Jamison called Mrs. Jamison as his first witness. She
testified that she turned the shotgun into police on Feb-
4 No. 10-1515
ruary 24. She also claimed, among other things, that she
inherited the shotgun from her grandfather in the 1980s
and that it belonged to her, not Jamison.
On cross-examination, the government established
that the couple had been separated in February and
March 2009, but that they had since reconciled and were
living together at the time of the trial. Mrs. Jamison
testified that she provided a sworn, taped statement to
law enforcement officers on February 26, 2009. The gov-
ernment played portions of her statement at trial demon-
strating that she told police that the shotgun belonged
to Jamison. She also testified that she told law enforce-
ment that Jamison owned the shotgun on March 10, 2009.
The government asked whether Mrs. Jamison had
previously told the police that Jamison “raised his hand
to you to intimidate you.” She admitted making the
statement and said that her husband was “an aggressive
person,” but claimed that Jamison had never actually
raised his hand to her and that her contrary statement
to police was a lie. The government then asked the ques-
tion that lead to this appeal: “Could you tell us why
you think that . . . Jamison is aggressive?” Jamison’s
counsel objected. The government argued, and the
district court agreed, that the question was relevant to
prove bias and a motive to lie. Mrs. Jamison answered
by claiming that her belief was “just based on a knowl-
edge of a person’s character,” not on any specific incidents.
Jamison was convicted and sentenced to thirty-six
months of imprisonment and two years of supervised
release. On appeal, he argues that the district court erred
No. 10-1515 5
in permitting the government to ask Mrs. Jamison about
her opinion that Jamison was aggressive.
II. Analysis
A. Mrs. Jamison’s Testimony
Jamison appeals the district court’s decision to permit
the government to cross-examine Mrs. Jamison about
why she thought Jamison was aggressive. We conclude
that the district court did not err.
The Federal Rules of Evidence provide that “[a]ll
relevant evidence is admissible,” and that “[e]vidence
which is not relevant is not admissible.” FED. R. E VID. 402.
They define “relevant evidence” as “evidence having any
tendency to make the existence of any fact that is of
consequence to the determination of the action more
probable or less probable than it would be without the
evidence.” FED. R. E VID. 401. Evidence revealing a
witness’s bias or motive to lie is relevant and generally
admissible under Rule 402. See, e.g., United States v. Abel,
469 U.S. 45, 52 (1984) (“Bias may be induced by a wit-
ness’ like, dislike, or fear of a party, or by the witness’ self-
interest. Proof of bias is almost always relevant because
the jury, as finder of fact and weigher of credibility,
has historically been entitled to assess all evidence
which might bear on the accuracy and truth of a witness’
testimony.”); United States v. Thompson, 359 F.3d 470, 475-
480 (7th Cir. 2004); United States v. Manske, 186 F.3d 770, 777
(7th Cir. 1999). We review a district court’s decision to
6 No. 10-1515
admit evidence for abuse of discretion.1 United States v.
Anifowoshe, 307 F.3d 643, 649 (7th Cir. 2002).
The question at issue—regarding why Mrs. Jamison
thought Jamison was aggressive—was probative of
Mrs. Jamison’s bias. The district court did not abuse
its discretion in permitting it. See Thompson, 359 F.3d at
479 (“Questioning a witness’ motives for testifying is
precisely the type of inquiry permissible on cross-exam-
ination. The district court did not abuse its broad discre-
tion in concluding that the evidence of threats and
recent violence were probative of Shinnamon’s credibility
and bias. When admitted on cross-examination, this
evidence of recent threats and violence was relevant
and probative to demonstrate that Shinnamon, a witness
who changed her pretrial testimony, was biased and
therefore likely to slant or even fabricate her testimony
in the defendant’s favor.”).
Jamison appeals under Rule 403, arguing that merely
asking the question at issue prejudiced him. His argu-
ment lacks merit. Mrs. Jamison’s testimony about
whether she or Jamison owned the shotgun contra-
dicted her pre-trial statements. The threat evidence
was relevant to her credibility and offered a potential
explanation for her inconsistent statements. See id. at 477-
1
The government argues that we should review Jamison’s
Rule 403 argument for plain error because he failed to object
on Rule 403 grounds at trial. Jamison claims that he did object
on Rule 403 grounds at trial. Since Jamison’s arguments fail
under either standard, we decline to resolve the disagreement.
No. 10-1515 7
79. It may have prejudiced Jamison to some extent, but not
unfairly so. See F ED. R. E VID. 403; Thompson, 359 F.3d at
479 (“Evidence is unfairly prejudicial if it appeals to
the jury’s sympathies, arouses its sense of horror,
provokes its instinct to punish, or otherwise may cause
a jury to base its decision on something other than the
established propositions in the case.” (quoting United
States v. Peters, 791 F.2d 1270, 1294 (7th Cir. 1986), super-
seded by statute on other grounds as stated in United States
v. Guerrero, 894 F.2d 261, 267 (7th Cir. 1990)).
Jamison also argues that we should vacate his convic-
tion based on our opinion in Dudley v. Duckworth, 854
F.2d 967 (7th Cir. 1988). In Dudley, we held that the gov-
ernment’s elicitation of threat evidence from a witness
on direct examination was so prejudicial that its admis-
sion violated the defendant’s constitutional right to a
fair trial. Id. at 972. We suggested that the government
elicited the threat evidence as pretext, intending “more
to prejudice the defendants . . . than to explain away
any nervousness of the witness.” Id. Jamison’s argument
is unpersuasive.
We find more similarities between this case and Thomp-
son, in which we distinguished Dudley. 359 F.3d at 476
n.7, 477. In Thompson, the defendant’s romantic partner
made inconsistent statements—one in an initial meeting
with police before trial, the other at trial—about the defen-
dant’s ownership of ammunition. Id. at 473-74. On cross-
examination, the district court permitted the govern-
ment to elicit testimony that the defendant threatened
and physically abused the witness. Id. at 474. Moving for
8 No. 10-1515
a new trial, the defendant argued that the district court
erred by permitting the threat evidence. Id. The dis-
trict court denied the motion, finding the evidence proba-
tive of the witness’s bias and credibility and that it po-
tentially explained the witness’s inconsistent state-
ments. Id. at 474-75. We affirmed and held that the evi-
dence was relevant to prove bias and a motive to lie,
and that it was not unduly prejudicial. Id. at 477-80. In
reaching our holding, we distinguished eliciting threat
evidence on direct examination, as was done in Dudley,
from eliciting it on cross-examination, which occurred in
Jamison’s trial:
Evidence of threats on direct examination, admitted
even though the witness shows no indication of intimi-
dation, is not only of extremely weak probative
value, but it also could constitute a prejudicial attack
on the opposing party. Such evidence can be highly
prejudicial.
The situation is very different when the purpose of
introducing evidence of a threat is to demonstrate
bias on the cross-examination of a witness. In such a
context, the probative value of such evidence is far
more evident. For instance, evidence of bias, in-
cluding evidence of a threat, to challenge the credi-
bility of a witness who has made an inconsistent
statement simply does not raise the same concerns
as evidence of a threat offered, in the absence of a
testimonial inconsistency, simply to “boost” a witness’
testimony.
Id. at 476-77.
No. 10-1515 9
Similar to the witness in Thompson, Mrs. Jamison made
contradictory statements—one before trial, the other
during trial—regarding whether she or Jamison owned
the gun. In light of Thompson, the district court did not
abuse its discretion by permitting the government to ask
Mrs. Jamison why she thought Jamison was aggressive.
See id. at 475-80.
Next, Jamison argues that the threat evidence was
unduly cumulative because the government previously
established Mrs. Jamison’s bias and motive to lie when
it elicited testimony that she and Jamison were married
and living together at the time of the trial. Jamison cites
no relevant legal authority to support his argument. To
the extent that he is relying on Rule 403, his argument
is unpersuasive. As discussed above, the evidence was
probative; it demonstrated that Mrs. Jamison may have
been motivated to lie. See Abel, 469 U.S. at 52; Thompson,
359 F.3d at 478 n.13, 479. Jamison simply fails to demon-
strate that the probative value of the evidence at issue
was “substantially outweighed by the . . . needless pre-
sentation of cumulative evidence” and that the district
court abused its discretion in permitting it. F ED. R.
E VID. 403.
Finally, Jamison argues that the government did not
lay adequate foundation to ask Mrs. Jamison about her
opinion that Jamison was aggressive because there was
no evidence that he physically abused her during the
week of February 23, 2009. We disagree. There was un-
doubtedly sufficient foundation: She voluntarily ad-
mitted that Jamison was “an aggressive person” in re-
10 No. 10-1515
sponse to an earlier question by the government, she
acknowledged that she made a sworn statement to
police that Jamison had raised his hand to her to
intimidate her,2 and she explained that she and Jamison
had been married for fifteen years at the time of the trial
and that they dated for over three years before marrying.
See F ED. R. E VID. 602, 701.
Further, we have “explained that there is no special
foundational requirement for bias evidence and the
party attempting to demonstrate bias should be able to
prove any fact logically relevant to bias.” Thompson, 359
F.3d at 478 n.12 (construing Manske, 186 F.3d at 779). A
party eliciting bias evidence based on fear need not “ask
explicitly whether the witness was ‘presently afraid’ or
whether the witness felt ‘pressured to testify a certain
way.’ ” Id. (quoting Manske, 186 F.3d at 779). We have
mentioned that defendants seeking to elicit such
evidence must inquire into the “who, what, why, where,
and when of the specific incidents he claims give rise
to bias.” Id. (quoting Manske, 186 F.3d at 779). But such
questions were unnecessary in this situation. Here, the
government asked merely why Mrs. Jamison thought
Jamison was aggressive. It did not seek testimony
about specific incidents and Mrs. Jamison did not
2
She also testified that her statement to police was a lie and
attempted to explain the discrepancy by claiming that she was
off her medication for depression and anxiety when she
spoke with police. But neither she nor Jamison established that
failing to take her medicine indicated that her statement
to police was false and her testimony true.
No. 10-1515 11
discuss any. In response, Mrs. Jamison explained that her
belief was “based on a knowledge of a person’s character”
and that Jamison had not physically harmed her in
any way. The district court did not err in permitting
the government to elicit testimony regarding why
Mrs. Jamison thought Jamison was aggressive.
B. Harmless Error
Assuming arguendo that the district court erred in its
evidentiary ruling, the error was harmless. See F ED. R.
C RIM. P. 52(a); United States v. Cooper, 591 F.3d 582, 590
(7th Cir. 2010). To convict Jamison under 26 U.S.C.
§§ 5861(d) and 5845(a), the government needed to
prove three elements: (1) that Jamison “consciously
possessed what he knew to be a firearm,” United States
v. Sanders, 520 F.3d 699, 700 (7th Cir. 2008) (quoting
United States v. Jones, 222 F.3d 349, 352 (7th Cir. 2000));
(2) that he “was aware of the . . . features that brought his
gun within the realm of regulation,” United States v.
Edwards, 90 F.3d 199, 205 (7th Cir. 1996); see also United
States v. Staples, 511 U.S. 600, 618-19 (1994); Sanders, 520
F.3d at 700 (“[T]he government had to prove that
Sanders . . . knew that the shotgun had an overall length
of less than 26 inches or a barrel length of less than
18 inches.”); Jones, 222 F.3d at 352; and (3) that the fire-
arm was unregistered, although it was not required to
prove that Jamison knew the firearm was unregistered,
see 26 U.S.C. § 5861(d); United States v. Freed, 401 U.S. 601,
607-09 (1971) (holding that the government need not
prove knowledge that a firearm is unregistered); see also
12 No. 10-1515
Staples, 511 U.S. at 609 (“In Freed, we decided only that
§ 5861(d) does not require proof of knowledge that a
firearm is unregistered.”); Edwards, 90 F.3d at 202 (dis-
cussing Freed).
The government indisputably established the first and
third elements. Jamison concedes in briefing that the
evidence established that he possessed the firearm.
Also, undisputed evidence demonstrated that the shot-
gun was never registered.
Jamison argues that the government failed to suf-
ficiently prove the second element to render the alleged
error harmless. This argument is meritless: The govern-
ment proved the second element with overwhelming
evidence. First, Agents Vance and Bennett testified that
Jamison admitted to them on March 10, 2009, that he
knew the shotgun was illegal when he purchased it
because it was too short. Second, Officer Shively and
Mrs. Jamison testified that Jamison told Officer Shively
on February 25 that the barrel might be too short.
Finally, the shotgun and its barrel were significantly
shorter than § 5845(a) permits: While § 5845(a) prohibits
a shotgun from being shorter than 26 inches long and
its barrel from being shorter than 18 inches long, the
shotgun was merely 14 and 1/2 inches long and the
barrel only 8 and 1/16 inches long. The fact that a
shotgun or its barrel are obviously too short is “not a
substitute” for proving that Jamison knew the shotgun
had characteristics that subjected it to registration,
Edwards, 90 F.3d at 205, but it is “a means of proving
knowledge,” id., and we have explained that, coupled
No. 10-1515 13
with evidence that the defendant handled the gun, a
shotgun or barrel that is obviously too short permits an
inference that the defendant knew of its features that
subjected it to the statute, see Sanders, 520 F.3d at 700-
01 (finding that the jury could have inferred the
requisite knowledge because there was evidence that
the defendant possessed the firearm and the firearm’s
barrel was only 11 and 7/16 inches long, significantly
shorter than the 18-inch minimum length).
Jamison makes two final arguments, both unpersuasive.
First, he points out that he testified that some people
told him that the gun was antique, and, thus, not illegal.
But his admissions to Agent Vance, Agent Bennett, and
Officer Shively, in addition to the fact that the shotgun
and its barrel were significantly shorter than § 5485(a)
permits, demonstrate that the jury would have con-
victed Jamison without the challenged evidence. He
also claims that he never told law enforcement officers
that he knew the shotgun needed to be registered. But a
conviction requires proving that Jamison knew of the
characteristics that subjected the firearm to the registra-
tion requirement—i.e., that the shotgun was shorter than
26 inches or that its barrel was shorter than 18
inches—not that he knew the firearm must actually be
registered because of 26 U.S.C. §§ 5861(d) and 5845(a)—
i.e., not that he had knowledge of the statute at issue or
its specific prohibitions. See Staples, 511 U.S. at 619;
Sanders, 520 F.3d at 700; Jones, 222 F.3d at 352; Edwards,
90 F.3d at 201-02, 204-05. Accordingly, even if the
district court erred by admitting Mrs. Jamison’s testi-
mony, the error was harmless.
14 No. 10-1515
III. Conclusion
For the foregoing reasons, we A FFIRM the judgment of
the district court.
3-18-11