from the United States District Court for the District of New
Mexico (D.C. No. 1:14-CR-04067-JAP-1) (D. N.M.)
Arceci, Assistant Federal Public Defender (Virginia L. Grady,
Federal Public Defender with him on the brief) Denver,
Colorado for Defendant - Appellant.
Han, Assistant United States Attorney (James D. Tierney,
Acting United States Attorney with him on the brief)
Albuquerque, New Mexico for Plaintiff - Appellee.
MATHESON, McKAY, and EBEL, Circuit Judges.
MATHESON, CIRCUIT JUDGE.
Silva alleges three trial errors:
1. The district court erred by allowing the prosecution to
present evidence of a previous felony conviction to support
the charge of his being a felon in possession of a firearm.
2. The evidence was insufficient to convict him of being a
felon in possession of a firearm.
3. The district court plainly erred by admitting testimony
from a DNA expert who had made typographical errors in the
course of performing her DNA analysis.
jurisdiction under 28 U.S.C. § 1291, we affirm.
April 23, 2014, a man, later determined by the jury to be Mr.
Silva, knocked on A.S.'s door. After a brief discussion,
he brandished a .45 caliber pistol and forced his way in. The
intruder demanded money, jewelry, weapons, and the keys to
A.S.'s car, and bound A.S.'s hands and feet using
electrical wire. While the man looked for the car keys, A.S.
removed her restraints, escaped to a neighbor's home, and
called the police.
next went to a nearby home and ordered C.L. to open his door.
When C.L. declined, he shot the glass door and entered the
home. After C.L. unsuccessfully attempted to arm himself, the
intruder demanded C.L.'s truck keys, shot him in the leg,
and fled, leaving behind several items stolen from A.S.'s
home. On the same day, a homeowner called the police to
report a truck sitting in his driveway. The truck, later
identified as C.L.'s, had blood on the steering wheel and
the driver's side door.
collected DNA from the truck and the other crime scenes, and
matched it with a sample from Mr. Silva in a database. The
victims positively identified Mr. Silva in photo arrays. An
arrest warrant and search warrant were issued for Mr. Silva.
1, 2014, police apprehended Mr. Silva while he was driving a
rented Nissan Murano. The arresting officer noticed a handgun
wedged in the driver's seat. In searching the car later,
officers also located heroin, Flexicuffs (plastic handcuffs),
and drug paraphernalia in the vehicle. Alcohol, Tobacco, and
Firearm ("ATF") agents identified the firearm as a
Smith and Wesson model 411, .40 caliber semiautomatic pistol.
They also identified ammunition seized from the Nissan as one
round of Remington brand .40 caliber ammunition and eight
rounds of CBC brand .40 caliber ammunition. The pistol and
all of the ammunition were manufactured outside of New
Mexico. At the time of his arrest, Mr. Silva had an extensive
criminal history, including convictions for multiple
Mr. Silva's arrest, a federal grand jury returned a
six-count indictment against him. Counts One through Five
concerned the April 23, 2014 incidents and charged Mr. Silva
with: (1) attempted carjacking in violation of 18 U.S.C.
§ 2119(1), (2) knowingly using and carrying a firearm in
furtherance of the attempted carjacking in violation of 18
U.S.C. § 924(c), (3) carjacking in violation of 18
U.S.C. § 2119(2), (4) knowingly using and carrying a
firearm in furtherance of a carjacking, and (5) knowingly
possessing a firearm and ammunition in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2).
Six concerned Mr. Silva's arrest on July 1, 2014, and
charged him with knowingly possessing "a Smith and
Wesson Model 411 .40 caliber semi-automatic pistol, "
"approximately one (01) Remington brand .40 caliber
cartridge, " and "approximately eight (08) CBC
brand .40 caliber cartridges, " in violation of
§§ 922(g)(1) and 924(a)(2). ROA, Vol. 1 at 32-33.
Both Counts Five and Six specified Mr. Silva's eight
previous felony convictions. Mr. Silva pled not guilty to all
pretrial motions are relevant here. First, the district court
granted Mr. Silva's motion to sever Count Six from Counts
One through Five for separate trials. Second, Mr. Silva moved
to prevent the jury in each trial from hearing that he was a
convicted felon. He offered instead to stipulate that he is a
convicted felon and asked the court to instruct the jury that
he is a "prohibited person" for purposes of the
charges in Count Five and Six for violations of §
922(g)(1). Id. at 95-96. He argued that "any
evidence that Mr. Silva has a felony record creates the
unacceptable risk that the jury could improperly use this
information, not to determine Mr. Silva's guilt for the
charged offense, but as proof of his bad character."
Id. at 97. The district court denied the motion
because it "lack[ed] merit under Tenth Circuit
law." Id. at 219 (citing United States v.
Prieto, 565 Fed.Appx. 758, 763 (10th Cir. 2014)
First Trial - Count Six
first trial concerned Count Six. Before the trial, Mr. Silva
stipulated that he had a prior felony conviction and that the
weapon found in the car affected interstate commerce.
trial, the prosecution presented evidence on whether Mr.
Silva had "knowingly possessed" the firearm found
in the car. Officer David Nix, who searched the car after it
had been towed, identified Exhibit 1 as the "firearm
that we recovered from the front driver's seat of the
Nissan Murano." ROA, Vol. 5 at 244, 246. ATF Officer
Derek Wright also testified. The prosecutor showed him
Exhibits 1, 2A, and 2B and described 2A and 2B as "a
magazine and some ammunition." Id. at 263.
Officer Wright testified that the ammunition consisted of
"nine .40 caliber cartridges. One is a Remington Peters
brand and the others are CBC brand, .40 caliber
ammunition." Id. Neither he, nor any other
witness, identified the ammunition as having been found
within the gun from the Nissan Murano.
jury returned a guilty verdict.
Second Trial - Counts One through Five
second trial focused on whether Mr. Silva was the person who
committed the home invasions on April 23, 2014. A flawed
identification procedure barred C.L. from giving
identification testimony, and A.S. could not identify anyone
in the courtroom as the intruder. The only identification
evidence against Mr. Silva was based on DNA analysis.
jury heard testimony from DNA analyst Alanna Williams about
blood samples found in C.L.'s truck and inside C.L.'s
house. Ms. Williams testified that, after the home invasions,
she determined that DNA from inside the door of C.L.'s
truck matched Mr. Silva's profile in the DNA database.
Police arrested Mr. Silva based on this identification. After
his arrest, he provided a cheek swab, which Ms. Williams
matched to the sample from the truck and one of three samples
from C.L.'s house. She concluded that "[Mr.] Silva
could not be excluded as the donor" and that the
probability anyone else was the source of the DNA found in
the truck and in C.L.'s home was exceptionally low.
Id. at 689, 691, 692.
discuss further below, the defense cross-examined Ms.
Williams about typographical errors in the record-keeping of
jury found Mr. Silva guilty of all five charges. The court
imposed a total sentence of 564 months in prison.
Motion to Exclude Reference to Prior Felony
parties have devoted most of their arguments in their briefs
and at oral argument to whether the district court erred in
refusing to exclude reference to Mr. Silva's having
previously been convicted of a felony. A previous felony
conviction is an element of the offenses charged under 18
U.S.C. § 922(g)(1) in Counts Five and Six of Mr.
Standard of Review
review legal interpretations of the Federal Rules of Evidence
de novo. United States v. Gutierrez de Lopez, 761
F.3d 1123, 1132 (10th Cir. 2014). We review evidentiary
decisions for abuse of discretion. Id.; United
States v. Griffin, 389 F.3d 1100, 1103 (10th Cir. 2004).
In particular, "[w]e will disturb a trial court's
decision to admit evidence under Rule 403 only for an abuse
of discretion." United States v. Charley, 189
F.3d 1251, 1260 (10th Cir.1999); see Old Chief v. United
States, 519 U.S. 172, 174 n.1 (1997) ("The standard
of review applicable to the evidentiary rulings of the
district court is abuse of discretion.").
district court abuses its discretion when it renders an
arbitrary, capricious, whimsical, or manifestly unreasonable
judgment." Ralston v. Smith & Nephew Richards,
Inc., 275 F.3d 965, 968 (10th Cir. 2001) (quotations
omitted). A district court's decision will be reversed
"only if the court exceeded the bounds of permissible
choice, given the facts and the applicable law in the case at
hand." United States v. McComb, 519 F.3d 1049,
1053 (10th Cir. 2007) (quotations omitted).
Additional Procedural Background
Silva filed a pretrial motion to "prevent the jury from
hearing evidence that Mr. Silva is a convicted felon."
ROA, Vol. 1 at 95. He was "prepared to stipulate that he
has been convicted of each of the enumerated felonies set out
in the Grand Jury Indictment, " id. at 96,
which, he said, would be "a conclusive stipulation to an
essential element of the crime charged in 18 U.S.C. §
922(g)(1), " id. at 99. Mr. Silva
"request[ed] that the Court instruct the jury in broader
terms that Mr. Silva has stipulated that he is a
'prohibited person.'" Id. at 96. He
argued that "any evidence that Mr. Silva has a felony
record creates the unacceptable risk that the jury could
improperly use this information, not to determine Mr.
Silva's guilt for the charged offense, but as proof of
his bad character." Id. at 97. He primarily
relied on Federal Rule of Evidence 403 and Old
Chief, 519 U.S. 172.
response, the Government conceded that, if Mr. Silva
stipulated he was a convicted felon, it could not inform the
jury about "the nature of the previous felony."
ROA, Vol. 1 at 213. But it argued that Old Chief did
not require the court to modify the relevant pattern jury
instruction to say that Mr. Silva was a "prohibited
person" rather than a "person who has been
previously convicted in any court of a felony."
Id. at 214 (quoting Tenth Circuit Pattern Jury
Instruction 2.44 - Possession of a Firearm by a Convicted
Felon 18 U.S.C. § 922(g)(1)).
hearing on this motion, counsel for Mr. Silva said, "The
record should reflect that we are prepared to stipulate to
the fact of Mr. Silva's prior felony conviction so long
as it is clear from the record that we are not giving up our
opportunity to challenge that matter on appeal." ROA,
Vol 4 at 48. The district court denied the motion, stating it
lacked merit under Prieto, 565 F. App'x. at 763.
The court said it would follow the Tenth Circuit's
pattern jury instruction, which required the jury to find Mr.
Silva had been previously convicted of a felony.
first trial, the judge, just before presenting the jury
instructions, read the following stipulation to the jury:
first stipulation is entitled Stipulation Regarding Prior
Felony Convictions. It reads as follows: The parties, by and
through their undersigned counsel stipulate and agree as
1. [T]he defendant, Samuel Silva, prior to July 1, 2014, had
been convicted of a crime punishable by imprisonment for a
term exceeding one year. That is, a felony offense, as