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United States v. Silva

United States Court of Appeals, Tenth Circuit

May 8, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
SAMUEL SILVA, Defendant-Appellant.

          Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:14-CR-04067-JAP-1) (D. N.M.)

          John Arceci, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender with him on the brief) Denver, Colorado for Defendant - Appellant.

          Edward Han, Assistant United States Attorney (James D. Tierney, Acting United States Attorney with him on the brief) Albuquerque, New Mexico for Plaintiff - Appellee.

          Before MATHESON, McKAY, and EBEL, Circuit Judges.


         Samuel 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.

         Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

         I. BACKGROUND

         A. Factual Background

         On 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.

         The man 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.

         Police 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.

         On July 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 felonies.

         B. Procedural Background

         1. Indictment

         Following 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).

         Count 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 counts.

         2. Pretrial Motions

         Two 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) (unpublished)).

         3. First Trial - Count Six

         The 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.

         At 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.

         The jury returned a guilty verdict.

         4. Second Trial - Counts One through Five

         The 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.

         The 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.

         As we discuss further below, the defense cross-examined Ms. Williams about typographical errors in the record-keeping of the samples.

         The jury found Mr. Silva guilty of all five charges. The court imposed a total sentence of 564 months in prison.


         A. Motion to Exclude Reference to Prior Felony Conviction

         The 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. Silva's indictment.

         1. Standard of Review

         We 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.").

         "A 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).

         2. Additional Procedural Background

         Mr. 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.

         In 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)).

         At a 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.

         At the first trial, the judge, just before presenting the jury instructions, read the following stipulation to the jury:

         The 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 follows:

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 ...

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