                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a1091n.06

                                           No. 11-6448
                                                                                         FILED
                                                                                     Oct 19, 2012
                          UNITED STATES COURT OF APPEALS                       DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

v.                                                   ON APPEAL FROM THE UNITED
                                                     STATES DISTRICT COURT FOR THE
GARY MCDOWELL,                                       WESTERN DISTRICT OF TENNESSEE

       Defendant-Appellant,

                                               /




BEFORE:        CLAY and WHITE, Circuit Judges; HOOD, District Judge.*

       CLAY, Circuit Judge. A jury convicted Defendant Gary McDowell of being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g), and the district court sentenced him to

120 months in prison to be followed by three years of supervised release. Defendant contends on

appeal that the district court improperly admitted, as res gestae or background, evidence regarding

the home invasion robbery that precipitated him being charged with the gun possession offense. For

the reasons set forth below, we AFFIRM Defendant’s conviction.




       *
       The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
                                            No. 11-6448

                                         BACKGROUND

       At about 12:20 a.m. on June 18, 2010, Defendant, along with two other people, broke into

a residence at 1737 South Trezevant Street in Memphis, Tennessee. Defendant, wearing a ski mask

and gloves, and his cohorts went to this address in order to collect on an unpaid debt. At the same

time, an unrelated individual, Travis Woods, was at a nearby bar watching a basketball game.

Woods met a woman at the bar, who invited him back to her home following the game. Despite

receiving directions to this woman’s home, Woods inadvertently ended up at 1737 South Trezevant.

When Woods approached the house, Defendant pointed his gun at Woods, and Woods fled.

       Woods flagged down Memphis police officers Gary Williams and Durrell Gray, who had

arrived at the scene in response to a 911 call about the robbery. Woods told the officer that a man,

who he identified at trial as Defendant, had threatened him with a gun at 1737 South Trezevant.

Upon reaching 1737 South Trezevant, Williams observed two black men run from the house; Gray,

who was stationed at a different location by the house, saw one man run past him and heard Williams

engaged in a struggle with Defendant. Williams and Gray both later identified one of the men as

Defendant and confirmed that Defendant was wearing a ski mask and gloves and had a handgun.

The officers apprehended Defendant and recovered a gun—a .40 caliber Smith & Wesson pistol.

The other fleeing man successfully evaded apprehension by police.

       The following day, Defendant, after having been advised of his Miranda rights, agreed to

provide police with a statement. A redacted version of this statement was later entered into evidence

at Defendant’s trial. In the statement, Defendant admitted to participating in a robbery at 1737 South

Trezevant on June 18, 2010 possessing a gun during the robbery, and having been previously


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convicted of a felony. At trial, the government submitted proof of that Defendant’s prior felony

convictions.

        On September 21, 2011, a federal grand jury for the Western District of Tennessee returned

a one-count indictment of Defendant, charging him with being a felon in possession of a firearm, in

violation 18 U.S.C. § 922(g). Prior to trial, the government gave notice to Defendant that it intended

to introduce evidence related to the home invasion robbery in which Defendant was involved that

precipitated him being charged with the gun possession offense. Defendant then filed a motion in

limine to exclude such evidence. On July 11, 2011, the district court held a hearing on the motion

at which the court concluded that the evidence was admissible as res gestae or background evidence.

In the course of denying Defendant’s motion, however, the district court limited the scope of the

robbery evidence that the government could introduce as background.

        At trial, Defendant renewed his objections to the introduction of the home invasion evidence.

Specifically, Defendant took issue with questioning about a ski mask and gloves that were admitted

into evidence; the introduction of an envelope found on Defendant containing $900; questioning

about Defendant’s statement to police on the night of the robber; and the introduction of Defendant’s

redacted statement to the police on the night of the robbery. During the course of trial and then again

in the charge to the jury, the district court instructed the jurors that they were not to consider acts not

charged in the indictment, such as the robbery.

        The jury convicted Defendant on July 13, 2011 on the sole § 922(g) count. The district court

sentenced Defendant to 120 months in prison to be followed by three years of supervised release.

Defendant timely appealed, invoking this Court’s jurisdiction under 28 U.S.C. § 1291.


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                                             No. 11-6448

                                            DISCUSSION

        We review evidentiary rulings of the district court for abuse of discretion, United States v.

Mayberry, 540 F.3d 506, 515 (6th Cir. 2008), subject to harmless error review, United States v. Bell,

516 F.3d 432, 447 (6th Cir. 2008); see Fed. R. Crim. P. 52(a). Under harmless error, “the question

is whether there is a reasonable possibility that the evidence complained of might have contributed

to the conviction.” Bell, 516 F.3d at 447 (citation internal quotation marks omitted). When

excluding the evidence complained of, there is nonetheless overwhelming evidence of the

defendant’s guilt, harmless error may be found. Id. Moreover, curative instructions given by the

district court may also render an evidentiary error harmless. Id.

        The crime of being a felon in possession of a firearm under 18 U.S.C. § 922(g) consists of

three elements: (1) the defendant had a previous felony conviction; (2) the defendant knowingly

possessed the firearm specified in the indictment; and (3) the firearm traveled in or affected interstate

commerce. United States v. Morrison, 594 F.3d 543, 544 (6th Cir. 2010). Even assuming that the

admission of evidence of the home invasion was erroneous, we are convinced that “that the judgment

was not substantially swayed by error” and was therefore harmless because the government’s proof

on each of the three elements of § 922(g) was overwhelming. Bell, 516 F.3d at 447 (citation and

internal quotation marks omitted). On the first element, the government introduced certified copies

of Defendant’s prior felony convictions into evidence, as well as Defendant’s admission in his in-

custody statement that he had been previously convicted of a federal felony “[f]or distribution of

drugs.” As to possession, Defendant did not challenge the government’s proof on this element,

which consisted of multiple eyewitness statements identifying Defendant as possessing the gun and


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Defendant’s own admission to that effect. Finally, as to the interstate nexus, the government put on

an expert—Special Agent Frederic Winston of the Bureau of Alcohol, Tobacco, Firearms, and

Explosives—who testified that Smith & Wesson guns, including Defendant’s gun, are manufactured

in Springfield, Massachusetts. Additionally, the gun specifically had the manufacturer’s inscription

and “Springfield, MA, USA” labeled on it. The expert’s testimony and manufacturer’s inscription

on the gun, combined with the fact that Defendant possessed the gun in Tennessee, leads to the

inexorable conclusion that Defendant’s gun traveled in interstate commerce. See, e.g., United States

v. Murphy, 107 F.3d 1199, 1211–12 (6th Cir. 1997) (listing cases); see also United States v.

Robinson, 205 F. App’x 415, 417 (6th Cir. 2006) (“[A] manufacturer’s inscription on a firearm can

be sufficient evidence to prove that the firearm traveled in interstate commerce.”). Therefore, it is

clear that regardless of whether the evidence regarding the home invasion robbery was properly

admitted, the government has shown any such error to be harmless.

        Our conclusion is further bolstered by the fact that during the course of trial and then again

in the charge to the jury, the district court instructed the jurors that they were not to consider acts not

charged in the indictment, such as the robbery, in determining Defendant’s guilt on the gun

possession charge. See United States v. Layne, 192 F.3d 556, 573 (6th Cir. 1999) (finding harmless

error where “the evidence against Defendant was overwhelming, and the district court gave a

curative instruction”); cf. United States v. Harvey, 653 F.3d 388, 396 (6th Cir. 2011) (“Jurors are

presumed to follow instructions.”).

                                            CONCLUSION

        For the foregoing reasons, we AFFIRM Defendant’s conviction.


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