No . 96-8184 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 WILLIE DON DANIEL, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT MEMORANDUM FOR THE UNITED STATES WALTER DELLINGER Acting Solicitor General Department of Justice Washington, D.C.20530-0001 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 No. 96-8184 WILLIE DON DANIEL, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT MEMORANDUM FOR THE UNITED STATES Following a jury trial in the United States District Court for the Eastern District of Kentucky, petitioner was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. 922(g) (1) (count 1); being a felon in possession of ammunition, in violation of 18 U.S.C. 922(g) (1) (Count 2); and possessing an un- registered sawed-off shotgun, in violation of 26 U.S.C. 5861(d) (Count 3 ) . Pet. App. B1. He was sentenced to concurrent 120-month prison terms on Counts 1 and 2, and to 120 months' imprisonment on Count 3, to run consecutively to the extent necessary to produce a total term of 150 months' imprisonment. The court of appeals affirmed. Pet. App. B1-B3. ---------------------------------------- Page Break ---------------------------------------- 2 1. Counts 1 and 2 of the indictment - - charging petitioner with being a felon in possession of a firearm and ammunition - - named his previous convictions for kidnapping and reckless homicide to establish his felony status for purposes of 18 U.S.C. 922 (g) (1). Pet. C.A. Br. 1. 1. Before trial, petitioner offered to stipulate to his felony status. Id. at 2. He moved to prevent the govern- ment from offering evidence of his prior criminal history, and to strike any description of his prior felonies from the indictment. The district court denied that motion. Ibid. At trial, an agent of the Bureau of Alcohol, Tobacco, and Firearms was allowed to testify that petitioner had been previously convicted of kidnapping and of reckless homicide. Pet. C.A. Br. 3. A redacted copy of the previous judgments, which showed only the names of the crimes and dates and places of conviction, was also admitted into evidence. Gov't C.A. Br. 7. 2. On appeal, petitioner claimed that the trial court erred in admitting evidence of his prior convictions in light of his offer to stipulate. The court of appeals rejected that claim and affirmed the convictions. Pet. App. B2-B3. It stated: It is settled law in this circuit that the government is en- titled to prove the felonies it has alleged in a 922 (g) (1) prosecution and is not required to accept the defendant's stipulation. Id. at B2 (citing United States v. Hudson, 53 F.3d 744, 747 (6th Cir.), cert. denied, 116 S. Ct. 235 (1995); United States v. ___________________(footnotes) 1 The government did not file a separate statement of facts in the court of appeals, accepting (with certain provisos not here relevant) petitioner's statement. Gov't C.A. Br. 3. ---------------------------------------- Page Break ---------------------------------------- 3 Yannott, 42 F.3d 999, 1007 (6th Cir. 1994), cert. denied, 115 S. Ct. 1172 (1995)). Petitioner on appeal did not dispute the Sixth Circuit's "settled law," but urged the court to adopt the contrary view of other circuits that evidence of prior felonies should not be ad- mitted over the defendant's offer to stipulate. Pet. App. B2. " This," the court responded, "we may not do absent an intervening Supreme Court decision" Ibid. 3. Petitioner contends (Pet. 6) that he was "unduly pre- judiced" by the admission into evidence of his two prior felony convictions during a prosecution under the felon-in-possession statute, 18 U.S.C. 922(g) (l). In Old Chief v. United States, 117 S. Ct. 644, 655 (1997), this Court ruled that in a Section 922(g) (1) case in which the prior conviction was for an offense likely to lead to a conviction on some improper ground, it is an abuse of discretion to admit the conviction record when an ad- mission is available. Because the proper disposition of petition- er's claim that he was "unduly prejudiced" by the evidence of his prior convictions could be affected by Old Chief, the Court should grant the petition for a writ of certiorari, vacate the judgment, and remand this case to the court of appeals for further consider- ation in light of that decision. Respectfully submitted. WALTER DELLINGER Acting Solicitor General MAY 1997