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CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
January 7, 1997
Justice Souter delivered the opinion of the Court.
We hold that it does.[fn1]
In 1993, petitioner, Old Chief, was arrested after a fracas involving at least one gunshot. The ensuing federal charges included not only assault with a dangerous weapon and using a firearm in relation to a crime of violence but violation of 18 U.S.C. § 922(g)(1). This statute makes it unlawful for anyone "who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year" to "possess in or affecting commerce, any firearm . . . ." "[A] crime punishable by imprisonment for a term exceeding one year" is defined to exclude "any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices" and "any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less." 18 U.S.C. § 921(a)(20).
The earlier crime charged in the indictment against Old Chief was assault causing serious bodily injury. Before trial, he moved for an order requiring the government "to refrain from mentioning—by reading the Indictment, during jury selection, in opening statement, or closing argument—and to refrain from offering into evidence or soliciting any testimony from any witness regarding the prior criminal convictions of the Defendant, except to state that the Defendant has been convicted of a crime punishable by imprisonment exceeding one (1) year." App. 6. He said that revealing the name and nature of his prior assault conviction would unfairly tax the jury's capacity to hold the Government to its burden of proof beyond a reasonable doubt on current charges of assault, possession, and violence with a firearm, and he offered to "solve the problem here by stipulating, agreeing and requesting the Court to instruct the jury that he has been convicted of a crime punishable by imprisonment exceeding one (1) year." App. 7. He argued that the offer to stipulate to the fact of the prior conviction rendered evidence of the name and nature of the offense inadmissible under Rule 403 of the Federal Rules of Evidence, the danger being that unfair prejudice from that evidence would substantially outweigh its probative value. He also proposed this jury instruction:
"The phrase `crime punishable by imprisonment for a term exceeding one year' generally means a crime which is a felony. The phrase does not include any state offense classified by the laws of that state as a misdemeanor and punishable by a term of imprisonment of two years or less and certain crimes concerning the regulation of business practices.
"[I] hereby instruct you that Defendant JOHNNY LYNN OLD CHIEF has been convicted of a crime punishable by imprisonment for a term exceeding one year." App. 11.[fn2]
The Assistant United States Attorney refused to join in a stipulation, insisting on his right to prove his case his own way, and the District Court agreed, ruling orally that, "If he doesn't want to stipulate, he doesn't have to." App. 15-16. At trial, over renewed objection, the Government introduced the order of judgment and commitment for Old Chief's prior conviction. This document disclosed that on December 18, 1988, he "did knowingly and unlawfully assault Rory Dean Fenner, said assault resulting in serious bodily injury," for which Old Chief was sentenced to five years' imprisonment. App. 18-19. The jury found Old Chief guilty on all counts, and he appealed.
The Ninth Circuit addressed the point with brevity:
"Regardless of the defendant's offer to stipulate, the government is entitled to prove a prior felony offense through introduction of probative evidence. See United States v. Breitkreutz, 8 F. 3d 688, 690 (9th Cir. 1993) (citing United States v. Gilman, 684 F. 2d 616, 622 (9th Cir. 1982)). Under Ninth Circuit law, a stipulation is not proof, and, thus, it has no place in the FRE 403 balancing process. Breitkreutz, 8 F. 3d at 691-92.
. . . . .
"Thus, we hold that the district court did not abuse its discretion by allowing the prosecution to introduce evidence of Old Chief's prior conviction to prove that element of the unlawful possession charge." No. 94-30277, 1995 WL 325745, *1 (CA9, May 31, 1995) (unpublished), App. 50-51.
We granted Old Chief's petition for writ of certiorari because the Courts of Appeals have divided sharply in their treatment of defendants' efforts to exclude evidence of the names and natures of prior offenses in cases like this. Compare, e.g., United States v. Burkhart, 545 F. 2d 14, 15 (CA6 1976); United States v. Smith, 520 F. 2d 544, 548 (CA8 1975), cert. denied, 429 U.S. 925 (1976); and United States v. Breitkreutz, 8 F. 3d 688, 690-692 (CA9 1993) (each recognizing a right on the part of the Government to refuse an offered stipulation and proceed with its own evidence of the prior offense) with United States v. Tavares, 21 F. 3d 1, 3-5 (CA1 1994) (en banc); United States v. Poore, 594 F. 2d 39, 40-43 (CA4 1979); United States v. Wacker, 72 F. 3d 1453, 1472-1473 (CA10 1995); and United States v. Jones, 67 F. 3d 320, 322-325 (CADC 1995) (each holding that the defendant's offer to stipulate to or to admit to the prior conviction triggers an obligation of the district court to eliminate the name and nature of the underlying offense from the case by one means or another). We now reverse the judgment of the Ninth Circuit.
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