United States v. Barr

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 7, 2002
• Docket: 02-10059
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-10059 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TODD WILLIAM BARR,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas (1:01-CR-41-ALL) - - - - - - - - - - August 6, 2002

Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Todd William Barr appeals his conviction

for being a felon in possession of firearms and ammunition, in

violation of 18 U.S.C. § 922(g)(1). He argues that the district

court erred in admitting evidence of parole instructions and in

giving the jury the “deliberate ignorance” or “willful blindness”

instruction.

The parole instructions, admitted into evidence over Barr’s

objection, were evidence of his knowledge that he was a convicted

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. felon and that it was unlawful for him to possess a firearm.

Because the government was not required to prove either of these

facts, see United States v. Emerson, 270 F.3d 203, 216 (5th Cir.

2001), cert. denied, 122 S. Ct. 2362 (2002), and United States v.

Dancy, 861 F.2d 77, 81-82 (5th Cir. 1988), it was not relevant and

should not have been admitted. In light of the overwhelming

evidence of Barr’s constructive possession of the guns and

ammunition, however, the error was harmless. See United States v.

Skipper, 74 F.3d 608, 612 (5th Cir. 1996).

The jury instruction on “deliberate ignorance” was arguably

appropriate to show that Barr knew that he was prohibited from

possessing guns and ammunition and could be considered to have

deliberately blinded himself to the fact that he did not have to be

the owner of the guns and ammunition to possess them knowingly.

Even if the instruction was improper, however, it too was harmless.

The record contains substantial evidence of Barr’s constructive

possession of the guns and ammunition, so this instruction was mere

surplusage and thus did not create the risk of prejudice. See

United States v. Cartwright, 6 F.3d 294, 301 (5th Cir. 1993).

AFFIRMED.