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United States v. Grier

decided: June 29, 1987.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
WILLIE GRIER, III, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Central District of Illinois, Springfield Division. No. 86-30050-Richard Mills, Judge.

Before CUMMINGS, FLAUM, and EASTERBROOK, Circuit Judges.

Per Curiam. Willie Grier was convicted by a jury of one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 1202(a)(1). Section 1202(a)(1) carries a maximum penalty of two years imprisonment. The district court found Grier to be a dangerous special offender within the meaning of 18 U.S.C. § 3575, however, and sentenced him to twenty years in prison. Grier challenges both his conviction and the twenty-year sentence.

I. JURY INSTRUCTION

At the close of Willie Grier's trial on the charge of unlawful possession of a firearm by a convicted felon, the district judge instructed the jury that Grier had previously been convicted of aggravated battery. Since the parties had earlier stipulated that the instruction would read only that Grier had a previous unspecified conviction, the court removed the typed instruction it had read from those it later submitted to the jury. Nevertheless, Grier challenges his conviction based upon the court's reading of the erroneous instruction.*fn1

In reviewing the propriety of jury instructions, "they are to be viewed as a whole, and as long as the instructions treat the issues fairly and accurately they will not be interfered with on appeal." United States v. O'Malley, 796 F.2d 891, 897 (7th Cir. 1986) (citations omitted). Generally, a jury instruction specifying the defendant's prior felony conviction is not improper since proof of the prior conviction is a necessary element in a case brought under § 1202(a)(1). See, e.g., United States v. Swiatek, 819 F.2d 721, slip op. at 13 (7th Cir. 1987). Although here the parties had agreed to a contrary stipulation, the court's inadvertent failure to abide by that stipulation did not prejudice Grier. The jury had already learned of Grier's conviction for aggravated battery during both his direct and cross-examinations. During direct examination, the following colloquy occurred:

Q. Have you ever been convicted of any felonies?

A. Yes.

Q. Were you convicted-

A. I was convicted in '83 for aggravated battery. And, on cross-examination, Grier admitted to the following:

Q. And in 1983 you were convicted of another felony, were you not?

A. Yes.

Q. And that felony was aggravated battery, I believe you testified?

A. Yes.

In addition, the court withdrew the typed instruction from those submitted to the jury. Under the circumstances, the district court properly ...


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