United States v. Jerry Brice

MEMORANDUM

After a four-day trial, a federal jury convicted Jerry Marvette Brice of being a felon in possession of a firearm. See 18 U.S.C. § 922 (g). On appeal, Brice argues that the district court committed reversible error in several of its evidentiary rulings, by denying his challenge to the gov ernment’s peremptory strike of an African American venire member, and when it sentenced Brice as an armed career criminal under 18 U.S.C. § 924 (e)(1). Because we find that the district court did not err — or when it did, its errors were harmless — we affirm.

1.Although the district court erred when it determined that defense witness Deric McWilliams was “available” within the meaning of Federal Rule of Evidence 804(a)(1), see United States v. Wilmore, 381 F.3d 868 , 872 & n. 5 (9th Cir.2004), overruled in part on other grounds by United States v. Larson, 495 F.3d 1094, 1100-01 (9th Cir.2007) (en banc), that error was harmless for several reasons. First, the government presented ample evidence to support Brice’s conviction. Second, although neither McWilliams nor defense investigator Lee Cole testified that McWilliams (rather than Brice) possessed the gun, McWilliams did otherwise…