United States v. Wendell Clemons

                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 24-2980
                         ___________________________

                             United States of America

                                       Plaintiff - Appellee

                                         v.

                                 Wendell Clemons

                                    Defendant - Appellant
                                  ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                          Submitted: September 19, 2025
                             Filed: October 8, 2025
                                 ____________

Before BENTON, GRASZ, and KOBES, Circuit Judges.
                           ____________

BENTON, Circuit Judge.

       A jury convicted Wendell Tiallo Clemons of being a felon in possession of a
firearm and forcibly assaulting, resisting, and opposing a federal law enforcement
officer in violation of 18 U.S.C. §§ 111(a)(1) and (b), 922(g)(1), and 924(a)(2). The
district court sentenced him to 77 months in prison. He appeals his conviction.
Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
                                         I.

      Clemons believes the district court erred in denying him a new trial based on
a jury instruction that included information about his prior felony convictions.
Before trial, Clemons had not decided whether to stipulate to his prior felony
convictions. The parties thus submitted a jointly proposed jury instruction on the
elements of a felon-in-possession charge that included his prior convictions:

                             INSTRUCTION NO. 26

           It is a crime for a felon to possess a firearm, as charged in Count
      Two of the Indictment. This crime has four elements:

            One, the defendant had been convicted of a crime punishable by
      imprisonment for more than one year;

             Two, after that, the defendant knowingly possessed a firearm,
      that is, a Ruger, Model EC9s, 9 mm semiautomatic firearm, bearing
      Serial Number 456-98711;

             Three, at the time the defendant knowingly possessed the
      firearm, he knew he had been convicted of a crime punishable by
      imprisonment for more than one year; and

            Four, the firearm was transported across a state line at some time
      during or before the defendant's possession of it.

            You are instructed that tampering or fabricating physical
      evidence and assaulting a public servant are each crimes punishable by
      imprisonment for more than one year under the laws of the State of
      Texas, and possession of a controlled substance is a crime punishable
      by imprisonment for more than one year under the laws of the State of
      Missouri.

      During trial, Clemons stipulated to the prior felony convictions, negating the
need for the government to present evidence of them. Before instructing the jury,

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the district court discussed the proposed instructions with the parties. Clemons did
not object to Instruction No. 26.

       The court gave jurors copies of the instruction and then read them aloud. The
court stopped during Instruction No. 26 after beginning to read the last paragraph
about Clemons’s prior convictions. After conferring with counsel, the court asked
the jurors to return their instructions, dismissing them from the courtroom. Clemons
moved for a mistrial, arguing that the instruction improperly disclosed the details of
his prior felony convictions. The district court denied the motion. Instead, it issued
a revised Instruction No. 26, removing the paragraph about the prior convictions. It
then instructed the jury:

      Ladies and gentlemen of the jury, you are instructed to ignore the
      previous Instruction No. 26. You must not even discuss the prior
      Instruction No. 26. Only use the current copy 26.

       Clemons argues the partial reading of the original Instruction No. 26 was “a
prejudicial error, and likely resulted in a serious miscarriage of justice requiring
reversal of Appellant’s conviction, and remand for a new trial.” This court reviews
the “denial of a motion for a new trial for abuse of discretion.” United States v.
Sully, 114 F.4th 677, 682 (8th Cir. 2024).

       In Old Chief v. United States, the Supreme Court held that a district court
usually abuses its discretion if, in a felon-in-possession case, it rejects a defendant’s
offer to stipulate to a prior felony conviction and instead allows the government to
introduce evidence of the conviction. See Old Chief v. United States, 519 U.S. 172,
174, 191–92 (1997). When a district court erroneously admits “evidence of a
§ 922(g) defendant’s prior convictions,” this court applies the “harmless error
analysis” under Federal Rule of Criminal Procedure 52(a). United States v.
Horsman, 114 F.3d 822, 827 (8th Cir. 1997). Rule 52(a) provides: “Any error,
defect, irregularity, or variance that does not affect substantial rights must be
disregarded.” Fed. R. Civ. P. 52(a). The rule requires reversal for Old Chief error

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“only if the jury may have been substantially swayed by improperly admitted
evidence.” United States v. Taylor, 122 F.3d 685, 688 (8th Cir. 1997).

       As the district court found, the error here was harmless. The district court
stopped reading the instruction as soon as it began describing Clemons’s prior
convictions. It then directed the jurors to turn in their copies of the instructions. The
district court found “there is no indication that any juror read all the details of
Defendant’s prior convictions.” Even if some jurors read the paragraph, it did not
say that Clemons had been convicted of the crimes described. Rather, it said only
that the crimes were punishable by imprisonment for more than one year. To
eliminate any possible prejudice, the district court told the jurors to ignore the initial
version of Instruction 26 and not discuss it. “It is presumed that a jury will follow a
curative instruction unless there is an overwhelming probability that it was unable
to do so.” United States v. Gomez-Diaz, 911 F.3d 931, 935 (8th Cir. 2018) (internal
quotation marks omitted). Nothing in this case suggests an “overwhelming
probability” that the jury was unable to follow the district court’s clear instruction
to disregard the initial version of Instruction No. 26. Id.

        Additionally, the evidence of Clemons’s guilt was substantial. On the felon-
in-possession count, the only element in dispute was whether Clemons possessed the
gun. The evidence showed he did. Clemons’s girlfriend testified he took her gun
and car keys. After fleeing from officers and backing his girlfriend’s car into a wall,
police found a gun underneath the driver’s seat. See United States v. Banks, 43
F.4th 912, 918 (8th Cir. 2022) (“The district court did not abuse its discretion in
concluding that a jury reasonably could infer that Banks sought to flee the patrol car
because he recognized that officers were on the brink of discovering his unlawful
possession of firearms in the trunk of the rental car.”). Clemons’s girlfriend
identified the gun as the one he took from her. On the assault charge, two officers
testified that Clemons refused to comply with their directions to get out of the car
and then accelerated away. As he drove off, he ran over one of their feet. Security
video from the parking garage corroborates the officers’ testimony.


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        The district court was in the best position to evaluate the effect of the
instruction on the jury. See United States v. Beal, 430 F.3d 950, 955 (8th Cir. 2005)
(“The district court is in a better position to measure the effect of inadmissible
testimony on a jury than an appellate court.”). It did not abuse its discretion in
denying his motion for a new trial. See United States v. Walker, 720 F.3d 705,
706–07 (8th Cir. 2013) (holding no prejudice where the district court read a “portion
of the indictment stating the nature” of a prior conviction because the evidence of
guilt was substantial and the district court instructed the jury at the start and end of
trial that the indictment was not evidence of anything).

       Clemons also challenges the constitutionality of 18 U.S.C. § 922(g)(1), both
on its face and as applied. As Clemons acknowledges, binding precedent precludes
this argument. See United States v. Cunningham, 114 F.4th 671, 675 (8th Cir.
2024) (“The longstanding prohibition on possession of firearms by felons is
constitutional.”); United States v. Jackson, 110 F.4th 1120, 1125, 1129 (8th Cir.
2024) (holding “there is no need for felony-by-felony litigation regarding the
constitutionality of § 922(g)(1)”).

                                     *******

      The judgment is affirmed.
                      ______________________________




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