United States of America v. Lemuel Frazier

The Honorable George Caram Steeh, United States District Judge for the Eastern District*
of Michigan, sitting by designation.
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0712n.06
Filed: November 19, 2008
No. 07-6135
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LEMUEL FRAZIER
Defendant-Appellant.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF KENTUCKY
Before: GIBBONS and COOK, Circuit Judges; and STEEH, District Judge.*
JULIA SMITH GIBBONS, Circuit Judge. Lemuel Frazier appeals his conviction from
the United States District Court for the Eastern District of Kentucky for distribution of crack cocaine,
conspiracy to distribute cocaine, possession of crack cocaine with the intent to distribute, possession
of a firearm to further drug trafficking, and possession of a firearm as a felon. He appeals his
conviction on two grounds, claiming that the district court abused its discretion by allowing him to
be impeached by mention of his prior felony conviction, and that his conviction violates his
constitutional right to possess a firearm for protection.
For the reasons outlined below, we affirm Frazier’s conviction and the judgment of the
district court.

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I.
This case arises from a series of drug transactions involving Frazier, Chris Lee, and
confidential informant Justin Inman. On October 2, 2006, Inman told the Northern Kentucky Drug
Strike Force (“NKDSF”) that Lee was able to obtain and sell him crack cocaine. On the same day,
agents with NKDSF arranged for Inman to buy $300 worth of crack cocaine from Lee. On October
23, 2006, agents arranged for Inman to buy $400 worth of crack cocaine from Lee. On November
8, 2006, agents again arranged for Inman to buy crack cocaine from Lee, this time in the amount of
$800. Lee called his supplier Frazier, who said that he did not have enough crack cocaine, but that
he could obtain the full amount if Lee arranged transportation for them. Lee borrowed a car from
his friend and picked Frazier up; Frazier then directed him to drive to Cincinnati. In Cincinnati, they
went to one of Frazier’s friend’s apartments, where Frazier received a phone call. Frazier left for
a few minutes, and then he returned with a bag of crack cocaine. Frazier and Lee drove back to
Kentucky, and Lee invited Inman to meet him at Lee’s house to pick up the crack cocaine.
With agents waiting nearby, Inman went into Lee’s house and bought crack cocaine from
Lee, who said that his supplier was waiting in the car. Inman left Lee’s house with the cocaine, and
Lee returned to the car to pay Frazier his share of the money. After Lee returned to the car, the
agents approached the car and observed Lee and Frazier in the front seat. The agents saw Frazier
take a gun out of his waistband, drop the magazine onto the floor of the car, and place the gun under
the seat. Both Lee and Frazier were arrested, and Lee gave a statement to the police that night. Lee

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It should be noted that Frazier’s evidentiary appeal stems, in part, from the conflict between1
the district court’s statement that the probative value of the evidence does not outweigh its
prejudicial effect and its immediately subsequent overruling of the objection.
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and Frazier were first charged in state court, and then their cases were later indicted in federal court.
Lee pled guilty and offered to cooperate.
Frazier denied any wrongdoing and went to trial. When Assistant United States Attorney
Anthony Bracke learned that Frazier intended to testify, he asked for a ruling from the bench on
whether he could impeach Frazier by mentioning his prior felony for possession of a handgun by a
convicted felon. The district court identified the issue as governed by Federal Rule of Evidence
609(a)(1) (“Rule 609(a)(1)”) and said that it would make a determination from the bench if the issue
arose during Frazier’s testimony. Frazier testified that he was in Lee’s car because he wanted to buy
pills for personal use from Lee. Frazier further testified that he did not conspire with Lee to sell
crack cocaine and that the gun found in the car was not his. At this point, Bracke asked for a ruling
from the bench on whether he could impeach Frazier with his prior conviction for possession of a
gun by a felon. The court analyzed several of the factors mentioned by United States v. Meyers, 952
F.2d 914, 916 (6th Cir. 1992), and determined that 1) the existence of the similarity of the offenses
could be prejudicial; 2) a prior felony conviction has some impeachment value; and 3) Frazier had
placed credibility at issue by refuting the police officers’ testimony. The court concluded:
Under these circumstances, in looking at these factors, while there is certainly a
prejudicial effect of impeachment evidence, I do not believe that the probative value
of admitting the evidence outweighs the prejudicial effect to Mr. Frazier. The
defendant’s objection to the use of this conviction for purposes of 609(a)(1) will be
overruled.1

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Transcript of Trial at 287, United States v. Frazier, No. 2:07 CR-23-DLB (E.D. Ky. May 21, 2007).
After the court’s ruling, Bracke asked Frazier if he was convicted for the felony charge of possession
of a handgun by a convicted felon, and Frazier admitted that he had been. The court gave a limiting
instruction to the jury at that time and also subsequently as part of jury instructions.
A jury found Frazier guilty of 1) aiding and abetting the distribution of crack cocaine, 2)
conspiracy to distribute crack cocaine, 3) possession of a firearm in furtherance of a drug trafficking
crime, and 4) being a convicted felon in possession of a firearm. On September 6, 2007, Frazier was
sentenced to 157 months imprisonment with 4 years of supervised release. Frazier timely appealed
to this court.
II.
The appropriate standard for reviewing a district court’s decision to admit prior convictions
as evidence for impeachment purposes is abuse of discretion . United States v. Gaitan-Acevedo, 148
F.3d 577, 591 (6th Cir. 1998); Meyers, 952 F.2d at 916 (“In reviewing the district court’s decision
to allow the impeaching evidence under Fed. R. Evid. 609(a)(1), we determine whether the district
court abused its discretion.”).
As for Frazier’s argument that his conviction violates the Second Amendment, the parties
agree that Frazier did not raise this constitutional challenge at the trial level. “While constitutional
challenges are typically reviewed de novo, when the argument was not raised at the district court
‘Sixth Circuit precedent requires application of the plain error standard.’” United States v. Dedman,
527 F.3d 577, 591 (6th Cir. 2008) (quoting United States v. Barton, 455 F.3d 649, 652 (6th Cir.
2006)). Plain error review entails first determining whether there was an error in the district court.

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United States v. Martin, 438 F.3d 621, 628 (6th Cir. 2006) (quoting United States v. Thomas, 11 F.3d
620, 630 (6th Cir. 1993)). If there was no error, the analysis ends. Id. If there was an error, the
court must next determine whether the error was plain. Id. To show plain error, an appellant must
establish that “(1) an error occurred; (2) the error was obvious or clear; (3) the error affected his
substantial rights; and (4) the error seriously affected the fairness, integrity, or public reputation of
the judicial proceedings.” United States v. Cline, 362 F.3d 343, 348 (6th Cir. 2004) (citing United
States v. Koeberlein, 161 F.3d 946, 949 (6th Cir. 1998)).
A.
Frazier first claims that the district court erred in allowing evidence of Frazier’s conviction
for possession of a firearm by a prior felon to impeach him. Impeachment by use of a prior crime
is governed by Federal Rule of Evidence 609, which states: “[E]vidence that an accused has been
convicted of such a crime [punishable by death or imprisonment in excess of one year] shall be
admitted if the court determines that the probative value of admitting this evidence outweighs its
prejudicial effect to the accused.” Fed. R. Evid. 609(a)(1). Adopting the reasoning of the leading
case, Gordon v. United States, 383 F.2d 936, 940 (D.C. Cir. 1967), we have espoused the following
factors as pertinent to the trial judge’s determination of the admissibility of a prior felony for
impeachment purposes: “(1) The impeachment value of the prior crime. (2) The point in time of
the conviction and the witness’ subsequent history. (3) The similarity between the past crime and
the charged crime. (4) The importance of the defendant’s testimony. [and] (5) The centrality of the
credibility issue.” United States v. Moore, 917 F.2d 215, 234 (6th Cir. 1990); see also United States
v. Sims, 588 F.2d 1145, 1149 (6th Cir. 1978). While noting that consideration of these factors is not

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Frazier argues that courts “have disallowed the use of similar crimes for the purposes of2
impeachment under Rule 609.” Brief of Defendant-Appellant at 14-15, United States v. Frazier, No.
2:07 CR-23-DLB (E.D. Ky. May 21, 2007). He cites two cases for this proposition: United States
v. Beahm, 664 F.2d 414 (4th Cir. 1981) and United States v. Puco, 453 F.2d 539 (2d Cir. 1971).
Both cases are inapposite. In Beahm, the Fourth Circuit found that a trial court abused its discretion
by allowing a sodomy conviction from eleven years prior to be admitted as impeachment evidence
because the prior conviction was not within ten years of trial and the trial court failed to make any
express finding that the probative value of the conviction outweighed its prejudicial effect. 664 F.2d
at 417-19. In Puco, the Second Circuit engaged in a multi-factored analysis similar to that
recommended by Gordon and this court, including a consideration of the nature of the conviction
as one but not the only factor. The Second Circuit found that the trial judge abused his discretion
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mandatory, we have required trial judges to make a finding on the record that the conviction’s
probative value outweighs its prejudicial effect. Meyers, 952 F.2d at 916-17.
Frazier argues that the district court erred in admitting the evidence of his prior conviction
because its effect was more prejudicial than probative. As mentioned above, Rule 609(a)(1) gives
discretion to the trial judge to make a determination of whether the probative value of the evidence
outweighs its prejudicial effect. In this case, the district court referred to several of the Gordon
factors in making its decision. It found that the impeachment value of the prior felony was existent,
but not overwhelming: “This isn’t a crime of truth or veracity, so I think a prior felony conviction
has some impeachment value. I can perhaps debate the value of that.” Transcript of Trial at 286,
United States v. Frazier, No. 2:07 CR-23-DLB (E.D. Ky. May 21, 2007). It agreed with Frazier on
the third factor, that the similarity of the crime weighed against admitting the evidence. Frazier was
charged with, inter alia, possession of a firearm as a prior felon. The prior felony admitted as
impeachment evidence was Frazier’s 2003 conviction for possession of a firearm as a prior felon.
When the prior conviction is “the very same crime,” id., it should be admitted as impeachment
evidence “sparingly.” Gordon, 383 F.2d at 940.2

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after “‘taking into account such factors as the nature of the conviction, its bearing on veracity, its age,
and its propensity to influence the minds of the jurors improperly.’” 453 F.2d at 541 (quoting United
States v. Palumbo, 401 F.2d 270, 273 (2d Cir. 1968)).
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These factors, however, are not the only ones included in a Rule 609 analysis. The district
court proceeded to address whether the defendant had placed his credibility at issue. It described
Frazier’s refutation of the prosecution’s statement of the facts. It concluded that by denying
ownership of the drugs and gun and by testifying that he was with Lee only to purchase pills for
recreational use, Frazier “placed credibility squarely at issue.” Transcript of Trial at 286, United
States v. Frazier, No. 2:07 CR-23-DLB (E.D. Ky. May 21, 2007). The court then declared that the
defendant’s objection to the admissibility of the evidence for impeachment purposes was overruled.
The district court did not discuss the second Gordon factor, which is an analysis of the date
of the prior conviction and the defendant’s subsequent history. This court does not require trial
judges to consider every Gordon factor. Meyers, 952 F.2d at 916-17. Indeed, the consideration of
this factor would only have tilted the balance further towards admissibility since the prior conviction
was only four years prior, undeniably within the ten-year limit of Rule 609(b), and Frazier had also
been charged with possession of marijuana since that conviction.
The district court also did not thoroughly analyze the fourth Gordon factor, the importance
of the defendant’s testimony. Although mentioning it as a consideration, the court did not explicitly
state its conclusion on this factor. Again, the failure to address conclusively each Gordon factor is
not required, and in this case, this factor would also have pointed towards admissibility. Frazier’s
testimony refuting his ownership of the crack cocaine and the gun found in the car was central to the
case; if he did not own the cocaine or the gun, he could not be convicted of possession of drugs and

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a firearm. The impeachment evidence was important to allow the jury to assess Frazier’s testimony
since his credibility was crucially determinative.
Thus, although the district court did not analyze all five Gordon factors, it considered three
of them, and the inclusion of the remaining two would only have supported its finding. Its decision
to admit the evidence for impeachment purposes was therefore not an abuse of discretion.
Frazier further argues that even though the district court gave a limiting instruction to the jury
both at the time the evidence was admitted to impeach Frazier and before jury deliberations, the
instructions were insufficient to curb the prejudice effected by admitting the evidence. Frazier is
correct that such evidence can be prejudicial. The tendency of jurors to punish defendants for their
past conduct instead of their present indictment motivates the limiting instructions of Rule 609.
Moore, 917 F.2d at 235. Nevertheless, Rule 609 permits the introduction of such evidence when the
probative value outweighs the prejudicial effect. The district court determined that this situation
called for the admission of the evidence, and it properly gave a limiting instruction to confine the
use of the evidence to impeachment purposes only. We have found it “error to infer that the jury did
not or could not follow the judge’s clear instructions in this regard.” Holmes v. City of Massillon,
78 F.3d 1041, 1047 (6th Cir. 1996); Greer v. Miller, 483 U.S. 756, 767 n.8 (1987) (“We normally
presume that a jury will follow an instruction to disregard inadmissible evidence inadvertently
presented to it, unless there is an ‘overwhelming probability’ that the jury will be unable to follow
the court’s instructions.”) (quoting Richardson v. Marsh, 481 U.S. 200, 208 (1987)). Thus, once the
court gave limiting instructions to the jury, we must presume that they were followed.

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Frazier further contends that the district court’s admission of the evidence is contrary to both
the plain meaning of Rule 609(a)(1) and its own ruling. In the evidentiary hearing, the district court
stated:
So his credibility has been placed at issue, directly. Under these circumstances, in
looking at these factors, while there is certainly a prejudicial effect of impeachment
evidence, I do not believe that the probative value of admitting the evidence
outweighs the prejudicial effect to Mr. Frazier. The defendant’s objection to the use
of this conviction for purposes of 609(a)(1) will be overruled.
Transcript of Trial at 286-87, United States v. Frazier, No. 2:07 CR-23-DLB (E.D. Ky. May 21,
2007). Frazier is correct that the district court did conclude that the probative value did not outweigh
the prejudicial effect. In the context of the evidentiary hearing, however, it is clear that this
declaration was a slip of the tongue. The court’s immediately preceding statement was a finding in
favor of admission based on the Gordon factor of whether the defendant has placed his credibility
at issue. Notably, the court followed the conclusion that Frazier cites with a ruling that his objection
will be overruled. If the court had actually meant that the probative value did not outweigh the
prejudicial effect, it would have sustained the objection. Furthermore, after the United States
impeached Frazier with his prior conviction, the court interrupted to give the jury a limiting
admonition. The court thus anticipated and accepted the admission of Frazier’s prior conviction into
the record, neither of which could have occurred if it had actually concluded that the probative value
did not outweigh the prejudicial effect.
Although the district court misstated its conclusion, it nevertheless acted within its discretion
to find that Frazier’s prior conviction was admissible as impeachment evidence. The purpose of
Rule 609 is to provide trial judges with discretion, and “the very nature of judicial discretion

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precludes rigid standards for its exercise.” Gordon, 383 F.2d at 941. The court completed a
reasoned analysis on the record based on several of the Gordon factors; it also promptly gave the jury
a limiting admonition and subsequently gave the jury limiting instructions. Moreover, as the court
noted at the conclusion of the trial, the prejudicial impact of the evidence was “minimal,” since
Frazier had already stipulated to his prior conviction. Transcript of Trial at 304, United States v.
Frazier, No. 2:07 CR-23-DLB (E.D. Ky. May 21, 2007). Because we find that the trial judge did
not abuse his discretion, we deny Frazier’s request to reverse his conviction on this ground.
B.
Frazier’s second challenge to his conviction stems from the Second Amendment. He claims
that his conviction for possession of a firearm by a prior felon violates his Second Amendment right
to possess a gun for protection purposes. The parties agree that Frazier raised this constitutional
challenge for the first time on appeal. A constitutional challenge not raised at the district court level
is reviewed for plain error. Dedman, 527 F.3d at 591. Under plain error review, we must first
determine whether the district court erred. Martin, 438 F.3d 621, 628 (6th Cir. 2006). If there is no
error, “‘our inquiry is at an end.’” Id. (quoting United States v. Thomas, 11 F.3d 620, 630 (6th Cir.
1993)). If there is an error, the court must decide if the error was plain, if it affected substantial
rights, and if the plain error “‘seriously affected the fairness, integrity, or public reputation of judicial
proceedings.’” Id.
The threshold question is thus whether the district court committed error, namely whether
Frazier’s conviction for possession of a firearm as a prior felon pursuant to 18 U.S.C. §§ 922(g)(1)

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Section 922(g)(1) states: “It shall be unlawful for any person – who has been convicted in3
any court of, a crime punishable by imprisonment for a term exceeding one year . . . to possess in
or affecting commerce, any firearm or ammunition.”
Section 924(c)(1)(A)(i) states: “[A]ny person who, during and in relation to any crime of
violence or drug trafficking crime . . . uses or carries a firearm . . . shall, in addition to the
punishment provided for such crime of violence or drug trafficking crime – be sentenced to a term
of imprisonment of not less than 5 years.”
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and 924(c)(1)(A)(i) violated his Second Amendment right. The United States had argued that the3
district court did not err because the Second Amendment does not guarantee an individual right to
bear arms. The Supreme Court resolved this issue after the briefs were submitted, holding that the
Second Amendment does protect an individual’s right to bear arms. District of Columbia v. Heller,
__ U.S. __, 128 S.Ct. 2783 (2008). Nevertheless, the Supreme Court clarified that “the right secured
by the Second Amendment is not unlimited.” Heller, 128 S.Ct. at 2816. Justice Scalia, writing on
behalf of the majority, explicitly stated that “nothing in [the] opinion should be taken to cast doubt
on longstanding prohibitions on the possession of firearms by felons.” Heller, 128 S.Ct. at 2816-17.
We have long held congressional regulation of firearms constitutional. See, e.g., United
States v. Warin, 530 F.2d 103, 107 (6th Cir. 1976) (“Even where the Second Amendment is
applicable, it does not constitute an absolute barrier to the congressional regulation of firearms.”).
Indeed, we have also specifically found both 18 U.S.C.§§ 922 and 924 constitutional. United States
v. Calor, 340 F.3d 428, 430-31(6th Cir. 2003) (“This Circuit has upheld the constitutionality of §
922(g)(8).”) (collecting cases); United States v. Dumas, 934 F.2d 1387, 1388-90 (6th Cir. 1990)
(rejecting a series of constitutional challenges to 18 U.S.C.§ 924); United States v. Helton, 86 Fed.
App’x 889, 892 (6th Cir. 2004) (rejecting defendant’s Second Amendment challenge to 924(c)). In

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United States v. Napier, 233 F.3d 394 (6th Cir. 2000), we dismissed the defendant’s Second
Amendment challenge, noting that “[e]very circuit court which has had occasion to address the issue
has upheld § 922 generally against challenges under the Second Amendment.” Id. at 403 (collecting
cases); see also United States v. Waller, 218 F.3d 856, 857 (8th Cir. 2000) (“[I]t is now well-settled
that Congress did not violate the Second Amendment in enacting [§ 922(g)(1)].”)
The district court thus did not commit error in entering judgment against Frazier pursuant
to 18 U.S.C.§§ 922 and 924 because his conviction is not in violation of the Second Amendment.
III.
For the foregoing reasons, we find that the district court did not abuse its discretion in
admitting evidence of Frazier’s past conviction to impeach him and that Frazier’s constitutional
challenge to his conviction is without merit. We affirm the judgment of the district court.

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