United States of America v. Luis A. Fernandez

A jury convicted Luis Fernandez of

being a felon in possession of a firearm, see 18 U.S.C.

§ 922(g)(1). Fernandez appeals his conviction, contending that

the district court committed three evidentiary errors that

deprived him of a fair trial. We affirm.

2 No. 17-3421

I.

The charge against Fernandez arose out of a traffic stop

conducted by police in Franklin, Wisconsin (a Milwaukee

suburb) on November 20, 2016. Fernandez was sitting in the

front passenger seat of a black Chevrolet Caprice, his friend

Adam Voecks was driving, and Voecks’ fiancée Valerie

Stramowski was in the back seat. Police officer Gabriel Frusti

initiated the stop after observing the car move across multiple

lanes of traffic without signaling and quickly decelerating to a

halt. (Voecks would later testify that the car’s engine had died.)

Moments later, officer Adam Rogge arrived on the scene in

response to Frusti’s request for backup. When Rogge approached

the driver’s side of the vehicle to speak with Voecks

(Frusti was speaking with Fernandez on the passenger side), he

noticed an odor of marijuana emanating from the interior of

the car. Voecks was asked to step out of the car. When asked if

he was armed, Voecks disclosed that he had a gun in his right

front pocket; officers removed a holstered Kel Tec .380 caliber

pistol from that pocket.

Ultimately all three of the occupants of the car were taken

into police custody. Although Voecks had no criminal record

and had purchased the gun found on his person legally, he did

not have a permit to carry a concealed weapon and was

arrested on that basis. Fernandez and Stramowski were

arrested on outstanding warrants, and Stramowski had also

given the officers a false name in an attempt to evade arrest.

When the interior of the car was searched, police discovered

a second gun—a Springfield Armory .45 caliber pistol—in

the center console between the front driver and passenger

No. 17-3421 3

seats. A pat-down of Voecks’ person also produced a folding

knife, a crack pipe, and two bullets, one of which was a .38

caliber bullet (the same caliber as the pistol found in his pocket)

and the second of which was a .45 caliber bullet (the same

caliber as the pistol discovered in the console).

The occupants of the car were transported in a police van

to the Franklin police department for processing and questioning.

As Fernandez was being placed into the van, officer Adam

Graf overheard him call out to Voecks, “[D]on’t worry[,] it’s

only a misdemeanor for you to have a gun.” R. 40 at 90; see also

R. 40 at 128.

Voecks was interviewed twice at the police station, and

over the course of the two interviews he gave three different

statements as to who had possessed the .45 caliber pistol found

in the car and who had placed it in the center console. Officer

Frusti conducted both interviews (with officer Rogge sitting

in). During the first interview, Voecks claimed ownership of

that gun and told Frusti that he had obtained it from a friend

who had since died. Voecks was subsequently bailed out of jail

by his father. As he was preparing to leave the station, Sergeant

Dan Morris approached Voecks and warned him that the

police would run a trace on the gun, and if they discovered

that the gun had been used in any crime, “it was going to come

back on [him].” R. 40 at 135. Voecks at that point became

visibly pale and nervous, and Morris offered him the opportunity

to be interviewed for a second time about the gun; Voecks

accepted the invitation. During the second interview, Voecks

told Frusti that the gun was not his. At first Voecks said that he

did not see who had placed it in the center console of the car,

although he suggested it was more likely that Fernandez had

4 No. 17-3421

done so than Stramowski. But when he was confronted with

certain inconsistencies in that new version of events, Voecks

ultimately averred that the gun belonged to Fernandez. Voecks

stated that when officer Frusti had pulled up behind the car,

Fernandez had panicked, voicing concern that he could “go

away for 20 years” and not be able to see his four children. At

Fernandez’s urging, Voecks had agreed to claim possession of

the gun. While Frusti was calling for backup, Fernandez had

placed the gun into the center console. Voecks picked up a

bullet from the gun that had landed on his seat and placed it

into his pocket.

Voecks became the key prosecution witness against

Fernandez at trial. (No fingerprints were found on the .45

caliber pistol, and the government had not had the gun tested

for DNA evidence.) Voecks explained that he had first claimed

ownership of the .45 caliber pistol in order to protect his friend,

Fernandez, but changed his mind after being warned that he

would be implicated if the police discovered that the gun had

been used in a crime. When defense counsel was cross-examining

Voecks regarding the divergent accounts he had given to

police as to whom the gun belonged, the district court sustained

hearsay objections to questions as to what officer Frusti

had asked of or said to Voecks during questioning. R. 40 at

150–51, 152, 155. Defense counsel was able to ask Voecks what

he had told Frusti, but not what he was responding to. On

certain points, Voecks professed an inability to recall what

specifically he had said to Frusti. In particular, when defense

counsel asked Voecks about his second story regarding the

gun, Voecks said that he lacked any recollection of telling

Frusti that he did not see who placed the .45 caliber pistol in

No. 17-3421 5

the center console of the car. R. 40 at 154–55. “I’m not saying I

didn’t say it, I’m just saying I don’t remember saying that,”

Voecks testified. R. 40 at 155. But he did otherwise acknowledge

the first and third accounts he had given Frusti as to

whom the gun belonged and how it had come to be in the

center console of the car.

When Frusti subsequently testified for the government,

defense counsel attempted to cross-examine him about the

various statements Voecks had made to him during the two

interrogations Frusti had conducted. But the court sustained

the government’s hearsay objections to such questions. R. 40 at

182, 186; see also R. 40 at 220. Thus, for example, when defense

counsel asked Frusti what Voecks had said during the initial

interrogation, the court sustained a hearsay objection, although

counsel was then able to elicit from Frusti (without objection)

that Voecks’ initial account involved him having obtained the

.45 caliber gun from another individual. R. 40 at 182. When the

cross-examination turned to the second interrogation (after

Voecks had posted bail), defense counsel was able to elicit from

Frusti what he said to Voecks during that interrogation, but

(with one exception) not what Voecks said in response to

questioning. R. 40 at 186. The defense was only able to have

Frusti confirm that Voecks gave inconsistent accounts with

respect to the gun. R. 40 at 187–88.

Voecks, when he was on the witness stand, was also crossexamined

regarding certain text messages he allegedly sent to

Stramowski in the days immediately before trial. The two were

no longer engaged at that point, and Voecks had recently

become aware that Stramowski and Fernandez either were or

had been in a relationship with one another. Voecks admitted

6 No. 17-3421

that the news made him angry. R. 40 at 139. The purported

texts from Voecks to Stramowski stated, among other things:

Have fun talking to your[ ] Boyfriend cause he’s

gonna do 20-life! I’m testifying, he’s f*cked. Hope

it’s worth it[,] look what he did. To both of us … .

I told u a[ ]long time ago, only one of us would

survive, and it wouldn’t be him! Either way he’s

f*cked whether it’s by my hands or the court[‘s]. …

Ur both gonna get urs[.]

I met with the usa[ ] prosecuting attorney. Luis is

f*cked. He done a[n]d a fed inmate for life! Keep

wasting ur money on him. …

R. 46–2 at 2–6 (sanitizing ours); see also R. 40 at 159–61.

Stramowski had provided screen-shots of these texts to defense

counsel (who in turn produced them to the government’s

counsel) midway through the first day of trial, just before

opening statements were to commence. The government

objected to any reference to the texts; but as the texts were

probative of Voecks’ potential bias and motive to testify, the

district court allowed the defense to cross-examine Voecks

about the texts, as defense counsel had proposed, but indicated

that the defense would not be permitted to introduce extrinsic

evidence of the texts. R. 40 at 36–37, 39–40, 221–22. During the

cross-examination of Voecks, counsel established that he had

sent texts to Stramowski in advance of the trial and that his cell

phone number was the same as the number from which the

texts on Stramowski’s phone purportedly came. Counsel then

read several of the texts to Voecks and asked him whether he

No. 17-3421 7

had sent them to Stramowski. In each instance, Voecks

answered that he did not recall sending such a text to her.

Stramowski subsequently testified as a defense witness. She

indicated that she had not seen any guns in the car on the date

of the traffic stop, nor had she heard any discussion between

Voecks and Fernandez regarding the .45 caliber weapon later

discovered in the console. She testified that Voecks owned

multiple guns and at one point had possessed as many as five

when she was living with him. When defense counsel attempted

to ask her about the substance of texts she claimed to

have received from Voecks in the run-up to the trial, the

district court sustained the government’s hearsay objection.

R. 40 at 205. Stramowski did confirm that Voecks was upset to

learn that she was in a relationship with Fernandez, and that

he told her he was going to “get back at [her]” for that. R. 40 at

205–06.

At the conclusion of the trial, the jury found Fernandez

guilty of the felon-in-possession charge; and the district court

later denied his motion for a new trial. The court noted that

despite the hearsay objections it had sustained when the

defense had attempted to ask Voecks what officer Frusti had

said while interrogating him and to ask Frusti how Voecks had

responded to Frusti’s questions, the defense had managed to

establish how Voecks’ story had evolved during questioning.

R. 62 at 9–10. As to the texts Voecks had allegedly sent to

Stramowski, the court pointed out that the defense had read

those texts to Voecks on cross-examination, so that the jury

was aware of what the texts said notwithstanding the fact that

the court had not allowed the defense to present extrinsic

evidence of the texts. R. 62 at 16–18.

8 No. 17-3421

At sentencing, Judge Pepper ordered Fernandez to serve a

prison term of 27 months, which was at the low end of the

range advised by the Sentencing Guidelines.

II.

A. Hearsay objections regarding police interrogation of Voecks

There is no dispute that Voecks gave Frusti contradictory

accounts as to whom the .45 caliber gun belonged and who had

placed it in the center console of the car. As the interrogations

of Voecks were recorded and transcribed, the parties knew

exactly what Frusti had said to Voecks during the questioning

and what Voecks had said to Frusti in response. Frusti and

Voecks both testified at trial, and the defense wanted leeway

to question each of them about both sides of the interrogation;

but as noted, when the defense attempted to ask Voecks about

what Frusti had said to him and vice-versa, the district court

sustained the government’s hearsay objections, essentially

confining the cross-examination of each witness to his own

statements.

Fernandez argues that the district court erred in imposing

these limitations. He contends that “[t]he government’s case

against Fernandez depended entirely on the credibility of

Adam Voecks, … [s]o it was essential for the defense to

highlight each step in Voecks’ ever-evolving story and to

explain what led him to shift blame to Fernandez.” Fernandez

Br. 8. The district court’s hearsay rulings effectively prevented

the defense from accomplishing that task, Fernandez asserts,

and thus denied him the ability to confront his accuser and

present a full defense. It was, in his view, confusing and

unnecessary to restrict the cross-examination of Voecks and

No. 17-3421 9

Frusti to their respective halves of the interrogations. And

because Voecks professed inability to recall certain of the

statements he made during questioning, and Fernandez’s

counsel was prohibited from asking Frusti to fill in those gaps,

the defense was unable to establish the full content and context

of Voecks’ changing stories. Ultimately, in Fernandez’s view,

the jury was only given the bare outlines of the inconsistent

statements that Voecks gave and was kept ignorant of the

details which demonstrated how and why his accounts

changed. On appeal, Fernandez suggests for the first time that

the error was so serious that it deprived him of his Sixth

Amendment right to confront Voecks effectively.

We agree it was error to sustain the hearsay objections to

questions aimed at eliciting what questions officer Frusti asked

of Voecks during the interrogations. It is common ground

between the parties that the statements Voecks made during

interrogation were fair game for the impeachment of his

testimony at trial. See Fed. R. Evid. 801(d)(1)(A). To that end, it

was entirely reasonable to question Voecks about what he had

told Frusti at the police station, and the district court allowed

the defense to do so. But interrogations are an inherently

interactive process, and so Frusti’s half of the interrogations

were material to the context of Voecks’ answers. What Frusti

asked of or said to Voecks during interrogation was not offered

for its truth, but rather to establish what questions or statements

Voecks was responding to and the effect the former had

on Voecks as the listener. This was a legitimate non-hearsay

purpose aimed at providing the jury with the full context of

Voecks’ prior statements. See, e.g., Estate of Moreland v. Dieter,

395 F.3d 747, 753–54 (7th Cir. 2005) (recognizing that interroga10

No. 17-3421

tor’s questions were offered to provide context for defendant’s

answers and as such were not hearsay) (citing United States v.

Woods, 301 F.3d 556, 561 (7th Cir. 2002) (informant’s side of

recorded conversation with defendant admissible to provide

context)); United States v. Gajo, 290 F.3d 922, 929–30 (7th Cir.

2002) (statements of non-conspirator, in recorded conversation

with co-conspirator, admissible to provide context for coconspirator’s

statements) (collecting cases); United States v.

Gutierrez-Chavez, 842 F.2d 77, 81 (5th Cir. 1988) (co-defendant’s

statements introduced not for their truth but only to show they

were uttered). The judge may have been misled by the defense’s

first foray into Frusti’s side of the interrogations, which

asked Voecks to recount what Frusti had told him on a

particular point. R. 40 at 150–51. There may well be instances

in which a party improperly seeks to elicit an interrogator’s

statement during questioning (representing what another

witness has told the authorities, for example) for its truth

rather than to establish the context of what the person being

interrogated said next. If that were the evident aim of defense

counsel’s questioning here, then we would agree that the

inquiries were barred by the hearsay rule. But it soon became

clear that Fernandez’s attorney was attempting to elicit Frusti’s

statements and questions for legitimate non-hearsay purposes.

Counsel’s next question, for example, was what Frusti had

asked Voecks, and the court sustained the government’s

objection to that inquiry as well. R. 40 at 151. Consequently, the

hearsay rule did not support the court’s decision to preclude

the defense from establishing both sides of the interrogations

through Voecks himself.

No. 17-3421 11

The defense had a legitimate purpose in examining Voecks

about the various contradictory stories he had told to Frusti

about the gun, and as part of that inquiry it was entirely proper

for the defense to establish what Frusti said and asked during

the interrogations in order to place Voecks’ answers in context.

To the extent Frusti may have been leading or cajoling Voecks

to change his story, for example, Frusti’s side of the interrogations

would be relevant to the jury’s assessment of Voecks’

credibility in pointing the finger at Fernandez. Insisting that

Fernandez’s counsel instead wait to ask Frusti about his half of

the conversations was at best a cumbersome alternative, and

one that precluded the defense from eliciting what Voecks

understood Frusti to be saying to him.

The converse restriction the court imposed on the crossexamination

of Frusti was also problematic, but less troublesome

on the record as it stands. Fernandez points out that

Voecks professed an inability to recall certain statements he

made during the second interrogation, during which Voecks

changed course and ultimately attributed possession of the .45

caliber gun to Fernandez. At that point, Fernandez argues, he

should have been permitted to establish through Frusti the

statements that Voecks was purportedly unable to recall. See

pursuant to Fed. R. Evid. 613(b)1; United States v. DeMarco, 784

F.3d 388, 394 (7th Cir. 2015) (extrinsic evidence of witness’s

prior statement is admissible pursuant to Rule 613(b) for

1 Rule 613(b) provides: “Extrinsic evidence of a witness’s prior inconsistent

statement is admissible only if the witness is given an opportunity to

explain or deny the statement and an adverse party is given the opportunity

to examine the witness about it, or if justice so requires.”

12 No. 17-3421

purpose of impeaching witness so long as witness has first

been given opportunity to explain or deny statement); see also

United States v. Lopez, 870 F.3d 573, 582 (7th Cir. 2017) (construing

rule broadly to permit extrinsic evidence even when

witness has acknowledged prior statement) (collecting cases).

But the logical first step the defense could have taken in this

regard was to present Voecks with the transcript of the

interrogation and ask him whether that refreshed his recollection

as to what he said. See, e.g., United States v. Vasquez, 635

F.3d 889, 895 (7th Cir. 2011), cert. dismissed, 566 U.S. 376, 132

S. Ct. 1532 (2012). If Voecks was responding to these inquiries

in good faith, then a review of the transcript might have caused

him to recall and acknowledge the statements in question. If so,

then the defense’s need to question Frusti on these points

would have been reduced, as a practical matter, if not eliminated.

But see Lopez, 870 F.3d at 581 (“[E]ven when a witness

admits to making a prior inconsistent statement, Federal Rule

of Evidence 613(b) should be read broadly to allow a party ‘to

introduce extrinsic evidence to emphasize the fact that the

witness made the prior statement.’”) (quoting United States v.

Lashmett, 965 F.2d 179, 182 (7th Cir. 1992)). If, at the other

extreme, Voecks denied making the statements, then of course

it would have been entirely proper to ask Frusti what Voecks

had said. See DeMarco, 784 F.3d at 394 (once witness has denied

making prior statement, Rule 613(b) permits extrinsic proof of

that statement). And if, instead of either acknowledging or

denying his prior statements, Voecks had continued to profess

a lack of recollection, then it would have been up to the district

judge to decide whether his professed lapse of memory was

genuine. If the court were to conclude that Voecks was simply

No. 17-3421 13

being evasive, then establishing his statements through Frusti

again would have been permissible. Cf. United States v. DiCaro,

772 F.2d 1314, 1322 (7th Cir. 1985) (where district court found

witness lied in professing amnesia, court did not abuse its

discretion in admitting witness’s prior grand jury testimony

per Rule 801(d)(1)(A)). On the other hand, if the court believed

that Voecks’ failure of memory was genuine, then the admissibility

of Voecks’ prior statements through Frusti would have

presented a closer question. Compare United States v. Brown, 788

F.3d 830, 834 (8th Cir. 2015) (it is within trial judge’s discretion

to exclude extrinsic evidence of witness’s prior statement

where witness asserts in good faith she cannot recall making

the statement), with United States v. Bullcalf, 563 F. App’x 535,

536 (9th Cir. 2014) (unpublished) (witness’s inability to recall

prior statement should be treated as denial for purposes of

Rule 613(b)). The defense did not attempt to refresh Voecks’

recollection using the transcript of his interrogations, so

arguably it did not lay the requisite groundwork for admitting

the statements through Frusti.2

Even assuming, on the broadest reading of Rule 613(b), that

the court should have allowed Frusti to be questioned about

Voecks’ statements once Voecks himself professed not to

remember making them, any error with respect to the restrictions

imposed on cross-examination of Frusti—as well as

Voecks—was harmless. The jury certainly was aware that

Voecks gave multiple, contradictory statements to the police

2 By contrast, the defense did present Frusti with a transcript of the

interrogation in order to refresh his recollection as to a point Frusti claimed

an inability to recall. R. 40 at 183.

14 No. 17-3421

which began with the claim that the gun belonged to him and

ended with the claim that the gun belonged to Fernandez. It is

true that the defense was not able to elicit every detail of the

various accounts that Voecks had given to Frusti. (For example,

in his first version, Voecks told Frusti that he had met the

man from whom he had obtained the gun at a methadone

clinic.) It is also true that the defense was not able to establish

the particulars of what prompted Voecks to abandon his

second version (that he did not see anyone put the gun into the

front-seat console of the car) for his third and final version (that

Fernandez put the gun there). However, we are not convinced

that such details were vital to the defense. The jury was fully

aware that Voecks had first claimed the gun was his, but

during the second interrogation had abandoned his first

account and claimed the gun was Fernandez’s. Critically, the

jury was also made aware of the fact that it was the warning

from Sergeant Morris that Voecks would be held to account for

any crimes connected to that gun which prompted Voecks to

reconsider the first story and agree to the second interview,

where he ultimately incriminated Fernandez. We can readily

appreciate that eliciting the specifics of what Frusti said to and

asked of Voecks, and what Voecks said in response, would

demonstrate both Voecks’ facility with inventing details and

his clumsiness in contradicting himself on such key points as

to whether he knew there was a gun in the center console of

the car. The restrictions imposed on the cross-examinations of

Voecks and Frusti made it an unnecessarily difficult task for

the defense to lay bare the full evolution and context of

Voecks’ statements regarding the .45 caliber pistol. But the

defense nonetheless was able to establish the gist of the two

No. 17-3421 15

contradictory accounts of the gun’s ownership and the trigger

for Voecks’ decision to abandon his original statement and

attribute possession of the gun to Fernandez. Defense counsel

made full use of the (purportedly self-serving) evolution of

Voecks’ account in closing argument. R. 41 at 265–68.

Fernandez has not shown us why any of the omitted details of

Frusti’s interrogations of Voecks mattered so much as to

demonstrate reversible error. And although Fernandez did not

invoke his Confrontation Clause rights below and arguably

forfeited any constitutional claim, for the sake of completeness,

we note that his ability to raise the essential points as to

Voecks’ change of story defeats any claim of plain error in this

regard.

B. Admissibility of the text messages

Fernandez next contends that the district court erred in

precluding him from questioning defense witness Stramowski

about the content of the texts she had purportedly received

from Voecks in the run-up to the trial. Once Voecks was

confronted with and essentially denied having sent those texts,

Fernandez argues, he should have been permitted to introduce

extrinsic evidence of the texts in order to establish Voecks’ bias

against both Fernandez and Stramowski and his motive to

inculpate Fernandez at trial. The district court’s understanding

that Rule 608(b) forbade extrinsic evidence of a witness’s prior

statements for these purposes was mistaken, he contends.3

3 In relevant part, Rule 608(b) provides: “Except for a criminal conviction

under Rule 609, extrinsic evidence is not admissible to prove specific

instances of a witness’s conduct in order to attack or support the witness’s

(continued...)

16 No. 17-3421

We do not disagree with Fernandez that evidence as to the

texts, if they were indeed sent by Voecks, was admissible to

establish Voecks’ bias and motive as a witness for the government.

See United States v. DeMarco, supra, 784 F.3d at 394

(noting that Fed. R. Evid. 608(b) allows proof of specific

instances of conduct to establish bias or prior inconsistent

statement) (citing United States v. McGee, 408 F.3d 966, 981–82

(7th Cir. 2005)). Statements in the texts to the effect that both

Fernandez and Stramowski were going to “get yours” and

that, as between Fernandez and Voecks, only one was going to

“survive” and it was not going to be Fernandez, certainly

could be understood to reflect that Voecks had an axe to grind

against Fernandez and a motive to help himself by testifying

for the government at Fernandez’s expense. Once Voecks was

confronted with the texts and effectively denied sending them,

the door was opened to extrinsic evidence of the texts pursuant

to Rule 613(b), contrary to the district court’s understanding.

DeMarco, 784 F.3d at 394.

But for two reasons, we do not think the district court erred

in sustaining the government’s objections when the defense

began to ask Stramowski about these texts. First, when the

matter of the texts was first raised with the district judge prior

to opening statements, Fernandez’s attorneys indicated that it

was not their intent to establish the substance of the texts

3 (...continued)

character for truthfulness. But the court may, on cross-examination, allow

them to be inquired into if they are probative of the character for truthfulness

or untruthfulness of: (1) the witness; or (2) another witness whose

character the witness being cross-examined has testified about. …

No. 17-3421 17

through extrinsic evidence; instead, counsel simply wanted the

opportunity to question Voecks about the texts. R. 40 at 33, 35.

The court readily acceded to that limited request. We inquired

at oral argument whether, after Voecks had been confronted

with the texts and denied having sent them, defense counsel

ever argued to the court that circumstances had changed and

that the defense should now be permitted to prove the existence

and contents of the texts through extrinsic evidence.

Counsel answered that question in the negative. The district

court can hardly be faulted for barring evidence that the

defense had disclaimed an intent to introduce.

Second, given the late hour at which the texts came to

light—just as opening statements and the presentation of

evidence was about to begin—there was very little opportunity

for either party to establish the authenticity of the texts. The

court rightly flagged the authenticity of the texts as a concern

from the start, and we may safely assume that it would have

taken some amount of time to investigate this. But the presentation

of evidence at trial began and concluded on the same

day that the texts were first raised; and given that the defense

had originally indicated it would be satisfied with the opportunity

to question Voecks about the texts, the government was

not on notice that it needed to task someone to explore the

provenance and authenticity of the texts. The district court was

thus well within its discretion to prohibit the defense from

attempting to provide the existence and content of the texts

through Stramowski.

18 No. 17-3421

C. Disclosure of Fernandez’s arrest on outstanding warrant

Finally, Fernandez contends that the district court erred in

permitting the government to establish that he was arrested

during the November 2016 traffic stop on an outstanding

warrant for a probation violation. The government argued, and

the district court agreed, that the arrest was necessary to

complete the picture of what occurred during the stop and in

particular to explain why Fernandez was loaded into the police

van, which was when officer Graf heard him tell Voecks not to

worry about possession of a gun, because that was only a

misdemeanor offense for Voecks. Fernandez contends that

disclosure to the jury of his arrest and the reason for it amounted

to evidence of a prior bad act that was not probative of his

guilt on the felon-in-possession charge, and that the court’s

rationale in allowing it tracks the “inextricably related”

rationale of which we disapproved in United States v. Gorman,

613 F.3d 711, 717–19 (7th Cir. 2010).

Any potential error in the court’s decision to admit this

evidence was harmless, however. Because having a prior

felony conviction was an element of the offense with which

Fernandez was charged, the jury was necessarily aware that he

had a criminal record. See R. 28 ¶ 1; R. 40 at 189 (stipulation

that Fernandez previously had been convicted of a felony

offense). That he was also arrested for a probation violation at

the time of the traffic stop was a relatively benign fact. Given

the limited purpose for which it was admitted, we are not

convinced that disclosure of the arrest was unduly prejudicial

to Fernandez.

We AFFIRM the judgment.