Defendant’s introduction of evidence of prior conviction waives right to appeal court’s later decision admitting that evidence for impeachment purpose

EVIDENCE/JURY INSTRUCTIONS United States v. McConnel, No. 03-6345, ___ F.3d ___ (10th Cir. Sep. 25, 2006)(W.D. Oklahoma). Appeal of convictions and sentence for dealing in firearms without a license in violation of 18 U.S.C. § 922(a)(1)(A); selling firearms to a person previously convicted of a felony in violation of 18 U.S.C. § 922(d)(1)&(3); and possession and transfer of semi-automatic assault weapons in violation of 18 U.S.C. § 922(v)(1). HELD: (1) Criminal defendant’s tactical decision to introduce evidence of prior conviction waives right to appeal district court’s ruling admitting that evidence for cross-examination impeachment purposes under Rule 608(b) of Federal Rules of Evidence. (2) District court committed plain error by issuing general jury instruction on deliberate ignorance and not specifying to which counts instruction applied. Error was not reversible plain error, however, with regard to charge of dealing in firearms without license because defendant was not prejudiced by instruction because knowledge was not element of offense. (3) Deliberate ignorance instruction was properly given with regard to selling firearms to felon and transfer of assault weapon counts on two grounds. First, trial evidence was sufficient to show defendant had actual knowledge that he was selling prohibited semi-automatic assault weapon to felon. Second, defendant denied knowledge and there was evidence showing that he may have engaged in deliberate acts to avoid actual knowledge. Read the opinion here.