## Facts

- Dale Lee Hitt was prosecuted in federal court for possessing an unregistered machine gun, in violation of 26 U.S.C. § 5861(d).
- Under 26 U.S.C. § 5845(b), a “machine gun” includes a weapon that can fire more than one shot with a single pull of the trigger.
- The government’s theory was that Hitt modified a semiautomatic rifle so it would rapid-fire (more than one shot per trigger pull).
- The central dispute at trial was whether the rifle actually had rapid-fire capability:
  - Hitt retained a defense witness who tested the rifle and concluded it did not fire more than one shot per trigger pull.
  - The government retained its own witness who performed testing and concluded the rifle did fire more than one shot per trigger pull.
- The defense responded that any multiple-shot firing during the government’s testing could have resulted from a malfunction caused by dirty, worn, or defective internal parts rather than an intentional modification.
- To rebut the malfunction explanation, the government offered a photograph purportedly showing the rifle was not dirty or defective.
- The photograph was a small (approximately 4"×6") image in which the rifle appeared only as a small part of the scene; the image also depicted numerous other weapons (including several guns and knives).
- Those additional weapons belonged to Hitt’s roommate, but the roommate was not presented to the jury as the owner; the photograph’s setting and the manner of presentation invited an inference that the weapons were Hitt’s.
- Hitt objected under Federal Rule of Evidence 403, arguing the photograph had little value on the internal-condition question and posed a high risk of unfair prejudice and jury confusion.
- The district court admitted the photograph over objection, and the jury convicted Hitt.
- Hitt appealed, challenging the admission of the photograph.

## Issues

1. Whether the district court abused its discretion under Federal Rule of Evidence 403 by admitting a photograph with little value on the contested technical point (internal condition of the rifle) but a substantial risk of unfair prejudice and misleading the jury because it displayed many other weapons.
2. If admission was error, whether the error was harmless given the disputed testing evidence about whether the rifle fired more than one round per trigger pull.

## Decision

- The Ninth Circuit held the district court abused its discretion in admitting the photograph under Rule 403.
- The court found the photograph’s probative value was extremely small because it showed only the rifle’s exterior, which did not meaningfully address the defense claim that internal dirt, wear, or defects caused a malfunction during the government’s test.
- The court concluded the photograph posed a substantial danger of unfair prejudice because it depicted many “nasty-looking” weapons that jurors would likely assume belonged to Hitt, inviting character-based and propensity-type reasoning unrelated to the charged element.
- The court also concluded the photograph risked misleading the jury by encouraging an inference that Hitt was a gun collector or dangerous person, and by suggesting external appearance could resolve an internal-mechanism dispute.
- The Ninth Circuit held the error was not harmless in light of the close evidentiary contest (conflicting testing results and witness accounts) and the possibility the photograph affected the jury’s assessment of the defense theory.
- Disposition: conviction reversed and remanded.

## Legal Principles

- Relevant evidence is generally admissible under Rule 402, but even relevant evidence must be excluded under Rule 403 when its probative value is substantially outweighed by dangers such as unfair prejudice or misleading the jury.
- Rule 403 addresses not evidence that is merely harmful to a defendant’s case, but evidence that invites decision on an improper basis (such as hostility, fear, or character judgments).
- A photograph can carry strong emotional force that exceeds its value on a disputed fact; courts must weigh that risk carefully when the image may suggest dangerous character rather than prove an element.
- When evidence encourages jurors to draw a plausible but improper inference (for example, that the defendant owned numerous weapons and therefore was more likely to commit the charged gun offense), the risk of unfair prejudice increases.
- Evidentiary rulings under Rule 403 are reviewed for abuse of discretion, but a ruling may be reversed when the record shows a serious imbalance between limited probative worth and substantial prejudice or jury confusion.
- Erroneous admission of evidence is subject to harmless-error review; reversal is warranted when the appellate court cannot say with fair assurance that the error did not affect the verdict, especially in a close case turning on competing explanations and credibility.

## Conclusion

United States v. Hitt reversed a conviction for possessing an unregistered machine gun because the district court admitted a photograph that did little to resolve the disputed technical issue—whether internal conditions caused a malfunction—but carried a strong risk of unfair prejudice and juror confusion by displaying many other weapons likely assumed to be the defendant’s; given the contested proof on rapid-fire capability, the Ninth Circuit found the error could have affected the verdict and was not harmless.


United States v. Hitt, 981 F.2d 422 (1992)