United States v. Taylor ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4277
KIRK DARNELL TAYLOR,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CR-94-42)
Submitted: January 28, 1997
Decided: February 18, 1997
Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Frederick T. Heblich, Jr., PARKER, MCELWAIN & JACOBS, P.C.,
Charlottesville, Virginia, for Appellant. Robert P. Crouch, Jr., United
States Attorney, Jean Hudson, Assistant United States Attorney, Ken-
neth M. Clair, Law Intern, Charlottesville, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
A jury convicted Kirk Darnell Taylor of making false statements
in connection with the purchase of firearms as a principal or an aider
or abetter, in violation of 18 U.S.C. § 924(a)(1)(A) (1994), and 18
U.S.C. § 2 (1994). On appeal, Taylor claims that the district court's
admission of government's exhibit 3 was error and that, as a result,
the evidence was insufficient to convict him. He also challenges the
admission of testimony relating to his drug use that the government
elicited on redirect examination of a government witness. Finding no
reversible error, we affirm.
I.
Testimony at trial disclosed that Taylor, a Maryland resident, asked
Nicole Hull and Purcel Grant, both Virginia residents, to accompany
him to two Virginia gun shops, Wolf Mountain Traders ("WMT") and
Hilltop Sport and Pawn. Hull and Grant represented to store employ-
ees that they were the purchasers of the guns Taylor selected and
wanted to buy but could not because he was not a Virginia resident.
Hull and Grant completed the required paperwork and purchased the
guns using money Taylor gave to them, and Taylor took possession
of the guns after the purchases. Hull and Grant identified the firearms
transaction forms showing that they were listed as purchasers and
bearing WMT's federal firearms license number. During the trial,
Taylor objected to the admission of government's exhibit 3 and to
Hull's redirect testimony regarding Taylor's drug use.
The jury convicted Taylor on eight counts of making false state-
ments in connection with the acquisition of firearms as a principal or
an aider and abetter. The district court denied Taylor's motion for
judgment of acquittal, concluding that pages three through seven of
exhibit 3 were admissible under Fed. R. Evid. 803(8) to establish that
WMT was a federally licensed firearms dealer from December 1991
to June 1992, when the transactions occurred. Taylor was sentenced
to a total of seventy-two months incarceration to be followed by a
three-year term of supervised release and ordered to pay a $500 fine
and a $400 special assessment. This appeal followed.
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II.
Taylor contends that a portion of page two of government's exhibit
3 is inadmissible hearsay that does not fall within the exception pro-
vided for public records and reports in Fed. R. Evid. 803(8). He refers
specifically to the statement that WMT was a licensed federal fire-
arms dealer from March 8, 1990, to December 18, 1995. Because
Taylor believes the district court should not have admitted the state-
ment, he contends that the evidence was insufficient to sustain his
conviction because the government failed to prove that WMT was a
federally licensed firearms dealer when the transactions occurred--
December 1991 to June 1992. We review the district court's evidenti-
ary rulings for abuse of discretion. United States v. Ford, 88 F.3d
1350, 1362 (4th Cir.), cert. denied, 117 S. Ct. 496 (1996).
Assuming, arguendo, that the statement on page two regarding the
time period WMT was licensed by BATF was hearsay not within the
exception provided by Rule 803(8) and should have been stricken by
the district court, we find the error harmless because the certification
statement was cumulative. The record contained other information
from which the jury could infer that WMT was federally licensed
between December 1991 and June 1992. Pages three through seven
of exhibit 3--containing WMT's initial application for a license that
BATF approved on March 8, 1990, and copies of licenses that expired
on April 1, 1993, and April 1, 1996--were properly admitted. With-
out evidence that WMT's license had ever been suspended or
revoked, the jury could infer that WMT was licensed during Decem-
ber 1991 to June 1992--the period during which the firearms transac-
tions occurred. Finally, the government introduced BATF forms
identified by witnesses recording the individual firearms transactions,
and the forms included WMT's BATF license number. The district
court's error in admitting the statement on page two therefore was
harmless error. See United States v. Heater, 63 F.3d 311, 325 (4th Cir.
1995) (noting that error harmless unless judgment was substantially
swayed by error), cert. denied, 116 S. Ct. 796 (1996); United States
v. Johnson, 722 F.2d 407, 410 (8th Cir. 1983) (concluding that admis-
sion of explanatory statement was harmless because evidence was
cumulative). Because the jury could infer from other evidence that
WMT was a federally licensed firearms dealer at the time the firearms
transactions occurred, Taylor's sufficiency of the evidence claim also
fails. See Glasser v. United States, 315 U.S. 60, 80 (1942). Taylor did
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not dispute the other elements required for a conviction under
§ 924(a)(1)(A). See United States v. Petitjean, 883 F.2d 1341, 1345
(7th Cir. 1989) (requiring that defendant knowingly made false state-
ment to licensed firearms dealer, false statement made in acquisition
of firearm, and false statement was likely to deceive the firearms
dealer).
III.
Taylor also claims that the district court erred by allowing the gov-
ernment to question Hull on redirect examination about Taylor's drug
use because it was irrelevant and highly prejudicial. The scope of
redirect testimony is discretionary and should be reversed only for an
abuse of discretion. United States v. Catano, 65 F.3d 219, 226 (1st
Cir. 1995).
On cross-examination, Taylor's counsel attempted to attack Hull's
credibility by challenging her ability to recall accurately the events
surrounding the firearms purchases because she used drugs at that
time. Although she was not using drugs at the time of trial, counsel
elicited testimony that Hull had her bond revoked because of a posi-
tive drug test for cocaine and PCP. Taylor's counsel asked Hull how
she supported herself at the time the transactions occurred if she were
unemployed and using drugs regularly. She responded that she did the
best she could and that she relied on an employment check. On redi-
rect examination, the government elicited testimony from Hull that
she used drugs with Taylor. When the government asked Hull
whether Taylor referred to other drug dealers, she said no, and the dis-
trict court halted that line of questioning. Even assuming that the dis-
trict court should not have admitted Hull's testimony on redirect
examination, we find the error harmless in light of the overwhelming
evidence of Taylor's guilt.
IV.
Accordingly, we affirm Taylor's convictions. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
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