United States v. Javage ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4698
WILLIAM STEPHEN JAVAGE,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Elkins.
Robert Earl Maxwell, Senior District Judge.
(CR-95-7)
Submitted: September 30, 1997
Decided: October 20, 1997
Before MURNAGHAN, ERVIN, and MICHAEL, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
James R. Fox, JORY & SMITH, Elkins, West Virginia, for Appellant.
William D. Wilmoth, United States Attorney, Sherry L. Muncy,
Assistant United States Attorney, Elkins, West Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
William Stephen Javage was convicted by a jury of possession of
a firearm while a convicted felon in violation of 18 U.S.C.A.
§ 922(g)(1) (West Supp. 1997) and sentenced to sixty-three months
imprisonment. On appeal, Javage challenges the sufficiency of the
evidence to support his conviction and the district court's denial of his
motion to suppress incriminating statements. We affirm the convic-
tion and sentence.
Viewed in the light most favorable to the Government, evidence
presented at trial discloses that a gun owned by Jackie Ridenour, Jav-
age's brother-in-law, disappeared while he was with Javage and
someone else. The gun was reported stolen to the state police, and
state police officer Burkhart contacted police officer Feathers, to
inquire whether he knew Javage and whether he had seen the gun.
Feathers replied that he knew Javage and that he had seen the gun in
Javage's home. At Burkhart's instruction, Feathers retrieved the gun
from Javage and asked Javage to go to the police station to talk with
Burkhart. Javage proceeded to the police station, where he was read
his Miranda1 rights and signed a waiver. In conversing with Burkhart,
Javage stated that he "found" the gun, that he had it in his possession
for approximately a week, and that he wanted to purchase it, but
intended to return it. Further investigation revealed Javage was a con-
victed felon.
Javage first contends that the evidence was insufficient to support
the jury's conviction. This Court will sustain a jury verdict if the evi-
dence, viewed in the light most favorable to the government, is such
that a rational trier of fact could find guilt beyond a reasonable doubt.
See Glasser v. United States, 315 U.S. 60, 80 (1942). This court does
not weigh the evidence or review the credibility of witnesses in
resolving issues of substantial evidence. United States v. Saunders,
886 F.2d 56, 60 (4th Cir. 1989). The essential elements of the 18
U.S.C. § 922(g)(1) offense are: (1) knowing possession of a firearm,
(2) in or affecting commerce, (3) by one who has been convicted of
a crime punishable by more than one year in prison, (4) whose civil
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1 Miranda v. Arizona, 384 U.S. 436 (1966).
2
rights have not been restored. See United States v. Essick, 935 F.2d
28, 29-31 (4th Cir. 1991).
Javage testified at trial that Feathers advised him to report the gun
missing. Javage claimed that after he and his wife discovered the gun,
his wife maintained control over it. When they informed Feathers that
they located the gun, Feathers allegedly agreed that Javage could
return the gun to its owner at an upcoming party. Allegedly with
Feathers' approval, Javage's wife stored the gun in a locked box. Jav-
age posits that he never possessed the gun because he never exercised
dominion and control over it. In addition, he asserts that because he
acted entirely upon the instructions of a law enforcement officer,
there was insufficient evidence to convict him.
The Government introduced evidence that Javage found the gun,
kept it in his home for over a week, and then turned it over to Feath-
ers. Feathers testified that he initially observed the gun on a dining
room table in Javage's home. Aside from Javage's testimony, there
is no other evidence that Feathers instructed Javage to keep the gun
locked in a box. Furthermore, Javage admitted to Burkhart that he
found the gun and wanted to purchase it, but intended to return it.
Resolution of the factual issue of whether Javage possessed the gun
was within the province of the jury, and we find there is substantial
evidence to support Javage's conviction.2
Javage also maintains that the court erred in denying his motion to
suppress his incriminating statements to Burkhart at the police station.
While Javage concedes that he received his Miranda warnings and
waived his rights, he claims that his statement was involuntary
because Burkhart stated prior to giving him the Miranda warnings
that he was just taking a statement to "close the books" and that the
statement would not be used for any prosecution against him.
While we review the district court's factual determinations in
regard to voluntariness for clear error, we review the court's determi-
nation regarding the voluntariness of a defendant's statement de novo.
See United States v. Locklear, 829 F.2d 1314, 1317 (4th Cir. 1987).
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2 Javage stipulated that he was previously convicted of a crime punish-
able by imprisonment for a term exceeding one year and that his civil
rights have not been restored.
3
The relevant determination regarding voluntariness is whether the
police overcame the defendant's will or left his"capacity for self-
determination critically impaired." Schneckloth v. Bustamonte, 412
U.S. 218, 225 (1973). Additionally, when a finding of voluntariness
is based upon the credibility of witnesses, we accord even greater def-
erence to the district court's factual determinations. See Locklear, 829
F.2d at 1317.
Javage testified that Feathers and Burkhart assured him that the
questioning was just routine and that no prosecution would result.
Both Feathers and Burkhart denied making such promises. In fact,
during the suppression hearing, Burkhart testified that the gun was
initially reported stolen and he was not aware until the day after Jav-
age made his statement that the owners of the gun chose not to pursue
criminal charges. As the investigation was still ongoing at the time of
Javage's statement, the magistrate judge, who recommended that the
court deny the suppression motion after holding a hearing, concluded
that it was more likely that Burkhart informed Javage that the ques-
tioning was part of his investigation rather than a mere formality to
close the books. After considering witness testimony, the district
court overruled Javage's objections to the magistrate judge's report
and recommendation and denied the motion. The court found that
Javage's will was not overborne. We find that the court's factual
determinations were not clearly erroneous and that they support the
court's conclusion that Javage's statement was voluntary.
Javage also alleges that the trial court failed to give the jury an Allen3
charge and raises various other issues concerning jury instructions,
jury deliberations, and closing argument. Because he failed to request
an Allen charge and failed to object to any of the other alleged errors
at trial, we find these issues are waived. See United States v. Bryant,
612 F.2d 799, 803 (4th Cir. 1979). Accordingly, we affirm Javage's
conviction and sentence. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court, and oral argument would not aid the decisional pro-
cess.
AFFIRMED
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3 Allen v. United States, 164 U.S. 492 (1986).
4