United States v. Clark , 89 F. App'x 453 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS March 3, 2004
FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-60041
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES CARLOS CLARK, also known as Morris Bailey,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Mississippi
(1:01-CR-72-P)
Before SMITH, BARKSDALE, and CLEMENT, Circuit Judges.
PER CURIAM:*
The principal issue in this appeal concerns the sufficiency of
the evidence on whether James Carlos Clark was a requisite
“fugitive from justice” for federal firearms convictions, including
18 U.S.C. § 922(g)(2) (prohibiting firearm possession by fugitive
from justice). Had Clark renewed his motion for judgment of
acquittal at the close of all evidence, this issue would have
presented a matter of first impression for our circuit: whether
fugitive from justice status, as defined at 18 U.S.C. § 921(a)(15),
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
requires proving, on a subjective basis, intent to flee
prosecution. Along this line, Clark contends: under any standard,
the evidence was insufficient to prove such status; and, therefore,
the district court erred in denying judgment of acquittal.
Under the very restricted manifest miscarriage of justice
standard, made applicable by Clark’s failure to renew his motion
for judgment of acquittal at the close of all the evidence, his
sufficiency challenge fails. In addition, there is no merit to his
contesting his sentence-enhancement because of obliterated serial
numbers on firearms. AFFIRMED.
I.
Clark traveled frequently between the Starkville, Mississippi,
area and Chicago, Illinois. In early 1999, after being arrested in
Chicago for felony possession of a controlled substance, Clark
falsely identified himself as Morris Bailey and provided a false
address in Columbus, Mississippi.
Approximately three months later, Clark was arraigned in the
Circuit Court of Cook County, Illinois. The case was continued,
with Clark released on bond. In September 1999, Clark failed to
appear in court. An arrest warrant was issued.
In late November 1999, Clark was back in custody in Illinois,
having been arrested again. The next month, however, the bond was
reinstated.
2
On 13 January 2000, Clark failed, once again, to appear in
court; the Cook County court again issued an arrest warrant for
Morris Bailey. Apparently, this warrant remains outstanding.
Clark traveled to Mississippi and recruited others to act for
him between 11 July and 15 August 2000 as straw purchasers of
firearms from federally-licensed firearms dealers, for resale in
Chicago. In each instance, the purchaser answered question 9A of
the federally-mandated ATF form as follows: he or she was the
actual buyer (i.e., not buying for another party) and was not a
fugitive from justice. Later, many of those firearms purchased in
Mississippi, including some with filed-down serial numbers, were
recovered following sales in Chicago.
In June 2001, Clark was indicted in Mississippi on nine counts
of federal firearms violations. At trial in September 2002,
following the Government’s case-in-chief, Clark moved for judgment
of acquittal on all counts; the motion was granted for one count.
In denying such judgment concerning the fugitive from justice
issue that is also raised here, the court engaged in a detailed and
comprehensive analysis. It held the Government was only required
to
prove the following elements in order to
demonstrate that Clark was a fugitive from
justice and, thus, a person not legally
entitled to purchase or possess firearms.
Number one, Clark knew charges were pending
against him; number two, Clark refused to
answer those charges; and, three, Clark left
the jurisdiction where charges were pending.
3
It is not necessary that the government prove
that Clark left [Illinois] with intent to
avoid the charges pending against him. The
Court therefore rejects [Clark’s] argument
that the government need prove that Clark knew
his court date or that a warrant had issued.
Accordingly, the district court found “that a reasonable jury could
conclude that Clark was a fugitive from justice”. Clark then
presented his case. At the conclusion of all the evidence,
however, he failed to renew his motion for judgment of acquittal.
The jury was unable to return verdicts on four counts, which
were later dismissed. It returned guilty verdicts on the remaining
counts. Clark was sentenced, inter alia, to 57 months’
imprisonment.
II.
Clark appeals his conviction and sentence. For the former, he
challenges the sufficiency of the evidence; for the latter, the
obliterated-serial-numbers adjustment to his base offense level.
A.
Clark was convicted of: one count for violation of 18 U.S.C.
§ 922(g)(2), which prohibits a fugitive from justice from
transporting “or possess[ing] in or affecting commerce” any
firearms; two counts for violation of 18 U.S.C. § 922(a)(6), which
prohibits causing, aiding, abetting, and inducing a straw purchaser
to make material false written statements in connection with the
acquisition of firearms; and one count for violation of 18 U.S.C.
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§ 371, conspiracy to make false statements in the acquisition of
firearms from a federally licensed dealer.
The Government maintains that fugitive from justice status is
not a prerequisite to convicting Clark for the counts under § 371
and § 922(a)(6), citing United States v. Ortiz-Loya, 777 F.2d 973(5th Cir. 1985) (upholding convictions for aiding and abetting and
conspiracy to make false statements by straw purchasers regarding
identity of actual purchasers). Based on our very restricted
standard of review for Clark’s sufficiency of the evidence
challenge, discussed infra, we need not reach this issue.
Restated, for each of the four counts, we will assume (as held by
the district court) that Clark’s purchase would be illegal only if
he is a fugitive from justice. Claiming insufficient evidence for
such status, Clark maintains it requires proving, on a subjective
basis, his intent to flee prosecution.
When a defendant properly moves for judgment of acquittal, a
sufficiency challenge fails if, construing the evidence in the
light most favorable to the verdict, “any rational trier of fact
could have found that [it] established guilt beyond a reasonable
doubt”. United States v. Shelton, 325 F.3d 553, 557 (5th Cir.
2003) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)).
As discussed, although Clark moved for judgment of acquittal
following the Government’s case, he did not renew his motion at the
close of all the evidence. Clark presented several witnesses in
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his defense, and, after the close of the evidence, objected to the
jury instructions on finding fugitive from justice status
(concerning that status, the charge was consistent with the
district court’s above-quoted denial of the acquittal motion at the
close of the Government’s case); but, Clark never renewed his
motion for judgment of acquittal.
In responding on appeal to this claim, however, the Government
failed to identify this omission by Clark. Of course, we, not the
parties, determine our standard of review. E.g., United States v.
Herrera, 313 F.3d 882, 885 n.* (5th Cir. 2002)(en banc). Under
this procedural posture, that standard is well settled:
[W]hen the defendant moves for judgment of
acquittal at the close of the government’s
case in chief, and defense evidence is
thereafter presented but the defendant fails
to renew the motion at the conclusion of all
of the evidence, he waives objection to the
denial of his earlier motion.... Accordingly,
our review is limited to determining whether
there was a manifest miscarriage of
justice.... That occurs only where the record
is devoid of evidence pointing to guilt or
contains evidence on a key element of the
offense [that is] so tenuous that a conviction
would be shocking.
United States v. McIntosh, 280 F.3d 479, 483 (5th Cir. 2002)
(emphasis added; internal quotation marks omitted; citations
omitted; alterations in original). As explained infra, there is
evidence in the record — indeed, quite abundant — pointing to
Clark’s guilt under any standard for fugitive from justice status;
his conviction is not a manifest miscarriage of justice.
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A “fugitive from justice” is defined as “any person who has
fled from any State to avoid prosecution for a crime or to avoid
giving testimony in any criminal proceeding”. 18 U.S.C. §
921(a)(15). Noting that our court has not determined the requisite
standard of proof for such status, Clark maintains we should follow
the Ninth and Eleventh Circuits and require the Government to prove
he intended to flee a jurisdiction for the purpose of avoiding
prosecution. Clark asserts: the evidence was insufficient to
prove, on a subjective basis, his intent; and, therefore, the
Government is unable to prove a necessary element of fugitive from
justice status. Alternatively, he contends that, even under the
lesser standard used by the district court for such status, the
evidence was insufficient.
In the context of a § 922(g)(2) violation (fugitive from
justice possessing firearm), United States v. Durcan, 539 F.2d 29,
30-31 (9th Cir. 1976), held that “an indispensable requisite of the
prosecution’s proof” is showing the defendant left the jurisdiction
“with the intent to avoid arrest or prosecution”. Durcan held the
evidence insufficient to “establish the... specific intent
required”. Id. at 32. United States v. Collins, 61 F.3d 1379,
1385 (9th Cir. 1995), reiterated this standard, closing a loophole
in the Durcan analysis so that it includes fugitives who return to
the prosecuting jurisdiction but continue to conceal themselves
from authorities there.
7
Similarly, the Eleventh Circuit has held that, in the context
of § 922(g)(2), the Government must prove the defendant “purposely”
stayed outside the jurisdiction “with the intent to avoid
prosecution”; “‘[m]ere absence from the jurisdiction in which a
crime occurred does not render the suspect a fugitive from
justice’”. United States v. Gonzalez, 122 F.3d 1383, 1387 (11th
Cir. 1997) (quoting United States v. Fonseca-Machado, 53 F.3d 1242,
1243-44 (11th Cir. 1995)).
In urging adoption of this standard, Clark claims the
Government must prove, on a subjective basis, that he left Illinois
with the specific intent to avoid prosecution there. He claims the
Government cannot do so, maintaining: although the Government
proved he knew of the outstanding charges, it failed to prove he
was aware of any specific court date; it did not offer any evidence
— such as proof Clark received written documentation or a notice of
hearing relating to a specific court date in Illinois — that bears
on his intent for leaving Illinois and missing his court
appearance; no evidence was presented that his failure to appear
was anything more than a mistake; and if, as the Government
contends, he was traveling between Mississippi and Illinois for the
purpose of selling firearms, he could not possibly be a fugitive in
any meaningful sense because of his repeated, voluntary returns to
Illinois, the prosecuting jurisdiction. Clark contends that the
Government must prove that he willfully avoided the charges.
8
Quite different requirements for fugitive from justice status
are followed by the Fourth and Seventh Circuits. In the context of
both § 922(g)(2) (prohibiting fugitive from justice possession of
firearm) and § 922(a)(6) (proscribing causing straw purchaser to
make material false statements for firearm purchase), United States
v. Spillane, 913 F.2d 1079, 1081 (4th Cir. 1990), rejected the
claim “that to meet the requisite burden of proof the prosecution
must show that the [defendant] left [the jurisdiction] with the
intent to avoid facing the charges pending against him”. Instead,
Spillane held the status proved if the defendant purposely left the
prosecution jurisdiction, knowing that charges are pending, and
refused to answer those charges by appearing before the prosecuting
tribunal. In this regard, “[i]t is not necessary that the accused
make a furtive exit from the prosecuting jurisdiction”. Id. at
1082.
Likewise, United States v. Ballentine, 4 F.3d 504, 506 (7th
Cir. 1993), held that “knowledge of one’s status as a ‘fugitive’
simply is not an element of 18 U.S.C. § 922(g)(2)”. Fugitive
status does require scienter, but it is not knowledge that a
defendant carries the “name or status of ‘fugitive’”; instead, it
is knowledge that charges are pending against him. Id. An
individual who, with such knowledge, deliberately leaves the
prosecuting jurisdiction and refuses to answer those charges by
appearing before the court is a fugitive from justice. Id.9
As discussed, because Clark failed to properly move for
judgment of acquittal, we need not decide which approach to follow;
the issue is waived. Instead, we review only to ensure there is no
manifest miscarriage of justice.
Along that line, it is not disputed that Clark intentionally
left Illinois, knowing charges were pending against him there under
a false name. There is evidence that: Clark failed to appear
before the court in Illinois where charges were pending; he had
failed to appear in Illinois court once before; and he deliberately
misled Illinois authorities by providing both a false name (Bailey)
and false address (Mississippi). In sum, the record is not “devoid
of evidence” pointing to Clark’s guilt — far from it.
B.
Clark claims there was insufficient evidence to support his
sentence enhancement, pursuant to U.S.S.G. § 2K2.1(b)(4) (two level
enhancement if firearm has “obliterated serial number”), for filed
down serial numbers on some of the recovered firearms. Noting that
he was not convicted of offenses with respect to these firearms,
Clark contends: others obliterated the numbers; and he should not
be sentenced on the basis of their conduct.
The district court’s application and interpretation of the
Sentencing Guidelines are reviewed de novo; its findings of fact,
only for clear error. E.g., United States v. Jimenez, 323 F.3d
320, 322 (5th Cir. 2003). In sentencing, the burden of proof is by
10
a preponderance of the evidence; and the district court may rely on
uncharged offenses, dismissed counts, or even offenses on which the
defendant is acquitted. E.g., United States v. Watts, 519 U.S.
148, 157 (1997); United States v. Cockerham, 919 F.2d 286, 289 (5th
Cir. 1990), overruled on other grounds, United States v. Calverley,
37 F.3d 160, 163 n.20 (5th Cir. 1994) (en banc).
There was no error. Clark’s not being convicted on an offense
relating to these firearms did not preclude the district court’s
considering them for sentencing purposes. For example, one person
testified: although he and another did file off the serial numbers
on several firearms, they did so at Clark’s request, immediately
prior to delivering them to him for sale in Chicago.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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