United States v. Lawton, Andre ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1599
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANDRE LAWTON,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 02-CR-77-C-01—Barbara B. Crabb, Chief Judge.
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ARGUED JANUARY 9, 2004—DECIDED APRIL 28, 2004
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Before POSNER, RIPPLE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Based on his failure to disclose
to a gun dealer that he had been charged with a felony
offense, a jury convicted Andre Lawton of making a false
statement to a federal firearms licensee in violation of 18
U.S.C. § 924(a)(1)(A). Lawton testified in his own defense,
and the district court permitted the government to impeach
Lawton’s credibility by establishing that he had written a
series of bad checks. Lawton contends that the court
committed an evidentiary error when it precluded him from
explaining that he had accepted responsibility and reim-
2 No. 03-1599
bursed merchants for those checks. For the first time on
appeal, Lawton also contends that the statutory bar to the
purchase of firearms by a person under information for a
felony, 18 U.S.C. § 922(n), amounts to a form of excessive
bail in violation of the Eighth Amendment as well as a
deprivation of due process in violation of the Fifth Amend-
ment. We affirm Lawton’s conviction.
I.
On November 9, 2001, Lawton attempted to purchase
a Smith & Wesson .22-caliber pistol from Monsoor’s Sport
Shop in LaCrosse, Wisconsin (“Monsoor’s). Monsoor’s asked
Lawton to complete an Alcohol, Tobacco and Firearms Form
4473, Firearms Transaction Record (“Form 4473”), in
connection with the purchase. Question 9(b) of Form 4473
asks whether the firearms purchaser is currently under
indictment or information for any crime punishable by a
prison term in excess of one year; federal law prohibits such
an individual from receiving a firearm in interstate com-
merce. See 18 U.S.C. § 922(n); see also 18 U.S.C.
§ 921(a)(14). Lawton answered “no” to that question,
although he had been under felony information in two cases
in Wisconsin state court since the end of August 2001. A
background check disclosed the pending informations, and
as a result Lawton was not able to complete the purchase.
A grand jury subsequently returned an indictment charging
Lawton with one count of making a false statement to a
federal firearms licensee, in violation of 18 U.S.C.
§ 924(a)(1)(A). Contending that his failure to disclose the
criminal informations was inadvertent, Lawton pleaded not
guilty and invoked his right to trial by a jury.
Lawton took the stand in his own defense, testifying that
he had hurriedly filled out the Form 4473 in the same way
he had on previous occasions. Lawton told the jury that he
No. 03-1599 3
had neglected to read the form carefully and had simply
made a mistake when he answered “no” to the question
about any pending felony indictment or information.
Lawton expressly denied having knowingly provided false
information on the form.
In advance of trial, the government had secured the
district court’s permission to inquire about a series of four
checks that Lawton had written on a closed bank account
over a sixteen-day period in 2001. The court had held that
in the event Lawton testified, the government could ask
him about the bad checks pursuant to Federal Rule of
Evidence 608(b), which permits the cross-examination of a
witness regarding specific instances of his own conduct for
the limited purpose of establishing his character for
truthfulness or untruthfulness. The court reasoned that
“writing a series of worthless checks on a closed account for
the purpose of obtaining merchandise from retailers
without paying for it [was] . . . particularly relevant in a
case charging defendant with knowingly making false ma-
terial statements regarding his eligibility to purchase a
firearm.” R. 30 at 5.
As with the incorrect answer on the Form 4473, Lawton
represents that he wrote the bad checks inadvertently.
When the government cross-examined Lawton about the
checks, Lawton twice stated that he did not know that the
bank account was closed at the time he wrote the checks.
On re-direct examination, Lawton’s counsel asked him
whether he had subsequently paid the merchants to whom
he had written the bad checks and whether he had accepted
responsibility for them. The government objected to both
questions on the ground of relevance, and in both instances
the court sustained the objection. The government also
impeached Lawton with other instances of his conduct
which are not at issue here.
4 No. 03-1599
At the conclusion of the one-day trial, the jury convicted
Lawton. The district court subsequently ordered him to
serve a prison term of forty-one months.
II.
A. Exclusion of Payment and Acceptance of Responsibility
for Bad Checks
Lawton contends that the district court erred when it
precluded him from testifying that he had accepted re-
sponsibility for and reimbursed merchants for the worthless
checks he had written in 2001. Emphasizing that the
outcome of the trial turned upon his own credibility—the
jury had to decide whether he was telling the truth when he
testified that he simply made a mistake when he answered
“no” to the question about a pending indictment or
information—Lawton emphasizes that the government was
relying on the checks to attack his veracity and that,
consequently, it was imperative that he be able to fully
explain the checks. When the court cut that explanation
short, Lawton argues, it prevented him from showing that
he had written the checks inadvertently and without an
intent to defraud the merchants to whom he had written
them. That in turn enabled the government to hold the bad
checks up to the jury as proof that Lawton was dishonest
and not to be believed with respect to the false statement on
the ATF Form 4473.
The district court did not abuse its discretion in limiting
Lawton’s explanation, however. See United States v. Van
Dreel, 155 F.3d 902, 905 (7th Cir. 1998) (decision to admit
evidence is reviewed for abuse of discretion). Lawton was
permitted to address the central point with respect to the
bad checks—his state of mind when he wrote them. Twice
during cross-examination he testified that he was not aware
that the account was closed at the time he wrote the checks.
Lawton was thus able to argue to the jury that the checks
No. 03-1599 5
were a mistake and as such were not evidence of deceitful-
ness on his part, as the government posited. The additional
facts that Lawton wished to elicit, although consistent with
the notion that he wrote the checks inadvertently, were not
particularly probative of his state of mind at the time he
wrote the checks. Lawton could have written the checks
knowing that the account was closed and with the intent to
defraud the merchants, yet still have decided later to accept
responsibility for the checks and reimburse the merchants
in order to avoid prosecution or in the hopes of receiving a
more lenient sentence. It was therefore within the district
court’s discretion to limit Lawton’s testimony as it did.1
1
Lawton suggests that the district court compounded its
purported error in limiting his testimony by admitting the checks
for the purpose of establishing his “character for untruthfulness”
and by giving a limiting instruction to the jury referring specifi-
cally to the checks rather than to extrinsic acts generally as in
this court’s pattern instruction. We need not address these sup-
plementary objections at any length, given our holding that the
district court did not abuse its discretion in limiting Lawton’s
testimony about the checks and in view of the fact that Lawton
has not raised these points as freestanding issues. We do note that
the language in the court’s pre-trial ruling permitting the
government to cross-examine Lawton about the checks is faith-
ful to the language of Rule 608(b), which refers to a witness’s
“character for truthfulness or untruthfulness” rather than to his
“credibility,” which is the term Lawton believes the court should
have used in admitting the evidence. The difference, in any event,
strikes us as semantic. See, e.g., United States v. Lindemann, 85
F.3d 1232, 1243 (7th Cir. 1996) (noting that “attacking the
witness’s general character for truthfulness” is one of the accept-
able methods of challenging the witness’s credibility). As for the
language in the court’s limiting instruction, we can conceive of no
sense in which the specific reference to the checks harmed
Lawton.
6 No. 03-1599
B. Constitutionality of Section 922(n)
Lawton makes two constitutional challenges to his
conviction under section 924(a)(1)(A), both of which focus on
the underlying statutory ban on the receipt or transporta-
tion of firearms by an individual under felony indictment or
information. See 18 U.S.C. § 922(n). Contending that
the Second Amendment protects an individual’s right to
bear arms, Lawton asserts that the statutory prohibition
violates both the Eighth Amendment and the Due Process
Clause of the Fifth Amendment, such that his conviction for
failing to disclose the two pending informations charging
him with felonies in the Form 4473 is also invalid. Lawton
raised neither of his constitutional arguments below, so our
review is, of course, confined to one for plain error. E.g.,
United States v. Mansoori, 304 F.3d 635, 667 (7th Cir.
2002), cert. denied, 538 U.S. 967, 123 S. Ct. 1761 (2003).
A threshold impediment to Lawton’s constitutional
arguments convinces us that there is no plain error in his
conviction. Lawton was convicted not for receiving or
transporting a firearm in violation of section 922(n) but for
knowingly making a false statement to a federal firearms
licensee in violation of section 924(a)(1). Lawton presumes
that if the government cannot constitutionally prohibit
a person facing felony criminal charges from receiving or
transporting a firearm, then it cannot penalize him for
falsely representing to a firearms licensee that he was not
under felony indictment or information. The premise itself
is dubious, however. The Supreme Court has repeatedly
said that an individual may be prosecuted for knowingly
making a false statement on a matter within the jurisdic-
tion of the government, even if there are doubts about the
government’s authority to pose the inquiry giving rise to
that statement. See United States v. Mandujano, 425 U.S.
564, 577-78, 96 S. Ct. 1768, 1776-77 (1976) (false state-
ments to grand jury); Bryson v. United States, 396 U.S. 64,
90 S. Ct. 355 (1969) (False Statements Act); Dennis v.
No. 03-1599 7
United States, 384 U.S. 855, 865-67, 86 S. Ct. 1840, 1846-48
(1966) (conspiracy to defraud the government); Kay v.
United States, 303 U.S. 1, 6-7, 58 S. Ct. 468, 471 (1938)
(Home Owners’ Loan Act of 1933); see also LaChance v.
Erickson, 522 U.S. 262, 118 S. Ct. 753 (1998). Even if
we assume for the sake of argument that the Second
Amendment embraces an individual’s right to bear arms—
a proposition that this court has rejected, see Gillespie v.
City of Indianapolis, 185 F.3d 693, 710 (7th Cir. 1999)—
there can be little doubt about the government’s authority
to regulate the interstate trade in firearms and its cor-
responding power to inquire into the backgrounds of those
attempting to purchase firearms. See generally United
States v. Emerson, 270 F.3d 203, 260-61 (5th Cir. 2001)
(holding that although the Second Amendment does include
an individual’s right to bear arms, that right is nonetheless
subject to reasonable restriction), cert. denied, 536 U.S. 907,
122 S. Ct. 2362 (2002); see also United States v. Price, 328
F.3d 958, 961 (7th Cir. 2003).
Lawton was on notice of his obligation to answer truth-
fully the questions put to him about his status. The Form
4473 itself admonished him that giving false answers to the
questions posed by the form constituted a felony criminal
offense. When it convicted Lawton, the jury determined that
he knowingly gave a false answer to the question about
pending felony indictments or informations, and the
evidence is sufficient to support that finding. As we discern
no reason to doubt the government’s authority to
criminalize Lawton’s false answer, his conviction does not
reflect any plain error.
III.
Lawton’s conviction is AFFIRMED. We thank his appointed
attorneys for their vigorous advocacy on his behalf.
8 No. 03-1599
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-28-04