United States v. Phillip W. Bates ( 1996 )

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No. 95-2280
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United States, *
*
Plaintiff-Appellee, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Arkansas.
Phillip Wilson Bates, *
*
Defendant-Appellant. *
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Submitted: November 14, 1995
Filed: March 5, 1996
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Before McMILLIAN, FLOYD R. GIBSON, and LOKEN, Circuit Judges.
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FLOYD R. GIBSON, Circuit Judge.
Phillip Bates challenges his conviction and sentence1 for being a
felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1)
(1988). We affirm.
I. BACKGROUND
On January 1, 1994, United States Fish and Wildlife Special Agent
Darwin Huggins was making routine equipment and hunting license checks on
a boat ramp on the Cache River in Arkansas when a boat occupied by Phillip
Bates pulled up. The boat contained two
1
The Honorable Stephen M. Reasoner, United States District
Judge for the Eastern District of Arkansas.
other individuals, Mike Harris and Deborah Hamilton, as well as hunting
equipment, duck decoys, dead ducks, and two shotguns, one of which was
located nearest to Bates. All three occupants were dressed in chest waders
and hunting clothes.
Special Agent Huggins, who had been on the lookout for Bates,
identified himself as a law enforcement officer and asked to make a routine
inspection of their licenses, guns, and ducks. Special Agent Huggins asked
who had killed the ducks, and Harris stated that the ducks were his.
Special Agent Huggins then asked to whom the two firearms belonged. Harris
stated that one of the guns belonged to him. When Special Agent Huggins
then asked Bates if the second gun belonged to him, Bates admitted that it
did.
Special Agent Huggins then asked to inspect their hunting permits.
Bates produced an Arkansas hunting license, two duck stamps, a hunter
education certificate, and a Cache River hunting permit. The reverse side
of Bates's hunter education certificate bore the legend "Arkansas Outdoor
Guide Services - Singles, Groups, and Families, Phillip Bates." Bates told
Special Agent Huggins that he had been hunting, but that Hamilton had not
because she did not have a valid license or duck stamp. Special Agent
Huggins then told Bates that he needed to check their guns and asked him
which one was his. Bates picked up the gun nearest him, a Sportsman 12-
gauge pump Magnum shotgun, told Special Agent Huggins that it was his, and
handed it to Special Agent Huggins. After inspecting the firearms, Special
Agent Huggins asked to inspect their shells. In response, Bates handed
over eleven rounds of 12-gauge shotgun shells from his belt and various
pockets, all of which matched the firearm he had handed Special Agent
Huggins. Special Agent Huggins then asked Bates to accompany him to the
parking lot where he placed Bates under arrest for being a felon in
possession of a firearm. At this point, Bates recanted his story and
denied that he had been hunting, claiming instead that his shotgun was
being used by Hamilton.
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Bates was charged with being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1),2 tried before a jury, and convicted.
The district court found that Bates had two prior serious drug offenses and
one prior violent felony and sentenced him to fifteen years imprisonment
pursuant to 18 U.S.C. § 924(e)(1).3 The district court also sentenced
Bates to three years supervised release and imposed a fine of $12,500.
Bates challenges the constitutionality of his conviction under the Commerce
Clause, the sufficiency of the evidence supporting his conviction, and
alleges that he received ineffective assistance of trial counsel. Bates
also claims that his sentence violates the Fifth Amendment's guarantee of
due process and prohibition against double jeopardy. We address each issue
seriatim.
II. DISCUSSION
A. Commerce Clause
Bates first argues that his conviction is the result of an
unconstitutional application of 18 U.S.C. § 922(g)(1). Based on the
Supreme Court's recent decision in United States v. Lopez, 115 S. Ct. 1624
(1995), he contends that Congress lacks the power under the Commerce Clause
to criminalize the mere possession of a firearm that has traveled in
interstate commerce absent the showing of a more substantial impact on
interstate commerce. "We review federal
2
18 U.S.C. § 922(g) provides that is shall be unlawful for a
convicted felon "to ship or transport in interstate or foreign
commerce, or possess in or affecting commerce, any firearm or
ammunition; or to receive any firearm or ammunition which has been
shipped or transported in interstate or foreign commerce."
3
18 U.S.C. § 924(e)(1) provides that "a person who violates
section 922(g) of this title and has three previous convictions
. . . for a violent felony or a serious drug offense, or both,
committed on occasions different from one another, such person
shall be fined not more than $25,000 and imprisoned not less than
fifteen years . . . ."
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constitutional questions de novo." United States v. Johnson, 56 F.3d 947,
953 (8th Cir. 1995).
We believe that Bates reads Lopez too broadly. In that decision, the
Supreme Court held that the Gun-Free School Zones Act, 18 U.S.C. §
922(q)(1)(A) (Supp. 1993), a measure which made it a federal crime to
knowingly possess a firearm in a school zone, exceeded Congress' power to
regulate interstate commerce under the Commerce Clause. Lopez, 115 S. Ct.
at 1626. In reaching its decision, the Court "identified three broad
categories of activity that Congress may regulate under its commerce
power." Id. at 1629. Those categories are: (1) the power to regulate the
use of the channels of interstate commerce; (2) the power to regulate and
protect the instrumentalities of interstate commerce, or persons or things
in interstate commerce, even though the threat may come from intrastate
activities; and (3) the power to regulate those activities having a
substantial relation to interstate commerce. Id. at 1629-30. In cases
challenging Congress' lawmaking power under the third category, the Court
concluded that the "the proper test requires an analysis of whether the
regulated activity 'substantially affects' interstate commerce." Id. at
1630.
Categorizing the Gun-Free School Zones Act under the third heading,
the Court determined that the Act exceeded Congress' Commerce Clause
authority because it neither regulated a commercial activity that could
potentially have a substantial effect on interstate commerce nor contained
the type of express jurisdictional element approved in United States v.
Bass, 404 U.S. 336 (1971), "which would ensure, through case-by-case
inquiry, that the firearm possession in question affects interstate
commerce." Id. at 1630-31. We do not believe, however, that section
922(g)(1) suffers from the same defect. Unlike the Gun-Free School Zones
Act, an individual case under section 922(g)(1) may fall under either the
second or the third categories identified in Lopez, 115 S. Ct. at 1629-30.
United States v. Mosby, 60 F.3d 454, 455 (8th
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Cir. 1995), petition for cert. filed on Dec 4, 1995 (No. 95-7053). And
unlike the Gun-Free School Zones Act, section 922(g) contains the same type
of "express jurisdictional element which might limit its reach to a
discrete set of firearm possessions that additionally have an explicit
connection with or effect on interstate commerce" approved in Bass. Lopez,
115 S. Ct. at 1631.
Bates argues that the jury instructions, which required the jury to
find that the shotgun possessed by him had previously traveled in
interstate commerce, were insufficient to establish the required nexus to
interstate commerce required by Lopez. We have already squarely rejected
this argument in United States v. Shelton, 66 F.3d 991 (8th Cir. 1993) (per
curiam). "To satisfy the interstate commerce element of section 922(g),
it is sufficient that there exists 'the minimal nexus that the firearm[s]
have been, at some time, in interstate commerce.'" Id. at 992 (quoting
Scarborough v. United States, 431 U.S. 563, 575 (1977)); see also United
States v. Rankin, 64 F.3d 338, 339 (8th Cir.) (per curiam) (Government's
evidence that sawed off shotgun possessed by felon in Missouri was
manufactured in New York satisfied section 922(g)(1)'s jurisdictional
nexus), cert. denied, 116 S. Ct. 577 (1995). As such, we find the
application of section 922(g)(1) to Bates's conduct eminently
constitutional.
B. Sufficiency of the Evidence
Bates next attacks the sufficiency of the evidence underlying his
conviction. Specifically, he alleges that the Government failed to prove
that he actually possessed the firearm in question as opposed to merely
owning it. He argues alternatively that he was the victim of entrapment.
"In reviewing the sufficiency of the evidence on appeal, the court views
the evidence in the light most favorable to the government, resolving
evidentiary conflicts in favor of the government, and accepting all
reasonable inferences drawn from the evidence that support the jury's
verdict." United
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States v. Erdman, 953 F.2d 387, 389 (8th Cir.), cert. denied, 505 U.S. 1211
(1992). "The jury's verdict must be upheld if there is an interpretation
of the evidence that would allow a reasonable-minded jury to conclude guilt
beyond a reasonable doubt." Id.
We believe that there was sufficient evidence that Bates was in
possession of the firearm in question. The dead ducks, the camouflaged
netting, the decoys, the chest waders, the hunting apparel, the shotgun
shells found on his person, Bates's admitted ownership of the shotgun, and
his initial admission that he had in fact been duck hunting all support the
jury's guilty verdict. Bates argues that the jury could have reasonably
inferred from this evidence that he was merely acting as a wilderness
guide, and that his initial admission that he had been hunting was no more
than a misguided attempt to protect his client, Deborah Hamilton, who he
claims had been hunting without a license. But this alternative was fairly
presented to and rejected by the jury. "[I]t is not our function as a
reviewing court to reverse based on a recognition of alternate
possibilities." United States v. O'Malley, 854 F.2d 1085, 1088 (8th Cir.
1988).
Bates's entrapment defense raises a question of fact, namely "whether
the government agent caused or induced the defendant to commit a crime he
was not otherwise predisposed -- i.e., willing and ready -- to commit
whenever a propitious opportunity arose." Id. at 1088 (quotation omitted).
The jury was properly instructed on this issue and summarily rejected it
as well. While its decision could have been different, it is not our role
to second-guess the jury's factual determinations. Id. at 1088. Based on
the strong circumstantial evidence that Bates had in fact been duck hunting
with the shotgun as well as Bates's own admission, we cannot say that the
jury's rejection of Bates's entrapment defense is unsupported by sufficient
evidence.
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C. Due Process
Bates claims that he was denied due process at the sentencing phase
because he received no formal notice in the indictment or judgment that he
would be sentenced under 18 U.S.C. § 924(e)(2), which mandates a minimum
fifteen-year sentence for a defendant convicted under section 922(g) who
has three prior convictions for a violent felony or serious drug offense.
Because both the indictment and the judgment referred to section 924(a)(2),
which provides a maximum sentence of ten years imprisonment, rather than
section 924(e)(1), Bates claims that he can constitutionally be sentenced
to no more than the ten years provided in section 924(a)(2). We review
this constitutional claim de novo. Johnson, 56 F.3d at 953.
References in the indictment to sentence enhancements such as section
924(e) are "mere surplusage" and "may be disregarded if the remaining
allegations are sufficient to charge a crime." United States v.
Washington, 992 F.2d 785, 787 (8th Cir.) (quotation omitted), cert. denied,
114 S. Ct. 356 (1993). Although surplusage, such language in the
indictment "serves a valid and useful purpose in that it gives notice to
the defendant from the start that the government intends to seek the
enhanced sentence if the defendant is convicted." Id. Assuming due
process requires notice to the defendant that the government intends to
enhance his sentence under a specific statutory provision, we believe that
Bates received adequate notice nonetheless. Two of the three convictions
relied upon to enhance his sentence were proven at trial. The other was
fully set out in the presentence investigation report, leaving Bates with
"ample opportunity to investigate his earlier convictions and to challenge
the requirements of § 924(e)(1)." United States v. Adail, 30 F.3d 1046,
1047 (8th Cir.) (per curiam), cert. denied, 115 S. Ct. 653 (1994). The
absence of any prior notice could not have affected the fairness of Bates's
sentencing. Because sentencing is a
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separate phase of the criminal process, notice of which offenses the
Government would be able to rely on in order to enhance Bates's sentence
became relevant only at the sentencing stage. United States v. McMurray,
20 F.3d 831, 833-34 (8th Cir. 1994). Furthermore, any potential notice
deficiency would have been harmless because Bates never disputed the
applicability or the existence of his three prior felonies at any point
during his sentencing.4 Adail, 30 F.3d at 1047.
D. Double Jeopardy
Bates next contends that the district court violated the Fifth
Amendment's prohibition against double jeopardy by punishing him twice for
the same offenses. Specifically, he challenges the constitutionality of
using his prior felony convictions both to establish his substantive
offense under section 922(g)(1) and to enhance his sentence under section
924(e)(1). We review this constitutional challenge de novo. Johnson, 56
F.3d at 953.
The Fifth Amendment's Double Jeopardy Clause protects against
multiple prosecutions and punishments for the same offense. Illinois v.
Vitale, 447 U.S. 410, 415 (1980). Bates, however, was neither prosecuted
nor punished more than once for the same offense. It is well-settled that
the use of a defendant's prior convictions to establish his status as a
convicted felon for purposes of section 922(g)(1) does not constitute a
second conviction and punishment for double jeopardy purposes. United
States v. Phillips, 432 F.2d 973, 975 (8th Cir. 1970) ("The prior
conviction was permitted to be proved only . . . for the purpose of
4
In a related argument, Bates contends that he should not have
been sentenced under section 924(e)(2) because the Government only
proved two of the required three felonies at trial. As previously
observed, however, Bates neither objected to nor disputed the
existence of the third felony which was fully set forth in the
presentence investigation report.
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establishing [the defendant's] status as member of a class to which the use
of interstate commerce to transport firearms has been forbidden.").
This Court has similarly rejected the idea that the use of a
defendant's prior convictions to enhance his sentence subjects him to a
second conviction or punishment for the same offenses. Id. (citing Davis
v. Bennett, 400 F.2d 279, 282 (8th Cir. 1968), cert. denied, 395 U.S. 980
(1969)); United States v. Thomas, 895 F.2d 1198, 1201 (8th Cir. 1990)
("Habitual offender statutes do not subject a defendant to a second
conviction or punishment for prior offenses. Rather, the repeat offender's
prior convictions are considered to be an aggravating factor that justifies
imposing a heavier sentence for his or her present offense.").
Where neither practice constitutes double punishment or prosecution
individually, we see no reason why they would offend the Double Jeopardy
Clause when used in conjunction. As the Fifth Circuit concluded in United
States v. Wallace, 889 F.2d 580, 584 (5th Cir. 1989), cert. denied, 497
U.S. 1006 (1990), "Consideration of the same felony to convict under
section 922(g) and to enhance punishment under section 924(e)(1) is neither
a double prosecution nor a double punishment."
E. Ineffective Assistance of Counsel
Bates alleges that he received ineffective assistance of counsel at
trial because his attorney failed to object to certain testimony. Such
claims are not generally cognizable on direct appeal unless the district
court has developed a record on the ineffectiveness issue. United States
v. Jennings, 12 F.3d 836, 840 (8th Cir. 1994). Because no such record is
available to us, we decline to address this claim.
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III. CONCLUSION
We are not unmindful of the apparent absurdity in sentencing an
individual to fifteen years imprisonment for the equivalent of duck
hunting. We are equally aware, however, that Congress has tied our hands
and removed a much-needed measure of judicial discretion through its
enactment of the fifteen year mandatory minimum provision of § 924(e)(1)
of the Armed Career Criminal Act. For the aforementioned reasons, we
affirm Bates's conviction and sentence.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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