IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-10453
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DOUGLAS MARTIN CROW,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
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March 5, 1997
Before WISDOM, KING, and SMITH, Circuit Judges.
PER CURIAM:*
Douglas Martin Crow appeals his conviction for being a felon
in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
He argues (1) that the evidence was insufficient to prove that he
was predisposed to possess a firearm; (2) that the district court
abused its discretion in denying his motion for a new trial; (3)
that the district court abused its discretion in admitting
transcripts of tape recorded conversations rather than the actual
*
Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
No. 96-10453
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tapes; (4) that the district court abused its discretion in
admitting Charles Jackson’s out-of-court statement; (5) that the
district court erred in failing to inform the jury that the
statement, which the jury requested be read back, was not offered
for the truth of the matter asserted; (6) that the district court
abused its discretion in instructing the jury on the “in and
affecting commerce” element of 18 U.S.C. § 922(g)(1); and (7)
that § 922(g)(1) is unconstitutional.
We have carefully reviewed the record and find sufficient
evidence to support the jury’s verdict that Crow was predisposed
to possess the firearm.1 The district court did not abuse its
discretion in denying Crow’s motion for new trial,2 refusing to
admit the tape recorded conversations,3 or admitting Charles
Jackson’s out of court statement.4
Petitioner waived his argument that the district court erred
in failing to instruct the jury regarding the read back of trial
testimony.5 The district court specifically instructed counsel
to review the transcript before it was read to the jury and asked
1
See United States v. Byrd, 31 F.3d 1329, 1336 (5th Cir.
1994), cert. denied, 115 S. Ct. 1432 (1995).
2
See United States v. Giraldi, 86 F.3d 1368, 1374 (5th
Cir. 1996).
3
See United States v. Ruiz, 987 F.2d 243, 246 (5th
Cir.), cert. denied, 510 U.S. 855 (1993).
4
See United States v. Carrillo, 20 F.3d 617, 619 (5th
Cir.), cert. denied, 115 S. Ct. 261 (1994).
5
See United States v. Musquiz, 45 F.3d 927, 931 (5th
Cir.), cert. denied, 116 S. Ct. 54 (1995).
No. 96-20206
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counsel if he had any questions or concerns. After the
transcript was read, the court asked defense counsel if he had
any objection, and defense counsel responded that he did not.
Any objection to the reading of the transcript was affirmatively
waived and is “entirely unreviewable”.6
The district court did not abuse its discretion in
instructing the jury on the “in an affecting commerce” element of
§ 922(g)(1) because the court’s instruction did not remove the
issue from the jury’s consideration.7 Crow’s argument that
§ 922(g)(1) is unconstitutional is without merit. We have held
that § 922(g)(1) is valid under the Commerce Clause.8 Section
922(g)(1) is not unconstitutional as applied to the instant
case.9
AFFIRMED.
6
Id.
7
See United States v. Gaudin, 115 S. Ct. 2310, 2320
(1995).
8
United States v. Rawls, 85 F.3d 240, 242 (5th Cir.
1996).
9
See Id. at 242-43.