IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-60199
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH HAROLD GRAVES,
a/k/a Joe Diamond,
a/k/a Cowboy,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:96-CR-55-BrR
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December 4, 1997
Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.
PER CURIAM:*
Joseph Harold Graves was convicted by a jury for being a felon
in possession of firearms in violation of 18 U.S.C. § 922(g)(1).
Graves attacks the validity of his indictment because it charged
that he “did knowingly receive and possess firearms,” but the
statute, 18 U.S.C. § 922(g)(1) makes it a crime for a felon to
possess or receive firearms. This argument has no merit because “a
disjunctive statute may be pleaded conjunctively and proved
*
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that this opinion should not be published and is not precedent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.
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disjunctively.” United States v. Pigrum, 922 F.2d 249, 253 (5th
Cir. 1991) (internal quotations and citation omitted). Graves also
asserts that the difference in tenses related to possessing and
receiving firearms transported in interstate commerce is vague and
does not specifically define what behavior is prohibited. This
point has been decided against him by this court in United States
v. Fitzhugh, 984 F.2d 143, 145-46 (5th Cir. 1993).
Graves asserts that the Government manufactured federal
jurisdiction over his offense by transporting the weapons in
interstate commerce. See United States v. Clark, 62 F.3d 110, 112-
14 (5th Cir. 1995). The three weapons had already moved in
interstate commerce prior to coming into the hands of the ATF and
any such past connection to interstate commerce was sufficient to
confer federal jurisdiction. See Fitzhugh, 984 F.2d at 146.
Graves asserts that the district court erred in denying his
motion to dismiss the indictment based on outrageous Government
conduct. We review such claims de novo. United States v. Asibor,
109 F.3d 1023, 1039 (5th Cir. 1997). This case does not present
the rare circumstances allowing a finding of outrageous conduct
that violates due process. Graves was "an active, willing
participant in the criminal conduct.” Id.
Graves argues that the district court erred by permitting
evidence of “all the historic details of the involvement of its
agents with Graves relative to discussions about bombing federal
buildings, ripping off a National Guard Armory, [and] membership in
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an organization known as the Confederate States of America.” The
district court did not abuse its discretion in admitting this
evidence under Fed. R. Evid. 404(b). United States v. White, 972
F.2d 590, 598-99 (5th Cir. 1992) (citing United States v. Beechum,
582 F.2d 898, 911 (1978) (en banc)).
Graves asserts that the district court erred in instructing
the jury in three ways: (1) the instruction on possession; (2) the
cautionary instruction relative to Rule 404(b); and (3) the
instruction on entrapment. He concedes that the latter is reviewed
for plain error only. Graves has not shown that "the instructions
taken as a whole do not correctly reflect the issues and the law.”
United States v. McKinney, 53 F.3d 664, 676 (5th Cir. 1995)
(citation and internal quotation omitted).
Graves asserts that there was insufficient evidence to support
his conviction for possession of firearms by a felon. The elements
of a § 922(g)(1) offense are that the defendant (1) has been
convicted of a felony; (2) possessed a firearm in or effecting
interstate commerce; and (3) knew that he was in possession of the
firearm. United States v. Ybarra, 70 F.3d 362, 365 (5th Cir.
1995), cert. denied, 116 S. Ct. 1582 (1996). Graves contends that
the evidence did not prove his actual possession of the firearms.
The standard of review for sufficiency of evidence is whether any
reasonable trier of fact could have found that the evidence
established the essential elements of the crime beyond a reasonable
doubt. United States v. Alix, 86 F.3d 429, 435 (5th Cir. 1996).
No. 97-60199
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The evidence that Graves took the firearms and placed them in his
duffle bag is sufficient to show actual possession of the firearms.
AFFIRMED.