United States v. Willingham

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
_____________________

No. 02-10265
_____________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.

GARY LEE WILLINGHAM,

Defendant - Appellant.

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Appeal from the United States District Court for the
Northern District of Texas, Abilene

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October 21, 2002

Before WIENER and STEWART, Circuit Judges, and RESTANI*, District
Judge.

WIENER, Circuit Judge.

Defendant-Appellant Gary Lee Willingham was charged in a

single count indictment for violating 18 U.S.C. § 922(g)(1), felon

in possession of a firearm. After the district court denied

Willingham’s motions to (1) declare the subject statute

unconstitutional and, (2) suppress the firearm in question and

statements given by Willingham, he entered into a conditional plea

agreement that allowed him to appeal, inter alia, the denial of his

aforesaid motions. Willingham was convicted on his guilty plea and

*
Judge of the U.S. Court of International Trade, sitting by
designation.
sentenced to serve 210 months in prison, to be followed by a five-

year term of supervised release. As precedent binds us to affirm

the denial of Willingham’s motion to dismiss the indictment on his

asserted constitutional ground, and as we conclude that any error

that the district court may have committed in denying Willingham’s

motion to suppress would be harmless, we affirm.

I.

FACTS AND PROCEEDINGS

On March 27, 2001, Willingham took a .410 Western Field

shotgun, Model XNH-480C, bearing no serial number, (the “shotgun”),

to Lone Star Pawn in Big Spring, Texas. There he pawned the

shotgun and received Lone Star Pawn ticket number 33738. Later

that day, Willingham returned to Lone Star Pawn and sought to

redeem the shotgun out of pawn. He signed an ATF Form 4473, on

which he was presumably listed as owner of the shotgun and on which

the descriptive nomenclature of the shotgun was set forth in

detail.1 Although Willingham indicated on the ATF form that he had

1
The indictment, all filings in the district court, and the
parties’ appellate briefs, consistently —— but erroneously —— refer
to the shotgun as a “.410 gauge.” In actuality, “.410” is a
decimal fraction of an inch, usually referred to as a “caliber,”
which describes the inside diameter of a gun barrel. Caliber is
almost always used in connection with rifles and handguns, the .410
being the rare exception for shotguns. In contrast, “gauge” is the
central feature of an entirely different system of describing the
inside diameter of a gun barrel and is employed exclusively in
reference to shotguns. Originally, “gauge” represented a figure
equaling the number of balls or spheres of uniform diameter that
could be made from one pound of lead: If, for example, 12 balls of
the same diameter were produced from a single pound of lead, a

2
never been convicted of a crime punishable by more than one year‘s

imprisonment, the report received by Lone Star Pawn through the

National Instant Check System (instituted to comply with the

provisions of so-called “Brady” Bill) reflected otherwise. This

thwarted Willingham’s efforts to redeem the gun; but the following

day, his mother presented the same pawn ticket to Lone Star Pawn

and redeemed the gun, apparently taking it back to the home she

shared with Willingham.

Several months later, in connection with an unrelated

investigation of local burglaries, county sheriff’s deputies Allen

and Ingram went to the Willingham home where they obtained

Willingham’s written consent to search the premises. During the

course of the search, the deputies found the loaded, previously

pawned shotgun under Willingham’s bed. As that firearm was not one

that had been reported stolen in the burglaries being investigated

by the county deputies, however, they did not seize it.

Early in August, the county deputies returned to the

Willingham home and arrested Willingham on charges of parole

violations. On that occasion, at which Willingham’s mother was

present, the deputies located the shotgun in a gun rack in the

mother’s room and took it with them. Because the shotgun was not

shotgun with a barrel having the same inside diameter as one of
those balls would be a “12 [no decimal] gauge” shotgun. There is
no “gauge” measurement for those small shotguns with barrels that
have an inside diameter of .41 inches or .41 caliber; it is
referred to universally as a “.410" shotgun.

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related to Willingham’s state parole violation or the burglaries

that the deputies had been investigating, they turned it over to

the Bureau of Alcohol, Tobacco, and Firearms (“ATF”).

Presumably alerted by feedback from the instant check system

that had foiled Willingham’s attempt to redeem the shotgun, Special

Agent Melvin Dixon Robin of the ATF interviewed Willingham on

August 6, 2001. The voluntary interview was conducted at the

premises in which Willingham’s parole officer had an office, but in

another room. Agent Burtha of the ATF was present as well, but

Willingham’s parole officer was not; and at no time was Willingham

“in custody.” Nevertheless, Special Agent Robin first read

Willingham his Miranda warnings while Willingham followed along on

a copy of the ATF Statement and Waiver of Rights form. Afterwards,

Willingham signed the form and voluntarily proceeded with the

interview.

In the course of the interview, Willingham admitted that, on

March 27, 2001, at Lone Star Pawn, he had pawned the shotgun, which

is fully described on the ATF Form 4473, then unsuccessfully

attempted to redeem it. He also acknowledged, that he had felony

convictions predating March 27, 2001, and that his mother had

redeemed the shotgun from Lone Star Pawn on March 28, 2001.

On August 14, 2001, a federal grand jury indicted Willingham,

“a person who had previously been convicted of a crime punishable

by imprisonment for a term exceeding one year,” for knowingly

possessing “in and affecting commerce a firearm, to-wit: a Western

4
Field shotgun, Model XNH-480C, with no serial number,” “on or about

March 27, 2001,” in violation of § 922(g)(1). The indictment in no

way concerned Willingham’s possession of the shotgun at any time

other than March 27, 2001, whether subsequently in the home he

shared with his mother where the deputies had seen and identified

the gun as the same one pawned, or anywhere else.

In mid-November, the district court set Willingham’s jury

trial for December 3, 2001. This provoked a flurry of filings:

Willingham filed motions to (1) dismiss the indictment for being

based on an unconstitutional statute, and (2) suppress evidence,

including statements given to the ATF agents and the shotgun

itself, as obtained in violation of the Fourth Amendment; both

parties filed proposed jury instructions, witness lists, and

exhibit lists (the government’s witness list included ATF expert

Ernest H. Dishman; its exhibit list included the shotgun, the Lone

Star Pawn ticket, the ATF Form 4473 completed by Willingham on

March 27, the county Consent-to-Search form, and the ATF Statement

and Waiver of Rights). On November 29, the court held a

suppression hearing, at the close of which Willingham’s motions to

suppress and to dismiss the indictment were denied.

Instead of commencing Willingham’s jury trial on December 3,

2001 as scheduled, the court conducted a rearraignment. Pursuant

to a written plea agreement in which he reserved the right to

appeal denial of his suppression motion and his motion to dismiss

the indictment, Willingham entered a plea of guilty to violating

5
Section 922(g)(1). Following a full plea colloquy, during which

the court determined Willingham’s understanding of his Plea

Agreement and of the Factual Resume supporting the government’s

case, the court accepted Willingham’s conditional guilty plea. The

Factual Resume —— which Willingham verified under oath in open

court as being accurate and complete —— specified that (1) on or

about the 27th day of March 2001, (2) Willingham, as a person who

had previously been convicted of a crime punishable by imprisonment

for a term exceeding one year, (3) knowingly possessed, in and

affecting commerce, (4) a firearm, specifically the above-described

.410 Western Field. The Factual Resume also expressed that “[t]he

shotgun was not manufactured in the State of Texas, and, therefore,

moved in and affected interstate or foreign commerce.”

Nowhere in the indictment, the Plea Agreement, or the Factual

Resume, is there any mention whatsoever of Willingham’s having

possessed the shotgun on or about any date other than March 27,

2001. Neither is there any mention of the shotgun’s having been

located in the Willingham home before or after that date; no

mention of its seizure by the county deputies; no mention of its

actually being in evidence.

Following acceptance of Willingham’s guilty plea, the court

ordered a Presentence Investigation Report (PSR) from the probation

department. And, after receiving the PSR, the court conducted a

sentencing hearing and imposed sentence. This appeal followed.

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 II.

ANALYSIS

A. Constitutionality of 18 U.S.C. § 922(g)(1)

1. Standard of Review

Our review of the constitutionality of a federal statute or of

the district court’s interpretation of a statute is de novo.2 A

district court’s application of constitutional standards is also

reviewed de novo.3

2. Merits

In his appellate brief, counsel for Willingham concedes, as he

must, that, like the district court before us, we are bound by our

own precedent, which rejects the constitutional arguments he

presents.4 Furthermore, counsel acknowledges that he raises a

constitutional issue solely to preserve it for further appellate

review, specifically to preserve the right to seek certiorari. We

are constrained to affirm the district court’s denial of

Willingham’s motion to dismiss his indictment on grounds of the

facial and as-applied unconstitutionality of Section 922(g)(1).

B. Motion to Suppress

2
United States v. Rasco, 123 F.3d 222, 226 (5th Cir. 1997)
(citations omitted), cert. denied, 522 U.S. 1083 (1998).
3
See, e.g., United States v. Estrada-Trochez, 66 F.3d 733,
735 (5th Cir. 1995).
4
United States v. Daugherty, 264 F.3d 513 (5th Cir. 2001),
cert. denied, ___ U.S. ___, 112 U.S. 1113 (2002).

7
 In his suppression motion in the district court, Willingham

sought to preclude the government’s introduction of the shotgun

into evidence and also sought to prevent introduction of statements

given by Willingham. On appeal, however, Willingham has only

briefed and argued for suppression of the firearm. As issues not

briefed or argued on appeal are deemed abandoned, the only object

of suppression now before us is the shotgun itself.5

The government clearly intended to offer the shotgun into

evidence: It is identified on the government’s pre-trial list of

exhibits, and the government vigorously opposed suppression. And,

as the facts surrounding the government’s acquisition of the

shotgun from the county sheriff’s department raise genuine

questions regarding consent to the warrantless search of the home

and seizure of the shotgun, Willingham’s motion to suppress the gun

was, at the very least, non-frivolous. Nonetheless, in light of

all the other testimony and documentary evidence at the

government’s disposal, Willingham’s efforts to suppress constituted

a smoke screen or a red herring —— choose your metaphor —— and it

worked: The prosecution went for it, forcefully opposing

suppression.

We cannot fathom why the government expended so much time and

effort (and caused such an expenditure of judicial resources) to

fight suppression when —— in this case, as in many —— placing the

5
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

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allegedly possessed firearm itself into evidence was wholly

unnecessary. Keeping in mind that Willingham was not indicted for

possessing the shotgun in his home or anywhere other than the pawn

shop, and on no day other than on March 27, 2001, even a cursory

look at the wealth of evidence that the government had at its

disposal shows that the shotgun was cumulative evidence at best.

The government’s evidence included:

! Lone Star Pawn ticket number 33738 of March 27, 2001.

! ATF Form 4473 dated March 27, 2001, fully describing the shotgun,

reflecting Willingham as the owner, and containing his signature.

! Testimony available from pawn shop personnel to identify

Willingham as the person who pawned the shotgun, received ticket

number 33738, returned to redeem the shotgun, and executed the ATF

Form 4433, all on March 27, 2001.

! ATF Statement and Waiver of Rights signed by Willingham on August

6, 2001, in the presence of Special Agent Robin and Agent Burtha,

acknowledging that he had received his Miranda rights and

consenting to being interviewed in the presence of the agent and

without legal counsel in attendance.

! Testimony available from Special Agent Robin and Agent Burtha

that, following Willingham’s execution of the consent and waiver

form, he acknowledged that he had a felony record; that he pawned

the shotgun described on the ATF Form 4473 at Lone Star Pawn on

March 27, 2001, receiving Lone Star Pawn ticket number 33738; that

he attempted to redeem the shotgun the same day; and that he signed

9
the ATF Form 4473 that day, acknowledging his ownership of the gun

and falsely stating that he had no prior felony convictions.

! Testimony available from ATF firearms expert Ernest Dishman that

(as subsequently acknowledged by Willingham in verifying the

Factual Resume for his guilty plea) neither this particular shotgun

nor any other shotguns of similar make or model had ever been

manufactured in the State of Texas, so that the shotgun had to have

traveled in interstate or foreign commerce to get from its point of

manufacture outside Texas to Willingham’s possession in Texas in

time for him to pawn it at Lone Star Pawn in Big Spring, Texas, on

March 27, 2001.

The good news is that, when the time came for the government to

prepare and file its appellate brief, it recognized —— at least in

the alternative —— that “the error, if any, in denying the motion

to suppress was harmless.” First, the government correctly states

the standard of review: “In the context of suppression of evidence,

the test for harmless error is ‘whether the trier of fact would

have found the defendant guilty beyond a reasonable doubt [if the

evidence had been suppressed].’”6 We agree totally that

introduction of the gun into evidence was not required for the

government to prove its case beyond a reasonable doubt. The three

elements of the crime that the government was required to prove are

6
United States v. Aucoin, 964 F.2d 1492, 1499 (5th Cir. 1992)
(quoting United States v. Moody, 923 F.2d 341, 352 (5th Cir.
1991)).

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(1) Willingham’s possession of the gun on March 27, 2001, (2) his

prior conviction of one or more crimes punishable by a term of

imprisonment of more than one year, and (3) the shotgun’s prior

travel in interstate or foreign commerce, all as charged in the

indictment.7

The government had available a plethora of testimonial and

documentary evidence which, if adduced at trial, would be more than

sufficient to support a jury’s finding that these three factual

elements had been proved beyond a reasonable doubt. Willingham’s

post-Miranda-warnings admission of his prior felony convictions and

his possession of the gun while pawning it on March 27, 2001 is

well-supported by the pawn ticket and the ATF Form 4473 as well as

live testimony of the pawn shop personnel, the ATF agents who

interviewed Willingham, and state law enforcement personnel. The

third and final element —— travel in interstate or foreign commerce

—— would have been supplied easily by the ATF expert, based on the

detailed firearm nomenclature on the ATF form8 which, alone, was

7
Daugherty, 264 F.3d at 515.
8
See, e.g., S. P. Fjestad, Blue Book of Gun Values, 1288
(20th ed. 1999). (“Western Field. Previous trademark used on
Montgomery Ward rifles and shotguns. The Western Field trademark
has appeared literally on hundreds of various models (shotguns and
rifles) sold through the Montgomery Ward retail network. Most of
these models were manufactured through subcontracts with both
domestic and international firearms manufacturers.”). “Most of
these models were derivatives of existing factory models with less
expensive wood and perhaps missing the features found on those
models from which they were derived.” Id.

11
sufficient to make the physical presence of the gun for examination

by the expert and the jury wholly unnecessary.

We are satisfied that, even in the absence of the shotgun in

evidence, a reasonable jury could have —— and almost certainly

would have —— found Willingham guilty beyond a reasonable doubt of

being a felon in possession of a firearm, at Big Spring, Texas, on

March 27, 2001, and that the firearm had traveled in interstate or

foreign commerce. It cannot be said, then, that if denial of the

suppression were erroneous, so that allowing the gun into evidence

would have been erroneous, the outcome of the case would likely

have been changed.9 Thus, even if we assume arguendo that

Willingham is correct in asserting that the district court erred in

denying his motion to suppress the shotgun, we remain firmly

convinced that such error would be harmless. We therefore decline

to expend any further judicial resources on the question whether

suppression of that evidence was error. Absent harm, Willingham is

not entitled to withdraw his guilty plea on the grounds of failure

to suppress the shotgun from being introduced into evidence.

9
See United States v. Hall, 587 F.2d 177, 182 (5th Cir. 1979)
(if district court erred in denying the motion to suppress, error
was harmless in light of other overwhelming evidence establishing
guilt); United States v. Resnick, 483 F.2d 354, 357-58 (5th Cir.
1973)(error in admitting tainted evidence was harmless, as
exclusion of the evidence would not have changed the verdict in
light of the record as a whole).

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 III.

CONCLUSION

Section 922(g)(1) is not unconstitutional, either facially or as

applied to Willingham. Thus, Willingham is not entitled to

withdraw his plea or to any other relief based on the district

court’s refusal to dismiss his indictment. Neither is Willingham

entitled to withdraw his plea or to any other relief for the

district court’s failure to suppress the shotgun recovered by

county deputies from the home that he shared with his mother in Big

Spring, Texas: The indictment charged him with possession of the

shotgun that he pawned at the Lone Star Pawn shop on March 27, 2001

only. And the identity and specific characteristics of the pawned

shotgun are more than sufficiently established by other documentary

and testimonial evidence available to the prosecution to allow an

expert to confirm that the shotgun was manufactured somewhere other

than the State of Texas, leading to the unavoidable conclusion that

it had been transported in foreign or interstate commerce, to the

State of Texas. Finally, irrefutable evidence was available to the

prosecutor to prove Willingham’s prior felony convictions and his

possession of the shotgun on the date of the pawn. Therefore, even

if we were to review the district court’s suppression ruling and

find it erroneous, the error would be harmless. Stated

differently, the shotgun was not necessary to the prosecution’s

case: Under the totality of the circumstances, an erroneous

13
introduction of the shotgun into evidence would not have been

prejudicial to Willingham because its suppression would not have

changed the likely jury verdict of guilty. Therefore, we affirm

his conviction on his plea of guilty in all respects.

AFFIRMED.

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