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.
3
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.
6
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).
8
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)).
10
(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).
12
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.
14