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No. 95-3310
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United States of America, *
*
Appellee, *
*
v. * Appeal from the Untied States
* District Court for the
Lavaughan Maddix, also known * Western District of Missouri
as LaVaughn Maddix, *
*
Appellant. *
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Submitted: March 14, 1996
Filed: September 18, 1996
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Before McMILLIAN, BEAM and HANSEN, Circuit Judges.
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McMILLIAN, Circuit Judge.
Lavaughan Maddix appeals from a final judgment entered in the
District Court1 for the Western District of Missouri, upon a jury verdict,
finding him guilty of being a felon in possession of a firearm in violation
of 18 U.S.C. §§ 922(g)(1), 924(e)(1). The district court sentenced Maddix
to 327 months imprisonment, 5 years supervised release and a special
assessment of $50.00. For reversal, Maddix argues the district court erred
in (1) finding that he was an armed career criminal for purposes of
sentence enhancement, (2) finding that he possessed the firearm in
connection with a crime of violence, (3) admitting evidence of other
crimes, (4) admitting hearsay evidence, and (5) denying his
1
The Honorable Elmo B. Hunter, United States District Judge
for the Western District of Missouri.
motion for judgment of acquittal. For the reasons discussed below, we
affirm the judgment of the district court.
BACKGROUND FACTS
On March 11, 1994, police were dispatched to an apartment in Kansas
City, Missouri. Maddix opened the door. Lisa Tillman was standing behind
Maddix, holding her right hand, which was bleeding, wrapped in a
blood-soaked cloth. Maddix told the police that Tillman had cut her hand
on the glass-topped coffee table. The police examined the coffee table top
but found no nicks or chips. The police frisked Maddix and found a Clerke
Technicorp revolver and a utility knife in his pants pocket. Maddix told
the police that the revolver was not loaded.
There was conflicting testimony about what had happened before the
police arrived. Maddix testified that Tillman approached him earlier that
evening and asked him if he wanted to smoke some crack. He agreed. He and
Tillman later argued about buying more crack and he thought she was about
to threaten him with something in her purse. He testified that he cut her
hand to prevent her from reaching her purse and that he later found the
revolver in her purse.
However, according to Tillman, who testified as a government rebuttal
witness, Maddix had approached her and a friend and that the three of them
smoked crack in Maddix’s apartment. Defendant then offered to buy more
crack in exchange for sex. When Tillman refused the proposition, Maddix
threatened to shoot her and went to a closet and got something out of a
shoe box. Tillman again refused the proposition. Maddix cut her hand with
the utility knife and took $40 out of her purse. Tillman’s screams
evidently caused someone to call the police.
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A police firearms expert testified that the revolver functioned as
designed and was operable. A Bureau of Alcohol, Tobacco and Firearms (ATF)
special agent testified that the statutory definition of firearm includes
a starter pistol and that, based on his review of tracing reports kept in
the ordinary course of business by the ATF and his experience with the
manufacturing of firearms, that the revolver seized from Maddix in Missouri
was manufactured in Santa Monica, California, and therefore had been
transported in interstate commerce.
Maddix was charged with unlawful firearms possession in violation of
18 U.S.C. §§ 922(g), 924(e)(1). The government introduced into evidence
at trial certified copies of Maddix’s prior felony convictions for
manslaughter in 1973 and 1975, armed criminal action in 1982, and arson in
1990. Maddix testified in his own defense that he had seized the revolver
from Tillman in order to prevent her from using it against him and that the
revolver could only be operated by using a pair of pliers. On
cross-examination, the government asked Maddix about whether he had
propositioned Tillman, smoked crack, attempted to physically force her to
have sex with him, threatened to shoot her, and cut her hand with a utility
knife. The jury found Maddix guilty. At sentencing the government
introduced into evidence the certified copies of the prior felony
convictions and the information for each conviction. The district court
found Maddix was an armed career criminal and that he had committed the
firearms offense in connection with a crime of violence and sentenced him
to 327 months imprisonment, 5 years supervised release and a special
assessment of $50. This appeal followed.
ARMED CAREER CRIMINAL
Maddix first argues the district court erred in finding that he was
an armed career criminal for purposes of sentence enhancement under 18
U.S.C. § 924(e)(1). Under U.S.S.G.
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§ 4B1.4(a), a defendant who is subject to an enhanced sentence under 18
U.S.C. § 924(e) is an armed career criminal. Title 18 U.S.C. § 924(e)(1)
requires three previous convictions for a violent felony or serious drug
offense committed on occasions different from one another. Section
924(e)(2)(B) defines the term “violent felony” as
any crime punishable by imprisonment for a term
exceeding one year . . . that--
(i) has as an element the use,
attempted use, or threatened use of physical
force against the person of another; or
(ii) is burglary, arson, or extortion,
involves use of explosives, or otherwise
involves conduct that presents a serious
potential risk of physical injury to
another.
See also U.S.S.G. § 4B1.2(1) (defining “crime of violence” using language
similar but not the same as “violent felony” in 18 U.S.C. § 924(e)(2)(B))
& application note 2 (“crime of violence” includes murder, manslaughter,
kidnapping, aggravated assault, forcible sex offenses, robbery, arson,
extortion, extortionate extension of credit, and burglary of a dwelling).
Maddix concedes that the government proved that he has four prior felony
convictions but argues the government failed to prove that the convictions
involved violent felonies.
In determining whether a prior conviction is either a violent felony
or serious drug offense for purposes of sentence enhancement under 18
U.S.C. § 924(e), the sentencing court is not restricted to looking solely
at the fact of conviction and the statutory definition of the offense but
may also consider the charging paper and jury instructions. Taylor v.
United States, 495 U.S. 575, 602 (1990). We have already held that
manslaughter is a “violent felony” for purposes of sentence enhancement
under 18 U.S.C. § 924(e)(2)(B)(i). United States v. Leeper, 964 F.2d 751,
753 (8th
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Cir. 1992). “Arson” is specifically mentioned in 18 U.S.C.
§ 924(e)(2)(B)(ii). In addition, Missouri law defines “arson in the second
degree,” which is the offense of which Maddix was convicted, as knowingly
damaging a building or inhabitable structure by starting a fire or causing
an explosion. Mo. Rev. Stat. § 569.050 (1994). According to the
information, Maddix started a fire at a house at a time when a person was
then present, thereby recklessly placing that person in danger of death or
physical injury. Whether we focus on the elements of the crime of arson
in the second degree or the crime’s underlying facts as set forth in the
information, arson in the second degree involves “conduct that presents a
serious potential risk of physical injury to another” and thus qualifies
as a “violent felony" for purposes of sentence enhancement under 18 U.S.C.
§ 923(e)(2)(B)(ii). Maddix has the requisite three prior violent felony
convictions necessary to trigger sentence enhancement under 18 U.S.C. §
924(e).2
CRIME OF VIOLENCE
Maddix next argues the district court erred in finding that Maddix
had possessed the firearm in connection with a crime of violence under
U.S.S.G. § 4B1.4(b)(3)(A). Maddix argues that unlawful possession of a
firearm is not itself a crime of violence. However, the requisite crime
of violence is not the unlawful possession of a firearm but instead the
associated criminal conduct, that is, the crime of violence committed in
connection
2
Because Maddix has two manslaughter convictions and one arson
conviction, we do not need to decide whether armed criminal action
is a violent felony for purposes of sentence enhancement under 18
U.S.C. § 924(e). We note, however, that both the elements of the
offense of armed criminal action, Mo. Rev. Stat. § 571.015, and the
underlying facts (robbery committed with a deadly weapon) supported
the district court’s finding that armed criminal action is a
violent felony as defined by 18 U.S.C. § 924(e)(2)(B)(i) (crime
involving either use, attempted use or threatened use of physical
force against the person of another), (ii) (crime involving conduct
that presents a serious risk of physical injury to another).
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with the unlawful possession of a firearm. Here, two crimes of violence
were committed in connection with the unlawful possession of a firearm.
The district court found that Maddix had possessed the firearm while
robbing Tillman and cutting her hand with the utility knife, conduct which
involved “the use, attempted use, or threatened use of physical force
against the person of another” within the meaning of U.S.S.G. § 4B1.2(1)(i)
(defining “crime of violence” as “any offense under federal or state law
punishable by imprisonment for a term exceeding one year that . . . has as
an element the use, attempted use, or threatened use of physical force
against the person of another”). Cf. United States v. Leeper, 964 F.2d at
754 (defendant committed "crime of violence" by being felon in possession
of firearm when he fired shots into occupied residence).
EVIDENCE OF OTHER CRIMES
Maddix next argues the district court abused its discretion in
admitting evidence of other crimes, that is, evidence that he had solicited
a prostitute, smoked crack, and physically threatened and assaulted Tillman
with a utility knife. This evidence of other crimes came out during his
cross-examination and in Tillman’s testimony. Maddix argues this evidence
was not admissible as other crimes evidence under Fed. R. Evid. 404(b), was
irrelevant to the offense charged, and was unfairly prejudicial.
This evidence was not admitted as other crimes evidence under Fed.
R. Evid. 404(b). Maddix was properly cross-examined about what had
happened before the police arrived because he had testified about his
version of the events on direct examination. Fed. R. Evid. 611(b); United
States v. Escobar, 50 F.3d 1414, 1423 (8th Cir. 1995). The questions on
cross-examination did refer to Maddix’s conduct in terms of specific
crimes, but Maddix had already testified about what had happened.
Referring to Maddix’s conduct as specific crimes may have been prejudicial
but it was not
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unfairly prejudicial. Tillman’s testimony was admitted to rebut Maddix’s
testimony about what had happened and impeach his credibility. Her
testimony about what had happened also explained the underlying
circumstances. Even if we consider Tillman’s testimony about Maddix’s
conduct as evidence of other crimes, it was admissible as “an integral part
of the immediate context of the crime charged,” and thus not extrinsic
evidence governed by Fed. R. Evid. 404(b). United States v. Bass, 794 F.2d
1305, 1312 (8th Cir.), cert. denied, 479 U.S. 869 (1986).
HEARSAY EVIDENCE
Maddix next argues the district court abused its discretion in
admitting hearsay evidence about the interstate transportation of the
revolver. An ATF special agent testified that the revolver had been
manufactured in California, then shipped to dealers in Arkansas, and then
eventually sold in Missouri. Maddix argues the evidence of interstate
transportation was hearsay because the special agent did not have personal
information about the interstate shipments and had obtained that
information from a tracing report. We disagree. The special agent
testified as a firearms expert and used the tracing report, which was not
itself admitted into evidence, to refresh his recollection. “The propriety
of permitting a witness to refresh his [or her] memory from a writing
prepared by another largely lies within the sound discretion of the trial
court.” United States v. Boyd, 606 F.2d 792, 794 (8th Cir. 1979); cf.
United States v. Darden, 70 F.3d 1507, 1540 (8th Cir. 1995) (informant
refreshed recollection by reviewing reports prepared by government agents
from informant’s notes), cert. denied, 116 S. Ct. 1449, 2567 (1996). In
addition, the special agent testified that firearms experts customarily
rely upon tracing reports to determine whether firearms have been
transported across state lines. Fed. R. Evid. 703 (facts or data need not
be admissible in evidence if of a type reasonably relied upon by experts
in the particular field in forming opinions or
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inferences upon the subject). In any event, the special agent testified
that, in his opinion, the revolver had been transported in interstate
commerce (at least from California to Missouri, if not the intermediate
shipment through Arkansas). His opinion was also based upon evidence other
than the tracing report, that is, the identity of the manufacturer (Clerke
Technicorp) and the place of manufacture (Santa Monica, California), both
of which were stamped on the revolver (the revolver had been admitted into
evidence as exhibit #A-1), and the fact that the revolver had been seized
in Missouri.
SUFFICIENCY OF THE EVIDENCE
Maddix next argues the district court erred in denying his motion for
judgment of acquittal because the revolver was not operable. He argues the
revolver could not be loaded without using certain tools (a pair of pliers)
and that there was no evidence that he had any such tools. Title 18 U.S.C.
§ 921(a)(3) does not require a firearm to be operable. The statute defines
a “firearm” as “any weapon (including a starter gun) which will or is
designed to or may readily be converted to expel a projectile by the action
of an explosive.” Id. § 921(a)(3)(A). In the present case the police
firearms expert testified that the revolver was operable and functioned as
designed. The ATF special agent had examined the revolver and testified
that it was a firearm within the meaning of the statute whether or not
certain tools were required to load it.
Accordingly, we affirm the judgment of the district court.
BEAM, Circuit Judge, concurring.
I concur in the result reached by the court and in all of the opinion
except the portion captioned "Hearsay Evidence."
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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