United States Court of Appeals
Fifth Circuit
FILED
February 25, 2005
In the
United States Court of Appeals Charles R. Fulbruge III
Clerk
for the Fifth Circuit
_______________
m 04-40557
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JERRY LEONARDO VALENTINE,
Defendant-Appellant
_________________________
Appeal from the United States District Court
for the Eastern District of Texas
______________________________
Before HIGGINBOTHAM, SMITH, and of a felony charge remains, as a matter of law,
BENAVIDES, Circuit Judges. under indictment. Based on that conclusion,
and because there is no merit to Valentine’s
JERRY E. SMITH, Circuit Judge: other issues on appeal, we affirm.
Jerry Valentine appeals his conviction, un- I.
der 18 U.S.C. § 922(n), of receiving a firearm On January 2, 2003, Detectives Paul Marti-
that traveled in interstate commerce while he nez and Chris Jones received an anonymous tip
was under indictment for a felony. We con- that there was drug-related activity at an
clude that a Texas state defendant who is on apartment complex. Later that day, as they
probation pursuant to a deferred adjudication approached the complex, they saw two indi-
viduals who appeared to be exiting apartment the car, and turned up a handgun.1
1412. Later identified as Valentine and Ty-
wona Harvey, they entered a parked car that Valentine indicated that the gun was his and
Jones and Martinez approached, identifying that he had purchased it in the previous month
themselves as police officers. Martinez asked or two. Although Martinez did not immedi-
Valentine to step out of the car, at which point ately recognize it as an offense, he noticed that
he patted down Valentine but found no weap- there were no serial numbers on the gun.
ons or contraband. At the same time, Jones Martinez decided to take the gun and have
patted down Harvey and discovered marihuana police technicians attempt to retrieve the serial
in his pocket; Harvey, however, was not ar- numbers from it. Martinez told Valentine that
rested at that time. if the gun checked out (i.e., did not turn out to
be stolen), it would be returned. Martinez
Martinez explained that they were investi- subsequently learned that it was illegal to
gating a tip regarding narcotics activity in- possess a firearm without serial numbers.
volving apartment 1412. Valentine admitted
that he and his girlfriend, Crystal Taylor, re- Before this incident, in January 2002, Val-
sided in that apartment, but he was leaving for entine had been indicted for theft under Texas
his mother’s house because the couple was law and received a five-year deferred adjudi-
having a dispute. Valentine, as well as Taylor cation. Consequently, after the January 2003
(who had come outside while all of this was incident, he was convicted under § 922(n) of
transpiring), gave Martinez consent to search receiving a firearm while under indictment.2
their apartment, at which time, Martinez,
Jones, Taylor, and Harvey went inside the At trial, Martinez gave testimony that var-
apartment. Jones searched the apartment, yet ied somewhat from his narrative at the sup-
found no evidence of drugs or contraband.
1
What happened next is a matter of some de- Valentine claims he was never asked for con-
bate among Valentine, his witnesses, and the sent for the vehicle to be searched. Harvey testified
that the detectives asked him for consent but that
detectives. The district court found the detec-
he told them he could not consent because it was
tives’ account more credible, a decision on not his vehicle. Harvey testified that one of the
which it denied a suppression motion. Ac- detectives then searched the vehicle without con-
cording to the government, Martinez next sent. As noted above, the court found the detec-
asked whether Valentine had any illegal be- tives more credible and concluded that consent was
longings in his car, to which Valentine re- given.
sponded in the negative. Accordingly, Marti-
nez inquired whether Valentine had any prob- Valentine alternatively argues that any consent
lem with the vehicle’s being searched; Valen- was involuntary. Following United States v. Phil-
tine said he did not. Martinez testified at the lips, 664 F.2d 971, 1023-24 (Former 5th Cir. Dec.
suppression hearing that Jones proceeded out- 1981), the district court held that under the totality
side, alone, to search Valentine’s belongings in of the circumstances, Valentine’s consent was
voluntary.
2
Valentine was acquitted of one count of pos-
sessing a firearm with an obliterated serial number.
See 18 U.S.C. § 922(k).
2
pression hearing. Specifically, he indicated his right to refuse to consent; (5) the defen-
that Harvey had, in fact, accompanied Jones dant’s education and intelligence; and
outside for the search of the vehicle. Based on (6) the defendant’s belief that no incrimi-
this inconsistency, Valentine requested that the nating evidence will be found.
court reconsider his motion to suppress, and
later moved for a new trial based in part on All six factors are relevant, yet none is disposi-
Martinez’s testimony. Both motions were tive or controlling. Id.
denied.
The district court found that, although Val-
The other basis for Valentine’s motion for entine was initially stopped and frisked without
new trial was the admission of testimony by reasonable suspicion in contradiction of Terry
ATF Special Agent Joe Patterson that Valen- v. Ohio, 392 U.S. 1 (1968), there was no
tine was, in his opinion, under indictment at evidence of coercive police tactics. This de-
the time the gun was discovered. The district termination is illuminating not just of the sec-
court also rejected the notion that this was ond above-listed factor, but indicated that Val-
improper opinion testimony, and further con- entine was voluntarily present and not in cus-
cluded that any error was harmless because tody. There was no evidence that he was re-
Valentine was under indictment as a matter of strained in any waySSin fact, Harvey and
law. Taylor testified that they felt free to leave.
II. Additionally, the evidence indicated that
Valentine urges that the district court Valentine was cooperative with the police and
wrongfully refused to suppress the firearm their investigation. For example, it is not dis-
found by the police as well as any statements puted that he voluntarily gave consent for the
deriving from its discovery. Valentine must search of his apartment. Thus, the third factor
convince us that the court committed clear er- also weighs in favor of the government.
ror with respect to its factual determinations.
See Muñoz, 150 F.3d at 411. According to Based on Valentine’s education and his past
Valentine, the determination that he gave con- experiences with the criminal justice system,
sent and did so freely, under the totality of the the court further found that his education and
circumstances, constitutes such clear error. intelligence did not point to a finding that his
We disagree. consent was coerced. Lastly, because the
detectives’ entire encounter with Valentine had
In United States v. Tompkins, 130 F.3d been related to reports of drug activity, the
117, 121 (5th Cir. 1997), we held that the to- court felt that Valentine did not believe in-
tality of the circumstances under which the criminating evidence would be found in the
voluntariness of consent is to be reviewed vehicle.
includes
The only factor that pointed in Valentine’s
(1) the voluntariness of the defendant’s favor, according to the district court, was that
custodial status; (2) the presence of coer- he was not notified of his right to refuse con-
cive police procedures; (3) the extent and sent to the search. Nevertheless, the lack of
level of the defendant’s cooperation with such a notification has never been held to
the police; (4) the defendant’s awareness of require a finding of involuntariness. See, e.g.,
3
United States v. Solis, 299 F.3d 420, 438 (5th favorable to the government, as we must, 3
Cir. 2002). there is no clear error.
Although reasonable jurists might reach dif- III.
ferent conclusions based on the evidence pre- As noted above, Martinez testified at the
sented, we cannot say that the voluntariness suppression hearing that Jones left the apart-
conclusion was clearly erroneous. The only ment alone to conduct the search of Valen-
argument Valentine puts forth that appears to tine’s vehicle. At trial, however, Martinez
have any substantial validity is his claim that agreed with defense witnesses that Harvey left
the court erred in determining that he did not with Jones during the search of the car.
believe any incriminating evidence would be
found. Valentine contends that any defendant Based on this inconsistency, Valentine
who places an illegal firearm in a vehicle moved the court to reconsider its decision on
would obviously realize that it would be dis- his suppression motion, and later moved for a
covered if the vehicle is searched by detectives new trial. Both requests were denied. Valen-
seeking evidence of narcotics. tine contends that the decision not to grant a
new trial, pursuant to Federal Rule of Criminal
The government answers by pointing out Procedure 33,4 was an abuse of discretion.
that there is nothing in the record to indicate See Solis, 299 F.3d 441-42. According to
that Valentine knew it was illegal to possess a Valentine, the inconsistency in Martinez’s tes-
firearm without serial numbers. This reasoning timony was sufficient to undermine his credi-
is unconvincing. Just because the record does bility with respect to his testimony at the sup-
not reflect this fact does not mean Valentine pression hearing. Therefore, goes the argu-
was not well aware of it. ment, it was unjust to allow the trial to go
forward based on evidence that should have
The absence, therefore, of anything in the been suppressed, and testimony of a witness
record indicating that Valentine was aware whose credibility the court knew to be suspect.
that possessing the gun was a crime is far from
conclusive proof that he did not believe in- In response to Valentine’s motion, the dis-
criminating evidence would be found in the trict court, relying on Unites States v. Robin-
car. The government’s argument also com- son, 110 F.3d 1113, 1117 (5th Cir. 1997), not-
pletely ignores the possibility that Valentine ed that unless the weight of the evidence is
was aware that his possession of a firearm heavily against the verdict, it is not a miscar-
constituted a violation of § 922(n) in light of riage of justice to let the verdict stand. Be-
his deferred adjudication. cause all Valentine relied on was the slight
change in Martinez’s testimony, the court
Nevertheless, even if the district court erred found that Valentine could not “cast sufficient
with respect to that factor, the weight of the doubt on Martinez’s credibility as to change
evidence is certainly substantial enough to jus-
tify the determination, under the totality of the 3
circumstances, that consent was given volun- See Solis, 299 F.3d at 435-36.
tarily. Viewing the evidence in the light most 4
“The court on motion of a defendant may
grant a new trial to that defendant if required in the
interest of justice.” FED. R. CRIM. P. 33.
4
the Court’s credibility determination” and en- deferred adjudication in Texas court. That
title him to a new trial. question is reviewed de novo. United States v.
Bellew, 369 F.3d 450, 452 (5th Cir. 2004). If,
The district court was able to observe the as a matter of law, a Texas deferred adjudica-
demeanor of the witness at the suppression tion is equivalent to remaining under indict-
hearing and trial and thus was in a unique po- ment, then no reasonable jury could have
sition to gauge credibility. Additionally, the found otherwise, and the evidence was suf-
grant of a new trial “should be exercised with ficient. If, as a matter of law, the opposite is
caution . . . [and] should be invoked only in true, no conviction could stand.
exceptional cases.” United States v. Scrog-
gins, 379 F.3d 233, 239 (5th Cir. 2004), va- We have yet to rule definitively on this
cated on other grounds, 2005 U.S. LEXIS question. In an analogous situation, we held
1288 (U.S. Jan. 24, 2005). It was therefore no that Texas’s deferred adjudication scheme
abuse of discretion to deny a new trial. leaves a defendant with a “pending charge”
such that he is not qualified to serve as a juror
IV. because he currently has “a charge pending
Valentine’s most substantial argument is against him for the commission” of a felony.
that the evidence is insufficient to establish, be- United States v. Bishop, 264 F.3d 535, 555
yond a reasonable doubt, that his conduct (5th Cir. 2001) (citing 28 U.S.C. § 1865-
constituted a violation of § 922(n). Such a (b)(5)). Similarly, we held that a Texas de-
conviction requires a finding that the defendant ferred adjudication leaves a defendant without
received a firearm shipped in interstate com- an adjudication of guilt or “conviction” under
merce5 while he was “under indictment for a Federal Rule of Evidence 609. See United
crime punishable by imprisonment for a term States v. Hamilton, 48 F.3d 149, 153 (5th Cir.
exceeding one year . . . .” 18 U.S.C. § 922(n). 1995). Consequently, a deferred adjudication
As noted above, in January 2002 Valentine does not subject a witness to impeachment
was indicted for theft and received five years’ with the use of a prior “conviction.” Id.
deferred adjudication. The relevant question, Based on these precedents, the government
therefore, is whether the deferred adjudication argues that lacking any final disposition of his
is tantamount to being “under indictment.” case, Valentine remains “under indictment” for
the entire term of his deferred adjudication.
Denials of motions for judgment of acquit-
tal are reviewed de novo, using the same stan- In United States v. Hill, 210 F.3d 881, 883-
dard as did the district court, i.e., whether any 84 (8th Cir. 2000), the court reached a differ-
rational trier of fact could have found the es- ent conclusion, considering Missouri’s sus-
sential elements of the offense beyond reason- pended sentencing scheme. Just as in Texas,
able doubt. United States v. Daniel, 957 U.S. the Missouri system requires that the defen-
162, 164 (5th Cir. 1992). Here, however, the dant plead guilty and is then given a suspended
question is one of pure lawSSwhether Valen- sentence. The court held that, because the
tine was “under indictment” as a result of his purpose of an indictment is to give notice of
the charges, the function of the indictment is
satisfied after a guilty plea, so the indictment is
5
The existence of an interstate nexus is not
extinguished.
challenged in this case.
5
The question whether Valentine is “under impeachment based on his state felony charge.
indictment” for purposes of § 922(n) is one of
federal law. Although the statute does not ex- Under Texas law, a defendant must chal-
plicitly define what it means to be “under in- lenge a deferred adjudication at the time it is
dictment,” in situations in which “neither Con- entered, rather than waiting until after it is re-
gress nor the Constitution has provided a rule voked. See Manuel v. State, 994 S.W.2d 658,
of decision for the resolution of a federal 661-62 (Tex. Crim. App. 1999). Based on this
question case that is properly within the proposition, Valentine posits that Texas law
subject-matter jurisdiction of the federal courts deems a deferred adjudication final, and by
. . . it can be inferred from congressional or implication, removes the defendant from under
constitutional intent that the federal courts an indictment. But, as the government points
should supply the necessary rule of decision by out, “what the Court of Criminal Appeals
pronouncing common law to fill the interstices sought in Manuel was to avoid giving a de-
of a pervasively federal substantive frame- fendant two bites at the apple or two chances
work.” 19 CHARLES A. WRIGHT ET AL., to appeal matters regarding the validity of the
FEDERAL PRACTICE AND PROCEDURE: JURIS- order deferring adjudication.” Webb v. State,
DICTION 2D § 4514, at 467 (1996). In such 20 S.W.3d 834, 836 (Tex. App.SSAmarillo
cases, we may reference, and find persuasive, 2000, no writ). Manuel did not conclusively
state law in crafting federal common law to fill hold that a deferred adjudication renders the
the voids in a comprehensive federal scheme. indictment null as a matter of Texas law.
See id; see also Hill, 210 F.3d at 883-84.
V.
Consequently, Hill, in addition to not being Valentine avers that the district court com-
binding authority, dealt with a different ques- mitted reversible error by admitting, over ob-
tionSSthat is, it examined Missouri’s system, jection, Patterson’s testimony that Valentine’s
not Texas’s. One may therefore be under in- deferred adjudication rendered him “under in-
dictment for purposes of § 922(n) while being dictment” for purposes of § 922(n). Eviden-
subject to deferred adjudication in Texas, and tiary decisions are reviewed for abuse of dis-
yet be free from indictment were the defendant cretion and are subject to the harmless error
under deferred adjudication in Missouri. The rule. Bishop, 264 F.3d at 546.
differences in those respective states’ systems
and the precedents dealing with them con- In light of the foregoing discussion, this
sequently yield different, yet not contradictory, question is moot: Because Valentine was un-
results. der indictment as a matter of law, the admis-
sion of any testimony regarding that question,
Though the two systems are fairly similar, even if erroneous, was harmless. Because Mil-
we operate under the binding authority of ler was under indictment, no reasonable jury
Bishop and Hamilton, which conclude that could have found contrary to Patterson’s
Texas’s deferred adjudications leave a charge testimony.
pending against the defendant. It would be in-
congruous, to say the least, to hold that Valen- AFFIRMED.
tine is not under indictment and thus entitled
to receive a firearm, but at the same time is
barred from serving on juries and is immune to
6