UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 94-20451
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PAUL NORMAN PRIVETT,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(October 18, 1995)
Before REYNALDO G. GARZA, KING AND HIGGINBOTHAM, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:
Paul Norman Privett appeals his conviction for being a felon
in possession of a firearm under 18 U.S.C. § 922(g)(1). Finding no
harmful error, we affirm.
I.
BACKGROUND
On August 2, 1993, agents of the Bureau of Alcohol, Tobacco
and Firearms (“ATF”) learned from Patrick Petrick (“Petrick”), an
informant, that Appellant Paul Norman Privett (“Privett”) was in
possession of a firearm. ATF agents confirmed that Privett was a
felon, and was therefore prohibited from possessing a firearm.
They also learned that he had a suspended driver’s license. In
order to lure Privett from his residence with the firearm,
Petrick—who was cooperating with the ATF—advised Privett that he
needed a firearm to commit a robbery. After several conversations,
Privett agreed to supply the firearm.
The ATF agents contacted the Texas Department of Public Safety
(“DPS”) and informed them of the case, identifying Privett, his
suspended license, and his criminal history. The DPS then stopped
Privett after viewing him operating his vehicle without a license
and committing several moving violations. Privett was arrested for
driving with a suspended license. An inventory search of the
vehicle produced a brown paper bag containing a loaded .25 caliber
pistol, a loaded clip, and a box of ammunition.
As Privett was arrested, a private tow truck arrived. Privett
asked that his car be towed to his house. Privett had enough money
to pay for the tow, and the tow truck driver was amenable to his
request. Nevertheless, the DPS officers did not allow the car to
be towed to Privett’s residence.
On August 26, 1993, Privett was charged in the Southern
District of Texas with possession of a firearm and affecting
commerce by a felon in violation of 18 U.S.C. § 922(g). Privett
filed a motion to suppress the evidence seized as a result of the
inventory search. The court denied the motion. On March 16, 1994,
a jury found Privett guilty as charged, and on June 14, 1994, he
was sentenced to 235 months’ imprisonment, ordered to serve a five-
year term of supervised release, and ordered to pay fifty dollars
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in costs.
II.
SUPPRESSION OF THE EVIDENCE
Privett contends that the district court erred in denying his
motion to suppress the gun found pursuant to an inventory search.
We review the district court’s determination that the search was
reasonable de novo. United States v. Seals, 987 F.2d 1102, 1106
(5th Cir.), cert. denied, 114 S. Ct. 155 (1993). The bag
containing the pistol was found in Privett’s trunk. Normally,
police officers need a warrant to search a person’s trunk.
However, the courts have long recognized an exception to the
warrant requirement for so-called “inventory searches” of
automobiles. United States v. Andrews, 22 F.3d 1328, 1333-34 (5th
Cir. 1994). In Andrews, this Court explained the inventory search
exception as follows:
When a car is impounded, the police generally inventory
its contents to protect the owner’s property while it is
in police custody, to protect the police from claims of
lost or stolen property, and to protect the police and
the public from potential danger. Inventory searches are
excepted from the warrant requirement because they serve
these “caretaking” purposes, and because they are not
designed to uncover evidence of criminal activity. . . .
Andrews, 22 F.3d at 1334 (citations omitted).
For a search to fall within the inventory search exception, it
must be performed according to standard regulations and procedures,
consistent with the proper purpose of a noninvestigative inventory
search. See United States v. Gallo, 927 F.2d 815, 819 (5th Cir.
1991). The United States contends that the inventory search was
performed pursuant to standard regulations and procedures. In
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support of its contention, the government introduced the testimony
of Trooper Rimbauch, who testified that the DPS had a departmental
policy of conducting inventory searches after a driver of a vehicle
was arrested.
Privett argues that the inventory search in fact did not
comply with DPS standard regulations and procedures because the had
offered to pay to have his car towed to his home. Under Texas law,
an automobile may be impounded if the driver has been removed from
it and placed under arrest and there is no other reasonable
alternative available to ensure the protection of the vehicle.
See, e.g., Smyth v. State, 634 S.W.2d 721 (Tex. Crim. App. 1982).
Privett argues that, because towing the vehicle to his home was a
reasonable alternative to impounding his vehicle, it should not
have been impounded, and no inventory search should have been
conducted. However, the district court found that the problem of
security of the contents is the same whether the contents were
inventoried prior to delivery of the conveyance to a third-party
wrecker driver or occupant of the vehicle. Thus, the district
court found, the police could have permissibly conducted an
inventory search even if the car was towed to Privett’s home. This
finding of fact is reviewed only for clear error, and we will view
all of the evidence in the light most favorable to the government.
United States v. Ponce, 8 F.3d 989, 995 (5th Cir. 1993). The
district court’s finding was not clearly erroneous; it was based on
the evidence presented by the government at the supression hearing.
Therefore, we accept the finding, and hold that the search fell
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under the inventory exception to the Fourth Amendment’s warrant
requirement.
III.
SUFFICIENCY OF THE EVIDENCE
Privett challenges the sufficiency of the evidence against him
on two grounds. First, that the government failed to prove that he
knew that the pistol had been in interstate commerce. Second, that
there was insufficient evidence to show that the pistol was in or
affected interstate commerce.
Privett’s first argument is that the government was required
to prove that he knew that the pistol he possessed was in or
affected interstate commerce. Whether such a mens rea requirement
exists is a question of law, which we review de novo. In response
to this argument, the government simply cites United States v.
Dancy, 861 F.2d 77, 81 (5th Cir. 1988), which held that the
government need not prove that a defendant knew that the firearm
had an interstate nexus. Privett, citing several Supreme Court and
Fifth Circuit cases,1 contends that Dancy is no longer valid law.
None of the cases cited by Privett support this proposition. In
fact, the Fourth Circuit recently held, en banc, that there is no
mens rea requirement as to the interstate commerce element of the
1
Privett cited the following cases: United States v. X-
Citement Video, Inc., 115 S. Ct. 464 (1994); Staples v. United
States, 114 S. Ct. 1793 (1994); United States v. Hooker, 997 F.2d
67 (5th Cir. 1993); United States v. Langley, No. 93-5219, 1994 WL
510394 (4th Cir. September 23, 1994), reversed, 1995 WL 476634
(1995)(en banc); United States v. Anderson, 885 F.2d 1248 (5th Cir.
1989). However, the only case on point is Langley, a case in which
the Fourth Circuit, sitting en banc, held that there was no mens
rea requirement as to the interstate commerce element.
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charged crime. See United States v. Langley, No. 93-5219, 1995 WL
476634 (4th Cir. August 14, 1995)(en banc). We follow the Fourth
Circuit’s view that Dancy is still good law, and hold that the
government does not have to prove that a felon knew a firearm was
in or affected interstate commerce to convict under 18 U.S.C. §
922(g)(1).
In response to Privett’s second challenge, the government
argues that the testimony of Rimbauch established that an
interstate nexus to the firearm existed between California and
Texas. Proof of the interstate nexus to the firearm may be based
upon expert testimony by a law enforcement officer. United States
v. Wallace, 889 F.2d 580, 583-84 (5th Cir. 1989). Thus, Rimbauch’s
testimony that the firearm was manufactured in California is
sufficient to uphold the jury’s finding that there was an
interstate nexus.
IV.
EXCLUSION OF EVIDENCE CONCERNING PETRICK
Privett also complains of the district court’s exclusion of
certain evidence regarding Petrick. He first complains that the
district court refused to allow him to introduce affidavits Petrick
filed in another case. Petrick was charged with aggravated robbery
during the time the ATF discussed his possible cooperation in the
instant case. Petrick had been convicted and sentenced to forty-
five years for the aggravated robbery offense. On a motion for new
trial, Petrick alleged that he was not allowed to present alibi
evidence. Attached to his motion was his affidavit and those of a
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number of witnesses all swearing that Petrick was not in the area
during the period alleged in the indictment. His motion for a new
trial was granted. The government then elicited his cooperation in
the instant case. He entered a guilty plea in the robbery case,
and was sentenced to twenty-five years. At trial, Privett sought
to introduce these affidavits, contending that they show Petrick’s
willingness to submit false affidavits and lie under oath. We find
no reversible error.
Privett next complains that he was not allowed to introduce
documents showing that Petrick had been arrested for a felony in
Minnesota. That case was dismissed as part of a plea agreement,
which required Petrick to join the Marine Corps. Privett contends
that this evidence showed Petrick’s ongoing effort and motivation
to cut deals with the government.
Third, Privett contends that he should have been allowed to
introduce records showing that Petrick had escaped from confinement
a number of times when incarcerated as a juvenile. Privett
contended that the escape attempts showed Petrick’s “motivation to
avoid confinement, therefore, his motivation to work a deal to
catch people in this case.”
The admission or exclusion of evidence is reviewed under the
abuse of discretion standard. United States v. Davis, 546 F.2d
583, 592 (5th Cir. 1977). Further, even if this Court determines
that the exclusion of the evidence was erroneous, the error is then
evaluated for harmlessness. United States v. Scott, 678 F.2d 606,
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612 (5th Cir.), cert. denied, 459 U.S. 972 (1982). In this case,
Privett failed to show that the district court abused its
discretion in excluding the proffered evidence. First, Privett
failed to show that Petrick submitted false affidavits. The fact
that Petrick entered into a plea agreement does not necessarily
mean that the affidavits were false. Thus, the district court did
not abuse its discretion in excluding that evidence. Second, the
district court did not err in excluding the other evidence. At
best, such evidence could be considered cumulative and marginally
relevant; it simply showed that Petrick did not like jail. Because
Privett was allowed to present other evidence that established the
fact that Petrick was cooperating with the government in exchange
for a more lenient sentence, the district court did not err in
excluding Privett’s proffered evidence.
V.
EVIDENCE OF PRIVETT’S PRIOR FELONY CONVICTIONS
In his final point of error, Privett complains that the
government was allowed to elicit testimony regarding his eight
prior felony convictions. Prior to trial, Privett stipulated to
being convicted of a felony, one of the elements of the crime with
which he was charged. He then objected to the government
introducing evidence of his felony convictions. All of these
convictions occurred more than ten years prior to the trial, which
normally would make them presumptively inadmissible as impeachment
evidence. See FED. R. EVID. 609(b); United States v. Cathey, 591
F.2d 268, 275 (5th Cir. 1979). The government argues that the
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evidence was admissible to dispel the illusion manufactured by
Privett that he was a well-intentioned grandfatherly individual who
was duped by a manipulative con artist.
While evidence of remote convictions is sometimes admissible
to rebut an entrapment defense, the evidence submitted by the
government in this case was too remote. The crimes for which
Privett had been convicted—burglary, theft, escape and aggravated
robbery—are not particularly relevant to show that Privett was
predisposed to carrying a gun, or to delivering a gun to other
persons for use in robberies. Instead, the convictions simply show
that Privett had a general criminal disposition. The prejudicial
effect of such evidence greatly outweighs any probative value it
may have. Accordingly, we hold that the district court abused its
discretion in admitting such evidence. A review of the record,
however, establishes that this error was harmless. The government
presented overwhelming evidence of Privett’s guilt. Privett
stipulated to being a felon, he possessed a pistol, and he admitted
that he intended to deliver the pistol to Petrick. Thus, the
district court’s error was harmless.
VI.
CONCLUSION
Finding no harmful error, we AFFIRM.
AFFIRMED.
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