United States v. Privett

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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