UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-40176
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
LEROY SPIRES, III,
Defendant-Appellant.
Appeal from the United States District Court
For the Eastern District of Texas
March 21, 1996
Before HIGGINBOTHAM and DUHÉ, Circuit Judges, and SCHWARZER,1
District Judge.
DUHÉ, Circuit Judge:
Defendant appeals his conviction and sentence contending that
the law he broke, 18 U.S.C. § 922(g), is unconstitutional, the
judge improperly instructed the jury and his sentence is too harsh.
None of his contentions merit reversal.
Leroy Spires is a convicted felon who, while on state
probation, was charged with a drug violation by Texas authorities.
In return for leniency, Spires and his wife agreed to cooperate
1
District Judge of the Northern District of California,
sitting by designation.
with the West Central Texas Interlocal Crime Task Force. During
their service to the task force, Spires and his wife showed a task
force agent a gun in their truck that was owned by Mrs. Spires.
The task force agent told the couple that they could not carry a
gun and that they should leave the gun in the truck and put it away
at home.
Over a year later, Spires met with his state probation
officer, Janice Hale. Spires told Hale that he had a gun in his
truck and intended to pawn it. Hale reminded Spires that one
condition of his probation was that he not possess a firearm.
After Spires left the meeting, Hale followed Spires to the pawn
shop and reported him to the police. The police arrested Spires
several hours later. After receiving his Miranda warnings, Spires
admitted that he had pawned the gun.
Spires pleaded not guilty to possession by a felon of a
firearm which had been previously shipped in interstate commerce in
violation of 18 U.S.C. § 922(g). Spires was convicted and
sentenced. On appeal, Spires argues that § 922(g) is
unconstitutional under the reasoning of United States v. Lopez, 115
S.Ct. 1624 (1995), that he was entitled to a jury instruction on
the defense of entrapment by estoppel and that the district court
abused its discretion when it denied Spires a two-level sentence
reduction for acceptance of responsibility.
Spires argues that the reasoning of Lopez, which held 18
U.S.C. § 922(q) unconstitutional, renders § 922(g) unconstitutional
as well. Because Spires did not challenge the constitutionality of
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§ 922(g) at trial, we review only for plain error. United States
v. Olano, 507 U.S. 725, 113 S.Ct. 1770 (1993); United States v.
Calverley, 37 F.3d 160 (5th Cir. 1994)(en banc). To be plain, the
error must be clear under law current at the time of trial. Olano,
113 S.Ct. at 1777; Calverley, 37 F.3d at 162-63. “[T]hey are
errors which are so conspicuous that ‘the trial judge and
prosecutor were derelict in countenancing [them], even absent the
defendant’s timely assistance in detecting [them].’” Calverley, 37
F.3d at 163 (citing United States v. Frady, 456 U.S. 152 (1982)).
Spires argues that we must consider Lopez even though rendered
after his trial because Lopez establishes a new rule of conduct for
criminal prosecutions and must be applied retroactively. Griffith
v. Kentucky, 479 U.S. 314 (1987); United States v. Knowles, 29
F.3d 947 (5th Cir. 1994). We do not decide whether this case
falls within the parameters of Griffith or Knowles because, even
after Lopez, the failure to address the constitutionality of §
922(g) when not raised by defendant is not plain error.
In Lopez, the Supreme Court held that in enacting 18 U.S.C.
§ 922(q), which criminalizes possession of a firearm in a school
zone, Congress exceeded its power under the Commerce Clause. The
court held that the possession of firearms on school grounds did
not substantially affect commerce because § 922(q) was not an
essential part of a larger regulation of economic activity and it
did not contain a jurisdictional element which would ensure,
through case-by-case inquiry, that the firearm possession affected
interstate commerce. Lopez, 115 S.Ct. at 1631. Lopez does not
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address § 922(g). It does not determine whether § 922(g) is an
essential part of a larger regulation of economic activity nor does
it address whether the § 922(g) requirement that the firearm have
traveled in commerce ensures on a case-by-case basis that the
possession of a firearm by a felon affected interstate commerce.
In contrast, the precursor to § 922(g) was upheld as a valid
exercise of Congress’s commerce clause power long before Lopez.
Scarborough v. United States, 431 U.S. 563 (1977); United States v.
Bass, 404 U.S. 336 (1971); United States v. Wallace, 889 F.2d 580
(5th Cir. 1989), cert. denied, 497 U.S. 1006 (1990). Additionally,
§ 922(g) has survived Commerce Clause challenges after Lopez in the
Seventh and Ninth Circuits. United States v. Bell, 70 F.3d 495
(7th Cir. 1995); United States v. Collins, 61 F.3d 1379 (9th Cir.
1995); United States v. Hanna, 55 F.3d 1456 (9th Cir. 1995).
The pre- and post-Lopez jurisprudence is fatal to Spires’s
claim of plain error. Even should Spires’s contention that Lopez
renders 922(g) unconstitutional be correct, it is not plainly so.
Spires next argues that his conviction should be reversed
because the district court refused to instruct the jury on the
defense of entrapment by estoppel.2 A conviction can not be
overturned for failure to instruct the jury on a defense unless the
2
Defendant alludes to but prudently does not raise a similar
defense of acting under public authority. The public authority
defense is available when the defendant is engaged by a government
official to participate or assist in covert activity. United
States v. Achter, 52 F.3d 753 (8th Cir. 1995). One of the
conditions imposed by the task force on cooperating individuals is
that the individual not carry a firearm. The task force agent’s
instruction to Spires and his wife was consistent with the task
force requirements.
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requested but omitted instruction has an evidentiary basis in the
record which would lead to acquittal. United States v. Duvall, 846
F.2d 966 (5th Cir. 1988). The evidence at Spires’s trial precludes
application of the defense.
The defense of entrapment by estoppel is applicable when a
government official or agent actively assures a defendant that
certain conduct is legal and the defendant reasonably relies on
that advice and continues or initiates the conduct. Cox v.
Louisiana, 379 U.S. 559 (1965)(convictions for demonstrating near
courthouse reversed where highest police officials of city, in
presence of sheriff and mayor, gave demonstrators permission to
picket across the street from courthouse); Raley v. Ohio, 360 U.S.
423 (1959)(convictions for failure to testify reversed because
inquiring body told defendants they could invoke Fifth Amendment).3
The defense is a narrow exception to the general rule that
ignorance of the law is no excuse and is based on fundamental
fairness concerns of the Due Process Clause. The focus of the
inquiry is on the conduct of the government not the intent of the
accused.
Spires is not entitled to an instruction on the defense
because the task force agent is not an authorized federal
government agent. To satisfy the requirements of the defense when
charged with a federal crime, a defendant is required to show
reliance either on a federal government official empowered to
3
See also United States v. Corso, 20 F.3d 521 (2d Cir. 1994);
United States v. Smith, 940 F.2d 710 (1st Cir. 1991).
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render the claimed erroneous advice, or on an authorized agent of
the federal government who has been granted the authority from the
federal government to render such advice. United States v.
Brebner, 951 F.2d 1017 (9th Cir. 1991); United States v.
Bruscantini, 761 F.2d 640 (11th Cir. 1985).4 This record reveals
that the task force agent does not consider herself a federal
officer or agent and has never held a federal commission. The
agent’s commission was held through the Jones County Sheriff’s
office. The task force is a federally funded but state operated
investigative unit ultimately run by the Texas Governor’s office.
The task force and its agents are state actors. Federal funding
alone does not make agents of the task force federal government
officials or agents.
Spires’s last complaint is that the district court
erroneously denied Spires a two-level reduction of his sentencing
level for acceptance of responsibility under Section 3E1.1 of the
Sentencing Guidelines. Whether a defendant has accepted
responsibility for a crime is a factual question and the standard
of review is even more deferential than clear error. United States
v. Allibhai, 939 F.2d 244 (5th Cir. 1991). Because the trial
court’s assessment of a defendant’s contrition will depend heavily
on credibility assessments, the “clearly erroneous” standard will
nearly always sustain the judgment of the district court. United
4
Accord, United States v. Caron, 64 F.3d 713 (1st Cir. 1995);
United States v. Ethridge, 932 F.2d 318 (4th Cir. 1991), partial
reh’g granted on other grounds, No. 94-2026, __ F.3d __, 1996 WL
71722 (1st Cir. Feb. 26, 1996).
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States v. Thomas, 870 F.2d 174, 176 (5th Cir. 1989).
Spires argues that because he did not dispute his factual
guilt and admitted all elements of the offense, he is entitled to
the reduction. He relies on Application Note 2 of § 3E1.1 which
states in part:
In rare situations a defendant may clearly demonstrate an
acceptance of responsibility for his criminal conduct
even though he exercises his constitutional right to
trial. This may occur, for example, where a defendant
goes to trial to assert and preserve issues that do not
relate to factual guilt (e.g., to make a constitutional
challenge to a statute or a challenge to the
applicability of a statute to his conduct).
Sentencing Guidelines § 3E1.1, Application Note 2 (1994). This
case is not one of those “rare situations.” Compare United States
v. Fells, No. 95-10296, ___ F.3d ___ (5th Cir. March 7,
1996)(defendant challenged legality of conviction in improper
venue). At trial, Spires put forth two defenses, entrapment by
estoppel and duress, both of which required proof of additional
facts. The record reveals that these additional facts were
disputed at trial and Spires’s version of the facts was rejected by
the jury.
We are persuaded by the Ninth Circuit’s treatment of a similar
argument in United States v. Molina, 934 F.2d 1440 (9th Cir. 1991).
In Molina, the defendant admitted the factual elements of the
offense but presented the defense of entrapment. The court
recognized that by its very nature, the defense of entrapment
requires an admission of the actual criminal activity. The court
nevertheless found no error in refusing the reduction where, on
defense of entrapment, the defendant provided “a story very
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different from the one the government offered.” Molina, 934 F.2d
at 1450-51.
We AFFIRM Spires’s conviction and sentence.
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