United States v. Snow

PUBLISH

UNITED STATES COURT OF APPEALS
Filed 4/22/96
TENTH CIRCUIT

________________________

UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) No. 95-8042
)
RONALD LLOYD SNOW, )
)
Defendant-Appellant. )

__________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D.C. No. 94-CR-27)

_________________________

Patrick J. Crank (David D. Freudenthal, United States Attorney, and John R. Green, Assistant United
States Attorney, with him on the brief) United States Attorney, Cheyenne, Wyoming, for Plaintiff-
Appellee.

Rachel Recker Rouse (Daniel G. Blythe with her on the briefs) of Rogers, Blythe & Lewis,
Cheyenne, Wyoming, for Defendant-Appellant.

_________________________

Before BALDOCK, McWILLIAMS and BRORBY, Circuit Judges.

_________________________

BRORBY, Circuit Judge.

_________________________
 Ronald Lloyd Snow was convicted of being a felon in possession of a firearm in violation

of 18 U.S.C. § 922(g)(1) and theft of a firearm from a federally licensed firearm dealer in violation

of 18 U.S.C. § 922(u), and he was sentenced to sixty-six months incarceration. Mr. Snow appeals

his conviction alleging the district court committed four errors during the trial. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

On December 9, 1993, Mr. Snow entered the Coast to Coast Hardware store in Torrington,

Wyoming. Debra Raben, an employee, testified Mr. Snow purchased a file and then left. The next

day, Mr. Snow returned to the store. This time Mr. Snow asked Ms. Raben to remove a .45 semi

automatic gun from the display case for him to examine. The display case had to be opened from

behind the counter, but opened easily. After inquiring about the price of the gun, he handed it back

to Ms. Raben and asked to see a shotgun. She returned the gun to the display case and handed him

a shotgun. Mr. Snow then stated he wanted to look at some knives that were in a cabinet next to the

display case containing the guns. Ms. Raben went to the front of the store to wait on other

customers. Later she heard the door to the cabinet containing the guns move and noticed Mr. Snow

was leaning over the cabinet with his hand behind the counter. She immediately approached Mr.

Snow, who had his back to her, and asked if there was anything else he wanted to see. At first he

said no, but then he inquired about picture mountings. Ms. Raben escorted him to the picture

mountings at which point he said he wanted to look around some more, so she left him and went

back to examine the gun display case. At this point she noticed the case was in disarray. After

obtaining the help of a coworker she noticed the gun Mr. Snow had just been examining and two

magazine clips were missing. Mr. Snow was no longer in the store.

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 Ms. Raben immediately called the police to report the suspected theft. She described Mr.

Snow as wearing jeans "a coat that came down to his knees, it was a jean -- a denim-type material

and then it had the brown corduroy cutoffs, and he had long hair, kind of bald on top and a beard."

The police noted she also stated the suspect was a white male carrying a black satchel. After taking

the description, several officers patrolled the store's immediate vicinity. Minutes later, the officers

received a dispatch reporting a 911 call from St. Joseph's Children's Home regarding an individual

matching Ms. Raben's description of the suspect. An officer responding to the dispatch call arrived

at St. Joseph's and saw a man fitting Ms. Raben's description take a dark object out of a black satchel

and stuff it down the front of his pants before walking towards the back of St. Joseph's. When the

man began to run towards St. Joseph's, the officer stepped out from behind his cover, raised his gun

and told the man to stop. When the man stopped, another police officer told him to get on the

ground, which he did. The other officer then handcuffed him. The officers then rolled him over and

found the missing semi-automatic weapon stuffed in the front of his pants. Mr. Snow was then taken

to the Torrington Police Department. Fingerprint cards were used to determine that Mr. Snow had

been convicted of a felony in Oregon. After a four- day trial, the jury found Mr. Snow guilty of

being a felon in possession of a firearm and of theft of a firearm.

Mr. Snow raises four issues on appeal: (1) whether the district court erred when it refused

to modify jury instructions 14, 16, 25 and 26 to require the jury to find an interstate or foreign

commerce connection; (2) whether the testimony of the Federal Bureau of Alcohol Tobacco and

Firearms agent that the gun manufacturer told him the firearm model in question was imported

denied the defendant his right of confrontation and was hearsay; (3) whether it was error for the court

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to deny the defendant's motion to suppress, and (4) whether the entry into evidence of a fingerprint

card was error due to its testimonial nature.

I

Mr. Snow argues the district court erred when it refused to modify certain jury instructions

to include a reference to commerce.

We review the district court's refusal to give a particular jury instruction for abuse of
discretion. In assessing whether the court properly exercised that discretion, a
reviewing court must examine the instructions as a whole to determine if they
sufficiently cover the issues in the case and focus on the facts presented by the
evidence. The question of whether a jury was properly instructed is a question of
law, and thus, our review is de novo.

United States v. Lee, 54 F.3d 1534, 1536 (10th Cir.) (citation omitted), cert. denied, 116 S. Ct. 247

(1995).

Mr. Snow was convicted of violating 18 U.S.C. § 922(u) which provides:

It shall be unlawful for a person to steal or unlawfully take or carry away from the
person or the premises of a person who is licensed to engage in the business of
importing, manufacturing, or dealing in firearms, any firearm in the licensee's
business inventory that has been shipped or transported in interstate or foreign
commerce.

The trial court instructed the jury that:

The phrase "in or affecting commerce" and "which had been shipped or
transported in interstate ... commerce" "includes commerce between any place in a
State and any place outside of that State."

The government may meet its burden of proof on the question of being "in or
affecting commerce" or "which had been shipped or transported in interstate ...
commerce" by proving to you, beyond a reasonable doubt, that the firearm identified
in the indictment, at any time, had travelled across a state boundary line.

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 Mr. Snow sought to add the phrase "in commerce" or "by commerce" to the end of the

sentence under the justification that "just crossing a state line is not in commerce." Mr. Snow also

sought to modify two related jury instructions in such a way as to require the prosecution to prove

that the firearm traveled through interstate commerce "in a commercial transaction" or

"commercially" or "in a manner affecting commerce." The district court denied his requests stating

the language used was the standard jury instruction language and "[a]ll the time I have been on the

bench this is the one we've used, and we've never put 'in commerce' in there."

Mr. Snow attempts to use the Supreme Court's ruling in United States v. Lopez, ___ U.S. ___,

115 S. Ct. 1624 (1995), to argue that it is a question of fact whether taking a firearm from a federally

licensed firearms dealer could have an interstate commerce connection. We agree with Mr. Snow

that whether the firearm was shipped or transported in interstate commerce is a question of fact for

the jury. We disagree with him, however, regarding what needs to be proven to establish this fact.

Mr. Snow's reliance on Lopez for the proposition that merely proving the firearm crossed a state

boundary line does not prove the firearm crossed the state line as part of interstate commere is

misplaced. In Lopez, the Supreme Court found Congress had exceeded its authority under the

Commerce Clause in enacting the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q), because

the act did not have an interstate commerce element. Mr. Snow has not meaningfully articulated a

constitutional challenge to § 922(u). But even if he had, it would fail. In Lopez the Supreme Court

invalidated the statute after finding it "has nothing to do with 'commerce' or any sort of economic

enterprise" and could not "be sustained under our cases upholding regulations of activities that arise

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out of or are connected with a commercial transaction, which viewed in the aggregate, substantially

affects interstate commerce." Lopez, 115 S. Ct. at 1630-31. The Supreme Court also noted that

§ 922(q), the statute under review, "contains no jurisdictional element which would ensure, through

case-by-case inquiry, that the firearm possession in question affects interstate commerce." Id. at

1631. In contrast, the plain language of § 922(u) requires that the firearm have been shipped or

transported in interstate commerce thus, it "contains an interstate-commerce nexus as an essential

element of the offense and thus ensures that the firearm in question affects interstate commerce."

United States v. Miller, 74 F.3d 159, 160 (8th Cir. 1996); see also United States v. Bolton, 68 F.3d

396, 400 (10th Cir. 1995) (holding 922(g)'s jurisdictional element that the firearm have been in or

affected commerce sufficient to withstand a Lopez attack), cert. denied, 116 S. Ct. 966 (1996).

Not only is Mr. Snow's contention that in order to satisfy the "shipped or transported in

interstate commerce" requirement of §922(u) the firearm must have been expressly shipped or

transported for a commercial purpose or as part of a commercial transaction unsupported by Lopez,

it is also contrary to well-established precedent. The Supreme Court has long held the "[i]mportation

into one State from another is the indispensable element, the test, of interstate commerce."

International Text-Book Co. v. Pigg, 217 U.S. 91, 107 (1910). In Archambault v. United States, 224

F.2d 925, 928 n.3 (10th Cir. 1955), we noted Congress's power

"to regulate commerce is not confined to commercial or business transactions. From
an early date such commerce has been held to include the transportation of persons
and property no less than the purchase, sale, and exchange of commodities, United
States v. Hill, 248 U.S. 420, 423 [(1919)], and goods may move in commerce though
they never enter the field of commercial competition. For example, the movement
of people across State lines and the unrestricted ranging of cattle across two States
is commerce. The interstate transportation of whiskey for personal consumption, of

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 a woman from one State to another for an immoral purpose without any element of
commerce, of a kidnapped person or a stolen automobile -- all constitute interstate
commerce in the constitutional sense. These cases, we think, make it clear that
interstate commerce is not limited to interstate trade."

(Quoting Bell v. Porter, 159 F.2d 117, 119 (7th Cir. 1946) (footnote omitted)). The above language

shows that whether the firearm in question was transported for commercial or personal reasons is

irrelevant; simply by crossing state lines the firearm traveled in interstate commerce. See United

States v. Ohio Oil Co., 234 U.S. 548, 560 (1914) (holding that the transportation of one's own goods

from state to state is interstate commerce). The challenged jury instructions accurately stated the law

in this respect.

Mr. Snow also lists jury instruction 14 in his appeal, but he does not provide any argument

as to why it was improper. We also see no evidence that he objected to Jury Instruction Number 14

at the district court level. When a party fails to object to an instruction at trial, we will only review

for plain error. United States v. Davis, 55 F.3d 517, 519 (10th Cir.), cert. denied, 116 S. Ct. 249

(1995). We have read instruction Number 14, which defines a firearm, and do not find that it

constitutes plain error.

The district court did not abuse its discretion in giving the challenged jury instructions.

II

Mr. Snow next claims certain testimony of the prosecution's expert witness in firearms

constituted inadmissible hearsay which violated his Sixth Amendment right to confront those who

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testify against him. Evidentiary rulings are committed to the sound discretion of the trial court and

our review is thus limited to abuse of discretion. United States v. Zimmerman, 943 F.2d 1204, 1211

(10th Cir. 1991). While we review evidentiary rulings by considering the record as whole, in the

case of hearsay objections our deference to the trial judge is heightened. Boren v. Sable, 887 F.2d

1032, 1034 (10th Cir. 1989). In determining whether the district abused its discretion, and if so,

whether the district's abuse of discretion constituted harmless error, our inquiry is not limited to

whether the record without the inadmissible statements is sufficient to support the conviction, but

"[r]ather, we must discern whether the statements, in light of the whole record, 'substantially

influenced' the outcome of the trial, or whether we are left in 'grave doubt' as to whether it had such

an effect." United States v. Tome, 61 F.3d 1446, 1455 (10th Cir. 1995) (quoting United States v.

Birch, 39 F.3d 1089, 1094 (10th Cir. 1994)). When the error complained of is constitutional in

nature, we must be persuaded that the error was harmless beyond a reasonable doubt. Chapman v.

California, 386 U.S. 18, 24 (1967); United States v. Begay, 937 F.2d 515, 524 (10th Cir. 1991). The

Supreme Court advanced a two-part test in Idaho v. Wright, 497 U.S. 805, 816 (1990), to determine

whether hearsay violated an accused's constitutional right to confrontation. First, "[t]he

Confrontation Clause is not violated if the hearsay statement falls within a firmly rooted hearsay

exception; and [second] even if it does not fall within such an exception, hearsay testimony is not

violative of the Confrontation Clause if it is supported by a showing of particularized guarantees of

trustworthiness." United States v. Jefferson, 925 F.2d 1242, 1254 (10th Cir.) (quotation marks

omitted), cert. denied, 502 U.S. 884 (1991).

"'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or

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hearing, offered in evidence to prove the truth of the matter asserted." Fed. R. Evid. 801. Hearsay

is generally not admissible unless it falls under a specific exception. Fed. R. Evid. 802. At trial, the

district court overruled Mr. Snow's hearsay and confrontation objections to the following dialogue

that transpired between the prosecution and its expert witness, an agent with the federal bureau of

Alcohol, Tobacco and Firearms, on redirect examination:

Q: And what did you do in regard to the record history of the gun with the
manufacturer?

A: I contacted the Sig Arms corporation in Exeter, New Hampshire to find out
when this firearm was basically manufactured and how it was imported into the
United States.

Q: And what if anything did you find from that inquiry?

....

A: This weapon has been imported basically since the early 1980s. There have
only been two importers of this weapon. The very initial importer was Interarms
Importers and they were out of Alexandria, Virginia.

Then the Sig Corporation started their American corporation. It is now called
Sig Arms, Incorporated. They have three locations in the United States.... And those
are the only places Sig Arms have ever been imported into the United States.

Q: So those are places of import into the United States?

A: Yes, sir.

Q: All of those are located outside the state of Wyoming?

A: Yes, sir, they are.

We need not elaborate on the admissibility or constitutionality of the above exchange because

even if we were to assume the above testimony was inadmissible hearsay which violated Mr. Snow's

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constitutional right to confrontation, we are convinced beyond a reasonable doubt such error was

harmless. As we noted above, all the prosecution needed to prove was that the firearm had at some

point crossed a state line. On direct examination, the agent established there are only two gun

manufacturers in Wyoming, neither of which manufacture the type of weapon Mr. Snow was charged

with stealing and possessing. In addition, the agent testified from personal knowledge, that the gun

in question was the same type of gun he carried and it was manufactured as part of a joint venture

between a Swedish and a German owned company in West Germany. Finally, it was also brought

to the jury's attention that the gun itself was stamped "made in West Germany". The above,

unrefuted and unchallenged evidence, was more than enough to establish that at some point the gun

had to have crossed state or national lines in order to have been available for sale in Wyoming. See

United States v. Overstreet, 40 F.3d 1090, 1095 (10th Cir. 1994) (finding evidence that no revolvers

are manufactured in Oklahoma sufficient to prove that revolver recovered in Oklahoma had traveled

in interstate commerce), cert. denied, 115 S. Ct. 1970 (1995). The brief exchange on redirect did

not prejudice the jury or taint the earlier evidence, rather, it was a minor addition to the prosecution's

already overwhelming proof that the gun had to have been brought into Wyoming from somewhere

else.

III

Next, Mr. Snow claims the district court should have granted his motion to suppress the

firearm, as the fruit of an illegal arrest. Mr. Snow claims the officers lacked the probable cause

necessary to support a warrantless arrest. After the evidentiary hearing, the district court made a

careful review of the facts before denying Mr. Snow's motion to suppress the firearm. In particular

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the district court noted Ms. Raben's account of the suspicious circumstances surrounding Mr. Snow's

involvement with the firearm, and the police officer's own observation of Mr. Snow rummaging

through a black satchel and then hiding an object in his waistband before holding:

[W]hile the defendant was correct that there is no direct evidence that connects the
defendant to the gun, the other evidence supports a reasonable inference, a form of
circumstantial evidence, that can be added to the mix of circumstances that lead this
Court to conclude that the defendant did in fact steal the weapon. For all of these
reasons, the Court finds that there was probable cause to arrest the defendant in this
case.

In reviewing the grant or denial of a motion to suppress, we must accept the district court's

factual findings unless they are clearly erroneous. United States v. McSwain, 29 F.3d 558, 560 (10th

Cir. 1994). We view the evidence in the light most favorable to the prevailing party. United States

v. Pena, 920 F.2d 1509, 1513 (10th Cir. 1990), cert. denied, 501 U.S. 1207 (1991). However,

whether the challenged conduct is reasonable under the Fourth Amendment is a legal question we

review de novo. United States v. Horn, 970 F.2d 728, 730 (10th Cir. 1992).

"Law enforcement personnel may arrest a person without a warrant if there is probable cause

to believe that person committed a crime." United States v. Wright, 932 F.2d 868, 877 (10th Cir.),

cert. denied, 502 U.S. 962 and 972 (1991); United States v. Watson, 423 U.S. 411, 417 (1976). To

determine whether probable cause existed, we look to see "whether at that moment the facts and

circumstances within [the officer's] knowledge and of which they had reasonably trustworthy

information were sufficient to warrant a prudent [officer] in believing that the petitioner had

committed or was committing an offense." Beck v. Ohio, 379 U.S. 89, 91 (1964). "Probable cause

must be evaluated in light of circumstances as they would have appeared to a prudent, cautious,

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trained police officer." United States v. Morgan, 936 F.2d 1561, 1568 (10th Cir. 1991), cert. denied,

502 U.S. 1102 (1992). Because the determination of whether probable cause exists is primarily a

factual question, "'[u]nless, in construing all evidence in a light most favorable to the government,

the trial court's finding of probable cause is clearly erroneous, it must not be disturbed.'" Id. at 1569

(quoting United States v. Alonso, 790 F.2d 1489, 1496 (10th Cir. 1986)).

In the present case, the district court relied on uncontradicted testimony which established:

1) Mr. Snow had been in the store examining the firearm shortly before it was stolen; 2) Mr. Snow

was witnessed leaning over the counter "in a place where he had no business being"and reaching

behind the gun display case when the clerk heard the gun cabinet door move; 3) although there were

two other customers in the store, neither of them expressed any interest in the guns; 4) police were

provided with a description matching Mr. Snow as a suspect in the theft of the firearm; and 5) police

observed a man matching Mr. Snow's description take an object from a black satchel, hide it in the

waistband of his pants and begin to run towards the door to a children's home. In light of the above

evidence, we are unable to find clear error in the district court's determination that the police had

probable cause to arrest Mr. Snow.

IV

Finally, Mr. Snow claims the entry into evidence of a fingerprint card was error due to its

testimonial nature. Mr. Snow's counsel objected at trial to the admission of the fingerprint card

because it contained Mr. Snow's signature. He claimed the signature constituted a testimonial act

of Mr. Snow during interrogation and was therefore inadmissible either as an admission or because

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Mr. Snow had not been reread his Miranda rights immediately prior to signing the card. The district

court overruled his objection holding counsel was "stretching the testimonial value of the signature.

I don't think it is testimonial at all. I believe it merely identifies the fingerprints."

We review the district court's admission of evidence for abuse of discretion. We will not

disturb a district court's decision unless we have "'a definite and firm conviction that the lower court

made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.'"

United States v. Acosta-Ballardo, 8 F.3d 1532, 1534 (10th Cir. 1993) (quoting United States v. Ortiz,

804 F.2d 1161, 1164 n.2 (10th Cir. 1986)).

The only information contained on the fingerprint card was Mr. Snow's signature, Mr. Snow's

fingerprints, the signature of the official who took the fingerprints and the date they were taken.

Miranda warnings protect suspects from having their constitutional rights violated by establishing

a safeguard to ensure that any information elicited by police as the result of a custodial interrogation

cannot be introduced against a defendant unless the suspect has been advised of and waived certain,

basic constitutional rights. Miranda v. Arizona, 384 U.S. 436, 444 (1966); Parson v. United States,

387 F.2d 944, 946 (10th Cir. 1968). Miranda does not apply to the case at bar, however, because

"there is no constitutional right not to be fingerprinted." Snow v. Oklahoma, 489 F.2d 278, 280 (10th

Cir. 1973); Schmerber v. California, 384 U.S. 757, 764 (1966). Furthermore, we have held that

fingerprinting is nontestimonial in nature and may therefore be taken as part of proof of

identification. United States v. Peters, 687 F.2d 1295, 1297 (10th Cir. 1982) (en banc). In fact, the

refusal to have fingerprints taken can be treated as a waiver of identification. Id. By signing the

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fingerprint card, Mr. Snow was simply following the standard procedure associated with

fingerprinting. His signature was merely a part of the process of identification and was not

testimonial in nature or information elicited as part of a custodial interrogation. See United States

v. McLaughlin, 777 F.2d 388, 391 (8th Cir. 1985) (holding "a request for routine information

necessary for basic identification purposes is not interrogation under Miranda"); United States v

Sims, 719 F.2d 375, 378 (11th Cir. 1983) (same), cert. denied, 465 U.S. 1034 (1984); United States

ex rel. Hines v. LaVallee, 521 F.2d 1109, 1112 (2d Cir. 1975) (same), cert. denied, 423 U.S. 1090

(1976). In light of the above, we do not find the district court abused its discretion in admitting the

fingerprint card with Mr. Snow's signature.

IV

For the reasons stated above the district court's rulings are AFFIRMED.

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