97 Cal. Daily Op. Serv. 2372, 97 Daily Journal D.A.R. 4240 United States of America v. Mary Peggy Moore, United States of America v. Lee Roy Wiley

109 F.3d 1456, 97 Daily Journal DAR 4240, 97 Cal. Daily Op. Serv. 2372, 1997 U.S. App. LEXIS 6059, 1997 WL 142251
Court of Appeals for the Ninth Circuit·Decided March 31, 1997·No. 94-30453, 94-30454·Published·Cited by 55 cases

Opinions

TROTT, Circuit Judge.

Mary Peggy Moore (“Mrs.Moore”) and Lee Roy Wiley (‘Wiley”) appeal their respective convictions for conspiracy and for making a material false statement in connection with the purchase of a firearm. Wiley allegedly bought a firearm as a “straw man” on behalf of Mrs. Moore’s fourteen-year-old son, Bobby Moore (“Bobby”). Mrs. Moore allegedly was liable as Wiley’s aider and abettor and coconspirator in his making of the false statement.

In an attempt to overturn their convictions, Mrs. Moore and Wiley tender three arguments. First, they contend that Mrs. Moore as Bobby’s parent consented to the acquisition of the firearm, thereby rendering the government’s proof insufficient as a matter of law either to constitute a violation of 18 U.S.C. § 922(a)(6) or to establish the existence of an unlawful conspiracy.

Second, they' argue that the district court failed adequately to submit for the jury’s determination the question of whether the alleged false statement was material, advising the jury instead .that if Bobby and not Wiley was the true purchaser of the firearm, then Wiley had made a material false statement in connection with its purchase. In support of this contention, the appellants direct us to United States v. Gaudin, - U.S. -, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), in which the Supreme Court held that the materiality of a false statement offense must be decided by the jury, not by the court.

Third, the appellants assert that the Gun Control Act as it relates to this case is constitutionally vague (1) on its face, or (2) as applied.

Mrs. Moore alleges separately that the district court erred at sentencing in refusing to give her a favorable adjustment for acceptance of responsibility.

Because we conclude that these claims have no merit, we affirm the district court.1

I

A.

The Facts

On September 2, 1993, fourteen-year-old Bobby Moore saw a .25 caliber handgun in a pawnshop which had a federal license to sell firearms. When he showed interest in the weapon, a clerk shooed him off the premises because his age rendered him ineligible under federal law to buy it. Undaunted, Bobby set out to find a way to acquire the handgun for himself. He approached his mother to buy it for him, but she turned him down. Bobby’s friend Jason Marks witnessed this discussion. Jason’s unchallenged testimony about the discussion established not only that Mrs. Moore refused to buy the gun on behalf of her son, but that she explicitly told him he would have to “get someone else” to, get it for him because she “didn’t want her name on the papers”:

A. (By Jason Marks) Well, we [Bobby and Jason] left the pawn shop and we were trying to figure out a way that he could get the money to get the gun.
Q. (By the prosecutor) So what did you do as far as trying to get the money?
A. Well, we walked back to his house and I sat down and he was looking around his house at stuff that he could sell or get rid of to get some money.
* * * * * *
Q. Okay. When [Bobby] first talked to Mrs. Moore, he was there looking for something to sell, looking at the boom box. When he first talked to his mom, what did he say? What did he ask her?
A. He asked if she would pawn this for him, and she said, no, and they got in an argument.
Q. Okay, and tell us what else was said.
A. Then Bob said why he wanted to pawn it and stuff, and—
[1459] Q. Did [Bobby] ask her to pawn it or hawk it for anything particular?
A. Yeah, for the gun.
Q. What? For the gun?
A. Yeah, and Bob’s mom said she didn’t want to do it because she didn’t want her name on the papers and he could hurt somebody and she didn’t think he needed a gun. But Bob has a way of talking people into things, and so he kind of threw a tantrum and got all mad, and finally his mom said that she would do it.
Q. Said she would do what?
A. Pawn the CD Player.
Q. Did she say she would pawn the CD player for the gun, or just pawn the CD player?
A. Just pawn the CD player and he would have to figure out a different way of getting the gun because she didn’t want her name on the papers.
Q. That’s what he told her; is that correct? He would have to get someone else to get the gun?
A. Yeah.

(emphasis added).

Mrs. Moore then pawned Bobby’s CD player and gave him the cash she received from the transaction. She did so knowing that he intended to use it to purchase a firearm.

The next day, Bobby went looking for someone else to help him acquire the weapon, as suggested by his mother. He took the cash to Wiley’s residence to see if Wiley would assist him. The neighborhood knew Wiley as “Grandpa,” and he frequently did favors for the neighborhood children. The record reflects that Wiley is a man of limited intelligence. Wiley was neither Bobby’s parent nor guardian, nor was he related to him in any respect whatsoever.

Wiley balked at first, but Bobby persisted; and with the promise of money as a sweetener, Wiley relented and agreed to purchase the gun on Bobby’s behalf.

Mrs. Moore then drove Wiley, Bobby, and Jason to the pawnshop. During this trip, Wiley asked Mrs. Moore if the purchase of the gun was all right with her, to which she replied that it was fine.

When the group arrived at the pawnshop, Mrs. Moore waited in the car while Wiley, Bobby, and Jason went inside. Wiley asked the clerk to see the handgun Bobby had spotted on his earlier visit. Because the two boys were present, the clerk inquired for whom Wiley wanted to purchase the gun. Wiley responded that the gun was for Bobby, but that he Wiley was Bobby’s grandfather, and that he was going to hold it for Bobby until Bobby was 21 years of age. Both of these statements were false and were intended to facilitate the transaction. On cross-examination, Wiley conceded that the only reason he was in the pawnshop was “to stand in for Bobby to get that gun.”

The clerk responded to Wiley’s representations with an inquiry about Bobby’s parents and whether they knew about this purchase. Bobby said that his mother was outside, and he went to get her. In short order, Mrs. Moore appeared briefly in the doorway and, without prompting by Wiley, said to the clerk, “His grandfather is buying a gun for him. He’s going to hold it until he’s 21, and everything is fine with me.”

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97 Cal. Daily Op. Serv. 2372, 97 Daily Journal D.A.R. 4240 United States of America v. Mary Peggy Moore, United States of America v. Lee Roy Wiley, 109 F.3d 1456, 97 Daily Journal DAR 4240, 97 Cal. Daily Op. Serv. 2372, 1997 U.S. App. LEXIS 6059, 1997 WL 142251 (9th Cir. 1997).

109 F.3d 1456 (97 Cal. Daily Op. Serv. 2372, 97 Daily Journal D.A.R. 4240 United States of America v. Mary Peggy Moore, United States of America v. Lee Roy Wiley) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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