United States v. Jacobs

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 6, 1999
• Docket: 98-11111
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________

No. 98-11111 Summary Calendar _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus WALTER LEE JACOBS,

Defendant-Appellant. _________________________________________________________________

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:98-CR-74-ALL _________________________________________________________________ August 6, 1999

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Walter Lee Jacobs appeals his jury conviction for three counts

of illegal possession of a firearm by a convicted felon in

violation of 18 U.S.C. § 922(g). Jacobs argues that the district

court erred in excluding an out-of-court statement of Sam Brown in

which Brown stated that he was the owner of two firearms that are

the subject of counts one and two. The district court did not

clearly err in holding that Jacobs did not present sufficient

corroborating evidence to establish the trustworthiness of the

statement. See United States v. Dean, 59 F.3d 1479, 1492 (5th Cir.

1995). Further, any error in the omission of the evidence was

harmless as the government presented substantial evidence linking

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Jacobs to the 2718 Cross Street residence in which the firearms

were found and to the firearms, including the current documents

found in the residence listing Jacobs’ name and the Cross Street

address, the photograph of Jacobs holding the SKS rifle found under

the bed in the Cross Street residence, and Jacobs’ own statement

when he was booked that he lived at the Cross Street residence.

The omission of Brown’s out-of-court statement did not prevent

Jacobs from presenting a defense or witnesses in violation of the

rule set forth in Chambers v. Mississippi, 410 U.S. 284, 302 (1973)

or Washington v. Texas, 388 U.S. 14, 19 (1967).

Jacobs also argues that the district court’s jury instruction

concerning the interstate commerce element of the offense removed

that element from the jury’s consideration in violation of the rule

in United States v. Gaudin, 515 U.S. 506 (1995). Jacobs

acknowledges that his argument is foreclosed by this court’s

decision in United States v. Parker, 104 F.3d 72, 73 (5th Cir.)(en

banc), cert. denied, 520 U.S. 1223 (1997), as the district court’s

jury instruction merely explained what evidence was required to

establish the interstate commerce element of the offense.

A F F I R M E D.