United States v. Leon Finch

Eighth Circuit

United States v. Leon Finch

842 F.2d 201, 1988 U.S. App. LEXIS 3186, 1988 WL 20879

CourtCourt of Appeals for the Eighth Circuit

DecidedMarch 15, 1988

Docket87-1600

StatusPublished

Cited by2 cases

This text of 842 F.2d 201 (United States v. Leon Finch) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Leon Finch, 842 F.2d 201, 1988 U.S. App. LEXIS 3186, 1988 WL 20879 (8th Cir. 1988).

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Opinions

JOHN R. GIBSON, Circuit Judge.

Leon Finch appeals from his conviction and sentence of fifteen years without parole for possession of a firearm by a convicted felon. 18 U.S.C.App. § 1202(a) (1982 and Supp. Ill 1985) (repealed 1986). First, he argues that the district court¹ erred in sentencing him under the Armed Career Criminal Act of 1984² (ACCA) provision of section 1202(a), which requires a minimum sentence of fifteen years without parole for persons having three prior robbery or burglary convictions, because the prior convictions were not submitted for jury determination. Second, he argues that the prosecutor went beyond the scope of permissible cross-examination in inquiring about Finch’s prior convictions. Third, he argues the court improperly denied his “theory of defense” instruction. We affirm.

This court en banc, in the consolidated cases of United States v. Rush, and United States v. Cloyd, 840 F.2d 574 (8th Cir.1988) (en banc), has determined that the addition to 18 U.S.C.App. § 1202(a) of the ACCA is a sentence enhancement provision rather than a separate offense requiring that its elements be submitted to the jury. Accordingly, Finch’s first argument fails.

Finch’s second argument is that the district court erred in allowing the prosecutor to ask Finch on cross-examination whether his previous robbery and assault convictions involved the use of a handgun or shotgun. Finch admits that the prosecutor was permitted to ask him about the specific nature of his prior felonies under Fed.R.Evid. 609. See United States v. Moore, 735 F.2d 289, 293 (8th Cir.1984). However, he argues that the questioning about the use of guns in connection with the crimes is a forbidden inquiry into the details of the past crimes. See, e.g., United States v. Roenigk, 810 F.3d 809 (8th Cir.1987). At the outset we note that we review this issue only for abuse of the trial court’s discretion. See United States v. Bogers, 635 F.2d 749, 751 (8th Cir.1980). In Bogers we held there was no abuse of discretion in allowing evidence that the defendant's prior crime was committed with a shotgun. Furthermore, even if permitting the questions was error, there was overwhelming eyewitness testimony against Finch and we conclude that any such error was harmless beyond a reasonable doubt. United States v. Brown, 794 F.2d 365, 367 (8th Cir.1986).

Finally, Finch argues that the district court erred in not submitting his theory of defense instruction. The substance of Finch’s proposed instruction was well covered elsewhere in the instructions the court actually gave and therefore we see [203]*203no error in the court’s refusal to give Finch’s requested instruction. See United States v. Lively, 803 F.2d 1124, 1125 (11th Cir.1986).

The conviction and sentence are affirmed.

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JOHN R. GIBSON, Circuit Judge.

Leon Finch appeals from his conviction and sentence of fifteen years without parole for possession of a firearm by a convicted felon. 18 U.S.C.App. § 1202(a) (1982 and Supp. Ill 1985) (repealed 1986). First, he argues that the district court¹ erred in sentencing him under the Armed Career Criminal Act of 1984² (ACCA) provision of section 1202(a), which requires a minimum sentence of fifteen years without parole for persons having three prior robbery or burglary convictions, because the prior convictions were not submitted for jury determination. Second, he argues that the prosecutor went beyond the scope of permissible cross-examination in inquiring about Finch’s prior convictions. Third, he argues the court improperly denied his “theory of defense” instruction. We affirm.

This court en banc, in the consolidated cases of United States v. Rush, and United States v. Cloyd, 840 F.2d 574 (8th Cir.1988) (en banc), has determined that the addition to 18 U.S.C.App. § 1202(a) of the ACCA is a sentence enhancement provision rather than a separate offense requiring that its elements be submitted to the jury. Accordingly, Finch’s first argument fails.

Finch’s second argument is that the district court erred in allowing the prosecutor to ask Finch on cross-examination whether his previous robbery and assault convictions involved the use of a handgun or shotgun. Finch admits that the prosecutor was permitted to ask him about the specific nature of his prior felonies under Fed.R.Evid. 609. See United States v. Moore, 735 F.2d 289, 293 (8th Cir.1984). However, he argues that the questioning about the use of guns in connection with the crimes is a forbidden inquiry into the details of the past crimes. See, e.g., United States v. Roenigk, 810 F.3d 809 (8th Cir.1987). At the outset we note that we review this issue only for abuse of the trial court’s discretion. See United States v. Bogers, 635 F.2d 749, 751 (8th Cir.1980). In Bogers we held there was no abuse of discretion in allowing evidence that the defendant's prior crime was committed with a shotgun. Furthermore, even if permitting the questions was error, there was overwhelming eyewitness testimony against Finch and we conclude that any such error was harmless beyond a reasonable doubt. United States v. Brown, 794 F.2d 365, 367 (8th Cir.1986).

Finally, Finch argues that the district court erred in not submitting his theory of defense instruction. The substance of Finch’s proposed instruction was well covered elsewhere in the instructions the court actually gave and therefore we see [203]*203no error in the court’s refusal to give Finch’s requested instruction. See United States v. Lively, 803 F.2d 1124, 1125 (11th Cir.1986).

The conviction and sentence are affirmed.

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842 F.2d 201, 1988 U.S. App. LEXIS 3186, 1988 WL 20879, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-leon-finch-ca8-1988.

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