United States v. Major

170 F. App'x 315
CourtCourt of Appeals for the Fifth Circuit
DecidedMarch 7, 2006
Docket04-11460
StatusUnpublished

This text of 170 F. App'x 315 (United States v. Major) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth 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. Major, 170 F. App'x 315 (5th Cir. 2006).

Opinion

PER CURIAM: *

Defendant-Appellant Daniel L. Major appeals his jury conviction and sentence for conspiracy to use and carry a firearm during a crime of violence. Defendant-Appellants Christopher L. Rhodes and Shango H. Alves appeal their jury convictions and sentences for conspiracy to use and carry a firearm during a crime of violence, theft of firearms from a federally licensed firearms dealer, and using and carrying a firearm during a crime of violence.

Rhodes contends that the district court abused its discretion in admitting the testimony of Virgil VanHuss, Jr., the manager of the 183 Pawn Shop, and Special Agent Melanie Finney of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, that the 183 Pawn Shop was a federally licensed firearms dealer on the date of the robbery. Rhodes argues that the witnesses lacked personal knowledge of this fact. VanHuss testified that he had been the manager of the pawn shop for 20 years, had personally seen the pawn shop’s federal firearms license, and had been told that the pawn shop had a federal firearms license. Agent Finney testified that a search of the ATF regulatory branch records confirmed that this pawn shop was a federally licensed firearms dealer on the date of the robbery. Rhodes has not shown that the district court abused its discretion in admitting this testimony. See United States v. Cantu, 167 F.3d 198, 203-04 (5th Cir.1999).

Rhodes and Major contend that the evidence was insufficient to support the jury’s finding that the pawn shop was a federally licensed firearms dealer on the date of the robbery. This fact was not an element of the conspiracy offense of which Major was convicted, so the jury was not required to find this fact to convict Major of the conspiracy offense. Rhodes made a motion for a judgment of acquittal at the close of the government’s case, but did not renew the motion at the close of all of the evidence. Therefore, our review is limited to determining whether there was “a manifest miscarriage of justice.” United States v. Green, 293 F.3d 886, 895 (5th Cir.2002). A review of the testimony of VanHuss and Agent Finney confirms that the record is not devoid of evidence that the pawn shop was a federally licensed firearms dealer on the date of the robbery or that the evidence was “so tenuous that a conviction is shocking.” See United States v. Avants, 367 F.3d 433, 449 (5th Cir.2004).

Major asserts that the evidence was insufficient to support his conviction for conspiracy to use and carry a firearm during a crime of violence. He made a motion for a judgment of acquittal at the close of the government’s case, but did not renew the motion at the close of all of the evidence. Our review is thus limited to determining whether there was “a manifest miscarriage of justice.” See Green, 293 F.3d at 895. The government presented evidence that Major was present at Terrell Clark’s apartment along with Clark, Alves, Rhodes, Timothy Davis, and Crystal Pruitt, when Clark, Rhodes, and Alves were planning the robbery. Clark *318 asked Major whether they could use his car. Clark and Davis testified that Major (1) agreed to allow the robbers to use his car, (2) gave the keys to the car to either Clark or Rhodes, and (3) told them not to damage his car. Alves stole a license plate to put on Major’s car during the robbery. Rhodes told Major he could have first choice of any gun or “whatever he bring[s].” Major was present at the apartment when Clark, Rhodes, and Alves returned after the robbery. Clark returned Major’s car keys and told him there was nothing wrong with the car. Major chose a .45 caliber chrome pistol from the firearms stolen during the robbery. Davis later saw Major changing the license plate on his car. A review of the evidence demonstrates that the record is not devoid of evidence of Major’s guilt or that the evidence was “so tenuous that a conviction is shocking.” See Avants, 367 F.3d at 449.

Major, Rhodes, and Alves contend that the district court erred (1) in excluding the testimony of Stacy Harris concerning statements allegedly made by Terrell Clark and (2) in not allowing Clark to be recalled to deny making these statements. We review the admission or exclusion of evidence for abuse of discretion, and any resulting error for harmlessness. Cantu, 167 F.3d at 203. We review alleged violations of the Confrontation Clause de novo, and any resulting error for harmlessness. United States v. Bell, 367 F.3d 452, 465 (5th Cir.2004). As Major and Alves did not object to the district court’s exclusion of Harris’s testimony and the limitations of Clark’s cross-examination, our review is limited to plain error. See United States v. Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied, — U.S. -, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005). The defendants have not shown that the district court abused its discretion in excluding Harris’s testimony or violated their rights under the Confrontation Clause by limiting their cross-examination of Clark. Rhodes’s counsel was permitted to cross-examine Clark extensively concerning his plea agreement with the government in exchange for a lesser sentence and the government’s agreement not to prosecute him for the robbery of the Alvarado Pawn Shop. Rhodes’s counsel also cross-examined Clark concerning inconsistent statements that he made to the police concerning the robberies. This cross-examination confirms that the jury was provided adequate information to appraise Clark’s bias and motives. See United States v. Mizell, 88 F.3d 288, 293 (5th Cir.1996). The jury’s acquittal of Rhodes for counts one, two, and three concerning the Alvarado Pawn Shop robbery is also a strong indication that the jury had adequate information to appraise Clark’s bias, motives, and credibility. And, as Clark’s testimony was cumulative of the testimony of VanHuss and Davis and extensive cross-examination of Clark was otherwise permitted, any error was harmless. See Delaware v. Van Ars dall, 475 U.S. 673, 678, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). As the jury was provided with adequate information to assess Clark’s bias and motives, and as Clark’s testimony was corroborated by other evidence, including the testimony of Davis and Hickman against these defendants, Alves and Major have failed to show that the district court’s limitation of their cross-examination of Clark was reversible plain error. See Mares, 402 F.3d at 520-21.

Alves urges that the district court erred in refusing to suppress his statements made while in custody because he was under the influence of narcotics and unable to intelligently waive his rights. He also urges that statements he made after requesting an attorney should have been suppressed. As Alves did not provide a transcript of the suppression hear *319

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Related

United States v. Mizell
88 F.3d 288 (Fifth Circuit, 1996)
United States v. Anderson
160 F.3d 231 (Fifth Circuit, 1998)
United States v. Green
293 F.3d 886 (Fifth Circuit, 2002)
United States v. Bell
367 F.3d 452 (Fifth Circuit, 2004)
United States v. Avants
367 F.3d 433 (Fifth Circuit, 2004)
United States v. Mares
402 F.3d 511 (Fifth Circuit, 2005)
United States v. Walters
418 F.3d 461 (Fifth Circuit, 2005)
United States v. Garza
429 F.3d 165 (Fifth Circuit, 2005)
Delaware v. Van Arsdall
475 U.S. 673 (Supreme Court, 1986)
Blakely v. Washington
542 U.S. 296 (Supreme Court, 2004)
United States v. Booker
543 U.S. 220 (Supreme Court, 2004)
United States v. Alberto Hernando Narvaez
38 F.3d 162 (Fifth Circuit, 1994)
United States v. Javier Lopez Cantu
167 F.3d 198 (Fifth Circuit, 1999)

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Bluebook (online)
170 F. App'x 315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-major-ca5-2006.