United States v. Norman John Norton

639 F.2d 427, 1981 U.S. App. LEXIS 20600
CourtCourt of Appeals for the Eighth Circuit
DecidedJanuary 29, 1981
Docket80-1746
StatusPublished
Cited by21 cases

This text of 639 F.2d 427 (United States v. Norman John Norton) 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. Norman John Norton, 639 F.2d 427, 1981 U.S. App. LEXIS 20600 (8th Cir. 1981).

Opinions

HEANEY, Circuit Judge.

Norman John Norton was named in a two-count indictment charging him with possession of a firearm by a felon in violation of 18 U.S.C.App. § 1202(a)(1) (Count I) and with possession of an unregistered sawed-off shotgun in violation of 26 U.S.C. §§ 5861(d) and 5871 (Count II). Norton waived his right to a jury trial on Count I, which was tried to the court at the same time as Count II was tried to the jury. The [428]*428jury found Norton guilty of Count II and he was sentenced to a term of five years imprisonment. The district court found Norton guilty of Count I and sentenced him to a two-year, concurrent term.

The facts of this case are relatively simple. On January 18, 1980, officers of the Hennepin County Sheriff’s Department executed a search warrant on an apartment occupied by Norton and two others, Ron Robins and Brenda Boehm. At the time of the search, there were nine people in the apartment. Boehm was the only one of the three apartment residents present. The sawed-off shotgun that is the subject of the charged offenses was discovered in the closet in Norton’s bedroom during the course of the search.

Because stipulations covered all other elements of the crimes charged, the only issue at trial was whether Norton was in possession of the shotgun.1 The most probative evidence tending to' show that Norton possessed the gun was its location in his closet next to his personal papers; the testimony of one witness that Norton had stated, about three weeks prior to the search, that he was not afraid of getting “ripped off” because he had a shotgun in the bedroom; and the testimony of another witness that on an earlier occasion he had seen the top of a shotgun barrel sticking up from behind the bed in Norton’s room.

On appeal, Norton contends that he was denied a fair trial for two reasons: (1) the prosecutor’s closing argument included improper, inflammatory and prejudicial statements, and (2) the government violated a pretrial discovery agreement concerning the identity and testimony of certain trial witnesses. We agree with Norton that the statements of the prosecutor require a reversal of the conviction on Count II of the indictment, but we affirm the conviction on Count I.

I

Norton argues that he was denied a fair trial because of the following portion of the prosecutor’s closing argument:

[Prosecutor,] MS. HVASS:
* * * * * *
Now this country did not have national firearms registration back in the founding fathers’ day and even to this day it has been believed that possession of a gun for self defense or recreational use is a right of the democracy. So congress has not required that individuals possession [sic] all firearms register them, nor has congress banned people from having firearms. Congress has drawn a very narrow line prohibiting this type of weapon with no recreational use and only one purpose.
[Defense Counsel,] MR. TILSEN: I will object to this argument on the purpose of the statute.
THE COURT: Overruled, you may go ahead.
MS. HVASS: And, only one purpose, and congress has deemed it necessary to control that type of weapon and control its access on the streets because it has got one purpose and that is to assault.
MR. TILSEN: I will object to that on the same grounds.
THE COURT: Same ruling.
MS. HVASS: If you will notice the length of the barrel, the effect of that is that it hits a very large area. As you put a projectile in it the projectile sprays and covers a very large area. It is not good for target practice, it is not good for hunting, it is good for assault and assault only and for that reason congress has considered it to be a dangerous weapon and one that requires strict regulation; that regulation being that anyone who possesses that sawed-off shotgun has to have it registered to him in the National Firearms Registration and Transfer Record and Norman Norton didn’t have that gun registered to him.

[429]*429This statement was clearly improper. This Court has previously held that testimony concerning the purpose of the Gun Control Act has little or no probative value in a trial for a violation of the Act. United States v. Bell, 573 F.2d 1040, 1045 (8th Cir. 1978); see United States v. Fullmer, 457 F.2d 447, 449 (7th Cir. 1972). There is even less justification for allowing the prosecutor to “testify” in closing argument about the statute’s purpose. Moreover, the government admits that the only proper issue for the jury’s consideration was whether Norton was in possession of the weapon; indeed, the prosecutor so stated in her closing argument. Even at the time she made the remark about the statute’s purpose, therefore, the prosecutor knew that it had absolutely no relevance to the issue at trial. Its sole purpose was to create prejudice in the minds of the jurors, and the trial court erred in permitting it to be made.2

The government contends that, even if the closing argument were improper, the conviction should be upheld because the evidence against Norton is overwhelming. We cannot agree. Much of the testimony indicating that Norton possessed the gun was equivocal, and a defense witness rebutted, at least in part, the testimony that Norton had said he had a shotgun in the bedroom. Our review of the record compels us to conclude that the jury verdict could reasonably have been affected by the improper argument. See United States v. King, 616 F.2d 1034, 1040 (8th Cir.), cert. denied, 446 U.S. 969, 100 S.Ct. 2950, 64 L.Ed.2d 829 (1980). Accordingly, Norton’s conviction on Count II of the indictment is reversed.3

II

Norton also contends that he was denied a fair trial because the government breached a promise to keep its file open to defense counsel. This promise, Norton asserts, is found in the following statement contained in the government’s response to pretrial motions:

The Government showed counsel for the defendant its entire file at the time of the Arraignment * * *. Since then, the Government has reiterated its willingness to allow the defense further review of the file, and has furnished counsel for the defendant with any and all copies of documents requested.
******
In view of the foregoing facts, the Government respectfully contends that it has fully complied with Rule 16 of the Federal Rules of Criminal Procedure and, thus, with defendant’s Motion for Discovery and Inspection.

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United States v. Norman John Norton
639 F.2d 427 (Eighth Circuit, 1981)

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Bluebook (online)
639 F.2d 427, 1981 U.S. App. LEXIS 20600, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-norman-john-norton-ca8-1981.