United States v. Whitney

524 F.3d 134, 2008 U.S. App. LEXIS 9217, 2008 WL 1851095
CourtCourt of Appeals for the First Circuit
DecidedApril 28, 2008
Docket07-1934
StatusPublished
Cited by41 cases

This text of 524 F.3d 134 (United States v. Whitney) is published on Counsel Stack Legal Research, covering Court of Appeals for the First 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. Whitney, 524 F.3d 134, 2008 U.S. App. LEXIS 9217, 2008 WL 1851095 (1st Cir. 2008).

Opinion

BESOSA, District Judge.

Appellant Wayne R. Whitney was convicted of violating 18 U.S.C. § 922(a)(6) by making a false statement to a firearms dealer during an attempt to purchase a firearm. On appeal, Whitney argues that the trial judge erred in defining the term “knowingly,” by refusing to give an explicit *136 willful blindness instruction. Whitney also challenges the trial judge’s decision to admit evidence that he was arrested for violating a protective order entered against him three weeks before denying the existence of such an order on a federal firearms form. We affirm.

I. FACTUAL BACKGROUND

On or about May 23, 2005, Whitney attempted to acquire a small pistol from Norm’s Gun & Ammo Shop in Biddeford, Maine. As with any attempted purchase of a firearm from a licensed dealer, Whitney was required to fill out ATF Form 4473. Whitney answered “No” to Question 12h, which asked whether he was under a court order restraining him from harassing a child or an intimate partner. 1 At that time, however, he was under an “Order for Protection from Abuse” (“protective order”) entered by the Maine District Court in Springvale with respect to his thirteen-month-old son, D., and the boy’s mother, Shawn Armstrong.

On October 24, 2006, a one count indictment was returned by a grand jury charging Whitney with knowingly making a false statement to a firearms dealer in connection with the purchase of a firearm in violation of 18 U.S.C. § 922(a)(6). 2

A. Pretrial Motions

Prior to trial, Whitney proposed the following jury instruction:

The phrase reckless disregard means that the defendant deliberately closed his eyes to what would otherwise have been obvious to him. A finding beyond a reasonable doubt of an intent of the defendant to avoid knowledge or enlightenment would permit you to infer knowledge. United States v. Gonsalves, 435 F.3d 64, 70 (1st Cir.2006). In order to prove that the defendant acted recklessly the government must prove that the defendant deliberately and purposely avoided learning what was contained in Form 4473.

Whitney also filed a motion in limine to exclude evidence that he was arrested for violating the protective order that produced the charges. 3 He argued that records from the state court case (regarding the protective order), testimony by the deputy who served the protective order, and his admissions to investigators adequately established his knowledge of the protective order and rendered evidence of the arrest for violation of the protective order cumulative and prejudicial.

In its opposition, the Government alleged that it expected Whitney’s defense would be that his false answer on the firearms form was not made intentionally. *137 In the Government’s view, evidence that Whitney was arrested for violation of the protective order twenty-three days before he made the false statement did not tend to prove criminal disposition and was admissible under Rule 404(b) as proof of Whitney’s knowledge of the protective order and the absence of mistake or accident. The Government argued that proof of his arrest demonstrated that the protective order was “in the forefront of [Whitney’s] mind” at the time he tried to buy a weapon. The Government also argued that Rule 403 was satisfied because evidence that Whitney was arrested for violating the protective order was stronger proof of his knowledge than was evidence that he was merely served with the order. Nevertheless, the Government suggested that any conceivable prejudice could be avoided by a stipulation that the Government proposed about Whitney’s arrest.

At the pretrial hearing the court held that proof of Wfiiitney’s arrest on the protective order was admissible and found the arrest to be the “most probative information in terms of its nearness in time, and in terms of [the] significance of something like an arrest in terms of bringing it home to a defendant and causing him to remember.” The district court further expressed that it would give a curative or limiting instruction to the jury at Whitney’s request and would also consider the effect of any stipulation to which the parties entered. In the court’s own words:

I won’t decide right now what might happen if the defendant stipulated that as of the time he signed the form, he knew that he was under such an order if the defense theory is somewhat narrower ... in the sense of not understanding the question versus having knowledge. That might be a different issue. I don’t have that precisely in front of me as we sit here, but on the current status of the case, where the defendant is challenging the knowingly requirement of the statutory violation, I will admit it as described.

When defense counsel tried to anticipate what the ruling would be if Whitney stipulated to limited facts about the arrest, the court replied that it had “left that aside because it wasn’t clear to me what would be the case if that were to develop.” The court then encouraged counsel to confer about the issue and indicated that it would “hear the argument depending upon what conclusion you reach, but that is something I left open.”

The court also deferred the ruling as to defendant’s proposed jury instruction.

B. The Trial

During the trial, the district court permitted Officer Mark Dyer of the Sanford (Maine) Police Department to testify regarding Whitney’s arrest after he had violated the protective order. Officer Dyer testified that in May 2005 he took a complaint from Ms. Armstrong regarding a violation of a protective order. Dyer researched the protective order, determined that it had been entered against Whitney and decided to arrest him for violating it. Dyer then called Whitney and asked him to come to the police station because he had violated a protective order. A short time later, Whitney appeared at the police station and was arrested, booked, and taken to the York County Jail. No request for a limiting instruction was made with respect to Dyer’s testimony.

At the close of the Government’s case, defense counsel again asked for a willful blindness instruction; counsel read for the record his proposed jury instruction on reckless disregard, which the court declined to give.

The district court then charged the jury on the elements of a § 922(a)(6) violation. *138 The court stated that it was a violation of federal law knowingly to make a false statement in connection with the purchase of a firearm.

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Cite This Page — Counsel Stack

Bluebook (online)
524 F.3d 134, 2008 U.S. App. LEXIS 9217, 2008 WL 1851095, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-whitney-ca1-2008.