U.S. v. Horsman, 96-3013

• Citation: 114 F.3d 822
• Decision Date: 13 June 1997
• Docket Number: No. 96-3013,96-3013
• Parties: 47 Fed. R. Evid. Serv. 582 UNITED STATES of America, Appellee, v. Donovan Walter HORSMAN, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 822

114 F.3d 822

47 Fed. R. Evid. Serv. 582

UNITED STATES of America, Appellee, v. Donovan Walter HORSMAN, Appellant.

No. 96-3013.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 11, 1997.

Decided June 13, 1997.

Robert D. Richman, Minneapolis, MN, argued, for appellant.

Wilhelmina M. Wright, Minneapolis, MN, argued, for appellee.

Before MAGILL, ¹ BEAM, and LOKEN, Circuit Judges.

MAGILL, Circuit Judge.

Donovan Walter Horsman was convicted in the district court ² of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g) (1994), and was sentenced to the statutory mandatory minimum of 180 months imprisonment. On appeal, Horsman argues that: (1) section 922(g) is unconstitutional; (2) a juror Horsman struck with a peremptory challenge should have been struck for cause; (3) government witnesses' testimony regarding a firearm trace report was inadmissible hearsay; and (4) the district court erred in allowing the government to present evidence regarding the specific nature of Horsman's prior convictions. We affirm.

I.

Horsman was first convicted of burglary in Minnesota in April 1983, when he was eighteen years old. By the time he was thirty, Horsman had been convicted of a total of four felonies in Minnesota. During mid-October of 1994, while Horsman was on supervised release from incarceration for his fourth felony conviction, Horsman allegedly violated the terms of his release by forging a traveler's check. A warrant was issued for his arrest.

During mid-October of 1994, Horsman was staying with his girlfriend, Andrea Glass, in the Mounds View, Minnesota apartment that she shared with her cousin, Nick Marjanovich. On the morning of October 18, 1994, Glass discovered that both Horsman and her car were missing. Also missing from the apartment was a box of .38 special ammunition and a Smith & Wesson .357 magnum handgun belonging to Marjanovich.

Glass immediately contacted the Mounds View police and reported that her car was missing. Glass provided a description of Horsman to the police, and subsequently informed them when Horsman returned her car. Officer Roger Koopmeiners and Lieutenant David Brick of the Mounds View Police Department located Horsman walking in a wooded area near Glass's apartment. The police officers apprehended Horsman and discovered a loaded Smith & Wesson .357 magnum handgun in Horsman's waistband. The police also discovered 24 rounds of .38 special ammunition in Horsman's pocket and a box of .38 special ammunition in a duffle bag Horsman was carrying. In all, Horsman was carrying 54 rounds of ammunition.

On November 22, 1994, while Horsman was in Minnesota state custody for his probation violation, Horsman was interviewed by Special Agent Catherine Kaminski of the Bureau of Alcohol, Tobacco, and Firearms (BATF). After being Mirandized, Horsman stated to Special Agent Kaminski, " 'I got arrested. I had a gun. What more can I say?' " Trial Tr. at 276 (testimony of Special Agent Kaminski).

Horsman was indicted on the federal charge of being a felon in possession of a firearm and proceeded to trial in the United States District Court for the District of Minnesota. Before trial, Horsman moved in limine that evidence of his prior convictions should be excluded from trial. The district court granted this motion in part and denied the motion in part, allowing the government to present the name, date, and place of Horsman's four prior felony convictions. Other information was redacted, however, and the phrase "violent felonies" was redacted from the indictment.

During voir dire, the district court refused to strike venireperson Rodney Beck for cause, although Beck had explained that his brother-in-law had been shot to death by a car-jacker. Beck believed that the murderer had received too light a sentence for the murder, and that the law should "go after" criminals who use guns, rather than guns themselves. See Trial Tr. at 126. Horsman used a peremptory strike to remove Beck from the panel.

To convict Horsman of being a felon in possession of a firearm, the government had the burden of proving, beyond a reasonable doubt, that: (1) Horsman had previously been convicted of a crime that was punishable by a term of imprisonment exceeding one year; ³ (2) Horsman knowingly possessed a firearm; and (3) the firearm has been in or has affected interstate commerce. See 18 U.S.C. § 922(g)(1); United States v. Wilson, 107 F.3d 774, 779 (10th Cir.1997); United States v. Johnson, 18 F.3d 641, 649 & n. 18 (8th Cir.1994). At trial, the government presented evidence that Horsman had been convicted of the felony of burglary on three occasions and the felony of aggravated robbery once, all of which were punishable by more than one year imprisonment. See Trial Tr. at 213-16 (testimony of Anoka County Probation and Parole Officer Robert Knickerbocker). This evidence of Horsman's prior convictions was summarized during opening and closing statements by the prosecution, see id. at 181-82 (prosecution opening statements); 388 (prosecution closing statements), and was also described in the indictment. See Clerk's R. at 165. The government also presented testimony from Officers Koopmeiners and Brick that Horsman had possessed the Smith & Wesson .357 magnum handgun on October 18, 1994, see Trial Tr. at 233 (testimony of Officer Koopmeiners); 250 (testimony of Officer Brick), as well as Special Agent Kaminski's description of Horsman's confession. Id. at 276.

To prove the interstate commerce element of the offense, Special Agent Joseph Cludy of the BATF, an expert in the origin of firearms, testified that the Smith & Wesson .357 magnum handgun recovered from Horsman, which was a model 19-3 with serial number 9K90226, had "Made in U.S.A." and "Springfield, Massachusetts" inscribed on it. See id. at 258 (testimony of Special Agent Cludy). Based on research and his expertise, Special Agent Cludy testified that the handgun had been manufactured in Springfield, Massachusetts, and that it had crossed a state line. Id. at 258-59.

On cross-examination, Special Agent Cludy was asked by defense counsel if he had obtained a trace report on the .357 magnum handgun from Smith & Wesson, and Special Agent Cludy testified that he had not. See id. at 262. Defense counsel also questioned whether the weapon could have been manufactured in Minnesota under license from Smith & Wesson, and Special Agent Cludy testified that he was not aware of any licensing agreements between Smith & Wesson and any other manufacturer. Id. at 263-64. Finally, Special Agent Cludy was asked if he was aware "that guns can be counterfeited?" Trial Tr. at 265 (question by defense counsel). Special Agent Cludy responded, "I've heard of such a thing, but very rarely." Id. ⁴

On redirect examination, and over Horsman's objection, Special Agent Cludy testified that he had been informed by Special Agent Kaminski that Special Agent Kaminski had completed a trace report on the .357 magnum handgun. See id. at 266. On further redirect examination, Special Agent Cludy described the BATF's tracing procedure. See id. at 270-71.

Special Agent Kaminski testified that she had completed a tracing report and had learned that the .357 magnum handgun possessed by Horsman on October 18, 1994, was owned by Marjanovich. See Trial Tr. at 280. Over Horsman's objection, Kaminski testified that the Smith & Wesson .357 magnum handgun, which had been traced back to Springfield, Massachusetts, had been sold by a firearms dealer in Grand Rapids, Minnesota, to Marjanovich's mother, Georgia Marjanovich. Id. at 284.

Following the two-day trial, the jury convicted Horsman of being a felon in possession of a handgun. Despite Horsman's plea of not guilty and over the government's objection, the district court granted Horsman a two-point reduction in Horsman's sentencing level for Horsman's acceptance of responsibility. ⁵ Horsman was then sentenced to the statutory mandatory minimum sentence of 180 months imprisonment. Horsman now appeals his conviction.

II.

Most of Horsman's arguments on appeal are forestalled by on-point and contrary Eighth Circuit precedent. This Court has specifically held that § 922(g) is a constitutional exercise of Congress's Commerce Clause authority. See United States v. Bates, 77 F.3d 1101, 1104 (8th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 215, 136 L.Ed.2d 149 (1996). We are bound by this prior determination by a panel of this Court. See United States v. Wright, 22 F.3d 787, 788 (8th Cir.1994).

We also reject Horsman's argument that the district court's failure to strike venireperson Beck for cause is grounds for reversal. Even assuming that the district court erred in failing to strike venireperson Beck for cause, Beck did not ultimately serve on the jury panel. Horsman's only complaint is that he had to use a peremptory challenge against Beck, which meant that Horsman did not have an extra peremptory challenge to strike another juror. This does not state a ground for reversal. Rather, for this Court to reverse the district court, Horsman has the burden of showing that the jury which did sit was biased. See United States v. Cruz, 993 F.2d 164, 168-69 (8th Cir.1993) (citing Ross v. Oklahoma, 487 U.S. 81, 86, 108 S.Ct. 2273, 2277, 101 L.Ed.2d 80 (1988)). Horsman has not even attempted to make this showing.

We must also reject Horsman's argument that Special Agent Cludy's testimony regarding the BATF firearm trace report on redirect examination was inadmissible hearsay, and that its admission requires reversal. The government elicited Special Agent Cludy's testimony that Special Agent Kaminski completed a trace report on the Smith & Wesson .357 magnum handgun only after defense counsel elicited testimony that Special Agent Cludy had not completed such a trace report. Had the government not elicited this testimony, the jury might well have been left with the mistaken impression that the government's expert had...