U.S. v. Peters

• Decision Date: 24 March 2005
• Docket Number: No. 04-11658.,04-11658.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael PETERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

403 F.3d 1263

UNITED STATES of America, Plaintiff-Appellee, v. Michael PETERS, Defendant-Appellant.

No. 04-11658.

United States Court of Appeals, Eleventh Circuit.

March 24, 2005.

Ronald W. Maxwell (Court-Appointed), Ronald W. Maxwell, P.A., Jacksonville, FL, for Defendant-Appellant.

Peggy Morris Ronca, Marcio W. Valladares, Asst. U.S. Atty., Jacksonville, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before MARCUS, FAY and SILER^*,

Circuit Judges.

MARCUS, Circuit Judge:

Michael Peters appeals his conviction after a jury trial for sale of a firearm and ammunition to a convicted felon, in violation of 18 U.S.C. §§ 922(d)(1) and 924(a)(2). Peters argues that the district court improperly denied his motion for judgment of acquittal, and that § 922(d) is an unconstitutional exercise of Congress' commerce power. Because sufficient evidence was presented at trial for the jury to conclude that Peters knowingly sold a firearm and ammunition to a convicted felon, we affirm the district court's denial of Peters' motion for judgment of acquittal. In addition, because banning the sale of firearms to felons falls within the scope of Congress' commerce power, we affirm Peters' conviction.

I.

The story begins in April 2002, when the Bureau of Alcohol, Tobacco and Firearms ("ATF") began an investigation of Michael Peters, one-time owner and operator of MRM Outdoor Sports and Police Supplies ("MRM") in Branford, Florida. MRM sold firearms, among other things, and Peters was a federally licensed firearms dealer from 1994 until his license expired in April 2001. ATF Agent Nick Cheremeta had seen Peters at gun shows and knew that he was no longer a licensed firearms dealer. Accordingly, he employed a confidential informant to determine whether Peters was still selling guns out of his store.

The confidential informant, Harley Edward St. John, was born Gary Bruce Wilson and, prior to his entry into the Federal Witness Protection Program in 1991, had used a number of other aliases, including Charles Jerome Wilson and Ed Feagin. On November 19, 1991, under the name Ed Feagin, St. John was convicted of one count of felony aggravated assault in the Superior Court of Tattnall County, Georgia. Upon entering into the Federal Witness Protection Program in 1991, St. John was given his new name and assigned a new social security number, although he kept his actual birth date of October 26, 1951. The names Gary Bruce Wilson, Charles Jerome Wilson, Ed Feagin, and Harley Edward St. John also share a single FBI number. When St. John left the witness protection program in 1995, he kept his new name.

Acting as a confidential informant for ATF, St. John made a total of seven contacts with the defendant Peters, all of which he tape recorded. St. John's first contact with Peters was on April 11, 2002, when Agent Cheremeta sent him into Peters' store to buy a box of ammunition. St. John talked with Peters at some length, making no mention of his felony conviction, before purchasing the ammunition.

On May 9, 2002, Agent Cheremeta instructed St. John to call Peters to discuss local gun shows. After learning that Peters planned to attend a gun show on May 26, Agent Cheremeta sent St. John to that show to buy two firearms from Peters. After browsing Peters' merchandise, St. John inquired whether he could make a purchase "without a background," to which Peters replied, "Yup. This is all my personal stuff." St. John explained, "my old lady kind of flung something on me last year, you know how that shit goes and I don't want to — ," at which point Peters interjected, "Dude, get it cleaned off." Without providing identification, St. John then purchased from Peters a .34-caliber pistol and a 12-gauge shotgun.

St. John contacted Peters again on June 13 to ask about several of his guns, and told Peters that he would see him at the gun show the upcoming Saturday. At that show, on June 15, St. John said to Peters that gun shows made him "nervous as hell" because of his "damn felony conviction." Peters responded, "I thought that wasn't a conviction you said, they, they gave you a [inaudible] judgment you said." St. John then purchased two semi-automatic pistols from Peters, again without showing any identification, before returning to the topic of his trouble with his "old lady." Peters suggested that "it might be fixed by now," to which St. John replied, "They don't take that shit off." Peters assured him, "Yeah they do," and St. John told him, "A felony conviction, they don't do [sic] take that off." Peters commented, "I thought you said it was a domestic violence charge," and St. John explained, "No, I said it was the old lady, you know what I mean. And it's bullshit, she Goddamn set up the — all I did was grab that — she's hauling ass out the door and I cut the Goddamn tire and they charged me with [inaudible]." Peters asked, "assault on a vehicle?" and St. John responded, "no — on her." St. John also informed Peters that he had received the conviction three years earlier, in Georgia. Peters asked, "are you sure it was a felony conviction?... Cause I thought it was a domestic violence thing we were talking about before." St. John mentioned attempting to get his rights restored, and Peters advised him to "[p]ay a couple of hundred bucks to an [a]ttorney, fill out the paperwork, go through the procedures, it's worth it." Peters referred him to an attorney whom Peters said had helped an acquaintance of his get his rights restored after his conviction for a drug offense.

On June 26, 2002, St. John again called Peters to inquire about several more guns. Peters gave St. John directions to his store, and St. John mentioned that he had left a message for the attorney Peters had recommended. Two days later, on June 28, 2002, St. John visited Peters' store. St. John also mentioned again that he was having difficulty contacting the attorney, and explained that he wanted to follow up with her, because "[i]f she gets that felony conviction off of me then... I can do what the hell I want ... [and] I don't have to worry about a bunch of bullshit." Peters suggested that St. John's offense "should have been a misdemeanor in the first place." The two discussed St. John's conviction for several minutes, and then St. John purchased an AR-15 and a case of ammunition from Peters, again without showing identification.

Peters and St. John had no subsequent meetings. However, on September 17, 2002, ATF agents executed searches of both Peters' residence and his business premises. These searches turned up no illegal firearms or other contraband.

On December 18, 2002, a federal grand jury in the United States District Court for the Middle District of Florida indicted Peters on two counts of selling firearms and ammunition to a convicted felon — on June 15, 2002, and June 28, 2002, respectively — in violation of 18 U.S.C. §§ 922(d)(1) and 922(a)(2).

At trial, the government introduced transcripts of the conversations between Peters and St. John, all of which had been recorded. The government also introduced testimony from Matthew Scott Robinson, a local police officer working with ATF. Robinson testified that he was conducting surveillance at the June 15 gun show, and did not see St. John show Peters any identification before making his purchase.

Agent Cheremeta testified about the details of ATF's investigation of Peters. He explained, among other things, that ATF had instructed St. John to mention to Peters a possible problem with his background but not to give any specifics until the June 15 gun show. Cheremeta denied, however, instructing St. John to mislead Peters about his conviction. According to Cheremeta, when he ran a background check through the National Crime Information Center ("NCIC"), it revealed St. John's prior conviction. On cross-examination, however, Cheremeta admitted that he had conducted the NCIC search using St. John's birth name, Gary Wilson, and had not run the name St. John.

The government rested its case, and Peters moved for judgment of acquittal, arguing that the government had not established that Peters was aware of St. John's conviction. The court denied the motion.

Peters then testified on his own behalf. He explained that he let his federal firearms license expire in April 2001 because he had decided to close his store and become a mortgage broker. The defendant said that after the expiration of his license, he took his excess firearm inventory home to sell privately through trade shows and over the internet. He acknowledged that as a licensed firearms dealer, he had been required to conduct background checks of potential purchasers, but that no checks are required when the seller is a private individual.

Peters further testified that St. John had produced a Florida driver's license bearing the name Harley St. John when he made his initial firearm purchase from Peters on May 26, 2002. As to St. John's story about trouble with his wife, Peters explained that he had assumed St. John was referring only to a domestic violence temporary restraining order. Peters also stated that after this conversation, he conducted a background check, using the name Harley St. John and the address and date of birth on the driver's license St. John had produced, to search public records available on the internet, including the web sites of the Georgia and Florida departments of corrections, the Bradford and Duval County sheriffs' offices, and the Georgia Bureau of Investigations. Peters found no record of any conviction under the name Harley St. John in any of these sources. He acknowledged that if he had been a licensed dealer, he would have checked other sites, including NCIC.

As to St. John's mention of a prior felony conviction at the June 15, 2002 gun show, Peters testified that he thought St. John was simply confused about a prior domestic violence restraining order and was making...