599 F.2d 78 (5th Cir. 1979), 78-5532, United States v. Scales

Docket Nº:78-5532.
Citation:599 F.2d 78
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Eddie James SCALES, Defendant-Appellant.
Case Date:July 18, 1979
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 78

599 F.2d 78 (5th Cir. 1979)

UNITED STATES of America, Plaintiff-Appellee,

v.

Eddie James SCALES, Defendant-Appellant.

No. 78-5532.

United States Court of Appeals, Fifth Circuit

July 18, 1979

Page 79

James D. Waide, III, West Point, Miss. (Court-appointed), for defendant-appellant.

H. M. Ray, U. S. Atty., Tyree Irving, Alfred E. Moreton, III, Asst. U. S. Attys., Oxford, Miss., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Mississippi.

Before TUTTLE, GODBOLD and RUBIN, Circuit Judges.

GODBOLD, Circuit Judge:

Scales was convicted after a jury trial of violation of 18 U.S.C. § 922(h), receipt of a firearm by a convicted felon. Prior to trial he moved to suppress evidence of his prior felony conviction a state court conviction of manslaughter contending that his plea of guilty to the manslaughter charge was constitutionally invalid. The district judge conducted a hearing on the motion and denied it.

The district court followed correct procedure in granting Scales an opportunity to try to establish that the state conviction, which was an essential element of the federal charge, was invalid under the United States Constitution. U. S. v. Thoresen, 428 F.2d 654 (CA9, 1970); Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); Cf. U. S. v. Martinez, 413 F.2d 61 (CA7, 1969), and Williams v. Coiner, 392 F.2d 210 (CA4, 1968). 1

There was no error in the district court's finding that Scales had not established that his manslaughter conviction was unconstitutional. Scales' central point is that his appointed lawyer failed to advise him of the availability of self-defense as a defense. Scales took the stand when he entered his guilty plea and related in detail the facts of the killing. He testified that he had been over the facts with his attorney.

Page 80

2 The short answer to the contention concerning self-defense as a defense is that there was no reason for the lawyer to discuss it with Scales. Scales testified that he had "thoroughly discussed" with his attorney the change of plea. As he described the killing, the victim had previously broken into Scales' house and on another occasion had threatened both Scales and his wife with a gun. On the morning of the killing Scales put a shotgun in his car. During the afternoon, when Scales was shooting pool, the victim, according to Scales, pulled a gun on him. Scales left the building, went outside to his car, got his shotgun, came back in the door of the building, pushed it open, saw the victim with a pistol in one hand and a can of beer in the other and shot him down. Scales testified that his intent when he left the building and when he returned was to shoot and kill the victim. In this context, self-defense was illusory.

Scales' other contentions relate to refusal of jury instructions predicated upon his testimony describing the circumstances under which he purchased the firearm covered by the indictment. According to Scales, someone had broken into his house while his wife, eight months pregnant, was there alone. He reported the matter to local police and an officer advised him to get a gun. Using his wife's social security card because he knew it was unlawful for him to possess a firearm, he purchased the gun in his wife's name, took it to his wife who put it in her purse and took it home and placed it in a drawer next to her bed. There it remained for more than two months, accessible...

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