U.S. v. Harper, 86-4247

• Citation: 802 F.2d 115
• Decision Date: 09 October 1986
• Docket Number: No. 86-4247,86-4247
• Parties: 21 Fed. R. Evid. Serv. 1175 UNITED STATES of America, Plaintiff-Appellee, v. Larry HARPER, Defendant-Appellant. Summary Calendar.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 115

802 F.2d 115

21 Fed. R. Evid. Serv. 1175

UNITED STATES of America, Plaintiff-Appellee, v. Larry HARPER, Defendant-Appellant.

No. 86-4247.

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Oct. 9, 1986.

W. Howard Gunn, Aberdeen, Miss., for defendant-appellant.

Glen H. Davidson, U.S. Atty., John M. Alexander, Asst. U.S. Atty., Oxford, Miss., for plaintiff-appellee.

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

Before GEE, JOLLY and HIGGINBOTHAM, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Larry Harper, a four-time convicted felon, appeals his conviction on two counts of making false statements in connection with the acquisition of a firearm from a licensed dealer, in violation of 18 U.S.C. Secs. 922(a)(6) and 924, one count of possessing an illegal firearm, in violation of 26 U.S.C. Sec. 5845, and four counts of receiving or possessing firearms previously transported in interstate commerce, in violation of 18 U.S.C. app. Sec. 1202(a)(1). On appeal, Harper raises the following issues: (1) the court's refusal of a jury instruction of self-defense in the charges under 18 U.S.C. app. Sec. 1202; (2) the court's denial of his motion to dismiss and/or motion to require the government to elect to proceed under a single count; (3) the court's denial of his motion to suppress evidence; (4) the court's overruling of his motion for a mistrial following questions by the government regarding the failure of a witness to testify; and (5) the court's refusal of his motion for a directed verdict on the grounds that the government failed to prove that the firearms were received in interstate commerce.

This court finds no merit in any of the arguments advanced and the district court is affirmed.

I

The Fifth Circuit has established the four elements of the justification defense ¹ to a charge of violating 18 U.S.C. app. Sec. 1202(a)(1). ² The defendant must show

(1) that defendant was under an unlawful and "present, imminent, and impending [threat] of such a nature as to induce a well-grounded apprehension of death or serious bodily injury"; (2) that defendant had not "recklessly or negligently placed himself in a situation in which it was probable that he would be [forced to choose the criminal conduct]"; (3) that defendant had no "reasonable, legal alternative to violating the law, 'a chance both to refuse to do the criminal act and also to avoid the threatened harm' "; and (4) "that a direct causal relationship may be reasonably anticipated between the [criminal] action taken and the avoidance of the [threatened] harm."

United States v. Gant, 691 F.2d 1159, 1162-63 (5th Cir.1982) (citations and footnotes omitted) (brackets in original).

Harper contends that he purchased the gun mentioned in count 2 of the indictment from a pawnshop for the purpose of protecting himself and his fiancee at his business, which had been the object of several robbery attempts between April 1984 and September 1985. ³ In United States v. Panter, 688 F.2d 268 (5th Cir.1982), in which the Fifth Circuit first recognized the defense to a section 1202(a)(1) charge, the court "emphasize[d] that our holding protects a Sec. 1202 defendant only for possession during the time he is endangered." Panter, 688 F.2d at 272. According to Harper's testimony, he gave the gun to his fiancee immediately following the purchase. There was no evidence that he was in danger of imminent bodily harm at the moment he purchased and possessed the gun; therefore, Harper is not entitled to the protection of the defense. Harper's defense must also fail because of the availability of "reasonable, legal alternatives" to possession of a firearm. Harper could have notified the police of the threatened thefts and could also have taken other steps to lessen the likelihood of a robbery at his business, or the matter of purchase and possession of a weapon for protection could have been left to his companion-fiancee. To establish that he had no alternative to violating section 1202, Harper "must show that he had actually tried the alternative or had no time to try it, or that a history of futile attempts revealed the illusionary benefits of the alternative." Gant, 691 F.2d at 1164. This, Harper failed to do. Additionally, we cannot clearly perceive a "direct causal relationship" between Harper's possession of a gun and protection from a threatened robbery. As the court in Gant stated, "Although defendant's possession and probable use of a gun makes [sic] a robbery attempt less attractive, it does not eliminate defendant's danger." 691 F.2d at 1164.

II

Harper contends that the government improperly prosecuted him for both possession and receipt of a firearm under section 1202(a)(1). Harper bases his argument on the fact that on each of counts 2, 3, 5 and 7, the indictment charged him with possession and receipt as a single offense. ⁴ Harper's argument on this point is rather confused as he relies on Fifth Circuit cases holding that the United States may not prosecute a convicted felon for receipt of a firearm under 18 U.S.C. Sec. 922(h) and for possession of that same firearm under 18 U.S.C. App. Sec. 1202(a) as separate offenses. See United States v. Hodges, 628 F.2d 350 (5th Cir.1980); United States v. Larson, 625 F.2d 67 (5th Cir.1980). He argues that, by analogy, he cannot be prosecuted for receipt and possession of the same firearm under section 1202. Harper's argument is based on holdings of the Fifth Circuit that have been modified by the Supreme Court. In Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985), the Supreme Court held that a convicted felon may be "prosecuted simultaneously for violations of Secs. 922(h) and 1202(a) involving the same firearm." Id. 105 S.Ct. at 1671. The felon may not, however, in that situation, be convicted and sentenced under both statutes. Id. 105 S.Ct. at 1674. Ball's holding is based on the Court's conclusion that "Congress had no intention of creating duplicative punishment for one limited class of persons falling within the overlap between the two Titles--convicted felons who receive firearms and who, by definition, possess them." Ball, 105 S.Ct. at 1673. Ball provides no support for Harper's argument. Harper was charged, as we have noted, with receipt and possession as a single offense under one statute, and therefore does not face the possibility of "duplicative punishment" for a single act.

Harper also specifically objects to the use of the conjunctive, "receive and possess," in the indictment, rather than the disjunctive, "receives [or] possesses," as used in the statute. Harper contends that, to raise his justification defense, he was required to admit possession. He thereby incriminated himself as to receipt in violation of his fifth amendment rights. Again we are somewhat confused by Harper's argument. It is difficult for us to understand how the language in the indictment is the cause of the alleged fifth amendment violation. By admitting possession, a defendant admits receipt, regardless of whether the indictment reads "receive and possess" or "receive or possess." Although it is by no means clear that his personal testimony was necessary to present this particular defense, Harper did testify voluntarily. By doing so, he "waived his fifth amendment right and became obligated, as any other witness, to answer all relevant questions." United States v. Brannon, 546 F.2d 1242, 1246 (5th Cir.), reh'g den., 549 F.2d 204 (1977).

III

After a hearing on Harper's motion to suppress evidence, the district court, citing United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1985), ruled that the officer had "an objective, reasonable belief that there was probable cause to believe the warrant was valid" and that he in good faith relied on it. The district court did not rule on Harper's specific fourth amendment objections to the search.

Leon does not require that a court resolve fourth amendment questions prior to determining the good-faith issue. See Leon, 104 S.Ct. at 3422. A reviewing court should do so, however, if the analysis would "provide guidance on the limits of the fourth amendment." United States v. Maggitt, 778 F.2d 1029, 1033 (5th Cir.1985). Here no question of broad import is raised; the only issue is whether the relevant facts constitute probable cause. ⁵ We therefore go directly to the issue of the applicability of the good-faith exception to the exclusionary rule as set out in Leon.

In Leon, the United States Supreme Court reasoned that suppression of evidence obtained by an officer acting in good faith did not effectively further the purpose of the exclusionary rule, which is to deter police misconduct. 104 S.Ct. at 3419-20. Therefore, the Court concluded "that the marginal or non-existent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion." Id. 104 S.Ct. at 3421. While the issuance of a warrant is generally sufficient to demonstrate the officer's good faith, the officer's "reliance on the magistrate's probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable." Id. The Court identified four situations in which evidence seized in reliance on a warrant should nevertheless be suppressed:

1) the magistrate issued the warrant in reliance on a deliberately or recklessly false affidavit;

2) the magistrate abandoned his judicial role and failed to perform his neutral and detached function;

3) the warrant was based on an affidavit "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable"; or

4) the warrant was so facially deficient that it failed to particularize the place to be searched or the things to be seized.

104 S.Ct. at 3421-22 (citations omitted). See United States v....