U.S. v. Mittleider

Decision Date22 December 1987
Docket NumberNo. 86-1637,86-1637
Parties24 Fed. R. Evid. Serv. 500 UNITED STATES of America, Plaintiff-Appellee, v. Rick Lynn MITTLEIDER, a/k/a Rick Wyman, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Francis Leland Pico, Asst. U.S. Atty., and Richard A. Stacy, U.S. Atty., Cheyenne, Wyo., for plaintiff-appellee.

Vicki Mandell-King, Asst. Federal Public Defender, Denver, Colo. (Michael G. Katz, Federal Public Defender, Denver, Colo., with her on brief), for defendant-appellant.

Before MOORE and BALDOCK, Circuit Judges, and BOHANON, * District Judge.

BALDOCK, Circuit Judge.

Defendant-appellant Rick Lynn Mittleider, a/k/a Rick Wyman, was found guilty by a jury of the following: one count of making a false statement during the purchase of a firearm, in violation of 18 U.S.C. Secs. 922(a)(6) and 924(a); two counts of receiving firearms as a fugitive from justice, in violation of 18 U.S.C. Secs. 922(h) and 924(a); one count of possessing a firearm which had been made without payment of a making tax, in violation of 26 U.S.C. Secs. 5861(c) and 5871; one count of possessing a firearm which had not been registered, in violation of 26 U.S.C. Secs. 5861(d) and 5871; and one count of transferring a firearm without having paid the transfer tax, in violation of 26 U.S.C. Secs. 5861 and 5871. The court sentenced defendant to consecutive one-year terms of imprisonment on two of the counts and to three-year terms of probation on the remaining counts. On appeal, defendant contends that: 1) the government failed to prove that he was a fugitive from justice; 2) the trial court erred in admitting into evidence partially inaudible tape recordings and in allowing the jury to utilize written transcripts of those tapes; 3) the trial court erred in giving Instruction No. 23 concerning knowledge; 4) the evidence was insufficient to show that he knew that the firearm he sold to a confidential informant was an automatic weapon; and 5) the trial court erred in admitting evidence of "subsequent" other acts. For the reasons stated below, we affirm.

Defendant joined the Army in December of 1979. At that time, he was a resident of Meridian, Idaho. While his surname at birth was Wyman, defendant enlisted in the military under his stepfather's name, Mittleider. The Army assigned defendant to Ft. Benning, Georgia, where he began his initial tour of duty. On June 30, 1980, defendant was considered to be absent without leave (AWOL) when he failed to report to his duty station at Ft. Benning. After thirty days, defendant was classified as a deserter, and his name was entered into the National Crime Information Center (NCIC) computer for the purpose of informing civilian authorities that he should be arrested. 1 The Army attempted to locate defendant by sending letters to him and to his mother in Meridian, Idaho.

Defendant returned to Idaho after failing to report to his duty station in Georgia. He then moved to Casper, Wyoming, and for several years went by the name Duffy DuPree. Sometime during early 1982, defendant, using the name Duffy DuPree, purchased an AR-15 semi-automatic rifle in a private sale. On December 3, 1984, defendant, now using the name Rick Wyman, purchased a J-15 semi-automatic rifle from a federally-licensed firearms dealer. In the course of that transaction, defendant executed Bureau of Alcohol, Tobacco and Firearms (ATF) Form 4473. He responded negatively to the question on the form asking whether he was a fugitive from justice.

Approximately a month later, ATF Special Agent George Barnes commenced an investigation of automatic weapons transactions in the Casper area. Special Agent Barnes decided to utilize the assistance of a confidential informant named Mike Stone. On January 18, 1985, Stone approached Robert Laing, a target of the ATF investigation, in an attempt to purchase automatic weapons. Laing advised Stone to contact defendant. That same day, Stone went to defendant's home, where he purchased a fully automatic firearm. The machinegun which Stone bought was the same J-15 rifle which defendant had purchased the previous month, the difference being that it had been converted into an automatic weapon.

Subsequently, the ATF investigation included attempts to purchase additional machineguns from defendant. On March 7, 1985, Stone purchased an AR-15 semi-automatic weapon from defendant, along with parts to convert it into an automatic weapon. Posing as a survivalist interested in purchasing machineguns, ATF Special Agent David Webb made several contacts with defendant. Between March and July of 1985, various conversations between Stone and defendant and between Special Agent Webb and defendant were recorded.

On January 8, 1986, defendant was arrested in Casper while delivering two semi-automatic weapons to Special Agent Webb. Defendant admitted that he had purchased the weapons from Laing on October 21, 1985. Special Agent Webb then addressed defendant by the name Rick Mittleider and asked him if he was a deserter. Defendant responded that he had been discharged from the military and that he had received mail from the Army at his home in Idaho, but had never opened the letters.

I.

Defendant first contends that the government failed to prove that he was a fugitive from justice, an element of three of the counts upon which he was convicted. 2 He argues that he did not "flee" the state of Georgia to avoid prosecution, but rather left the military base there and became AWOL when he failed to return. Defendant further argues that the statute defining the term "fugitive from justice" is silent concerning flight from a crime arising under military jurisdiction and therefore is not applicable.

As provided in 18 U.S.C. Sec. 921(a)(15), "[t]he term 'fugitive from justice' means any person who has fled from any State to avoid prosecution for a crime or to avoid giving testimony in any criminal proceeding." Although the statute does not specifically address military crimes, neither does it distinguish among crimes arising under federal, military or state jurisdiction. There is no question that a serviceman who is AWOL or has deserted has committed a crime. The statutes defining those crimes are punitive in nature, providing that an individual guilty of either charge shall be punished "as a court martial may direct." 10 U.S.C. Secs. 885 (desertion) and 886 (absence without leave). While 18 U.S.C. Sec. 921(a)(15) has not previously been interpreted in this context, we conclude that the only possible construction of the statute is that an individual who has fled from any state to avoid prosecution for a military crime is a fugitive for purposes of violations of the federal firearms laws. 3 To construe the statute otherwise would subvert the obvious intent of Congress to prevent individuals fleeing from prosecution from receiving firearms.

Having concluded that the statute applies to prosecutions for military crimes, we must address the sufficiency of the evidence presented to prove defendant's status as a fugitive. In so doing, this court looks to all the evidence, both direct and circumstantial, in the light most favorable to the government. United States v. Alonso, 790 F.2d 1489, 1492 (10th Cir.1986). All reasonable inferences must be made in support of the jury's verdict. Id. A review of the record discloses ample evidence from which the jury could infer that defendant fled from the state of Georgia to avoid prosecution. While his surname at birth was Wyman, he enlisted in the Army under the name Mittleider. He apparently left the state of Georgia soon after failing to report for duty at Ft. Benning. While residing in Casper, defendant used the name Duffy DuPree, then later reverted to the name Rick Wyman. Upon being arrested, defendant admitted that he had received numerous letters from the Army at his home in Idaho, but had never opened them. At the time of his arrest, he evidently had not informed the Army of his whereabouts in over five years.

The case cited by defendant to support his contention that he did not leave the state of Georgia to avoid arrest is distinguishable. In United States v. Durcan, 539 F.2d 29 (9th Cir.1976), the defendant's car was searched by customs officials upon his entry into the United States from Canada, and while the search was in progress, the authorities learned of an outstanding warrant for the defendant's arrest issued in Dade County, Florida. The Ninth Circuit reversed his conviction for transporting a firearm while a fugitive because the government had failed to prove that he was a "fugitive from justice" within the meaning of the statute. The court determined that the only evidence concerning whether the defendant left Florida with the intent to avoid arrest or prosecution was unrebutted testimony that the defendant and his companions left the state on vacation more than a month before a warrant was issued for defendant's arrest. Id. at 31-32.

Here, it was entirely reasonable for the jury to infer that defendant knew that charges would be filed by the Army when he failed to report to his duty station at Ft. Benning. The jury also could reasonably infer that defendant left the state of Georgia, apparently soon after his failure to report for duty, in order to avoid prosecution. Defendant's argument that he would have been considered AWOL without leaving the state of Georgia is true in theory, yet irrelevant under the circumstances of this case. His alternative argument, that he did not flee from prosecution but merely absented himself from his military duty station, misses the point. He became absent without leave when he failed to report, then became a fugitive when he left the state of Georgia to avoid prosecution for that crime. In conclusion, we hold that the government sustained its burden of showing that defendant was a fugitive from justice.

II.

Defendant next claims that the trial court erred in admitting into evidence various...

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