U.S. v. Rumney, 88-1641

• Decision Date: 02 November 1988
• Docket Number: No. 88-1641,88-1641
• Citation: 867 F.2d 714
• Parties: UNITED STATES of America, Appellee, v. Arthur W. RUMNEY, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 714

867 F.2d 714

UNITED STATES of America, Appellee, v. Arthur W. RUMNEY, Defendant, Appellant.

No. 88-1641.

United States Court of Appeals, First Circuit.

Heard Nov. 2, 1988.

Decided Feb. 8, 1989.

Paul J. Garrity, by Appointment of the Court, with whom Schapira Professional Association, Manchester, N.H., was on brief, for appellant.

David A. Vicinanzo, Asst. U.S. Atty., with whom Richard V. Wiebusch, U.S. Atty., Manchester, N.H., was on brief, for defendant, appellee.

Before BOWNES and BREYER, Circuit Judges, and CAFFREY, ^* Senior District Judge.

BOWNES, Circuit Judge.

Arthur W. Rumney appeals his conviction of one count of being a felon in possession of a firearm. 18 U.S.C.App. Sec. 1202(a)(1). ¹ On appeal, appellant raises three issues: (1) whether he could be sentenced under the provisions of Sec. 1202(a)(1) as a person thrice convicted of burglary or robbery when the indictment only alleged one prior such conviction; (2) whether the district court erred in not conducting a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), because of omissions made by the police in the affidavit when they applied for a search warrant; and (3) whether the evidence adduced at trial was sufficient to warrant a conviction. We find against him on each issue and affirm.

I. Facts

On October 31, 1986, a woman was robbed by appellant and Habib Nassoura in the parking lot of a Manchester, New Hampshire bank. Nassoura drove appellant to the parking lot. Once there, appellant, armed with a stun gun and disguised by a wig, false beard and baseball cap, assaulted the woman and grabbed a bag containing $23,000. Nassoura drove off alone without appellant. A witness noted the license plate number. Appellant fled on foot but was tackled by another bystander. The two struggled until appellant produced a handgun. The bystander backed away and appellant fled.

In late 1986, the Manchester police obtained a warrant to search appellant's home. The warrant was based on an affidavit which relied heavily upon statements made by Nassoura to the police. During the investigation of the robbery, Nassoura was questioned twice concerning his involvement in the robbery. Both times Nassoura denied being involved. After being arrested for the crime, however, Nassoura changed his story; he stated that although he drove appellant to the scene, he did not realize when he agreed to drive appellant there that appellant was going to commit a robbery. Later, Nassoura stated that he knew that appellant was up to no good when Nassoura agreed to drive him to the scene.

The affidavit submitted by the police for the warrant referred only to Nassoura's statement that he did not realize that appellant was going to commit a robbery. It made no mention of Nassoura's earlier denials or his subsequent statement that he knew appellant was up to no good, nor did it mention Nassoura's criminal record. Based on these omissions, appellant moved, prior to trial, to suppress all evidence found in the search of his house because the affidavit contained knowing or reckless omissions which undercut a finding of probable cause. The district court denied the motions and ruled that because appellant failed to make the preliminary showing required by United States v. Paradis, 802 F.2d 553, 558 (1st Cir.1986) (discussing the preliminary showing required under Franks, 438 U.S. at 171-72, 98 S.Ct. at 2684-85), a hearing was not necessary.

Pursuant to the warrant, the police searched the house where appellant lived with Patricia Harmon and her children. The police found a fully loaded .22 caliber handgun, two stun guns, a box of .25 caliber bullets, a baseball cap, a jar of change, a wig and two false beards in the master bedroom and its closet. The handgun was found in the pocket of a man's coat hanging in the closet; the jar of change was found in the other pocket. The stun guns and bullets were found in a dresser.

Appellant was indicted on one count of being a felon in possession of a firearm. ² Prior to trial, the government notified appellant that it would seek an enhanced sentence under 18 U.S.C.App. Sec. 1202(a) because appellant had been convicted three times of burglary and/or robbery. Appellant moved to prevent the imposition of an enhanced sentence. He argued that, since his indictment alleged only one predicate felony, the most for which he could be convicted and sentenced was having been previously convicted of one felony. The district court denied his motion holding that the three predicate felonies were for sentence enhancement purposes only and were not an element of another, heightened crime.

At trial, the government presented evidence which showed that appellant had been convicted of armed bank robbery in 1974. ³ Evidence also showed that the handgun had moved in interstate commerce: it was sold by a California firm to a Massachusetts firm which in turn sold it to a New Hampshire gun dealer. Finally, there was evidence that showed that the gun was found in appellant's closet in his coat. Although appellant and Harmon offered an explanation which, if believed,

could have exculpated appellant, ⁴ the jury returned a verdict of guilty. This appeal ensued. Appellant was sentenced to fifteen years as mandated by Sec. 1202(a)(1) for one who has three prior convictions for robbery or burglary. He was also fined $25,000.

II. Enhancement Or Element

Appellant's first contention is that he could not legally be sentenced under the higher sentence provision of Sec. 1202(a), Armed Career Criminal Act (ACCA), ⁵ because his indictment alleged only one predicate felony, not three. This circuit has never addressed whether the provision calling for a heightened penalty for those people who possess a firearm after having been thrice convicted of burglary/robbery is a sentence enhancer or a substantive crime. If it is the latter, appellant's sentence must, of course, be set aside. Nine other circuits have addressed this precise issue; all but one agree that the provision is a sentence enhancer. Those finding enhancement are: United States v. Brewer, 853 F.2d 1319 (6th Cir.) (changing, on rehearing, the panel's original decision on this point, 841 F.2d 667, 668-69 (6th Cir.)), cert. denied, --- U.S. ----, 109 S.Ct. 375, 102 L.Ed.2d 364 (1988); United States v. Pirovolos, 844 F.2d 415, 420 (7th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 147, 102 L.Ed.2d 119 (1988); United States v. Rush, 840 F.2d 574, 576-78 (8th Cir.) (en banc ), cert. denied, --- U.S. ----, 108 S.Ct. 2908, 101 L.Ed.2d 940, cert. denied, sub nom. Cloyd v. United States, --- U.S. ----, 108 S.Ct. 2910, 101 L.Ed.2d 942 (1988); United States v. Blannon, 836 F.2d 843, 844-45 (4th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 1741, 100 L.Ed.2d 204 (1988); United States v. West, 826 F.2d 909, 911-12 (9th Cir.1987); United States v. Jackson, 824 F.2d 21, 22-26 (D.C.Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 715, 98 L.Ed.2d 665 (1988); United States v. Hawkins, 811 F.2d 210, 217-20 (3d Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 110, 98 L.Ed.2d 69 (1987); United States v. Gregg, 803 F.2d 568, 570 (10th Cir.1986), cert. denied, 480 U.S. 920, 107 S.Ct. 1379, 94 L.Ed.2d 693 (1987). In United States v. Davis, 801 F.2d 754, 755-56 (5th Cir.1986), the Fifth Circuit held that the three felonies were an element of a crime which must be alleged in the indictment.

Appellant advances two reasons why we should hold that the three convictions are an element of a new crime: (1) the language and legislative history of that provision point in that direction; and (2) McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), requires such a holding. Both contentions have been addressed at length by our sister circuits; therefore, we tread a well-marked path.

The relevant language in Sec. 1202(a)(1) is ambiguous. See Jackson, 824 F.2d at 23-24; but see Davis, 801 F.2d at 756. The As fully detailed by the other circuits, the legislative history speaks in terms of " 'enhancing' this offense," "enhancing an existing Federal crime," and "enhanced penalty provisions." See, e.g., Rush, 840 F.2d at 577-78 (the court also notes that at one point a House Report speaks of a "new offense"); Jackson, 824 F.2d at 24-25 (same). The Ninth Circuit has accurately synopsized the legislative history:

                language is an expansion of the main offense (possession of a firearm by a felon) and was incorporated into the main offense without division or separation.  This "suggests treatment of the contents as a single offense."    Hawkins, 811 F.2d at 219.    On the other hand, the provision does not contain indicia of a traditional sentence enhancer:  explicit reference to a prior conviction under Sec. 1202(a)(1);  special sentencing procedures;  a penalty which is a multiplier of the sentence for the underlying crime;  or a title denoting it as a sentence enhancer. 6   See Davis, 801 F.2d at 755-56
                

[T]he legislative history shows that Congress specifically intended the Act to serve as a sentence enhancement statute. The House Report states: "In 'enhancing' this offense [Sec. 1202(a) ] with H.R. 1627-type sanctions, if the defendant has been convicted three times of robbery or burglary, we are 'enhancing' an existing Federal crime...." H.R.Rep. No. 1073, 98th Cong., 2d Sess. 5, reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3665. Representative Hughes, the principal sponsor of the legislation in the House, stated: "This bill would enhance the sanctions of 18 U.S.C.App. section 1202(a) with a 15-year minimum sentence if the defendant has been convicted three times of felonies for robbery or burglary." 130 Cong.Rec. H10550 (daily ed. Oct. 1, 1984). Senator Spector, the Act's sponsor in the Senate, stated: "This bill would create no new Federal crime. Under present section 1202(a), possession of a firearm by a convicted felon is already a Federal crime, with a maximum prison sentence of 2...