922 F.2d 228 (5th Cir. 1991), 90-8061, United States v. Chambers

Docket Nº:90-8061.
Citation:922 F.2d 228
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Robert Glynn CHAMBERS, Defendant-Appellant.
Case Date:January 14, 1991
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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922 F.2d 228 (5th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,

v.

Robert Glynn CHAMBERS, Defendant-Appellant.

No. 90-8061.

United States Court of Appeals, Fifth Circuit

January 14, 1991

Rehearing Denied Feb. 21, 1991.

Page 229

Arvel R. Ponton, III, El Paso, Tex., Roddy L. Harrison, Pecos, Tex., for defendant-appellant.

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Michael R. Hardy, LeRoy M. Jahn, Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before GARWOOD and WIENER, Circuit Judges, and VELA 1, District Judge.

GARWOOD, Circuit Judge:

Defendant-appellant Robert Glynn Chambers (Chambers) appeals his conviction for knowingly making a false statement when acquiring a firearm in violation of 18 U.S.C. Sec. 922(a)(6) and for receipt of a firearm while under felony indictment in violation of 18 U.S.C. Sec. 922(n). When purchasing a firearm on August 12, 1987, Chambers represented on the firearms transaction record that he was not then under indictment for a crime punishable by imprisonment for a term exceeding one year. In fact, there was then pending against Chambers a Texas indictment, which had been returned on July 21, 1987, charging him with aggravated assault, a felony under Texas law punishable by imprisonment for a term exceeding one year. Following Chambers' federal firearms conviction but prior to sentencing, his state indictment was dismissed because the grand jury which had preferred the indictment had been selected by jury wheel after the term of court had commenced in asserted violation of Tex.Code Crim.Proc. art. 19.17. Chambers contends that his indictment was "void ab initio " and therefore could not serve as a predicate to his federal firearms convictions. Chambers also challenges his conviction on the ground that the district court improperly refused to instruct the jury on what he characterizes as his alibi defense. Finally, Chambers claims that he was unfairly prejudiced by the prosecutor's references in his closing remarks to details regarding the aggravated assault leading to Chambers' state indictment. We affirm.

Facts and Proceedings Below

On July 21, 1987, Chambers was indicted by a Texas grand jury for the June 28, 1987 state offense of aggravated assault, which under Texas law is a felony punishable by imprisonment for a term exceeding one year. Following Chambers' arrest, the presiding state district judge directed the sheriff's department to obtain a postindictment surety bond for Chambers. On July 29, 1987, the chief deputy, pursuant to orders from the sheriff, served Chambers with a copy of the indictment along with related documents issued by the state court. Later that same day, Chambers met with the sheriff in the sheriff's office to discuss Chambers' postindictment surety bond. Chambers and two of his sureties personally signed the bond. The indictment was served and the bond signed in Alpine, Texas. However, Chambers introduced evidence at trial indicating that he was in El Paso, Texas at that time.

On August 12, 1987, Chambers purchased a functional firearm from a federally-licensed gun dealer in El Paso, Texas. On the firearms transaction record Chambers answered "No" to the question, "Are you under indictment or information in any court for a crime punishable by imprisonment for a term exceeding one year?" The form stated that Chambers would not be allowed to acquire a firearm under federal law if he were under indictment at the time of the purchase. Chambers certified the accuracy of his negative response by signing the form. Chambers completed the transaction, took possession of the firearm and left the dealership.

On September 19, 1989, Chambers was convicted, following a jury trial, for knowingly making a false statement when acquiring a firearm in violation of 18 U.S.C. Sec. 922(a)(6) and for receipt of a firearm while under felony indictment in violation of 18 U.S.C. Sec. 922(n). Section 922(a) provides that

"[i]t shall be unlawful

"....

"(6) for any person in connection with the acquisition or attempted acquisition

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of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter;"

Section 922(n) provides that

"[i]t shall be unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate or foreign commerce any firearm or ammunition or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."

The term "indictment" is defined, for the purposes of section 922 violations, as follows: "[t]he term 'indictment' includes an indictment or information in any court under which a crime punishable by imprisonment for a term exceeding one year may be prosecuted." 18 U.S.C. Sec. 921(a)(14). 2

On October 17, 1989, before Chambers was sentenced, he filed in the Texas court in which the indictment was pending a motion to quash the indictment. 3 This motion asserted the single ground that the grand jury which indicted Chambers had been impaneled in violation of Tex.Code Crim.Proc. art. 19.17, which provides for the selection of a grand jury after the commencement of a term of court by means of issuance of a writ to the sheriff commanding him to summon a jury commission for the purpose of selecting twenty persons to serve as grand jurors. The grand jury that indicted Chambers was impaneled on May 4, 1987, after the commencement of the term of the court during which it was called. The grand jury was selected by the jury wheel method provided for by Texas Code Crim.Proc. art. 19.01(b). Chambers asserted that use of the jury wheel method of article 19.01(b) is permissible for the selection of a jury only before the commencement of the term of the court. On October 20, 1989, the state court entered a one-page order granting Chambers' motion and reciting that "the Indictment herein is quashed and dismissed for the reason stated in Defendant's Motion to Quash Indictment." At the foot of this order appears the signature of the state district attorney under the legend "Approved."

On November 13, 1989, one day before his then scheduled federal sentencing, Chambers filed a motion for a new trial on the ground that the invalidity of his state indictment rendered it an inadequate predicate for criminal liability under the federal firearms statutes. 4 On December 5, 1989, the district court denied the motion with a memorandum opinion and, subsequently, on January 5, 1990, sentenced Chambers to concurrent three-year sentences on each count, such sentences being suspended during current five-year probationary terms. A $2,000 fine was also imposed on the section 922(a)(6) (false statement) count, and a $50 special assessment was likewise levied on each count.

Discussion

I. The Invalid Indictment

Chambers contends that he was not under a valid indictment when he purchased

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the firearm and that he therefore did not make a false statement on the firearms transaction record or purchase a firearm while under felony indictment. Chambers argues that, for the purposes of the instant firearms offenses, "under indictment" means "under valid indictment."

This argument was implicitly rejected by the Supreme Court in Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980). Lewis held that the defendant's prior criminal conviction could properly be used as a predicate for his subsequent conviction for possession of a firearm contrary to former 18 U.S.C.App. Sec. 1202(a)(1), 5 regardless of the fact that the prior conviction might otherwise be subject to collateral attack. The Supreme Court, assuming that the defendant's conviction was unconstitutionally obtained, 6 held that that fact did not affect his status as a convicted felon at the time he possessed the firearm in violation of former section 1202(a)(1); "Congress could rationally conclude that any felony conviction, even an allegedly invalid one, is a sufficient basis on which to prohibit the possession of a firearm." Id. 100 S.Ct. at 921 (citation omitted).

Lewis explained that where "[n]o modifier is present, and nothing suggests any restriction on the scope of the term 'convicted,' " no limitation to convictions not susceptible to collateral attack can reasonably be inferred. Id. at 918. The Court "view[ed] the language Congress chose as consistent with the common-sense notion that a disability based upon one's status as a convicted felon should cease only when the conviction upon which that status depends has been vacated." Lewis, 100 S.Ct. at 918 n. 5. The Court therefore concluded that "Congress clearly intended that the defendant clear his status before obtaining a firearm, thereby fulfilling Congress's purpose 'broadly to keep firearms away from the persons Congress classified as potentially irresponsible and dangerous.' " Id. at 920 (emphasis in original) (quoting Barrett v. United States, 423 U.S. 212, 96 S.Ct. 498, 502, 46 L.Ed.2d 450 (1976) (stating purpose of the Gun Control Act of 1968, Pub.L. 90-618, 82 Stat. 1213, 1968 U.S.Code Cong. & Admin.News 1397, in affirming a conviction under former 18 U.S.C. Sec. 922(h), enacted as part of the Gun Control Act, which was the predecessor to current 18 U.S.C. Sec. 922(n)).

The Lewis reasoning logically applies to Chambers' situation as well. The Court there recognized that an indictment is a disability similar to a conviction for...

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