960 F.2d 221 (1st Cir. 1992), 91-1008, United States v. Doe

Docket Nº91-1008.
Citation960 F.2d 221
Party NameUNITED STATES, Appellee, v. Arthur L. DOE, a/k/a
Case DateMarch 30, 1992
CourtUnited States Courts of Appeals, United States Court of Appeals (1st Circuit)

Page 221

960 F.2d 221 (1st Cir. 1992)

UNITED STATES, Appellee,

v.

Arthur L. DOE, a/k/a "Butchy", Defendant, Appellant.

No. 91-1008.

United States Court of Appeals, First Circuit

March 30, 1992

Argued Nov. 4, 1991.

Page 222

Richard B. Klibaner, Cambridge, Mass., by Appointment of the Court, with whom Klibaner & Sabino was on brief, for defendant, appellant.

Ralph F. Boyd, Jr., Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., was on brief, for appellee.

Owen S. Walker, Federal Defender Office, on brief, for Dist. of Mass., amicus curie.

Before BREYER, Chief Judge, COFFIN, Senior Circuit Judge, and SEYLA, Circuit Judge.

BREYER, Chief Judge.

Under federal gun control law, a felon possessing a firearm who "has three previous convictions ... for violent felon[ies]" faces a mandatory minimum prison term of fifteen years. 18 U.S.C. § 924(e). This appeal asks whether the crime of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), is itself a "violent felony" for purposes of this sentencing statute. The Eleventh and Ninth Circuits have held that it is. See United States v. Stinson, 943 F.2d 1268 (11th Cir.1991); United States v. O'Neal, 910 F.2d 663 (9th Cir.1990). The Fourth Circuit has held that it is not. See United States v. Johnson, 953 F.2d 110 (4th Cir.1991); see also United States v. Chapple, 942 F.2d 439 (7th Cir.1991) (felon-in-possession not a "crime of violence" for sentencing under career offender guideline). We agree with the Fourth Circuit and hold that a conviction for being a felon unlawfully in possession of a firearm is not a "violent felony" conviction.

I

Background

In October 1990, a jury convicted Arthur Doe of unlawful possession of a firearm. 18 U.S.C. § 922(g)(1). At sentencing, the court determined that Doe had three prior convictions for "violent felonies." One of these was a 1985 conviction for the crime of being a felon in possession of a firearm. In light of the statute requiring a sentence enhancement for any offender with "three previous convictions ... for violent felon[ies]," the court enhanced Doe's sentence to the mandatory fifteen year minimum. 18 U.S.C. § 924(e). Doe now appeals both his conviction and his sentence.

II

The Present Conviction

We first consider Doe's attack on the lawfulness of his present, 1990, felon-in-possession conviction. The substantive statute makes it a crime

for any person ... who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year ... to ... possess, in or affecting [interstate or foreign] commerce, any firearm....

18 U.S.C. § 922(g)(1) (emphasis added). The indictment charged that Doe, "being a person who has been convicted" of a crime punishable for a term exceeding one year, in March 1990,

did possess a firearm and ammunition which has been shipped and transported in interstate ... commerce, to wit, a loaded Taurus 9mm, model PT99AF semi-automatic pistol, serial number L47706.

(Emphasis added). Doe argues that the government failed properly to prove that his Taurus pistol (serial number L47706) had moved in interstate commerce.

The government's evidence on this point consisted of: 1) testimony of a Massachusetts sports shop owner that he had ordered the pistol from Ellett Brothers, a South Carolina telemarketing firm, 2) an invoice from Ellett Brothers referring to the Taurus pistol L47706 with the sports shop owner's handwritten notation "Received 12-11-86," and 3) the sports shop owner's statement that he knew that Taurus firearms are "manufactured in Brazil."

Page 223

Doe argues that the district court erred by admitting the last two items into evidence.

First, Doe claims that the invoice was hearsay, Fed.R.Evid. 801(c), and that it did not qualify for admission under the "business records" exception to the hearsay rule. He says that the document's "custodian or other qualified witness" from Ellett Brothers did not testify that the record was compiled in the regular course of business by a person with knowledge of the events it recorded. Fed.R.Evid. 803(6).

Doe's argument misses the point. It was not necessary for an Ellett Brothers "custodian" to testify because the court did not admit the invoice as an Ellett Brothers business record. Rather, the court admitted the invoice as a business record of the sports shop owner. And, the sports shop owner, as custodian of his own records, qualified the document for admission under the "business records" exception. He testified that he was "responsible for all ... recordkeeping in the business," that he had received the particular invoice, that the receipt notation was in his handwriting, that he relied on the document and "documents such as those," in his business to show "acquisition" of the pistol, and that he kept a gun "acquisition and disposition book" as federal law requires. See 27 C.F.R. § 178.125(e).

The fact that the invoice was a piece of paper which (except for the handwriting) had earlier been the record of a different business, namely Ellett Brothers, is irrelevant. Because it was relied on by the sports shop owner, the Ellett Brothers record was integrated into the records of the sports shop, along with the additional handwritten notation. See Fed.R.Evid. 803(6) (exception applies to "memorandum, ... record, [etc.] ... in any form ) (emphasis added); see also United States v. Mendel, 746 F.2d 155, 166 (2d Cir.1984), cert. denied, 469 U.S. 1213, 105 S.Ct. 1184, 84 L.Ed.2d 331 (1985); United States v. Ullrich, 580 F.2d 765, 771-72 (5th Cir.1978); United States v. Pfeiffer, 539 F.2d 668, 671 (8th Cir.1976).

Second, Doe claims that the district court should have excluded the sports shop owner's testimony that he "knows" Taurus pistols are "manufactured in Brazil," on the ground that the witness did not have "personal knowledge" of that fact. See Fed.R.Evid. 602 (witness may not testify to a matter without evidence that he had "personal knowledge of the matter"). Evidence proving personal knowledge may, however, "consist of the witness' own testimony," id., and that knowledge includes inferences and opinions, so long as they are grounded in personal observation and experience. See Visser v. Packer Engineering Associates, Inc., 924 F.2d 655, 659 (7th Cir.1991) (en banc). The test is "whether a reasonable trier of fact could believe the witness had personal knowledge." Folio Impressions, Inc. v. Byer California, 937 F.2d 759, 764 (2d Cir.1991) (citations omitted). A reasonable trier of fact could believe that the sports shop owner had firsthand knowledge from which he could infer that the pistol was made outside of Massachusetts, indeed in Brazil, particularly since his testimony to this effect was unchallenged. See United States v. Hickey, 917 F.2d 901, 904 (6th Cir.1990); United States v. Davis, 792 F.2d 1299, 1304-05 (5th Cir.), cert. denied, 479 U.S. 964, 107 S.Ct. 464, 93 L.Ed.2d 409 (1986).

III

The Sentence

The district court sentenced Doe to fifteen years in prison, because it concluded that his earlier felon-in-possession conviction was for a "violent felony" within the terms of the mandatory-minimum sentence enhancement statute. Doe says that, as a...

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146 practice notes
  • 103 T.C. 29 (1994), 4397-90, Krumhorn v. C.I.R.
    • United States
    • Federal Cases United States Tax Court
    • July 19, 1994
    ...of rule 803(6) of the Federal Rules of Evidence. See United States v. Childs, 5 F.3d 1328, 1332-1334 (9th Cir.1993); United States v. Doe, 960 F.2d 221, 222-223 (1st Cir.1992); United States v. Jakobetz, 955 F.2d 786 (2d [4] Unless otherwise noted, references to petitioner in the singular w......
  • 28 F.Supp.2d 805 (W.D.N.Y. 1998), 98-CR-6084, United States v. Campbell
    • United States
    • Federal Cases United States District Courts 2nd Circuit Western District of New York
    • November 20, 1998
    ...or the United States Sentencing Guidelines. For example, the court in Gloster cited the First Circuit's decision in United States v. Doe, 960 F.2d 221 (1st Cir. 1992). In Doe, the court held that a § 922(g)(1) violation is not a "violent felony" for purposes of 18 U.S.C. § 924(e),......
  • 350 F.Supp.2d 275 (D.Me. 2004), CR-03-41, United States v. Cadieux
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Maine
    • December 22, 2004
    ...calls to mind a tradition of crimes that involve the possibility of more closely related, active violence." United States v. Doe, 960 F.2d 221, 225 (1st Cir.1992). In that vein, to decide whether a statutory crime constitutes a "crime of violence," the Court may examine "......
  • 486 F.Supp.2d 996 (D.Ariz. 2007), 07-04062M-001, United States v. Montoya
    • United States
    • Federal Cases United States District Courts 9th Circuit District of Arizona
    • March 16, 2007
    ...92, 95 & n. 5 & n. 6 (D.D.C.1997). Compare United States v. Byrd, 969 F.2d 106, 109-10 (5th Cir.1992), with United States v. Doe, 960 F.2d 221, 223-24 (1st The respective views can be summarized as follows: 1. Any offense (felony or misdemeanor) which has as an "element" t......
  • Request a trial to view additional results
144 cases
  • 103 T.C. 29 (1994), 4397-90, Krumhorn v. C.I.R.
    • United States
    • Federal Cases United States Tax Court
    • July 19, 1994
    ...of rule 803(6) of the Federal Rules of Evidence. See United States v. Childs, 5 F.3d 1328, 1332-1334 (9th Cir.1993); United States v. Doe, 960 F.2d 221, 222-223 (1st Cir.1992); United States v. Jakobetz, 955 F.2d 786 (2d [4] Unless otherwise noted, references to petitioner in the singular w......
  • 28 F.Supp.2d 805 (W.D.N.Y. 1998), 98-CR-6084, United States v. Campbell
    • United States
    • Federal Cases United States District Courts 2nd Circuit Western District of New York
    • November 20, 1998
    ...or the United States Sentencing Guidelines. For example, the court in Gloster cited the First Circuit's decision in United States v. Doe, 960 F.2d 221 (1st Cir. 1992). In Doe, the court held that a § 922(g)(1) violation is not a "violent felony" for purposes of 18 U.S.C. § 924(e),......
  • 350 F.Supp.2d 275 (D.Me. 2004), CR-03-41, United States v. Cadieux
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Maine
    • December 22, 2004
    ...calls to mind a tradition of crimes that involve the possibility of more closely related, active violence." United States v. Doe, 960 F.2d 221, 225 (1st Cir.1992). In that vein, to decide whether a statutory crime constitutes a "crime of violence," the Court may examine "......
  • 486 F.Supp.2d 996 (D.Ariz. 2007), 07-04062M-001, United States v. Montoya
    • United States
    • Federal Cases United States District Courts 9th Circuit District of Arizona
    • March 16, 2007
    ...92, 95 & n. 5 & n. 6 (D.D.C.1997). Compare United States v. Byrd, 969 F.2d 106, 109-10 (5th Cir.1992), with United States v. Doe, 960 F.2d 221, 223-24 (1st The respective views can be summarized as follows: 1. Any offense (felony or misdemeanor) which has as an "element" t......
  • Request a trial to view additional results
1 firm's commentaries
  • Taking Care of Business: 1st Circuit Affirms Admittance Integrated Business Records
    • United States
    • JD Supra United States
    • August 30, 2019
    ...[6] Id. at *2. [7] FTC v. Direct Marketing Concepts, Inc., 624 F.3d 1, 16 n.15 (1st Cir. 2010). [8] See id. [9] See United States v. Doe, 960 F.2d 221, 223 (1st Cir. [10] See Jones, 925 F.3d at 537–38 (citations omitted). [11] See id. at 538 (quoting Fed. R. Evid. 803 advisory committee's n......
1 books & journal articles
  • Wrestling With MRE 304(G): The Struggle to Apply the Corroboration Rule
    • United States
    • Military Law Review Nbr. 178, December 2003
    • December 1, 2003
    ...Inc. v. United States, 172 F.3d 1338 (Fed. Cir. 1999); MRT Constr., Inc. v. Hardrives, 158 F.3d 478 (9th Cir. 1998); United States v. Doe, 960 F.2d 221 (1st Cir. 1992); United States v. Jakobetz, 955 F.2d 786 (2d Cir. 1992); United States v. Ullrich, 580 F.2d 765 (5th Cir. 1978); United Sta......