U.S. v. Billue, 92-4054
| Decision Date | 14 July 1993 |
| Docket Number | No. 92-4054,92-4054 |
| Citation | 994 F.2d 1562 |
| Parties | 37 Fed. R. Evid. Serv. 468 UNITED STATES of America, Plaintiff-Appellee, v. Edward Bernard BILLUE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Robert E. Adler, Asst. Federal Public Defender, West Palm Beach, FL, for defendant-appellant.
James G. McAdams, III, U.S. Atty., Nancy Vorpe Quinlan, Linda Collins Hertz, Anne Ruth Schultz and Lisa T. Rubio, Miami, FL, for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before KRAVITCH and COX, Circuit Judges, and HOBBS *, Senior District Judge.
Defendant-Appellant, Edward Bernard Billue, was found guilty of possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1). Billue now attacks his conviction on three grounds:
(1) the evidence was insufficient to support his conviction;
(2)(a) the district court abused its discretion in permitting the government to impeach a witness it called with a prior inconsistent statement; and
(b) even if such impeaching testimony was properly allowed, the court was in plain error for failing to give an unrequested, limiting instruction as to the use of such testimony;
(3) the district court erred in failing to give a requested instruction on the defense of entrapment by estoppel.
Because we find that the trial court committed no error requiring reversal, we affirm the conviction.
The undisputed documentary evidence introduced at trial revealed that the signature on a pawn ticket 1 received from Northwood Pawn Shop in West Palm Beach was in appellant Billue's name, and that the fingerprint on the ticket was Billue's fingerprint. Northwood Pawn Shop's acquisition and disbursement ("A & D") book reflected that on November 13, 1990, the pawnshop received from Billue a rifle described on Billue's pawn ticket.
Howard Harris, a clerk in the Northwood Pawn Shop, testified that on November 13, 1990, he bought the rifle identified on the pawn ticket for fifty dollars and prepared the I verify that I am eighteen years or older, and I am the rightful owner of the above described property which is being sold or pledged, or that I am entitled to sell or pledge such goods, and that the property is clear of all liens and encumbrances, including liens for past due child support. If proven otherwise, I promise full restitution, and understand that I will be criminally prosecuted to the fullest extent of the law.
pawn ticket. Harris examined the driver's license of the person signing the pawn ticket, and verified from examining the picture on the driver's license that the person before him was Edward Bernard Billue. As required by law, Billue placed his thumbprint on the pawn ticket. He also signed the pawn ticket immediately above the statement
Harris testified that he did not read the statement to the seller of the firearm.
Harris also identified the A & D book, which pawnshops are required by law to keep. He testified that as to the firearm in question, the A & D book contained the date of the transaction, the make and model of the gun, the serial number, "the name and address of the individual we got it from," and its costs.
Harris acknowledged that the law requires the information on pawn tickets and in the A & D book to be truthful. Both the A & D book and the pawn ticket verified that Billue was the seller of the firearm.
On cross-examination by the defense, Harris said he could not recall whether Billue brought in the rifle, nor could he say whether Billue touched the rifle. He testified that there may have been another person who brought the rifle into the store, and that he did not recall to whom he paid the fifty dollars. Harris also testified on cross-examination that on some occasions persons who lack IDs recruit those having ID to make a firearm sale.
Loretta Wilson, the daughter of Northwood Pawn Shop's owner, was also working in the shop on November 13. She testified that Billue approached her at the jewelry counter when he entered the store. According to Wilson, Billue had been a customer of the pawnshop on several prior occasions and was not carrying a firearm on the day in question.
Wilson testified that a few minutes after Billue entered the store a man whom she had never seen previously approached Billue. She testified that the man appeared to be "needing more cocaine" and was badgering Billue to let him use Billue's ID in order to sell a gun.
Wilson testified that ordinarily she would tell customers not to harass other customers for their IDs, but in this instance she failed to say anything even though the stranger "hounded and hounded" Billue to allow him use of the ID. She testified that in response to Billue's question whether he would get in trouble if he allowed the other man to use his ID, she replied that he would not get in trouble if she put the other man's name on the pawn ticket to reflect that the gun did not belong to Billue. Wilson also stated that although it would have been normal to ask Billue if he was a convicted felon, she failed to do so.
Wilson further testified that had Billue told her he was a convicted felon, she would not have told him it would be acceptable to volunteer his ID. Wilson testified that upon receiving a phone call, she left the area when Harris wrote up the sale and that neither she, nor anyone else, placed the other man's name on the pawn ticket.
When Wilson was initially contacted by the police, she did not remember that a stranger was involved in Billue's sale of the firearm, but she recalled the presence of the stranger some time after Billue's investigator contacted her.
The Government impeached Wilson by asking if she had ever been convicted of knowingly and willfully conveying false information to a police officer. She denied any such conviction until confronted with the record of her conviction.
In this appeal, Billue insists that although the documents incident to the sale of the firearm show him as the seller, that actually he only allowed another to use his ID to make a sale which could not be effected without one. We now address Billue's sufficiency argument and the other issues he raises.
We review the sufficiency of the evidence in the light most favorable to the prosecution to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Billue contends that there was insufficient evidence to convict him on the requisite element of knowing possession of the firearm. 2
This court does not evaluate witnesses' credibility. Such determinations are within the exclusive province of the jury. United States v. Parrado, 911 F.2d 1567, 1571 (11th Cir.1990), cert. denied, 498 U.S. 1104, 111 S.Ct. 1005, 112 L.Ed.2d 1088 (1991). In this case the jury could disbelieve the improbable testimony of Loretta Wilson and believe that the records with Billue's thumbprint and signature over the statement that he is "the rightful owner" of the firearm spoke the truth.
A jury reasonably knew that the sole reason for the thumbprint and the signature on the pawn ticket was to identify, and have a representation from, the seller. Howard Harris, who had been in the business of buying firearms at pawnshops for over a decade, knew that it was illegal knowingly to put false information on the pawn ticket, which he knew would be reviewed by the police. The A & D book which he was required to keep in connection with such sales also showed Billue as the seller of the firearm.
A reasonable jury could believe beyond a reasonable doubt that Billue was in knowing possession of the firearm and that Harris did not deliberately falsify the documents. After weighing the evidence and determining the witnesses' credibility, the jury found Billue guilty. The evidence was sufficient for the jury to reach this determination, and Billue's argument on this ground must fail.
The government sought to impeach Harris' statement that he could not recall whether a third person was involved in the sale by asking him if he had told an Alcohol, Tobacco and Firearms (ATF) agent that defendant Billue was alone at the time of the transaction. Harris testified that he could not recall what he had told the officer. He testified: The government then sought to question ATF Agent Barborini as to what Harris said to him.
The defense strenuously objected, urging that the testimony of Officer Barborini was not impeachment because Harris had only said he could not recall what he had said to Agent Barborini. Defendant urged also that the government was acting in bad faith by calling Harris as a witness for the purpose of putting on "so called" impeaching evidence. The trial court properly overruled defendant's objections on these grounds. Agent Barborini then testified that Harris told him that the seller of the firearm who presented his driver's license and put his thumbprint on the pawn ticket gave him the rifle, that he was alone, and that Harris did not say anything about another person.
Although Harris' testimony did not affirmatively support the defense's theory, his statement that he did not recall whether a third person was involved in the sale was nevertheless subject to impeachment. The law is clear that if a witness has denied making a statement or has failed to remember Billue argues that in this case the reason for calling Harris as a witness was to use him as a "straw man" to present the jury with otherwise inadmissible hearsay evidence....
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