U.S. v. Dunford

• Decision Date: 02 July 1998
• Docket Number: No. 96-4890,96-4890
• Citation: 148 F.3d 385
• Parties: 49 Fed. R. Evid. Serv. 836 UNITED STATES of America, Plaintiff-Appellee, v. Douglas Lee DUNFORD, Sr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 385

148 F.3d 385

49 Fed. R. Evid. Serv. 836

UNITED STATES of America, Plaintiff-Appellee, v. Douglas Lee DUNFORD, Sr., Defendant-Appellant.

No. 96-4890.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 30, 1998.

Decided July 2, 1998.

ARGUED: Louis Dene, Abingdon, Virginia, for Appellant. Steven Randall Ramseyer, Assistant United States Attorney, Abingdon, Virginia, for Appellee. ON BRIEF: Pamela Meade Sargent, White, Bundy, McElroy, Hodges & Sargent, Abingdon, Virginia, for Appellant. Robert P. Crouch, Jr., United States Attorney, Abingdon, Virginia, for Appellee.

Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published opinion. Judge NIEMEYER wrote the opinion, in which Judge MURNAGHAN and Judge DIANA GRIBBON MOTZ joined.

OPINION

NIEMEYER, Circuit Judge:

Douglas Lee Dunford was convicted on fourteen counts for the illegal possession of six firearms and ammunition seized from his house on October 4, 1995. The fourteen counts included one count for each firearm and one for the ammunition based on Dunford's status as a convicted felon and one count each for the same firearms and ammunition based on Dunford's status as a drug user. Dunford's convictions were obtained in large part from hearsay testimony about what his daughters had previously told state officials but had recanted at trial. On appeal, Dunford contends that he should have been convicted at most of only one count of illegal possession and that, even then, the district court erred in (1) declining to recognize a parent-child testimonial privilege; (2) admitting, under Federal Rule of Evidence 803(24), hearsay testimony of what his daughters said; and (3) permitting the government to call his daughters at trial for the purpose of impeaching them. He also challenges other evidentiary rulings and the sufficiency of the evidence.

For the reasons that follow, we affirm in part, reverse in part, and remand for resentencing.

I

Responding to a complaint that Dunford was physically abusing his children, officers of the Wythe County, Virginia, Sheriff's Department served Dunford with a felony warrant at his house on October 4, 1995. After officers advised Dunford of their reason for being at his house, Dunford reached into his pocket and handed a small bag of marijuana to his brother, Bradley. Based on that transaction and their observation of other evidence of illegal drugs, the officers obtained a warrant that same day to search Dunford's house.

From the search of the house, the officers recovered marijuana, unidentified pills, scales, smoking devices, six firearms, and ammunition. Two rifles and three shotguns were found between the mattress and box spring in Dunford's son's bedroom where Bradley often slept. An ammunition clip with four rounds was found on top of the bed. Another rifle was found between the mattress and box spring of a bed used by Dunford's daughter, Ashley. Finally, five rounds of ammunition were found in a bowl on the dresser in Dunford's own bedroom. Officers also recovered a picture from Dunford's house of a skeleton with a gun which read, "I'll give my gun up when they pry it from my cold dead fingers."

Dunford was indicted on fourteen counts of firearms offenses--seven for violation of 18 U.S.C. § 922(g)(1) (prohibiting possession of a firearm or ammunition by a convicted felon) and seven for violation of 18 U.S.C. § 922(g)(3) (prohibiting possession of a firearm or ammunition by an illegal drug user).

At trial, Dunford acknowledged by stipulation that he was disqualified from possessing a firearm both because he was a convicted felon and because he was an illegal drug user. He presented the testimony of his brother Bradley, however, that the four rifles and two shotguns belonged to Bradley and that Dunford did not even know that Bradley had hidden them in Dunford's house, where Bradley often stayed. The government presented evidence that Dunford's two daughters, Kia and Ashley, had, prior to the trial, complained to two different social services officials, a police officer, and the assistant principal at their high school about Dunford's physical abuse of them, which included threats with a gun.

Kim Church, a social worker who had responded to a child protective services complaint at Dunford's home, testified that Kia told her that Dunford had placed a gun to Ashley's head, threatening to kill her, and that he then placed the gun to his own head, threatening to kill himself. According to Church, Kia told her that this incident was witnessed by Dunford's mother and sister. Church also recalled that Kia told her that Dunford had come to her school and "told her to get her f--king ass into the car and smacked her in the face [and] held a knife to her neck." Kia also discussed with Church an incident which had occurred a few days earlier in which her father had "gotten drunk, slapped her in the face, pulled her hair, kicked her in the ribs, [and] hit her eye causing a bruise." Church observed a swollen bruise on Kia's face consistent with her story. Church noted that since her conversation with Kia, Kia had denied making the statement of her father's gun possession and child abuse and claimed that the conversation had never occurred.

Officer Keith Dunaghan also recalled both Kia and Ashley telling him that their father had placed a gun to Ashley's head and threatened to kill her and had also threatened to kill himself.

Terry Lockhart, the assistant principal at Kia's high school, testified that he recalled that Kia had told her that her father "had a gun, was threatening to commit suicide, had shot the gun in the home, and the girls were very scared that evening." Lockhart also observed a bruise around Kia's eye and had been told by Kia that her father had been beating her.

Finally, Patricia Rigney, the Wythe County Child Protective Services Coordinator, testified to a conversation with Ashley in which Ashley had "talked about an incident in which her dad had placed a shotgun with a long scope to her head, and said he was going to kill her, and then pulled it down.... In that same evening an incident occurred where he was outside with his mother and his aunt, Rachel Moore, and he placed the gun to his mouth and said he was going to kill himself." Rigney had not spoken with Kia at this time and was unaware of Kia's version of these events.

Both Kia and Ashley, subpoenaed to testify at trial by the government, denied the events related in the pretrial statements attributed to them and denied making the statements. Similarly, Dunford's mother and sister denied witnessing the incidents which they allegedly saw.

The jury convicted Dunford on all fourteen counts, and the court sentenced him to 63 months imprisonment on each count with sentences to run concurrently. This appeal followed.

II

Based on the six guns and the ammunition seized on October 4, 1995, from Dunford's house, Dunford was indicted and convicted on fourteen firearms counts, seven under 18 U.S.C. § 922(g)(1) (prohibiting possession of a firearm or ammunition by a convicted felon ) and seven under § 922(g)(3) (prohibiting possession of a firearm or ammunition by an illegal drug user ). Contending that he should have been charged and convicted on only one firearms count, Dunford argues that (1) a person in possession of a firearm who is both a felon and a drug user does not violate the statute more than once for each act of possession, and that (2) his possession of all six firearms and the ammunition constituted only one act of possession within the meaning of the statute. He contends that his conviction on fourteen separate counts is unconstitutionally duplicative. We find his arguments persuasive.

Section 922(g) of Title 18 makes it unlawful for a person in one of nine specified classes to possess a firearm or ammunition. Thus, the statute prohibits firearm possession by, for example, convicted felons, fugitives, unlawful users of drugs, adjudicated "mental defectives," and illegal aliens. While the prohibited conduct is the possessing of any firearm or ammunition, the statute applies only to members of classes specified in the statute.

Dunford is a member of at least two of the disqualifying classes, being a convicted felon and an illegal drug user. See § 922(g)(1) & (3). He argues, however, that whether he is a member of one of the disqualifying classes or of all nine, a single act of possession can only constitute a single offense. We agree.

The nine classes of people barred from firearm possession by § 922(g) are those classes which consist of persons, who by reason of their status, Congress considered too dangerous to possess guns. But we see nothing in the statute which suggests that Congress sought to punish persons by reason of their legal status alone. If we were to interpret the statute to establish separate offenses for each separate status, we would, in effect, be criminalizing the status itself.

Thus, we hold that while a person must be a member of at least one of the nine classes prohibited from possessing guns under § 922(g), a person who is disqualified because of membership in multiple classes does not thereby commit separate and multiple offenses. The offense is determined by performance of the prohibited conduct, i.e., the possessing of a firearm or ammunition. In so holding, we join the other courts that have reached a similar conclusion. See United States v. Johnson, 130 F.3d 1420, 1425-26 (10th Cir.1997), petition for cert. filed (April 1, 1998) (No. 97-8558); United States v. Munoz-Romo, 989 F.2d 757, 759-60 (5th Cir.1993); United States v. Winchester, 916 F.2d 601, 605-08 (11th Cir.1990); but cf. United States v. Peterson, 867 F.2d 1110, 1115 (8th Cir.1989) (convictions under §§ 922(g)(1) and (g)(3) for same act of possession did not violate the Double Jeopardy Clause), abrogated on other grounds, Horton v. California, 496 U.S. 128, 110 S.Ct. 2301...