U.S. v. Fish, 89-2402

• Decision Date: 12 March 1991
• Docket Number: No. 89-2402,89-2402
• Citation: 928 F.2d 185
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael FISH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 185

928 F.2d 185

UNITED STATES of America, Plaintiff-Appellee, v. Michael FISH, Defendant-Appellant.

No. 89-2402.

United States Court of Appeals Sixth Circuit.

Argued Aug. 10, 1990.

Decided March 12, 1991.

Amy B. Hartmann (argued), Office of the U.S. Atty., Detroit, Mich., for plaintiff-appellee.

Jill L. Price, C. Jane Varner (argued), Federal Public Defenders Office, Detroit, Mich., for defendant-appellant.

Before JONES and NORRIS, Circuit Judges, and JARVIS, District Judge. ^*

ALAN E. NORRIS, Circuit Judge.

Defendant, Michael Fish, appeals his conviction for unlawful possession of a firearm by a felon in violation of 18 U.S.C. Sec. 922(g)(1), and the enhancement of his sentence under 18 U.S.C. Sec. 924(e)(1). He argues that the district court, 726 F.Supp. 156, erred by improperly conducting voir dire, denying his motion for judgment of acquittal where the government did not prove an interstate nexus, and enhancing his sentence pursuant to the Armed Career Criminal Act. For the reasons that follow, we affirm.

I. Voir Dire

Defendant first contends that the district court erred by refusing to use written questions submitted by defense counsel when the court questioned prospective jurors. The questions would have explored the jurors' past experiences with firearms and their opinions concerning the right of any individual to own firearms. Trial judges enjoy considerable discretion in determining the questions to be asked in voir dire. United States v. Blount, 479 F.2d 650, 651 (6th Cir.1973); see also Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981) ("the adequacy of voir dire is not easily subject to appellate review"). Judges need not use every question submitted by counsel; they need only use those to which an anticipated response would afford the basis for a challenge for cause.

After explaining that the defendant had been charged with a firearms-related offense, the court asked prospective jurors whether they or any of their friends or relatives had ever had any involvement in a similar type of case. The court also inquired into general prejudices, biases, and interests. Those questions elicited numerous responses pertaining to firearms. The judge then permitted counsel to further question the jurors and, when one voiced opposition to firearms' ownership, the court dismissed that juror for cause. The trial court declined counsel's request that he explore prospective jurors' "general attitudes towards firearms," since inquiring into a juror's attitude toward conduct that is criminalized would not assist in selecting an impartial jury. The judge also noted that the questions which were asked elicited sufficient information to serve as the basis for challenge. Considering the thoroughness of the voir dire proceedings, we are unable to say that defendant has demonstrated error.

II. Interstate Commerce Nexus

Defendant next claims that the trial court erred in denying his motion for judgment of acquittal because the government failed to prove that the gun traveled through interstate commerce. We find no substance in this argument. This court has already determined that firearms possessed in a state other than the state of manufacture constitute firearms in or affecting commerce. United States v. Pedigo, 879 F.2d 1315, 1319 (6th Cir.1989) (citing Scarborough v. United States, 431 U.S. 563, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977)). Therefore, the government's evidence that the firearm was manufactured outside the state of possession is sufficient to prove an interstate commerce nexus in defendant's case.

III. Enhanced Sentence

Finally, defendant argues that his sentence was improperly enhanced pursuant to 18 U.S.C. Sec. 924(e)(1), which provides:

In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony ... such person shall be ... imprisoned not less than fifteen years.... (Emphasis added.)

The term "violent felony" is defined in subsection (e)(2)(B) as any crime punishable by imprisonment for a term exceeding one year, ... that

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. (Emphasis added.)

Defendant had been convicted previously of ten felonies. Of those, four convictions under Michigan law could conceivably satisfy the "violent felony" requirement of the Armed Career Criminal Act: (1) breaking and entering of an occupied dwelling; (2) breaking and entering of an unoccupied dwelling; (3) attempted breaking and entering of an occupied dwelling; and (4) attempted breaking and entering of a business place.

The district court found that the conviction for breaking and entering of an occupied building, as well as the conviction for breaking and entering an unoccupied building, qualified as violent felonies, since they both constituted burglary under subsection (e)(2)(B)(ii). The court reasoned that the word "burglary" as it is used in section 924(e)(2)(B)(ii) does not refer to the common law crime of burglary, but is broader in scope and includes entering a building which is the property of another with the intent to commit an offense. The court also concluded that defendant's convictions for attempted breaking and entering were violent felonies within the meaning of the "otherwise" clause of subsection (e)(2)(B)(ii), because they are crimes which pose a serious potential risk of physical injury. Accordingly, the court determined that all four prior convictions qualified as predicate violent felonies under section 924(e)(1).

In the course of its recent examination regarding Congress' intent in including the term "burglary" in section 924(e)(2)(B)(ii), the Supreme Court noted:

The legislative history ... indicates that Congress singled out burglary (as opposed to other frequently committed property crimes such as larceny and auto theft) for inclusion as a predicate offense ... because of its inherent potential for harm to persons. The fact that an offender enters a building to commit a crime often creates the possibility of a violent confrontation between the offender and an occupant, caretaker, or some other person who comes to investigate. And the offender's own awareness of this possibility may mean that he is prepared to use violence if necessary to carry out his plans or to escape. Congress apparently thought that all burglaries serious enough to be punishable by imprisonment for more than a year constituted a category of crimes that shared this potential for violence, and that were likely to be committed by career criminals....