U.S. v. Heath, 76-1422
| Decision Date | 09 August 1976 |
| Docket Number | No. 76-1422,76-1422 |
| Citation | 536 F.2d 1069 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. George Roger HEATH, Defendant-Appellant. Summary Calendar. * |
| Court | U.S. Court of Appeals — Fifth Circuit |
James D. Walker, Jr., Augusta, Ga. (Court-appointed), for defendant-appellant.
R. Jackson B. Smith, Jr., U.S. Atty., J. Michael Faulkner, Asst. U.S. Atty., Augusta, Ga., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Georgia.
Before AINSWORTH, CLARK and RONEY, Circuit Judges.
We affirm a jury conviction of one count on a two count indictment of knowingly making a material false written statement in connection with the acquisition of a firearm in violation of 18 U.S.C.A. § 922(a)(6).
The indictment charges the making of a material false and fictitious written statement on a "Firearms Transaction Record" completed on June 4, 1975, and one on June 9, 1975. The statement consisted of the representation that the purchaser had not been convicted of a crime punishable by imprisonment for a term exceeding one year. In fact, it was stipulated that the defendant had been convicted of such a crime. The form shows that a .32 caliber pistol was purchased by a person claiming to be George Roger Heath. The form contains defendant's physical description, his address and his social security number. The purchaser's signature appears as an X-mark and is witnessed by two signatures.
One assignment of error is a lack of proof as to identification. The circumstantial evidence introduced by the Government as probative of defendant's guilt consisted of several examples of defendant's mark as well as the two forms signed by the purchasing party claiming to be Heath when the guns were purchased. A Government handwriting expert testified that all the marks were probably made by the same person. The sales clerk could not identify the defendant as the purchaser. In rebuttal, although defendant testified that he purchased a .32 caliber pistol in June 1975 from the shop in question, he said his wife purchased a second gun in his name. Defendant was found not guilty, however, of the second purchase alleged in Count II of the indictment. He stated that he had used his social security identification and that the mark was his if it was on the form for the first gun.
In the review of circumstantial evidence cases, the court must sustain the jury verdict if the evidence is sufficient for reasonable minds to exclude the hypothesis of innocence. United States v. Rusk, 512 F.2d 815 (5th Cir. 1975). Here the handwriting evidence, in addition to the other evidence, was sufficient to establish identification of the defendant as the purchaser.
Defendant's second assignment of error is lack of proof that he knowingly made a false written statement in the purchase of the firearm. Defendant contends that he is illiterate, could neither read nor write, and that questions were not read to him when the form in question was signed. The sales clerk testified at trial that he filled out the form in question for the purchaser. He testified...
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...by him that the responses on the forms were true, even if those responses were actually filled in by someone else. United States v. Heath, 536 F.2d 1069, 1070 (5th Cir.1976). We further point out that appellant's signing the BATF 4473 forms under a false name was itself a misrepresentation ......
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...the ATF Form 4473.... [I]n finding Petitjean guilty, the jury evidently rejected Petitjean's illiteracy defense."); United States v. Heath, 536 F.2d 1069, 1070 (5th Cir.1976) (upholding conviction of illiterate defendant who made an "X" mark on a Form 4473 because "the jury must have credit......
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U.S. v. Turcotte, 77-1147
...in dispute. The government's case was sufficient if the jury chose to believe the testimony of the store clerk. United States v. Heath, 536 F.2d 1069, 1070 (5th Cir. 1976); cf. United States v. Dodge, 538 F.2d 770, 783 (8th Cir. 1976) (testimony of a single witness may be sufficient to sust......
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U.S. v. Petitjean
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