U.S. v. Howell

• Decision Date: 15 August 1994
• Docket Number: Nos. 93-1307,93-2139,s. 93-1307
• Citation: 37 F.3d 1197
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Shanta A. HOWELL, and George T. Howell, III, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1197

37 F.3d 1197

UNITED STATES of America, Plaintiff-Appellee, v. Shanta A. HOWELL, and George T. Howell, III, Defendants-Appellants.

Nos. 93-1307, 93-2139.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 9, 1994.

Decided Aug. 15, 1994.

James A. Shapiro, Asst. U.S. Atty. (argued), Office of U.S. Atty., Criminal Div., Barry R. Elden, Asst. U.S. Atty., Office of U.S. Atty., Criminal Receiving, Appellate Div., Chicago, IL, for U.S.

Kent R. Carlson (argued), Chicago, IL, for Shanta A. Howell.

Gary J. Ravitz (argued), Chicago, IL, for George T. Howell, III.

Before WOOD, Jr., EASTERBROOK and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

George T. Howell was convicted in the district court of three counts of being a felon in possession of firearms in violation of 18 U.S.C. Sec. 922(g)(1). His wife, Shanta Howell, was convicted of making a false statement on ATF Form 4473, in violation of 18 U.S.C. Sec. 924(a)(1)(A). It was the government's theory of the case that Mr. Howell was the true purchaser of the firearms and that Mrs. Howell acted as the "straw purchaser" for her husband, who, as a convicted felon, could

not legally purchase a firearm. For the reasons that follow, we affirm.

I

A. Background

On March 22, 1992, Mr. And Mrs. Howell were in Bob's Sport Shop ("Bob's") in Justice, Illinois. Mr. Howell selected as purchases a Colt .44 magnum Anaconda revolver and a Colt .357 caliber King Cobra revolver. However, at the time of the transaction, it was Mrs. Howell who displayed her Firearm Owners Identification ("FOID") card ¹ and signed the invoices as the apparent buyer--in spite of the fact that, throughout the selection process, she had shown no interest in the guns. Mrs. Howell used the name "Shanta Armand" on the invoices at Bob's.

In completing the sale, Bob Tabordon, the owner of Bob's Sport Shop and a federal firearms licensee, had asked Mr. Howell for his FOID card. According to Tabordon, Mr. Howell replied that they would use his wife's card, and Tabordon accepted her FOID identification for the purchase. At one point Tabordon asked Mr. Howell if he had a FOID card, and Mr. Howell answered that he did. Tabordon testified that he had no knowledge that George Howell was a convicted felon. ² Id. The Howells made a deposit and put the guns on layaway in Mrs. Howell's name. On subsequent occasions, additional payments were made. Sometimes Mr. Howell came to the store alone to make these payments; at other times both Howells returned to Bob's together for this purpose.

On May 2, 1992, the Howells went to Bob's to pick up the King Cobra. Mrs. Howell completed the customer information portion of Form 4473, the form that the United States Bureau of Alcohol, Tobacco and Firearms ("ATF") requires to be filled out before a gun can be purchased. By signing the form, Mrs. Howell certified that she was the actual "transferee (buyer)" of the King Cobra. ³ She also presented her FOID card. On June 12, 1992, the Howells once again returned to Bob's. On that occasion, Mr. Howell had in his possession a Smith & Wesson Model 4006. He explained to Tabordon that he was unhappy with the feel and general performance of the weapon and wanted Tabordon to sell it on consignment. Mrs. Howell's name was written on the consignment invoice.

On June 26, 1992, while Mr. Howell was driving on the Dan Ryan Expressway, he narrowly missed hitting the cars of an off-duty police officer and, later, of an Immigration and Naturalization Service ("INS") officer. The INS officer activated his flashing lights and began pursuing Mr. Howell. After a several-mile chase at fast speeds, Mr. Howell was stopped. The police officer later assisted the INS officer by searching Mr. Howell's car. On the back seat in a gym bag was the King Cobra revolver. An Illinois state trooper then arrived, arrested Mr. Howell, and took possession of the gun.

The next day the state trooper asked an ATF agent to trace the King Cobra. The ATF agent traced the weapon to Bob's, learned that it had been purchased in the name of Mrs. Howell, and questioned Tabordon about the Howells' other purchases. When the agent found out that the Anaconda was still on layaway and that the Smith & Wesson was still on consignment, he asked Tabordon for permission to install audio and video equipment to record an undercover firearm transaction with the Howells. ATF Agent Reichert, posing undercover as a newly-hired sales clerk, called Mr. Howell and negotiated the purchase of the Smith & Wesson. When the Howells came into Bob's on July 13, 1992, to complete the gun sale, the transaction was videotaped. Mr. Howell discussed with the "salesman" Agent Reichert Agent Reichert began to show Mrs. Howell how to fill out the ATF form. But Mrs. Howell interrupted him and explained that she knew the form, that she had done it before. Mr. Howell then stated that she had done it "lots of times.... In fact, this is number four." O.R. videotape at 12. Mrs. Howell presented her FOID card and signed at the bottom of the ATF form, certifying that she was the "transferee (buyer)" of the Anaconda. Tr. 302. Mr. Howell took physical possession of the Anaconda; he accepted the $400 in payment for the Smith & Wesson on consignment, and paid the $360 plus tax still owed on the Anaconda. O.R. videotape at 12. Mrs. Howell left Bob's, without the Anaconda, to go shopping; Mr. Howell left several minutes later with the gun. They met at their van and drove off. ATF agents later stopped and arrested Mr. Howell.

                his preference for Glock handguns, because they had less "kickback," and mentioned that he had two Glocks and intended to get two more.  He and Agent Reichert then agreed on a price of $400 for the Smith & Wesson, the proceeds of which would pay off the balance on the Anaconda in layaway.  While Mr. Howell was holding and sighting the Anaconda, the agent commented that the Anaconda would never fit into Mrs. Howell's hand.  Mr. Howell agreed by replying "no."   Tr. 298;  O.R. videotape at 10.  The agent further observed that Mrs. Howell "ain't even got any interest in these things," and Mr. Howell replied, "Right."   Id.  Mrs. Howell, standing beside her husband, said nothing.  Tr. 303.  When completing the transaction, the agent asked Mr. Howell for his FOID card, and then stated, in feigned realization of Mrs. Howell's presence, "Ah, OK, that's why she's here."   Mr. Howell agreed, repeating "That's why she's here."   O.R. videotape at 12
                

State Trooper Hunt also participated in this arrest. He spoke with Mrs. Howell, who had not been placed under arrest at that time. When asked where she lived, Mrs. Howell gave the state trooper first one address, then another. She also stated that she had never been to Bob's before, and that she did not think her husband had. Mrs. Howell stated that she had purchased only one gun in the past, a Taurus pistol. She invited Trooper Hunt to look in her purse for the Taurus receipt. He found in her purse four different gun receipts. The trooper then told Mrs. Howell that he did not believe she was telling him the truth, and read her constitutional rights to her. A few minutes later, at the police station, Mr. Howell shouted to Mrs. Howell, "Heroes are zeroes. Don't tell them anything, zero. I love you, baby. You're the only woman for me." Tr. 206. Mr. Howell then asked Trooper Hunt what kind of gun he carried. When Trooper Hunt told him, Mr. Howell replied that his next gun was going to be one by the same manufacturer. Trooper Hunt responded that he did not think Mr. Howell would be buying any more guns. Mr. Howell rejoined that he loved guns and would always have them.

B. Procedural History

On November 16, 1992, the Howells were tried before a jury on a four-count indictment. In three counts George Howell was charged with being a felon in possession of firearms, in violation of 18 U.S.C. Sec. 922(g)(1). Shanta Howell was charged in the fourth count with misrepresenting herself as the true buyer of those guns, in violation of 18 U.S.C. Sec. 924(a)(1)(A). ⁴

On November 19, 1992, the jury returned a verdict of guilty against both defendants on all counts. Mr. Howell was sentenced as an armed career criminal to 210 months of imprisonment, to be followed by two years of supervised release. Mrs. Howell was sentenced to four years of probation, which included the first six months served in home detention.

Both Howells have appealed. Mrs. Howell submits that the evidence was insufficient for the jury to conclude that she misrepresented herself as the "consignee (buyer)" of the Anaconda. Both Howells challenge the district court's refusal to instruct the jury concerning their entrapment by estoppel defense. Mr. Howell also contends that he was improperly sentenced as an armed career criminal. We consider each issue below.

II ANALYSIS

A. Sufficiency of the Evidence Against Mrs. Howell

Mrs. Howell claims that there was insufficient evidence to support her conviction for making a false statement on ATF Form 4473, in violation of 18 U.S.C. Sec. 924(a)(1)(A). We review a challenge to the sufficiency of the evidence under the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979): "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."

Mrs. Howell submits that the government was required to prove that she made a false statement on ATF Form 4473 and that she knew it was false. However, Mrs. Howell claims, the answers she gave in Section A were true and correct: The general identification questions (name, sex, height, weight, race, address, date and place of birth) and questions about her legal status were not challenged by the government. ⁵ Her signature certified truthful answers; her conviction must therefore be reversed, she contends.

Mrs. Howell is correct that the...