U.S. v. Lehmann

• Decision Date: 10 March 1980
• Docket Number: No. 79-5056,79-5056
• Citation: 613 F.2d 130
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roy L. LEHMANN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 130

613 F.2d 130

UNITED STATES of America, Plaintiff-Appellee, v. Roy L. LEHMANN, Defendant-Appellant.

No. 79-5056.

United States Court of Appeals, Fifth Circuit.

March 10, 1980.

Robert W. Knight, Fed. Public Defender, Mark A. Pizzo, Asst. Fed. Public Defender, Tampa, Fla., for defendant-appellant.

Manuel Menendez, Jr., Tampa, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before BROWN, TJOFLAT and GARZA, Circuit Judges.

TJOFLAT, Circuit Judge:

Roy L. Lehmann appeals his conviction for interstate transportation of a firearm by a felon. 18 U.S.C. § 922(g) (1976). ¹ Four issues are presented: (1) the sufficiency of the evidence; (2) the adequacy of the jury instructions on the elements of the offense; (3) the correctness of interpreting the section 922(g) language "convicted in any court" to include a Texas felony conviction that resulted in a suspended sentence; and (4) the propriety of certain comments in the prosecutor's closing argument. We find no error and affirm.

The testimony in the Government's case-in-chief disclosed the following: On September 16, 1978, Lehmann was aboard a fifty foot fishing vessel in Florida territorial waters off Fort Myers Beach. The Coast Guard stopped and boarded the vessel to conduct a documentation check. Lehmann identified himself as the captain. A Coast Guard officer asked Lehmann if he had any firearms on board. Lehmann acknowledged that he did and produced a .38 caliber revolver. A radio check from the Coast Guard cutter disclosed that Lehmann had been convicted of a felony, and he was taken into custody. Two days later, customs agents questioned Lehmann. He admitted having a prior felony conviction and purchasing the revolver in New Orleans a few weeks earlier. Lehmann was not asked, and he did not volunteer, how the weapon had been transported from New Orleans to the place of his arrest off Ft. Myers.

In his defense, Lehmann admitted that he was a convicted felon and that he had purchased the .38 caliber revolver in New Orleans. Lehmann explained, however, that he had purchased the gun for a Mr. Gomez, a Honduran bank official, and had given it to Gomez in New Orleans. Lehmann went on to relate that he and Gomez subsequently flew to Pensacola, Florida; the gun was carried in Gomez's luggage. In Pensacola they rented a car and drove on to Port St. Joe, Florida, where Gomez purchased the fishing vessel on which Lehmann was later arrested. It was agreed that Lehmann would sail the boat to Honduras; Gomez would make the trip by other means. Lehmann insisted that it was not until the vessel was at sea that he discovered the handgun aboard.

I

Lehmann argues that the evidence is insufficient to sustain his conviction because the Government failed to prove an essential element of the crime, I. e., that he shipped or transported the firearm in interstate commerce. He acknowledges that the prosecution introduced evidence in the form of his admissions from which such transportation could be inferred, but that evidence, he submits, was not corroborated by independent proof that he participated in the transportation and, therefore, lacked probativeness. See Smith v. United States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192 (1954).

To establish a violation of section 922(g) in this case, the Government was required to establish two elements: (1) that the defendant has been convicted of a felony and (2) that the defendant shipped or transported a firearm in interstate commerce. See note 1, Supra. The first element was proved by a stipulation that Lehmann had suffered a Texas conviction for felony theft. The second element was established by a combination of Lehmann's several admissions and independent evidence. We do not discern the corroboration problem that Lehmann claims to exist.

Lehmann commences his argument by observing that his purchase of the pistol in New Orleans was established by his statements alone. While his out-of-state purchase of the gun is not a formal "element" of the crime, it may well be a fact subsidiary to the proof of an "element," since "(i)t is the practical relation of the statement to the Government's case which is crucial, not its theoretical relation to the definition of the offense." Id. at 155, 75 S.Ct. at 198-99. Here, the only evidence that placed Lehmann outside the state of Florida with the gun were his admissions. Since his possession of the gun in New Orleans obviously was critical to the inference of interstate transportation, we must examine whether his admission can be used to establish that possession.

Lehmann's acquisition of the revolver in New Orleans was disclosed initially when he was questioned by the customs agents, and he repeated this in his testimony at trial. The policy rationale for requiring corroboration is to prevent errors in convictions based on untrue confessions. Id. at 153, 75 S.Ct. at 197. Here the concern for reliability has been satisfied. Lehmann's extra-judicial admission was voluntarily made to the customs agents after he received a Miranda caution and waived the right to the presence of counsel. Lehmann raises no question as to the propriety or the truth of his statement to customs. The admission at trial was elicited by his own attorney and was, of course, free of any taint of coercion. Record, vol. 2, at 161. The admission in open court was sufficient in itself to establish Lehmann's acquisition of the revolver in New Orleans. United States v. Dixon, 538 F.2d 812, 813 (9th Cir.), Cert. denied, 429 U.S. 959, 97 S.Ct. 383, 50 L.Ed.2d 326 (1976). Moreover, the coincidence that the admission to customs was repeated at trial, considered with the Coast Guard's independent observation of Lehmann's actual possession of the weapon aboard ship, corroborated that admission. See United States v. Micieli, 594 F.2d 102 (5th Cir. 1979); United States v. Gresham, 585 F.2d 103 (5th Cir. 1978).

What Lehmann is really contending, but fails to articulate, is not that the Government's case must fail for want of corroboration, but that its case is devoid of proof that he transported the handgun from Louisiana to Florida. The Government concedes that there is no direct evidence of Lehmann's interstate transportation; it argues instead, that the requisite transportation was shown circumstantially. The government cites United States v. Little, 562 F.2d 578 (8th Cir. 1977), involving a section 922(g) prosecution, to illustrate its point. In Little, the circumstantial evidence of interstate transportation was: the defendant saw a gun collection at a Missouri residence; subsequently the collection was stolen; sometime later the defendant was seen transferring a number of guns from a friend's car to his car; and the defendant eventually sold two of the stolen guns in Arkansas. Despite the absence of direct evidence showing that the defendant transported the two stolen guns in interstate commerce, the Eighth Circuit held that the evidence was sufficient to permit a jury inference that the requisite interstate transportation had taken place. Id. at 580.

In determining whether, in this case, the jury could have inferred that the defendant transported the revolver in question from Louisiana to Florida, we must view the evidence, direct and circumstantial, in the light most favorable to the Government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). In doing so, we find the circumstantial facts to be quite similar to those in Little. If anything, the facts in Little are less compelling. There, the proof that the defendant acquired the guns in Missouri was purely circumstantial; here, there is direct proof Lehmann's corroborated admissions. The Little court was satisfied that the circumstantial evidence of the defendant's acquisition in Missouri, added to the direct evidence of his possession of the guns in Arkansas, permitted the conclusion that he had transported them interstate. We are satisfied that the same conclusion can be drawn, here, from the direct evidence that Lehmann possessed the gun in Louisiana, accompanied it to Florida, and had it in his possession there. Lehmann's testimony that Gomez, alone, had possession of the revolver during the trip was open to acceptance or rejection, in whole or in part, by the jury, especially when Lehmann's exculpatory explanation was not forthcoming until he took the stand at trial. Giving the Government the benefit of every reasonable inference from the evidence, we think there are but two logical conclusions: Lehmann transported the gun, or caused it to be transported, from Louisiana to Florida.

II

Lehmann next contends that the trial court improperly instructed the jury on the conduct proscribed by section 922(g). The trial court instructed the jury:

Two essential elements must be proved in order to establish the offense charged in the Indictment, as follows:

First, that the Defendant was convicted of an offense punishable by imprisonment for more than one year under the laws of the State;

Second, that the Defendant thereafter knowingly shipped, transported, or caused to be shipped or transported, a firearm in interstate commerce.

Record, vol. 3, at 42. The defense objected to the inclusion of the language "or caused to be shipped or transported" in the court's submission of the interstate transportation issue, claiming that such an instruction impermissibly broadened the prohibition of the statute. The trial judge overruled this objection on the theory that Lehmann could be found guilty under section 922(g) even though he had relinquished possession of the revolver in Louisiana, if he knew that the gun would be transported to Florida. Accordingly, the disputed language was left in the instruction. Id. at 4-10. We find no error in this portion of the jury charge. The language complained of was merely part of the definition of "ship," which includes the act of causing to be shipped...