U.S. v. Marchant, 94-2124

• Decision Date: 16 May 1995
• Docket Number: No. 94-2124,94-2124
• Citation: 55 F.3d 509
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David Wayne MARCHANT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 509

55 F.3d 509

UNITED STATES of America, Plaintiff-Appellee, v. David Wayne MARCHANT, Defendant-Appellant.

No. 94-2124.

United States Court of Appeals Tenth Circuit.

May 16, 1995.

Louis E. Valencia, Asst. U.S. Atty. (John J. Kelly, U.S. Atty., with him on the brief), Albuquerque, NM, for plaintiff-appellee.

Roger A. Finzel, Asst. Federal Public Defender, Albuquerque, NM, for defendant-appellant.

Before MOORE, ALDISERT, ^* and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

Defendant David Wayne Marchant appeals his convictions for making a false statement in the acquisition of a firearm, 18 U.S.C. Sec. 922(a)(6), and felon in possession of a firearm, 18 U.S.C. Sec. 922(g)(1). We exercise jurisdiction under 28 U.S.C. Sec. 1291 and affirm.

The record before us reveals the following. On December 31, 1992 Defendant entered the J & R Pawn Shop in Albuquerque, New Mexico and pawned a rifle. On February 1, 1993 Defendant returned to the pawn shop to redeem the rifle. In order to legally receive the rifle under federal law, Defendant completed an Alcohol, Tobacco, and Firearms ("ATF") Form 4473. ¹

ATF Form 4473, titled "Firearms Transaction Record," is one page, printed front and back, and consists of a "Section A" and a "Section B," which the transferee and transferor/dealer execute respectively. A firearms transferee must complete Section A and disclose various information when obtaining a firearm from a federally licensed firearms dealer such as J & R Pawn Shop. The back of ATF Form 4473 explains to the transferee that "[t]he purpose of the information is to determine the eligibility of the buyer (transferee) to receive firearms under Federal Law." Section A, part 8 informs the transferee that "[a]n untruthful answer may subject you to criminal prosecution." Part 8(b) requires the transferee to disclose whether he or she had been convicted of a crime punishable by imprisonment for a term exceeding one year. On the back of the form, under the bold print heading, "Important Notices to Transferor (Seller) and Transferee (Buyer)," ATF Form 4473 states, "[t]he transferee (buyer) of a firearm should be familiar with the provisions of law. Generally, 18 U.S.C. 921-929 prohibit the ... receipt, or possession ... of a firearm by one who ... has been convicted of a crime punishable by imprisonment for a term exceeding one year...."

The transferee must present identification, "certify that the answers to the above are true and correct," and sign the ATF Form 4473 directly beneath a statement that "I also understand that the making of any false oral or written statement ... with respect to this transaction is a crime punishable as a felony." The back of ATF Form 4473 alerts the transferee that the "information is subject to inspection by ATF officers."

Defendant produced his New Mexico Driver's License for identification to the J & R Pawn Shop employee, and indicated on the ATF Form 4473, Section A, part 8(b) that he had not been convicted of a crime punishable by imprisonment for a term exceeding one year. By his signature, Defendant certified that the answers were true and correct. Defendant redeemed the rifle and left J & R Pawn Shop.

The next day, February 2, 1993, New Mexico Probation-Parole Officers George Drake and Maurice Gonzales went to J & R Pawn Shop to investigate a report that a probationer, not Defendant, had purchased a firearm there. Probation-Parole Officer Drake obtained permission from Jack Parks, owner of J & R Pawn Shop, to review the ATF Form 4473s that Parks kept on file as required by federal law. In their review of the records, Probation-Parole Officers Drake and Gonzales discovered the ATF Form 4473 Defendant had filled out when he redeemed the rifle the day before. Probation-Parole Officer Drake noticed that Defendant had indicated he had not been convicted of a crime punishable by imprisonment for a term exceeding one year. Probation-Parole Officer Drake, however, knew Defendant was a convicted felon, and had been convicted of a crime punishable by a term of imprisonment in excess of one year.

Probation-Parole Officer Drake contacted Bureau of Alcohol, Tobacco, and Firearms ("BATF") Special Agent Frank Ortiz and informed him that Defendant, a convicted felon, had obtained a firearm at the J & R Pawn Shop. On February 2, 1993, Special Agent Ortiz retrieved from the J & R Pawn Shop the ATF Form 4473 Defendant had completed and obtained a search warrant for Defendant's residence.

ATF agents executed the search warrant at Defendant's residence on February 5, 1993. During the search, ATF agents found the rifle described in the ATF Form 4473 and ammunition of matching caliber. After the ATF agents advised him of his constitutional rights and he signed a waiver, Defendant told Special Agent Ortiz that the rifle and ammunition were his, acknowledged that he had pawned and redeemed the rifle at J & R Pawn Shop, and stated that he was keeping it for an unidentified friend.

On April 7, 1993, a federal grand jury charged Defendant in a two-count indictment with making a false statement in the acquisition of a firearm, 18 U.S.C. Sec. 922(a)(6), and felon in possession of a firearm, 18 U.S.C. Sec. 922(g)(1). Defendant filed a motion to suppress, contending that pursuant to the Gun Control Act of 1968 ("GCA"), 18 U.S.C. Secs. 921-30, as amended by the Firearms Owners' Protection Act of 1986 ("FOPA"), Pub.L. No. 99-308, 100 Stat. 449 (1986), the initial examination of the ATF Form 4473 at the J & R Pawn Shop by Probation-Parole Officers Drake and Gonzales constituted an unreasonable search or seizure in violation of the Fourth Amendment. As a result of the constitutional violation, Defendant argued that all derivative evidence, including the rifle and ammunition found during the search of his residence and his inculpatory statement to Special Agent Ortiz, must be suppressed under the "fruit of the poisonous tree" doctrine. The district court denied Defendant's motion to suppress after a hearing, finding that under the GCA and FOPA Defendant had no reasonable expectation of privacy in the ATF Form 4473, and therefore lacked "standing to object to the disclosure of the information ... contained in the" ATF Form 4473. Further, the district court ruled that Jack Parks, owner of J & R Pawn Shop, legally had the "right to have and to convey to anyone whom he wishes" the information on the ATF Form 4473, and that he consensually allowed Probation-Parole Officers Drake and Gonzales to review the documents. At trial, the jury convicted Defendant of both counts, and the district court sentenced Defendant to thirty-seven months imprisonment and three years supervised release. This appeal followed.

On appeal, Defendant argues the district court erred in denying his motion to suppress. Specifically, Defendant contends that the district court erred in concluding that under the GCA and FOPA he did not have a reasonable expectation of privacy in ATF Form 4473 and thereby lacked Fourth Amendment standing to contest the initial inspection of the form by Probation-Parole Officers Drake and Gonzales. ²

On appeal from the denial of a motion to suppress, we view the evidence in the light most favorable to the district court's ruling, and will uphold the district court's factual findings unless they are clearly erroneous. United States v. Flores, 48 F.3d 467, 468 (10th Cir.1995). However, we examine the question of standing under the Fourth Amendment de novo. United States v. Betancur, 24 F.3d 73, 76 (10th Cir.1994).

In order to challenge the lawfulness of a search and seizure under the Fourth Amendment, a defendant must first establish his or her standing to do so. See United States v. Deninno, 29 F.3d 572, 576 (10th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1117, 130 L.Ed.2d 1081 (1995). The term standing in this context "refer[s] to the determination of whether a defendant's Fourth Amendment rights have been violated, and not in its traditional sense as a constitutionally-or prudentially-based jurisdictional bar." United States v. Eylicio-Montoya, 18 F.3d 845, 850 n. 3 (10th Cir.1994). "The issue of 'standing' to challenge a search is not a concept which is separate and distinct from the merits of the underlying Fourth Amendment claim," Betancur, 24 F.3d at 76, but one which is intertwined "with the substantive question of whether or not the proponent of the motion to suppress has had his own Fourth Amendment rights infringed by the search and seizure which he seeks to challenge." Rakas v. Illinois, 439 U.S. 128, 133, 99 S.Ct. 421, 425, 58 L.Ed.2d 387 (1978); see also United States v. Taketa, 923 F.2d 665, 669 (9th Cir.1991) ("[T]o say that a party lacks fourth amendment standing is to say that his reasonable expectation of privacy has not been infringed."). "Consequently, 'a threshold issue in deciding a motion to suppress evidence is whether the search at issue violated the rights of the particular defendant who seeks to exclude the evidence.' " United States v. Soto, 988 F.2d 1548, 1552 (10th Cir.1993) (quoting United States v. Rascon, 922 F.2d 584, 586 (10th Cir.1990), cert. denied, 500 U.S. 926, 111 S.Ct. 2037, 114 L.Ed.2d 121 (1991)). "Important considerations include ownership, lawful possession, or lawful control of the place searched." United States v. Abreu, 935 F.2d 1130, 1133 (10th Cir.), cert. denied, 502 U.S. 897, 112 S.Ct. 271, 116 L.Ed.2d 224 (1991). "Whether evidence sought to be introduced was obtained in violation of someone else's Fourth Amendment rights is immaterial," because "Fourth Amendment rights are personal and may not be asserted vicariously." Eylicio-Montoya, 18 F.3d at 850. It is the defendant's burden to establish "that his own Fourth Amendment rights were violated by the challenged search and seizure." Abreu, 935 F.2d at 1132.

To determine whether a search violated the Fourth Amendment rights of the defendant, we inquire whether the defendant has established:...