U.S. v. Smith

• Decision Date: 05 February 1991
• Docket Number: No. 90-1751,90-1751
• Citation: 940 F.2d 710
• Parties: 33 Fed. R. Evid. Serv. 698 UNITED STATES of America, Appellee, v. Edward T. SMITH, Jr., Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 710

940 F.2d 710

33 Fed. R. Evid. Serv. 698

UNITED STATES of America, Appellee, v. Edward T. SMITH, Jr., Defendant, Appellant.

No. 90-1751.

United States Court of Appeals First Circuit.

Heard Feb. 5, 1991.

Decided July 16, 1991.

Stanley E. Greenidge, Federal Defender Office, Boston, Mass., for appellant.

Stephen A. Higginson, Asst. U.S. Atty., Washington, D.C., with whom Wayne A. Budd, U.S. Atty., was on brief, Boston, Mass., for U.S.

Before BREYER, Chief Judge, and CAMPBELL and TORRUELLA, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

Edward T. Smith appeals from his conviction in United States District Court for the District of Massachusetts of unlawful possession of firearms in violation of 18 U.S.C. Sec. 922(g). He argues that the district court's rulings, excluding evidence of a meeting he had three years before trial with an agent, Robert Nowd, of the Bureau of Alcohol, Tobacco and Firearms ("ATF"), constitute reversible error. Finding no error, we affirm the judgment of the district court.

I.

On April 6, 1989, Massachusetts law enforcement officers and members of the Lynn Vice Squad Unit obtained and executed a warrant to search Smith's residence in Lynn, Massachusetts. The officers seized four rifles from a closet on the second floor of the house. Further search revealed a loaded, semiautomatic pistol beneath the drawers of a cabinet in the rear of the house. Smith was indicted on February 12, 1990 for unlawful possession of these weapons in violation of 18 U.S.C. Sec. 922(g), which criminalizes the possession of firearms by a convicted felon. ¹ After a two-day jury trial, he was convicted on July 18, 1990. At the time of Smith's arrest, his criminal record included a felony narcotics conviction in 1985 and a firearms conviction in 1988, the latter under 18 U.S.C. Sec. 1202(a), a predecessor to Sec. 922(g), which also criminalized the possession of guns by a felon. Smith was sentenced to three years probation for this prior firearms offense, which involved the transfer of a sawed-off .22 caliber Ruger rifle with an obliterated serial number and a banana clip.

In this appeal Smith challenges the court's exclusion of evidence concerning his meeting on March 20, 1987 with Special Agent Robert Nowd. At the time of the meeting, Smith was under investigation for the first firearms offense. At Agent Nowd's request, Smith met with Nowd to discuss his possible cooperation with ATF. Asserting that at the March 20, 1987 meeting Agent Nowd had authorized him to possess firearms, Smith advised the court prior to trial in the presently appealed action that he intended to present evidence of the 1987 meeting. In order to determine its admissibility, the district court held an evidentiary hearing immediately prior to commencement of the trial. At this preliminary hearing, the defendant presented one witness, Special Agent Nowd. Agent Nowd testified that he had met with the defendant on March 20, 1987 to discuss Smith's potential cooperation in the pending firearms investigation. Nowd testified that he told Smith " '[I]f you can help us, you know ... if you do cooperate pending any further investigations we do, your cooperation will be made known to the appropriate authorities at the time of your trial or at your sentencing.' " Although they discussed Smith's gathering information concerning weapons sales, Nowd also testified that he told Smith "[Y]ou're a convicted felon, you can never possess firearms." According to Agent Nowd, Smith never thereafter provided any information, nor did he communicate with Nowd at all following his conviction and sentencing for the 1988 offense.

At the conclusion of Agent Nowd's testimony, the defendant's attorney indicated that he would next call Smith as a witness, but changed his mind when the district court queried whether defendant's testifying might waive his constitutional privilege against self-incrimination. The district court thereupon ruled that, under Fed.R.Evid. 401, the meeting was not relevant and that testimony concerning the meeting would not be admitted at the forthcoming trial. At trial, the defendant took the stand. When his counsel began to question him about the September 20, 1988 firearms conviction and the 1987 meeting with Agent Nowd, the government objected. The court sustained the objection, explaining that counsel would not be permitted "to get into any of this business about his [Smith's] acting in an alleged undercover capacity."

II.

On appeal, Smith contends that the district court erred in refusing to permit him to elicit testimony from Agent Nowd regarding the March 20, 1987 meeting with defendant. Smith also challenges the court's refusal to allow Smith to testify at trial concerning the same meeting.

Fed.R.Evid. 103(a) provides that "[e]rror may not be predicated upon a ruling which admits or excludes evidence unless ... the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked." The substance of Agent Nowd's testimony was made known to the court at the hearing preliminary to trial. However, Smith himself elected not to testify at the preliminary hearing. Nevertheless, even before the preliminary hearing, the district court questioned Smith's attorney regarding the relevance of the 1987 meeting to the charges in this case. Smith's attorney responded that, at that meeting, Agent Nowd told Smith that he "wanted [Smith] to work." He stated that Smith told Nowd " 'I have other weapons at home. I have long guns and other weapons at home, should I give them to you?' " According to defense counsel, Nowd told Smith to " 'keep them, because that's how essentially you're going to get around to the gun clubs, because I want you to investigate the people at the gun clubs.' " Counsel later represented to the court that Smith was "being told on one hand, continue what you're doing to find out information, and yet he's being told on the other hand, X Y Z." It was because of these representations by counsel that the district court held a preliminary hearing to delve into the relevance of testimony concerning what transpired at the 1987 meeting.

At the preliminary hearing, after first indicating he would call Smith to the stand, defense counsel decided not to do so after the court asked to what extent Smith might waive his privilege against self-incrimination were he to testify then. Without pursuing the privilege issue, counsel withdrew his offer of Smith's testimony. The court then ruled that it would not allow evidence at trial about the March 20, 1987 encounter. At trial, the defendant took the stand; when his attorney sought to question him about Agent Nowd, the government objected. The court sustained the objection, telling Smith's attorney not to "get[ ] into matters I have ruled out.... Your rights are saved in this regard." Defense counsel made no further offer of proof.

Had Smith testified at the preliminary hearing, his testimony might have been used against him for impeachment purposes at trial. But by testifying at that pretrial stage, he would not have waived his Fifth Amendment privilege not to testify at trial. Fed.R.Evid. 104(d). See Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), vacated and remanded on other grounds, 408 U.S. 941, 92 S.Ct. 2873, 33 L.Ed.2d 765 (1972). Nevertheless, it was Smith's option whether to testify at the closed preliminary hearing; and as Smith chose not to testify, it was left to his counsel to show by means of an offer of proof the substance of the matters to which his client would testify concerning the March 20, 1987 meeting. Here, defense counsel did not make a formal nor any extensive offer of proof, but counsel did describe to the court the gist of the meeting, as Smith saw it, supra. We believe that counsel's representations were sufficient under Rule 103(a) to preserve for consideration on appeal the materiality of the excluded matters. See, e.g., United States v. Peak, 856 F.2d 825, 832 (7th Cir.), cert. denied, 488 U.S. 969, 109 S.Ct. 499, 102 L.Ed.2d 535 (1988) (holding that court had sufficient information to review evidentiary ruling where declarant's counsel offered a brief summary of what the witness would have said on the stand). Thus, assuming Smith would have testified along the lines his counsel suggested, we now examine the correctness of the district court's ruling excluding, on grounds of lack of relevance, Smith's testimony concerning the March 20, 1987 meeting.

Fed.R.Evid. 401 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action any more probable or less probable than it would be without the evidence." In reviewing the district court's rulings under Rule 401, we consider the relationship of the evidence sought to be admitted to the elements of the offense and to relevant defenses offered by Smith. Smith argues that his proposed testimony relating to the March 20, 1987 meeting was relevant to show the jury that he lacked the level of intent required under the criminal statute or, alternatively, that Agent Nowd misled him as to the legality of his conduct in violation of his due process rights. We address separately each of these arguments.

This court, and indeed every court to have considered the issue, has held that "ignorance of the law" is not a defense in prosecutions for violations of the federal firearms laws. See, e.g., United States v. Currier, 621 F.2d 7 (1st Cir.1980) (citing cases). Under established case law, the government need not prove that the defendant knowingly violated the law; rather, it only need prove, which it did here, that the defendant knowingly possessed firearms. Thus, in evaluating the relevance of the defendant's meeting with Agent Nowd to the issue of intent, we...