U.S. v. Snow

• Decision Date: 22 April 1996
• Docket Number: No. 95-8042,95-8042
• Citation: 82 F.3d 935
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronald Lloyd SNOW, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 935

82 F.3d 935

UNITED STATES of America, Plaintiff-Appellee, v. Ronald Lloyd SNOW, Defendant-Appellant.

No. 95-8042.

United States Court of Appeals Tenth Circuit.

April 22, 1996.

On Appeal from the United States District Court for the District of Wyoming (D.C. No. 94-CR-27). Charles A. Brimmer, Jr., Judge.

Patrick J. Crank (David D. Freudenthal, United States Attorney, and John R. Green, Assistant United States Attorney, with him on the brief) United States Attorney, Cheyenne, Wyoming, for Plaintiff-Appellee.

Rachel Recker Rouse (Daniel G. Blythe with her on the briefs) of Rogers, Blythe & Lewis, Cheyenne, Wyoming, for Defendant-Appellant.

Before BALDOCK, McWILLIAMS and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

Ronald Lloyd Snow was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and theft of a firearm from a federally licensed firearm dealer in violation of 18 U.S.C. § 922(u), and he was sentenced to sixty-six months incarceration. Mr. Snow appeals his conviction alleging the district court committed four errors during the trial. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

On December 9, 1993, Mr. Snow entered the Coast to Coast Hardware store in Torrington, Wyoming. Debra Raben, an employee, testified Mr. Snow purchased a file and then left. The next day, Mr. Snow returned to the store. This time Mr. Snow asked Ms. Raben to remove a .45 semi automatic gun from the display case for him to examine. The display case had to be opened from behind the counter, but opened easily. After inquiring about the price of the gun, he handed it back to Ms. Raben and asked to see a shotgun. She returned the gun to the display case and handed him a shotgun. Mr. Snow then stated he wanted to look at some knives that were in a cabinet next to the display case containing the guns. Ms. Raben went to the front of the store to wait on other customers. Later she heard the door to the cabinet containing the guns move and noticed Mr. Snow was leaning over the cabinet with his hand behind the counter. She immediately approached Mr. Snow, who had his back to her, and asked if there was anything else he wanted to see. At first he said no, but then he inquired about picture mountings. Ms. Raben escorted him to the picture mountings at which point he said he wanted to look around some more, so she left him and went back to examine the gun display case. At this point she noticed the case was in disarray. After obtaining the help of a coworker she noticed the gun Mr. Snow had just been examining and two magazine clips were missing. Mr. Snow was no longer in the store.

Ms. Raben immediately called the police to report the suspected theft. She described Mr. Snow as wearing jeans "a coat that came down to his knees, it was a jean--a denim-type material and then it had the brown corduroy cutoffs, and he had long hair, kind of bald on top and a beard." The police noted she also stated the suspect was a white male carrying a black satchel. After taking the description, several officers patrolled the store's immediate vicinity. Minutes later, the officers received a dispatch reporting a 911 call from St. Joseph's Children's Home regarding an individual matching Ms. Raben's description of the suspect. An officer responding to the dispatch call arrived at St. Joseph's and saw a man fitting Ms. Raben's description take a dark object out of a black satchel and stuff it down the front of his pants before walking towards the back of St. Joseph's. When the man began to run towards St. Joseph's, the officer stepped out from behind his cover, raised his gun and told the man to stop. When the man stopped, another police officer told him to get on the ground, which he did. The other officer then handcuffed him. The officers then rolled him over and found the missing semi-automatic weapon stuffed in the front of his pants. Mr. Snow was then taken to the Torrington Police Department. Fingerprint cards were used to determine that Mr. Snow had been convicted of a felony in Oregon. After a four-day trial, the jury found Mr. Snow guilty of being a felon in possession of a firearm and of theft of a firearm.

Mr. Snow raises four issues on appeal: (1) whether the district court erred when it refused to modify jury instructions 14, 16, 25 and 26 to require the jury to find an interstate or foreign commerce connection; (2) whether the testimony of the Federal Bureau of Alcohol Tobacco and Firearms agent that the gun manufacturer told him the firearm model in question was imported denied the defendant his right of confrontation and was hearsay; (3) whether it was error for the court to deny the defendant's motion to suppress, and (4) whether the entry into evidence of a fingerprint card was error due to its testimonial nature.

I

Mr. Snow argues the district court erred when it refused to modify certain jury instructions to include a reference to commerce.

We review the district court's refusal to give a particular jury instruction for abuse of discretion. In assessing whether the court properly exercised that discretion, a reviewing court must examine the instructions as a whole to determine if they sufficiently cover the issues in the case and focus on the facts presented by the evidence. The question of whether a jury was properly instructed is a question of law, and thus, our review is de novo.

United States v. Lee, 54 F.3d 1534, 1536 (10th Cir.) (citation omitted), cert. denied, --- U.S. ----, 116 S.Ct. 247, 133 L.Ed.2d 173 (1995).

Mr. Snow was convicted of violating 18 U.S.C. § 922(u) which provides:

It shall be unlawful for a person to steal or unlawfully take or carry away from the person or the premises of a person who is licensed to engage in the business of importing, manufacturing, or dealing in firearms, any firearm in the licensee's business inventory that has been shipped or transported in interstate or foreign commerce.

The trial court instructed the jury that:

The phrase "in or affecting commerce" and "which had been shipped or transported in interstate ... commerce" "includes commerce between any place in a State and any place outside of that State."

The government may meet its burden of proof on the question of being "in or affecting commerce" or "which had been shipped or transported in interstate ... commerce" by proving to you, beyond a reasonable doubt, that the firearm identified in the indictment, at any time, had travelled across a state boundary line.

Mr. Snow sought to add the phrase "in commerce" or "by commerce" to the end of the sentence under the justification that "just crossing a state line is not in commerce." Mr. Snow also sought to modify two related jury instructions in such a way as to require the prosecution to prove that the firearm traveled through interstate commerce "in a commercial transaction" or "commercially" or "in a manner affecting commerce." The district court denied his requests stating the language used was the standard jury instruction language and "[a]ll the time I have been on the bench this is the one we've used, and we've never put 'in commerce' in there."

Mr. Snow attempts to use the Supreme Court's ruling in United States v. Lopez, --- U.S. ----, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), to argue that it is a question of fact whether taking a firearm from a federally licensed firearms dealer could have an interstate commerce connection. We agree with Mr. Snow that whether the firearm was shipped or transported in interstate commerce is a question of fact for the jury. We disagree with him, however, regarding what needs to be proven to establish this fact. Mr. Snow's reliance on Lopez for the proposition that merely proving the firearm crossed a state boundary line does not prove the firearm crossed the state line as part of interstate commerce is misplaced. In Lopez, the Supreme Court found Congress had exceeded its authority under the Commerce Clause in enacting the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q), because the act did not have an interstate commerce element. Mr. Snow has not meaningfully articulated a constitutional challenge to § 922(u). But even if he had, it would fail. In Lopez the Supreme Court invalidated the statute after finding it "has nothing to do with 'commerce' or any sort of economic enterprise" and could not "be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce." Lopez, --- U.S. at ---- - ----, 115 S.Ct. at 1630-31. The Supreme Court also noted that § 922(q), the statute under review, "contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce." Id. at ----, 115 S.Ct. at 1631. In contrast, the plain language of § 922(u) requires that the firearm have been shipped or transported in interstate commerce thus, it "contains an interstate-commerce nexus as an essential element of the offense and thus ensures that the firearm in question affects interstate commerce." United States v. Miller, 74 F.3d 159, 160 (8th Cir.1996); see also United States v. Bolton, 68 F.3d 396, 400 (10th Cir.1995) (holding 922(g)'s jurisdictional element that the firearm have been in or affected commerce sufficient to withstand a Lopez attack), cert. denied, --- U.S. ----, 116 S.Ct. 966, 133 L.Ed.2d 887 (1996).

Not only is Mr. Snow's contention that in order to satisfy the "shipped or transported in interstate commerce" requirement of § 922(u) the firearm must have been expressly shipped or transported for a commercial purpose or as part of a commercial transaction unsupported by Lopez, it is also contrary to well-established precedent. The Supreme Court has long held the "[i]mportation into one State from another is the indispensable element, the test, of...