United States v. Romero, 73-1285.

• Decision Date: 09 October 1973
• Docket Number: No. 73-1285.,73-1285.
• Citation: 484 F.2d 1324
• Parties: UNITED STATES of America, Appellee, v. Harold Joe ROMERO, Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

484 F.2d 1324 (1973)

UNITED STATES of America, Appellee, v. Harold Joe ROMERO, Appellant.

No. 73-1285.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted September 13, 1973.

Decided October 9, 1973.

COPYRIGHT MATERIAL OMITTED

Winston Roberts-Hohl, Asst. Federal Public Defender, Albuquerque, N. M., for appellant.

Harris L. Hartz, Asst. U.S. Atty. (Victor R. Ortega, U.S. Atty., with him on the brief), for appellee.

Before CLARK, Associate Justice^*, and SETH and McWILLIAMS, Circuit Judges.

SETH, Circuit Judge.

The defendant, Harold Joe Romero, was charged with a violation of 26 U.S.C. §§ 5861(d) and (i) and of § 5871, by reason of his possession of a sawed-off shotgun not registered in the National Firearms Registration and Transfer Record, and not bearing a serial number.

He was tried before a jury, found guilty, and has taken this appeal. The issues raised relate to the seizure of the weapon, the asserted duplicitous nature of the indictment, and the refusal to give an instruction that for guilt the jury must find the weapon to be a highly dangerous offensive weapon, and to be obvious to the possessor that the carrying of such a weapon would not be an innocent act.

The defendant, with four or five other men, entered the El Rancho Bar at the small community of Pojoaque, New Mexico, about 11:30 p. m. He went up to the bar and began drinking. A deputy sheriff, Frutoso Herrera, was on duty at the place of business and saw the defendant enter with several other persons, and noticed that he was wearing a gun in a gun belt around his waist. The defendant was wearing a large leather hat, leather vest, and Levis. There was another deputy on duty who was out of the room on defendant's arrival. When this deputy, William Trujillo, returned shortly thereafter, Deputy Herrera told him that defendant was in the bar, and was wearing a gun. The two deputies then went up to the defendant at the bar. One of them asked the defendant if he had a permit for the gun. The defendant replied, "what's it to you," or words to that effect. The deputies then took the defendant by the arm, escorted him outside the bar, and unbuckled the gun belt. A deputy took the gun out of the holster, opened it, and found that there was a live shell in the chamber. A deputy tested the gun later that night and found it would fire. The gun was originally a single-shot, single-barreled, twelve-gauge shotgun. The gun had been made between the years 1929 and 1935, before serial numbers were used, and had been owned by defendant's family for many years. The barrel had been cut off to a length of 9 to 10 inches, and the original stock designed to fit against the shoulder had been modified to a pistol type grip, making the overall length of the gun about 17 inches. When defendant was first seen by the deputy, the gun was in a holster on a belt around defendant's waist. There is no contention that the gun was concealed.

The defendant strongly urges that there was no justifiable cause for the deputies to seize the gun from the defendant. There was a hearing held on defendant's motion to suppress; both deputies and the defendant then testified. The defendant described how he was escorted out of the bar by the deputies, and said he was told by them he was not supposed to be carrying a gun, that it was going to be kept that night because he was drinking, and that he could go to the "office" the next day and pick up the gun. He further testified that the deputies were going to see if the gun would fire. Deputy Trujillo testified that he told the defendant he would give the gun back if it didn't work. He also testified that he asked defendant at the first encounter if he had a "permit." The deputies did not testify at the suppression hearing as to whether the gun while in the holster was recognized by them to be a pistol or a shotgun, and they were not questioned on the point.

During the course of the trial the deputies appeared as witnesses. Deputy Herrera then testified that he "... noticed Mr. Romero walk into the bar carrying what I believed to be a shotgun." He then described the holster and belt. He described his request of defendant to produce a permit, and the removal of defendant from the bar. On cross-examination this deputy was asked what type of gun he saw strapped to defendant's thigh and he replied, "I saw a shotgun." He was four to six feet from the defendant who was at the bar. The deputy also said he waited for the other deputy because there were "about five" other persons with the defendant at the time, and he did not want to cause any trouble. The other deputy testified he held defendant by the arm when removing him from the bar because he did not want the gun "loose." He also testified that he was afraid at the time.

The New Mexico Court of Appeals has held that under the state constitution a person can carry a loaded gun which is not concealed although there may be a local ordinance to the contrary. City of Las Vegas v. Moberg, 82 N.M. 626, 485 P.2d 737. Defendant asserts that the seizure of the gun was not justifiable under state law.

As indicated above, the deputies at the suppression hearing did not state whether they recognized the gun to be a shotgun before it was removed from the holster, and they were not questioned on the point. Assuming that the record shows no more than there was "a gun," we must nevertheless hold that there was cause for the removal of the defendant from the bar, and the examination of the weapon. A dangerous situation existed with the defendant carrying an unconcealed weapon, drinking in a bar late at night, accompanied by four or five others who...