United States v. John Edward Oliver ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4231
JOHN EDWARD OLIVER,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge.
(CR-98-304)
Submitted: January 31, 2000
Decided: March 9, 2000
Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
C. David Whaley, Anthony G. Spencer, MORCHOWER, LUXTON
& WHALEY, Richmond, Virginia, for Appellant. Helen F. Fahey,
United States Attorney, N. George Metcalf, Assistant United States
Attorney, Richmond, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
John Edward Oliver appeals his convictions and sentence for three
counts of possession of a firearm by a convicted felon, possession of
a firearm with a silencer, possession of a sawed-off shotgun, posses-
sion of explosives by a convicted felon, and possession of an unregis-
tered firearm. Finding no reversible error, we affirm.
Prior to committing these offenses, Oliver had been convicted in
the Commonwealth of Virginia of a crime punishable by a term of
imprisonment exceeding one year. He was therefore prohibited from
receiving or possessing firearms. Oliver acknowledged that he knew
and understood the prohibitions against his receipt and possession of
firearms. At trial, the Government presented evidence that Oliver pos-
sessed large quantities of firearms, including rifles, shotguns, pistols,
ammunition, explosives, and a Claymore mine.
Oliver raises six issues on appeal: (1) whether the district court
abused its discretion in denying his motion for a mistrial; (2) whether
the district court abused its discretion in denying Oliver's motion to
unseal the search warrant affidavit; (3) whether the district court erred
in treating Oliver's simultaneous possession of firearms, ammunition,
explosives, and a silencer as separate counts; (4) whether the district
court erred in separately considering Oliver's possession of unregis-
tered firearms and his possession of those firearms as a convicted
felon; (5) whether the district court erred in convicting Oliver of pos-
session of a silencer in violation of 26 U.S.C.§§ 5861 & 5871 (1994),
where there was no evidence that the silencer moved in interstate
commerce; and (6) whether the district court erred in imposing an
enhanced penalty pursuant to 18 U.S.C.A. § 924(e)(1) (West Supp.
1999).
The decision to grant or deny a motion for a mistrial is committed
to the sound discretion of the district court and will not be disturbed
on appeal absent a clear abuse of discretion. See United States v.
Dorsey, 45 F.3d 809, 817 (4th Cir. 1995). Before granting a motion
for a mistrial, the district court should consider whether there are less
drastic alternatives that will eliminate the prejudice. See United States
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v. Hayden, 85 F.3d 153, 157 (4th Cir. 1996); United States v. Smith,
44 F.3d 1259, 1268 (4th Cir. 1995). We find that the district court
properly chose a less drastic option by instructing the jury to disre-
gard the Assistant United States Attorney's question and the witness's
response referring to the Oklahoma City bombing. Accordingly, the
district court did not abuse its discretion in denying Oliver's motion
for a mistrial.
We also find that the district court did not abuse its discretion in
denying Oliver's motion to unseal the search warrant affidavit. After
conducting an in camera review, the district court ordered the Gov-
ernment to provide Oliver with a redacted version of the affidavit,
concluding that release of the full affidavit would jeopardize the Gov-
ernment's ongoing investigation and place the lives of important wit-
nesses in danger.
Although a defendant is entitled under the Fourth Amendment to
examine the affidavit that supports a warrant after the search has been
conducted, this right is not absolute. It may be overridden "when it
is shown that precluding access is `essential to preserve higher values
and is narrowly tailored to serve that interest.'" In re Search Warrants
Issued Aug. 29, 1994, 889 F. Supp. 296, 299 (S.D. Ohio 1995) (citing
Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984));
see also In re the Search of Up N. Plastics, Inc. , 940 F. Supp. 229,
232 (D. Minn. 1996). The right of access may be denied only where
the Government demonstrates "(1) that a compelling governmental
interest requires the materials be kept under seal and (2) there is no
less restrictive means, such as redaction, available." In re Search
Warrants, 889 F. Supp. at 299. Because the district court properly
found that a compelling interest required that the original affidavit be
kept under seal, we find no abuse of discretion in its decision to pro-
vide only a redacted version to Oliver.
Oliver argues that this Court's decision in United States v.
Dunford, 148 F.3d 385, 388-90 (4th Cir. 1998), stands for the propo-
sition that his possession of numerous weapons at different locations
and at different times should be treated as one merged count for sen-
tencing purposes. However, while simultaneous possession of multi-
ple firearms that are seized at the same time from a defendant's home
constitutes only one act of possession, separate firearm possession
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offenses exist if the firearms were acquired, stored, or possessed at
different times and places. See Dunford, 148 F.3d at 390; United
States v. Mullins, 698 F.2d 686, 687 (4th Cir. 1983). Because the
record is replete with evidence that Oliver acquired and stored the
firearms in question at different times and places, we find that the dis-
trict court did not err in treating his simultaneous possession of the
weapons as separate counts.
Oliver also contends that he cannot, as a convicted felon, comply
with the registration requirements of the National Firearms Registra-
tion and Transfer Record. He argues that separately considering his
possession of unregistered firearms and his possession of those fire-
arms as a convicted felon for sentencing purposes violates his right
to due process. In United States v. Jones, 976 F.2d 176, 183 (4th Cir.
1992), this court held that 18 U.S.C.A. § 922(o) (West Supp. 1999),
which prohibits the possession of machine guns, and 26 U.S.C.
§ 5861(d) (1994), which provides for mandatory registration of
machine guns, are not irreconcilable statutes. We reasoned that Jones
could have complied with both statutes by simply refusing to deal in
machine guns. Similarly, Oliver could have complied with both stat-
utes by declining to possess firearms. Accordingly, we find that the
district court did not err in considering these statutes separately for
sentencing purposes.
Oliver argues that the Government did not present evidence of an
interstate nexus with regard to the charge of possession of a silencer
in violation of 26 U.S.C. §§ 5861(c) & 5871 (1994). Because there is
no requirement that the weapon traveled in interstate commerce under
this statute, his claim lacks merit. See United States v. Tous, 461 F.2d
656, 657 (9th Cir. 1972). The statute is silent about commerce and has
been held to be a valid exercise of the power of Congress to tax. See
United States v. Hall, 171 F.3d 1133, 1142 (8th Cir. 1999) (distin-
guishing United States v. Lopez, 514 U.S. 549 (1995)).
Finally, Oliver contends that the district court erred in imposing an
enhanced sentence pursuant to 18 U.S.C.A. § 924(e)(1) (West Supp.
1999) because the Government failed to give him pretrial notice
regarding the application of the Armed Career Criminal Act
("ACCA"). This argument is unavailing in light of this court's deci-
sion in United States v. O'Neal, 180 F.3d 115, 125-26 (4th Cir. 1999),
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cert. denied, ___ U.S. ___, 68 U.S.L.W. 3291 (U.S. Nov. 1, 1999)
(No. 99-6367), in which we specifically held that pretrial notice of the
applicability of the ACCA is not required and that a listing of the con-
victions in the presentence report is more than adequate. We therefore
find that the district court did not err in imposing an enhanced penalty
pursuant to the ACCA.
Accordingly, we affirm Oliver's convictions and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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