United States v. Mason ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5452
NATHAN Y. MASON, SR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Shelby.
Richard L. Voorhees, Chief District Judge.
(CR-93-23)
Submitted: July 9, 1996
Decided: July 19, 1996
Before ERVIN, Circuit Judge, and BUTZNER and PHILLIPS,
Senior Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Jack W. Stewart, Asheville, North Carolina, for Appellant. Mark T.
Calloway, United States Attorney, Thomas R. Ascik, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
A jury convicted Nathan Y. Mason, Sr., of selling firearms without
keeping records as required by 18 U.S.C.A. § 923 (West 1976 &
Supp. 1996), in violation of 18 U.S.C.A. §§ 922(b)(5), 924 (West
Supp. 1996), 27 C.F.R. § 178.124 (1996) (Counts 1-3, 6); and solicit-
ing another to commit a felony involving the use of physical force in
violation of 18 U.S.C.A. § 373 (West Supp. 1996) (Count 4).1 Mason
appeals, contending that the district court erred in allowing the jury
to use transcripts as aids while they listened to tape-recorded conver-
sations between Mason and undercover officers, a three-week delay
in the trial prejudiced him, and the evidence was not sufficient to con-
vict him. Finding no error, we affirm.
I.
Taking the evidence in the light most favorable to the Government,
see United States v. Smith, 44 F.3d 1259, 1269-70 (4th Cir.), cert.
denied, ___ U.S. ___, 63 U.S.L.W. 3817 (U.S. May 15, 1995) (No.
94-8163), testimony disclosed that Mason owned and operated a
used-car dealership and was a firearms dealer licensed by the federal
government. As a federal firearms dealer, Mason must keep certain
firearms transaction records, including Form 4473 promulgated by the
Bureau of Alcohol, Tobacco, and Firearms ("BATF"). Form 4473 has
two sections. The purchaser must complete Section A by filling in his
name, sex, height, weight, race, date and place of birth, and address
and by answering eight questions, including whether he is prohibited
from possessing a firearm; the dealer must complete Section B at the
time of the sale by checking the purchaser's identification, listing
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1 The jury found Mason not guilty of retaliating against another for par-
ticipating in a federal proceeding in violation of 18 U.S.C.A.
§ 1513(a)(1) (West Supp. 1996) (Counts 5, 8); and selling a stolen fire-
arm and ammunition in violation of 18 U.S.C.A. §§ 922(j), 924 (West
Supp. 1996) (Count 7). Further, the Government moved to dismiss the
portion of Count 7 that referred to ammunition. Hearing no objection
from Mason, the district court granted the Government's motion.
2
information about the firearm sold, and retaining Form 4473 in his
records.
Local authorities investigated Mason for possible drug and gun
violations. Officer Lempia testified that he met Mason on several
occasions while working undercover as a drug dealer. Lempia pur-
chased from Mason a .357 magnum for $350 and received a bill of
sale written by Mason with the name "Weldon Gates" as the seller.
Lempia testified that Mason did not present Form 4473 to him.
Officer Edney testified that he discussed guns with Mason and pur-
chased a .22-caliber pistol while working undercover posing as a con-
victed felon. According to Edney, Mason did not present Form 4473
--or any other paperwork--to him. Edney and Officer McDonald
later contacted Mason about purchasing a TEC-9 pistol. Edney testi-
fied that they followed Mason's instructions and obtained a handgun
permit in the fictitious name of "Susan Edwards King" so that Mason
would sell the TEC-9 pistol to them.
Officer McDonald testified that he worked undercover as a biker
and met Mason through a mutual friend. Mason told McDonald that
he could sell him two weapons without any paperwork. McDonald
corroborated Edney's testimony that Mason told them how a con-
victed felon could obtain a handgun permit. When McDonald and
Edney purchased the TEC-9 pistol, they gave Mason the "Susan
Edwards King" handgun permit, and Mason produced Form 4473.
McDonald followed Mason's instructions and signed the name
"Susan Edwards King" as the buyer. Mason also sold another TEC-9
pistol to McDonald, who used the name "Susan Edwards King" on the
paperwork.
During the gun transactions, Mason mentioned to McDonald that
he had repossessed a van he had sold to a customer of his used-car
dealership and that he was in some trouble over it. 2 McDonald testi-
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2 Mason's reference to the repossession stemmed from his sale of a van
to Curtis and Doris Greenway. Mason financed the purchase, and the
Greenways agreed to pay $100 a month. After missing a few payments,
the Greenways filed for bankruptcy. The Greenways gave the bankruptcy
3
fied that Mason said he wanted to send someone a message and that
pipe bombs were a good way to do so. Mason asked McDonald how
much it would cost to "mess somebody up" and told McDonald to
contact the person who could help him do the job. Mason stated that
he would pay $2000 in advance and $2000 when Curtis Greenway
was shot in the kneecaps. McDonald testified that Mason said he
could provide the person with the Greenways' routine and where they
lived. Mason also identified Curtis Greenway as the target, and
Mason drew a map to the Greenways' house and offered untraceable
tags for the car used in the assault. Mason later wanted to postpone--
but not cancel--the assault on Greenway. The assault on Greenway
never happened, however, because the officers' undercover identities
were compromised and, as a result, Mason was arrested. On the fourth
day of trial, McDonald was hospitalized, which necessitated a three-
week delay in the trial and interrupted defense counsel's cross-
examination.
During the Government's case-in-chief, the court admitted into evi-
dence tape-recorded conversations between Mason and the under-
cover officers. While the jury listened to the tapes, the court allowed
the Government, over Mason's objection, to distribute transcripts of
the conversations to the jurors to aid their understanding of the tapes.3
The court also admitted the transcripts into evidence but gave a limit-
ing instruction regarding the purpose for which they could be used.
The court instructed the jury that the only evidence before them were
the tapes--more particularly, the words on the tapes; that they must
evaluate the officer's testimony as to how the tapes were made,
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court the wrong address for Mason. As a result, only the Greenways
appeared in court when their bankruptcy plan was adopted. When the
Greenways returned home, their van was gone. Because the Greenways
believed Mason took their van, they filed for sanctions against him in
bankruptcy court for violating the automatic stay. Mason settled the
sanctions action by paying the Greenways $1100, giving them the title
to the van, and paying attorneys' fees.
3 On cross examination, Mason's counsel questioned the accuracy of
some of the transcripts and tapes, objected to the portions of the tapes
that were not transcribed, and objected to tapes that were not the original
recordings.
4
whether they were made accurately, and whether they actually repre-
sented what the officers said they represented; that the transcripts
were allowed not as evidence of what was said on the tapes, but only
as a guide; and that if any discrepancy existed between what was said
on the tapes and what was shown on the transcripts, the tapes must
prevail.
After presenting Mason's defense, counsel moved to dismiss
Counts 1-3, 6-8 against Mason, which the court denied. The court
then instructed the jurors, among other things, that the evidence con-
sisted of the exhibits admitted at trial and that they were the sole
judges of the credibility of the witnesses and the weight to be given
their testimony. The court instructed the jurors to rely on their own
recollection of the testimony and reiterated that the tapes were evi-
dence but the transcripts were not, and if they perceived a conflict
between the tapes and the transcripts, they should be guided solely by
the tapes.
The jury convicted Mason of selling firearms without recording the
proper information, (Counts 1-3, 6), and of soliciting another to com-
mit a felony involving the use of physical force (Count 4). The court
sentenced Mason to thirty-six months imprisonment on each count,
with all counts to run concurrently, ordered three years of supervised
release on each count to run concurrently, and imposed a $2000 fine
and a $250 special assessment. This appeal followed.
II.
Mason contends that the Government's use of tapes and transcripts
prejudiced him. He claims that the "transcripts were inherently unreli-
able . . . due to an incessant number of omissions and misinterpreta-
tions [of the tapes] in the transcripts." (Appellant's Br. at 18). We
review for an abuse of discretion the district court's decision to allow
the use of transcripts to aid in the presentation of tape-recorded evi-
dence. United States v. Capers, 61 F.3d 1100, 1107 (4th Cir. 1995),
cert. denied, ___ U.S. ___, 64 U.S.L.W. 3779 (U.S. May 20, 1996)
(No. 95-7022); United States v. Collazo, 732 F.2d 1200, 1203 (4th
Cir. 1984), cert. denied sub nom. Alvarez v. United States, 469 U.S.
1105 (1985); see also United States v. Clark, 986 F.2d 65, 68-69 (4th
Cir. 1993).
5
Mason's counsel conducted thorough cross-examinations of the
undercover officers who made the tape recordings by challenging the
accuracy of the transcripts, objecting to portions on the tapes that
were not transcribed by the Government, and objecting to tapes that
were not the original recordings. See Capers, 61 F.3d at 1107; Clark,
986 F.2d at 69; Collazo, 732 F.2d at 1204. Moreover, the district
court gave an appropriate limiting instruction. 4 The court stated that
the tapes were the evidence before the jury--not the transcripts that
could only be used as aids--and that if they found any discrepancy
between the tapes and the transcripts, the tapes must prevail. See
Capers, 61 F.3d at 1107; Collazo, 732 F.2d at 1203 (finding that cau-
tionary instructions cured prejudice that might have resulted from dis-
crepancies between tape and transcript). We find no abuse of
discretion in the district court's decision to allow the jury to use the
transcripts while listening to the tapes. See Capers, 61 F.3d at 1107.
III.
Mason next contends that the three-week delay in the trial caused
by the illness of a key Government witness, Officer McDonald,
unfairly prejudiced him because it impaired counsel's "ability to con-
duct a vigorous and effective cross-examination of Officer McDon-
ald" and because the delay permitted the jury undue reflection on the
Government's evidence. (Appellant's Br. at 21-22). Because Mason
did not object to this delay during the trial, we review the district
court's decision to delay the trial only for plain error. See United
States v. Olano, 507 U.S. 725, 732-37 (1993).
Although Mason contends that he was prejudiced, we find for sev-
eral reasons that he was not. First, because the district court acknowl-
edged that McDonald was a key witness in the trial, the delay was
necessary so that he would then be subject to cross-examination. Fur-
ther, it does not appear that the Government used the delay to gain
an unfair advantage in light of McDonald's sudden illness. Finally,
Mason's counsel had an opportunity to extensively cross-examine
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4 Mason cites United States v. Schanerman, 150 F.2d 941 (3d Cir.
1945), as support for his contention that he was prejudiced because the
transcripts were so misleading that the discrepancies could not be cured
by a cautionary instruction. We do not find Schanerman dispositive.
6
McDonald after the delay. McDonald's cross-examination, followed
by Mason's presentation of evidence, was the last evidence presented
to the jury. Cf. United States v. LaRouche, 896 F.2d 815, 823-24 (4th
Cir.), cert. denied, 496 U.S. 927 (1990); United States v. Little, 567
F.2d 346, 348-49 (8th Cir. 1977) (noting that when deciding whether
to grant continuance before trial, court must balance nature of case,
diligence of party requesting continuance, conduct of other party,
effect of continuance, and asserted need for continuance), cert.
denied, 435 U.S. 969 (1978). We therefore find no plain error. See
Olano, 507 U.S. at 732-37.
IV.
Finally, we review a denial of a motion for acquittal under a suffi-
ciency of evidence standard. Fed. R. Crim. P. 29; see Smith, 44 F.3d
at 1269-70. The relevant question is not whether we are convinced of
guilt beyond a reasonable doubt, but rather whether the evidence,
when viewed in the light most favorable to the Government, was suf-
ficient for a rational trier of fact to have found the essential elements
of the crime beyond a reasonable doubt. Smith , 44 F.3d at 1269-70;
see Glasser v. United States, 315 U.S. 60, 80 (1942). If substantial
evidence exists to support a verdict, the verdict must be sustained.
Glasser, 315 U.S. at 80.
Mason contends that the jury failed to consider and weigh the testi-
mony of defense witnesses. Mason also asserts that"this Court is
allowed to weigh the credibility of all witnesses and evidence and
does not bow merely to a consideration of that evidence in a light
most favorable to the Government." (Appellant's Br. at 24). But con-
trary to Mason's assertion, even if some facts support a contrary con-
clusion, we do not weigh the evidence or judge the credibility of
witnesses. United States v. Reavis, 48 F.3d 763, 771 (4th Cir.) (citing
United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989)), cert.
denied, ___ U.S. ___, 63 U.S.L.W. 3890 (U.S. June 19, 1995) (No.
94-9316). Here, the jury rejected Mason's version of events and chose
to believe the Government. Such a decision is not reviewable. Reavis,
48 F.3d at 771.
Mason also alleges that the evidence was insufficient to convict
him of selling firearms without the proper records because the Gov-
7
ernment did not introduce the records into evidence. 5 Under
§ 922(b)(5), Mason, as a licensed firearms dealer, must note in his
records the name, age, and residence of the individual purchaser. 18
U.S.C.A. § 922(b)(5); see 27 C.F.R.§ 178.124(c), (f) (requiring pur-
chaser to certify he is not prohibited from possessing firearm; requir-
ing licensed dealer to identify purchaser and note method of
identification; requiring dealer to sign form if he does not know or has
reasonable belief that purchaser is prohibited from possessing fire-
arm).
Although the records were not produced at trial, testimony dis-
closed numerous violations by Mason. Mason sold four firearms to
undercover officers--one of whom said he was a convicted felon--
and either did not offer Form 4473 to them or encouraged them to use
false information, such as the name "Susan Edwards King." This evi-
dence was sufficient for a reasonable jury taking the evidence in the
light most favorable to the Government to convict Mason of selling
firearms without the proper records. See Glasser , 315 U.S. at 80.
V.
Accordingly, we affirm Mason's convictions. We dispense with
oral argument based on our previously entered order granting
Mason's motion to waive oral argument and submit the case on the
briefs.
AFFIRMED
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5 The records were suppressed before trial.
8