United States v. Houston , 270 F. App'x 371 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 25, 2008
No. 05-60507
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TONEY HOUSTON,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Mississippi
No. 2:04-CR-132-1
Before SMITH, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Toney Houston challenges his convictions of conspiring to make false and
fictitious oral and written statements in connection with the acquisition of fire-
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 05-60507
arms, and aiding, abetting, and inducing another to make false statements in
connection with acquisition of a firearm. He does not challenge his conviction
of being a felon in possession of a firearm.
Although the indictment is plainly erroneous because it fails to charge the
“intended or likely to deceive” element of 18 U.S.C. § 922(a)(6), the error did not
seriously affect the fairness, integrity, or public reputation of judicial proceed-
ings. The evidence that the false statements were “intended or likely to deceive”
was overwhelming and uncontroverted, and the jury was instructed before and
at the end of trial that the government was required to prove that element be-
yond a reasonable doubt; the instruction largely mitigated the error. See United
States v. Cotton, 535 U.S. 625, 632-34 (2002); United States v. McGilberry, 480
F.3d 326, 330-31 (5th Cir. 2007).
AFFIRMED.
2