United States v. Farkas ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 3, 2005
Charles R. Fulbruge III
Clerk
No. 03-31119
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MITCHELL LEON FARKAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 01-CR-91-ALL
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Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Mitchell Leon Farkas appeals from his conviction of
possession of a firearm by a convicted felon. He contends that
the evidence was insufficient to support his conviction, in part
because the photographic array from which his photograph was
selected was impermissibly suggestive; that the district court
erred by rejecting his proposed instruction regarding
circumstantial evidence; and that the district court erred by
sentencing him as an armed career criminal, pursuant to 18 U.S.C.
§ 924(e)(1).
*
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this opinion should not be published and is not precedent except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. 03-31119
-2-
Farkas raised his challenge to the photographic array for
the first time in his motion for a new trial. We review Farkas’s
contention under the plain-error standard. See United States v.
Loney, 959 F.2d 1332, 1341 & n.22 (5th Cir. 1992). Farkas has
shown no error, plain or otherwise–-the markings underneath the
photographs did not render the array impermissibly suggestive.
See Passman v. Blackburn, 652 F.2d 559, 569 (5th Cir. 1981). In
addition to the photographic array, the testimony of the pawn
shop manager about Farkas’s firearm transaction provided
sufficient evidence to support a finding beyond a reasonable
doubt that Farkas was the individual who conducted the
transaction. See United States v. Bell, 678 F.2d 547, 549 (5th
Cir. 1982) (en banc).
Farkas requested an instruction that in cases depending on
circumstantial evidence, a defendant is entitled to an acquittal
if the evidence, when viewed in the light most favorable to the
Government, gave equal or nearly equal support to a theory of
guilt and a theory of innocence. Farkas’s proposed instruction
could have suggested that a standard other than the reasonable-
doubt standard applied to circumstantial evidence, and that
circumstantial evidence should be viewed differently from direct
evidence. The district court did not abuse its discretion by
rejecting the instruction. See United States v. Dien Duc Huynh,
246 F.3d 734, 738 (5th Cir. 2001).
No. 03-31119
-3-
The Government provided Farkas with adequate notice of its
intention to seek sentencing as an armed career criminal, when it
filed a post-verdict notice with documents attached that
reflected Farkas’s many state-court convictions. See United
States v. O’Neal, 180 F.3d 115, 125-26 (4th Cir. 1999). Finally,
United States v. Booker, 125 S. Ct. 738 (2005), does not apply to
findings of prior convictions used to sentence a defendant as an
armed career criminal. See Shepard v. United States, 125 S. Ct.
1254, 1262 (2005).
AFFIRMED.