United States v. Agu ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10491
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JERMAINE LYNN AGU,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
No. 2:99-CR-49-1
December 21, 2000
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Jermaine Lynn Agu appeals his conviction and sentence for
being a felon in possession of a firearm in violation of 18 U.S.C.
§§ 922(g) and 924(a)(2). Agu asserts that 18 U.S.C. § 922(g)(1) is
unconstitutional on its face and as applied to him. Agu further
contends that the district court erred in denying his motion to
dismiss the indictment based on alleged prosecutorial misconduct
occurring before the grand jury.
Because Agu raises his challenge to the constitutionality of
18 U.S.C. § 922(g) for the first time on appeal, this court’s
review is for plain error only. United States v. Calverley, 37
*
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this opinion should not be published and is not precedent except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.
F.3d 160, 162-64 (5th Cir. 1994) (en banc), cert. denied, 513 U.S.
1196 (1995). As Agu acknowledges, this court rejected the
arguments Agu now advances regarding the unconstitutionality of 18
U.S.C. § 922(g) in United States v. Rawls, 85 F.3d 240, 242 (5th
Cir. 1996) (finding statute did not violate commerce clause because
“in or affecting commerce" element was satisfied if firearm had
previously traveled in interstate commerce). Rawls is binding on
the panel considering this appeal. United States v. Kuban, 94 F.3d
971, 973 (5th Cir. 1996) (stating that in considering claim that §
922(g) was unconstitutional, panel was bound by Rawls), cert.
denied, 519 U.S. 1070 (1997). Therefore, Agu’s challenge is
without merit, and he has failed to show that the district court
erred, plainly or otherwise, in applying the statute in this case.
Agu asserts that the Government’s witness at the grand jury,
Agent Melvin Dixon Robin, testified falsely before the grand jury.
Agu contends that this alleged prosecutorial misconduct denied him
due process and was harmful and prejudicial to him, warranting
dismissal of the indictment against him. As dictated by the
Supreme Court in United States v. Mechanik, 475 U.S. 66, 71-72
(1986), we apply the harmless error standard of Fed. R. Crim. P.
52(a) in reviewing errors occurring before the grand jury. The
relevant inquiry is whether the alleged error occurring before the
grand jury affected the outcome of the trial. Mechanik, 475 U.S.
at 70-72. When prosecutorial misconduct is the alleged error, a
dismissal of the indictment is appropriate only when the misconduct
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was prejudicial to the defendant. Bank of Nova Scotia v. United
States, 487 U.S. 250, 255 (1988).
Pretermitting the issue of whether Agu waived his objections
to the indictment, we conclude that dismissal of the indictment was
unwarranted because the alleged false grand jury testimony offered
by Agent Robin was harmless and did not prejudice Agu. The
relevant testimony was exposed to the jury at trial, and Agent
Robin was questioned specifically about the testimony at trial.
Despite this testimony, and the testimony of Corporal Nevins
establishing that the fingerprints found on the magazine did not
match Agu’s, the jury found Agu “guilty as charged beyond a
reasonable doubt”. Mechanik, 475 U.S. at 70. We conclude,
therefore, that any error in the grand jury proceeding stemming
from Agent Robin’s testimony had no effect on the outcome of the
trial, was harmless, and did not prejudice Agu. Id. at 72; Bank of
Nova Scotia, 487 U.S. at 24-55. Accordingly, Agu’s conviction and
sentence are
AFFIRMED.
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