United States v. Hudson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 97-4282
BARRY HUDSON, a/k/a Pedro
Morales,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, District Judge.
(CR-96-9)
Submitted: November 18, 1997
Decided: December 5, 1997
Before WILLIAMS and MICHAEL, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Randy V. Cargill, MAGEE, FOSTER, GOLDSTEIN & SAYERS,
P.C., Roanoke, Virginia, for Appellant. Robert P. Crouch, Jr., United
States Attorney, Anthony P. Giorno, Assistant United States Attorney,
Roanoke, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellant Barry Hudson was convicted of aiding and abetting the
making of false statements to a federally licensed firearms dealer in
violation of 18 U.S.C. §§ 2, 922(a)(6) (1994), and conspiracy to
acquire and transfer a firearm in violation of 18 U.S.C. § 371 (1994).
On appeal he challenges that there was insufficient evidence to sup-
port his conviction and that the district court erred by refusing his
request for a jury instruction that his withdrawal from the conspiracy
is a defense to the conspiracy charge. We affirm.
Appellant's conviction stems from his attempt to have Dennis Sta-
ples purchase for him a handgun that he could not purchase directly
because he was a convicted felon and not a Virginia resident. Appel-
lant instigated a series of events in which he offered Staples $50 to
purchase a specific type of gun, repeatedly drove Staples to different
gun stores, and then provided Staples with money to buy the gun
while he waited in the car. In support of Appellant's conviction the
government is not required to produce direct evidence that Appellant
willfully participated in the false representations Staples made when
attempting to purchase the gun for Appellant. See United States v.
Hern, 926 F.2d 764, 767 (8th Cir. 1991). Based on the evidence the
government produced at trial, a jury could have reasonably found that
Appellant willfully associated and participated in Staples' false repre-
sentations. See United States v. Ortiz-Loya, 777 F.2d 973, 980 (5th
Cir. 1985). Accordingly, we find that there was sufficient evidence to
support Appellant's conviction for aiding and abetting the making of
false statements.
We also reject Appellant's contention that there was insufficient
evidence establishing that the gun store in which Staples made his
false representations was a federally licensed firearms dealer.
Although the store's license had expired one month prior to the inci-
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dents giving rise to Appellant's conviction, the store owner had filed
a timely application for renewal and the Bureau of Alcohol, Tobacco,
and Firearms explicitly granted the store permission to continue oper-
ating under the old license. In light of this evidence and because the
store's license had never been suspended or revoked, the jury could
reasonably have found that the store was a federally licensed firearms
dealer.
Appellant's final claim is that the district court erred in refusing to
instruct the jury that his withdrawal from the conspiracy to acquire a
firearm is a complete defense to the conspiracy charge. We review a
district court's decision not to give a jury instruction for an abuse of
discretion. See United States v. Russell, 971 F.2d 1098, 1107 (4th Cir.
1992). The district court denied Appellant's jury instruction request
because there was ample evidence that Appellant committed overt
acts in furtherance of the conspiracy prior to showing any intent to
withdraw. Withdrawal from a conspiracy will not preclude a conspir-
acy conviction if overt acts have been taken in furtherance of the con-
spiracy prior to the withdrawal. See United States v. Gonzalez, 797
F.2d 915, 916-17 (10th Cir. 1986); United States v. Wooten, 688 F.2d
941, 947 (4th Cir. 1982). An effective withdrawal would only pre-
clude liability for future crimes the remaining co-conspirators might
commit. See Gonzalez, 797 F.2d at 916-17. Appellant committed
numerous overt acts in furtherance of acquiring a firearm prior to
showing any intention to withdraw, and thus was not entitled to an
instruction that his withdrawal provides a defense to the conspiracy
charge. Hence, the district court properly denied the requested
instruction.
Accordingly, we affirm the district court judgment finding Appel-
lant guilty of aiding and abetting the making of false representations
to a federally licensed firearms dealer and conspiracy to acquire a
firearm. We dispense 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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