United States v. Parker

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4488
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
REGINALD PARKER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan, Chief
District Judge. (CR-04-275)
Submitted: January 3, 2007 Decided: January 19, 2007
Before WILKINS, Chief Judge, and GREGORY and DUNCAN, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Rudolph A. Ashton, III, MCCOTTER, ASHTON & SMITH, P.A., New Bern,
North Carolina, for Appellant. George E. B. Holding, Acting United
States Attorney, Anne M. Hayes, Barbara D. Kocher, Assistant United
States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Reginald Parker appeals his conviction and sentence for
conspiring to make false statements in connection with the sale and
acquisition of firearms. See 18 U.S.C.A. §§ 371, 922(a)(6) (West
2000). We affirm.
I.
On December 21, 2002, Parker was a felon, having been
convicted of armed robbery in 1992. Nevertheless, that day he
acquired a rifle at a pawn shop in Goldsboro, North Carolina, by
having another man, Travis James, purchase the weapon for him and
represent in the necessary paperwork that James was the actual
buyer of the weapon. Later, in February 2003, Parker and James
made a similar purchase of a 12-gauge shotgun at a Goldsboro pawn
shop, with James again representing in the required paperwork that
he was buying the weapon for himself.
Parker was subsequently charged in a three-count indictment
with one count of conspiracy to make false statements in connection
with the acquisition of a firearm and two counts of possessing a
firearm after being convicted of a felony, see
18 U.S.C.A. § 922(g)(1) (West 2000). The indictment alleged that
Parker conspired with a man named Roderick R. Warren and with
“others both known and unknown to the grand jury.” J.A. 12.
Following a jury trial, Parker was found guilty of the conspiracy
charge but not guilty of the two remaining counts. The district
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court imposed a sentence of 60 months imprisonment, the statutory
maximum punishment for his offense.
II.
Parker first maintains that the district court erred in
denying his motion to suppress the SKS firearm, or alternatively,
to prevent the Government from referring to the fact that the
weapon was recovered in Philadelphia, Pennsylvania, at a prior
residence of Parker’s. Parker contends that suppression was
required because he was not timely notified that the Government had
obtained the firearm, see Fed. R. Crim. P. 16, and because its
probative value was substantially outweighed by the danger that it
would cause him unfair prejudice, see Fed. R. Evid. 403. We
disagree.
The Government explained to the district court that it had
maintained an open-file policy, that it intended to offer Parker
the opportunity to inspect the weapon, and that it had notified
Parker immediately upon acquiring the weapon. Nevertheless, the
district court informed Parker that it would accommodate a request
to reschedule Parker’s trial date so that he could conduct
additional investigation concerning the firearm.1 This handling of
Parker’s motion was well within the discretion of the district
court.
1
Parker did not request a continuance.
3
The ruling of the district court that the evidence was not
excludable under Rule 403 was also well supported. The testimony
that a weapon purchased for Parker was recovered from a city where
Parker had resided previously tended to prove that he possessed the
weapon and then disposed of it. To the extent that admission of
the evidence damaged Parker’s case, it was due only to its
legitimate probative value, not to any unfairness.
III.
Parker also argues that the district court erred in denying
his motion for acquittal on the conspiracy charge because the
indictment alleged a conspiracy between Warren, Parker, and other
unindicted coconspirators, but the evidence established that Warren
was not part of any conspiracy. We disagree.
Parker concedes that the Government was not required to show
that each of the people named in the indictment as members of the
conspiracy was actually a member of the conspiracy in order to
prove that a conspiracy existed. And, Parker does not contend that
the evidence was insufficient to prove such a conspiracy. He
nevertheless maintains that the absence of proof that all of the
people named in the indictment were members of the conspiracy was
insufficient “to support the indictment as charged.” Reply Br. of
Appellant Reginald Parker at 5. Although he does not describe it
as such, it appears that Parker’s claim is that there was an
unconstitutional variance from his indictment.
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A “variance” occurs when the evidence presented at trial
differs materially from the facts alleged in the indictment. See
United States v. Kennedy, 32 F.3d 876, 883 (4th Cir. 1994).
However, a variance is not grounds for reversal “unless it
prejudices the defendant either by surprising him at trial and
hindering the preparation of his defense, or by exposing him to the
danger of a second prosecution for the same offense.” See United
States v. Randall, 171 F.3d 195, 203 (4th Cir. 1999).
Here, even assuming arguendo that a variance occurred, it
certainly was not grounds for reversal. The specificity with which
the indictment described the alleged conspiracy was easily
sufficient to put Parker on notice of the conspiracy sought to be
charged and to protect him from possibly being prosecuted a second
time for the same offense.
IV.
Parker next contends that the district court erred in allowing
the Government to cross-examine him regarding the large number of
firearms he had been involved with storing at his uncle’s house in
relation to the armed robbery that served as his predicate felony
conviction for the felon-in-possession charges. We disagree.
Parker and the Government stipulated to the existence and
nature of the prior felony conviction for Parker’s § 922(g)
charges, and they now agree that, in light of the stipulation,
further evidence regarding the conviction would not have been
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admissible to prove the prior-conviction element of that offense.
The Government nevertheless asserts that Parker’s trial testimony
made the Government’s questioning relevant.
The Government’s position stems from Parker’s testimony on
cross-examination contradicting the testimony of at least one
Government witness that Parker had asked for a 30-round clip to go
with the firearm purchased on December 21, 2002. After denying
that he had asked for the clip, Parker added, “I don’t know where
that came from, because I don’t know anything about a clip. I
wouldn’t even know how it goes into that gun that’s sitting on that
floor. If you gave it, I wouldn’t know how it fit in there.” J.A.
376. Parker denied ever “handling a big weapon like that.” Id.
He then testified that he had handled “[m]aybe two” firearms in his
life. Id.
In light of this testimony, the Government sought to question
Parker regarding his handling of more than 70 firearms he had
helped steal during the armed robbery that was the predicate felony
for his § 922(g) charges. Over Parker’s objection, the district
court ruled that “the government may question the defendant about
whether or not he handled guns with regard to his prior
conviction,” and specified that “this line of inquiry may make
reference to a particular number of guns.” Id. at 491. The
Government subsequently asked Parker whether it was true “that at
one time [he had been] involved with ... taking to and storing at
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[his] uncle’s house 69 handguns, three rifles and two shotguns.”
Id. at 497. Parker admitted that he had, then he added that
“[t]hat was the charge that I admitted to with the armed robbery.”
Id.
The district court was within its discretion in allowing the
questioning. Once Parker testified that he had handled only two
firearms in his life, had never handled a large firearm, and thus
would not know anything about the clip that at least one government
witness claimed that Parker asked for, the testimony about Parker’s
involvement with the tens of firearms became relevant “to
contradict [the] specific statements” that Parker had made and
therefore prevent Parker from undermining the credibility of the
government witnesses who testified that Parker asked for the clip.
See United States v. Leavis, 853 F.2d 215, 220 (4th Cir. 1988).
The Government was therefore “entitled ... to rebut the false
impression [Parker] was creating by his testimony.” Id.Parker also argues that the probative value of the testimony
was substantially outweighed by its potential to cause him unfair
prejudice. See Fed. R. Evid. 403. That was not the case, however.
We have already explained the probative value of the evidence.
While it did have the potential to damage Parker’s case, there was
nothing unfair about this potential prejudice.
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V.
Parker next argues that the district court erred in refusing
to instruct the jury regarding entrapment. He maintains that
evidence presented to the jury tended to show that he involved
himself with the charged conspiracy and firearm transactions in an
attempt to implicate those individuals with whom he dealt and
thereby obtain leniency for his friend--and now wife--Christina
Ellis, who was facing criminal charges of her own. We disagree.
A defendant “is entitled to an entrapment instruction whenever
there is sufficient evidence from which a reasonable jury could
find entrapment.” Mathews v. United States, 485 U.S. 58, 62
(1988). “[A] valid entrapment defense has two related elements:
government inducement of the crime, and a lack of predisposition on
the part of the defendant to engage in the criminal conduct.” Id.
at 63. “‘Inducement’ ... involves elements of governmental
overreaching and conduct sufficiently excessive to implant a
criminal design in the mind of an otherwise innocent party.”
United States v. Daniel, 3 F.3d 775, 778 (4th Cir. 1993).
Here, Parker failed to present evidence that government agents
induced him to engage in the charged conspiracy. The district
court thus correctly refused to instruct the jury regarding
entrapment.
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VI.
Parker finally contends that the district court erred in
counting a 1988 aggravated assault conviction as three criminal
history points in calculating his advisory guideline range, thereby
placing him in Criminal History Category IV rather than III. Even
assuming that the district court erred, however, the error was
harmless because the change from Category IV to III would not have
reduced Parker’s guideline range; either way it would have been 60
months, the statutory maximum for the offense of conviction.2 See
18 U.S.C.A. § 371; United States Sentencing Guidelines Manual
§ 5G1.1(a) (2004) (“Where the statutorily authorized maximum
sentence is less than the minimum of the applicable guideline
range, the statutorily authorized maximum sentence shall be the
guideline sentence.”).
VII.
In sum, for the foregoing reasons, Parker’s conviction and
sentence are affirmed. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
2
But for the existence of the statutory maximum, the
guideline range calculated as Parker suggests would have been 63-
78 months as opposed to 77-96 months if the aggravated assault
conviction counted for three points.
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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