United States v. Downing

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4015
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHESTER EUGENE DOWNING,
Defendant - Appellant.
No. 09-5023
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHESTER EUGENE DOWNING,
Defendant - Appellant.
No. 10-4113
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHESTER EUGENE DOWNING,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Wilmington and Elizabeth City.
James C. Fox, Senior District Judge. (2:08-cr-00016-F-2)
Submitted: April 20, 2011 Decided: May 24, 2011
Before WILKINSON, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Marilyn G. Ozer, MASSENGALE & OZER, Chapel Hill, North Carolina,
for Appellant. George E. B. Holding, United States Attorney,
Jennifer P. May-Parker, Kristine L. Fritz, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
A federal grand jury charged that Chester Eugene
Downing, “having been previously convicted of a crime punishable
by imprisonment for a term exceeding one year, did knowingly
possess, in and affecting commerce, firearms,” in violation of
18 U.S.C. § 922(g)(1) (2006). A jury subsequently convicted
Downing of this offense. On appeal, Downing challenges the
district court’s denial of his motions to dismiss the
indictment, contending that the failure to identify the types or
numbers of firearms involved inhibited his defense by failing to
accord him with sufficient notice of the charge. * He also
contends that the indictment omitted an element of the offense
because, although it alleged Downing possessed firearms “in and
affecting commerce,” it did not allege that the firearms had
*
Although Downing claims in passing that the indictment is
insufficient to protect against double jeopardy, both the
headings and the substance of his brief address only whether the
indictment fairly informed him of the charges against him.
Because he failed to develop this argument, we conclude that he
has waived appellate review of the double jeopardy issue. See
Fed. R. App. P. 28(a)(9)(A); see also Eriline Co. S.A. v.
Johnson, 440 F.3d 648, 653 n.7 (4th Cir. 2006) (finding
conclusory single sentence in brief “insufficient to raise on
appeal merits-based challenge to the district court’s ruling”);
Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir.
1999) (“Failure to comply with the specific dictates of [Rule
28] with respect to a particular claim triggers abandonment of
that claim on appeal.”).
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been shipped in interstate commerce. Finding no error, we
affirm.
“[A]n indictment must contain the elements of the
offense charged, fairly inform a defendant of the charge, and
enable the defendant to plead double jeopardy as a defense in a
future prosecution for the same offense.” United States v.
Kingrea, 573 F.3d 186, 191 (4th Cir. 2009) (internal quotation
marks omitted). The notice requirement “derives from the
defendant’s Sixth Amendment right to be informed of the nature
and cause of the accusation.” United States v. Hooker, 841 F.2d
1225, 1230 (4th Cir. 1988). “It is generally sufficient that an
indictment set forth the offense in the words of the statute
itself, as long as ‘those words of themselves fully, directly,
and expressly, without any uncertainty or ambiguity, set forth
all the elements necessary to constitute the offense intended to
be punished.’” United States v. Hamling, 418 U.S. 87, 117
(1974) (quoting United States v. Carll, 105 U.S. 611, 612
(1882)). With these standards in mind, we have conducted a de
novo review of the record on appeal and conclude that the
indictment was sufficient. See United States v. Hatcher, 560
F.3d 222, 224 (4th Cir. 2009) (stating standard of review).
Downing also argues that the indictment failed to
allege shipment in interstate commerce, contending that this is
an essential element of the offense. The indictment tracked the
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statutory language and charged possession “in and affecting
commerce.” See 18 U.S.C. § 922(g)(1). We find this charging
language sufficient and therefore conclude that Downing’s
argument lacks merit.
Accordingly, we affirm the district court’s judgment.
We deny as moot Downing’s motions for bail and deny his motion
to file a pro se supplemental brief. 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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