United States v. Parasiris

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 12, 2004
Charles R. Fulbruge III
Clerk
No. 03-20459
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NIKOLOAS PARASIRIS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-717-ALL
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Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Nikoloas Parasiris appeals his conviction for making false
statements to federally licensed firearms dealers in violation of
18 U.S.C. § 924(a)(1)(A). He argues that the trial court erred
in refusing to provide the jury with a definition of “residence”;
that the trial court erred in denying his motion for judgment of
acquittal; and that the trial court erred in denying his post-
trail motion for arrest of judgment.
*
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that this opinion should not be published and is not precedent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. 03-20459
-2-
Parasiris stated on Alcohol Tobacco and Firearms (ATF) form
4473 that his “residence address” was 7602 Muirwood Lane in
Houston, Texas. Even assuming that the definition of “residence”
was an essential element of the offense which should have been
defined for the jury, the lack of such instruction to the jury
was harmless. Neder v. United States, 527 U.S. 1, 9-11, (1999);
see also United States v. Green, 293 F.3d 886, 890 (5th Cir.
2002), cert. denied, 123 S. Ct. 1783 (2003). Under any
reasonable definition of “residence,” the evidence indicated that
the Muirwood house was not Parasiris’ “residence address” when he
filled out the ATF form and, in fact, that Parasiris did not
think the Muirwood house was his “residence address.” See United
States v. Slaughter, 238 F.3d 580, 583-84 (5th Cir. 2001). For
the same reason, the district court did not abuse its discretion
by denying a requested instruction on Parasiris’ defensive
theory. United States v. Correa-Ventura, 6 F.3d 1070, 1076 (5th
Cir. 1993).
Parasiris argued in his FED. R. CRIM. P. 29 motion for
judgment of acquittal that the term “residence” was ambiguous and
in his motion to reconsider the denial of his FED. R. CRIM. P. 29
motion that, based upon extra-circuit law, the term “residence”
should be considered “fundamentally ambiguous.” The standard of
review to assess his sufficiency challenge is whether “a
reasonable trier of fact could [have] f[ou]nd that the evidence
established guilt beyond a reasonable doubt.” United States v.
No. 03-20459
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Bell, 678 F.2d 547, 549 (5th Cir. 1982)(en banc); see Jackson v.
Virginia, 443 U.S. 307, 319 (1979). Even if the term “residence”
was “arguably ambiguous” or “fundamentally ambiguous,” the jury
could have, based upon the evidence presented at trial, found
that Parasiris made a false statement on the ATF form in
violation of 18 U.S.C. § 924(a)(1)(A). See United States v.
Thompson, 637 F.2d 267, 270 (5th Cir. 1981); United States v.
Culliton, 328 F.3d 1074, 1078-79 (9th Cir. 2003); United States
v. McKenna, 327 F.3d 830, 841 (9th Cir. 2003).
Upon the defendant’s motion, the court must arrest judgment
if the indictment does not charge an offense. FED. R. CRIM. P.
34. “An adequate indictment (1) enumerates each prima facie
element of the charged offense, (2) notifies the defendant of the
charges filed against him, and (3) provides the defendant with a
double jeopardy defense against future prosecutions. United
States v. Nevers, 7 F.3d 59, 62 (5th Cir. 1993) (internal
citations omitted).
The indictment stated that Parasiris acquired firearms from
two licensed firearms dealers by supplying false and fictitious
written statements to the dealers, namely by representing that he
“lived at 7602 Muirwood Lane in Houston, Texas, at a time when he
. . . well-kn[e]w he did not live at that address,” in violation
of 18 U.S.C. § 924(a)(1)(A). The explanation by the Government
of why it believed Parasiris gave a false statement was not a
prima facie element of the offense. See 18 U.S.C.
No. 03-20459
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§ 924(a)(1)(A). The explanation of the alleged false statement
did, however, satisfy the second requirement of an adequate
indictment as it described the facts and circumstances
surrounding the offense in such a manner as to inform the
defendant of the particular offense charged. See Nevers, 7 F.3d
at 62. In this case, there is no indication that the indictment
misled, prejudiced, or confused Parasiris regarding the conduct
which led to his prosecution. As noted by the trial court, the
only blank dealing with an address on the ATF form was the
“residence address” question. Accordingly, Parasiris was
“sufficiently apprised of what he must be prepared to meet and
was not hampered in his defense preparation.” United States v.
Gordon, 780 F.2d 1165, 1172 (5th Cir. 1986).
AFFIRMED.