United States of America, Plaintiff-appellee, v. Howard C. Phelps, Defendant-appellant, 468 F.2d 828 (5th Cir. 1972)

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U.S. Court of Appeals for the Fifth Circuit - 468 F.2d 828 (5th Cir. 1972) Nov. 2, 1972. Rehearing and Rehearing En Banc Denied Dec. 14, 1972

Joseph A. Calamia, John L. Fashing, El Paso, Tex., for defendant-appellant.

William S. Sessions, U. S. Atty., San Antonio, Tex., Ralph E. Harris, Asst. U. S. Atty., El Paso, Tex., for plaintiff-appellee.

Before DYER, SIMPSON and MORGAN, Circuit Judges.


Appellant Howard C. Phelps was convicted under 26 U.S.C. § 5861(a) for being a dealer in firearms without having paid the requisite occupational tax, under 26 U.S.C. § 5861(d) for possessing an unregistered firearm, and under 26 U.S.C. § 5861(i) for possession of a firearm not identified with a serial number. In this appeal appellant asserts several different grounds which he contends require reversal.

This court feels that only one of the asserted errors merits discussion. Appellant maintains that the jury was not properly instructed on knowing possession, reasonable doubt, burden of proof, and the contents of the indictment. To prevail on this point, appellant must establish that the instructions given were plain error since no objection to the instructions was made at the conclusion of the charge. See Rules 30 and 52(b), F.R.Crim.P.; United States v. Smith, 5 Cir. 1970, 435 F.2d 832; United States v. Lawrence, 5 Cir. 1970, 427 F.2d 95.

This court has studied the charge given by the district court and we are satisfied that if there was any error, it clearly did not rise to the level of plain error, and reversal is not required.

We have carefully considered the other assertions of this appellant and find them to be without merit. Therefore, appellant's conviction is



The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.