Unpublished Disposition, 855 F.2d 862 (9th Cir. 1985)

No. 87-1137.

United States Court of Appeals, Ninth Circuit.

Before EUGENE A. WRIGHT and POOLE, Circuit Judges, and DAVID W. WILLIAMS, District Judge.^* 

MEMORANDUM^** 

Juan Armas appeals from his conviction for receiving a firearm while under information, in violation of 18 U.S.C. § 922(h) (1) [now Sec. 922(n) ], and for making a false statement to a licensed firearms dealer, in violation of 18 U.S.C. § 922(a) (6). Armas contends that (1) the indictment did not charge him with the crime for which he was tried; (2) the district court erred in admitting evidence underlying the state charges and evidence linking him to another firearms purchaser; (3) the underlying information was invalid; and (4) there was insufficient evidence to support his conviction. We affirm.

* Armas argues that the indictment improperly charged him with a violation of 18 U.S.C. § 922(h), since that section no longer proscribes a person under indictment or information from receiving a firearm. However, the government correctly notes that although Sec. 922(h) was amended in 1986,¹  prior to the date of Armas' indictment here, that section did proscribe the conduct charged as of March 15, 1985, the date of the purchase involved. Even assuming that the government erred in failing to specify the version of the statute relied upon, Fed. R. Crim. P. 7(c) (3) specifically provides that " [e]rror in the citation" in the indictment is not grounds for reversal unless it misled the defendant to his prejudice. Armas does not allege that he was prejudiced here. This argument is therefore without merit.

Armas also argues that whether the statutory term "indictment" includes an information was a jury question, citing United States v. Isaacs, 539 F.2d 686 (9th Cir. 1976). This argument is also without merit. In Isaacs, we held (as a matter of law) that the statutory definition of "indictment" as including an "information" [see 18 U.S.C. § 921(a) (14) ] did not render the defendant's statement that he was not under indictment false, because the form he filled out did not define the term "indictment" and because his answer was literally true when "indictment" was given its most common and precise meaning. Here, however, the form used specifically included the alternative term "or information" and defined "information" separately. Armas' negative answer to this inquiry cannot be read, literally or otherwise, as being truthful. Because the form was unambiguous, the judge did not err in instructing the jury that the statutory definition applied.

II

Next, Armas argues that the court erred in admitting evidence of the circumstances which resulted in the filing of an information against him. We reject this argument. This evidence was not admitted to show that Armas was a "bad person." See Fed.R.Evid. 404(b). The fact of the information and Armas' knowledge of it were essential elements of the government's case. Absent a stipulation of such facts, evidence tending to establish these elements was relevant and admissible. The evidence was limited to the background necessary to establish a foundation for the information and was not unreasonably cumulative.

Armas also argues that it was error to admit evidence of a firearms purchase by one Hernandez and to suggest that Armas and Hernandez planned a double purchase in which they would exchange the guns so that neither could be traced. We reject this argument. The evidence was admitted to impeach Armas' claim that he did not intend to violate the law by showing that he had a prior plan to conceal the purchase. Armas' link to Hernandez was sufficiently shown by Armas' possession of Hernandez' receipt; the fact that the gun switch never took place goes to the weight of the evidence, but it does not render the evidence irrelevant. The probative value of such evidence as indicative of Armas' intent outweighed any possibility that unfair prejudice might have resulted.

III

Next, Armas contends that the underlying information is insufficient to support his conviction because he has never been tried on the charges, in violation of the Sixth Amendment and the Speedy Trial Act. However, the cases relied upon by Armas, United States v. O'Neal, 545 F.2d 85 (9th Cir. 1976) and United States v. Pricepaul, 540 F.2d 417 (9th Cir. 1976), were invalidated by the Supreme Court in Lewis v. United States, 445 U.S. 55 (1980). See United States v. Goodheim, 651 F.2d 1294, 1297 (9th Cir. 1981). Lewis holds that a defendant cannot collaterally challenge an underlying conviction as a defense to a firearms charge predicated on that conviction. Lewis applies to prosecutions under Sec. 922. Goodheim, 651 F.2d at 1296-97 & n. 2. Armas cannot rely on Goodheim 's holding that Lewis is non-retroactive, because all of the events here occurred after Lewis was decided.

Thus, the only question is whether the rationale of Lewis similarly bars a collateral challenge to the sufficiency or continuing validity of an information underlying a firearms charge. We think it is clear that it does. As the Supreme Court stated in Lewis : "Congress clearly intended that the defendant clear his status before obtaining a firearm, thereby fulfilling Congress' purpose broadly to keep firearms away from the person Congress classified as potentially irresponsible and dangerous." 445 U.S. at 65 (emphasis in original; citation omitted). Cf. United States v. Allen, 556 F.2d 720, 723 (4th Cir. 1977) ("It is clear that Congress believed an indictment alone to be a sufficient reason to limit a person's access to firearms, at least until the charges are dropped or the person is acquitted.") Thus, Armas' remedy was to seek a dismissal of the information before he attempted to purchase a gun; having failed to do so, he cannot now argue that the information was invalid.

IV

Finally, Armas challenges the sufficiency of the evidence, arguing that because he could not speak English, he lacked sufficient understanding to make a false statement. This argument overlooks the contradictory testimony in the record. The store manager, Sorofman, testified that she would not sell a firearm unless she made certain that the defendant understood the form. She also testified that only the owner, Jack Ross, would sell a firearm to someone who spoke only Spanish. The jury was entitled to believe Sorofman and to infer that Sorofman would not have sold the gun to Armas unless he had demonstrated a sufficient understanding of the conditions. Armas' testimony was also impeached by the fact that he had previously purchased firearms in the State of Nevada.

The government did not have to call Jack Ross because it was their contention that Ross did not participate in the sale. Armas could have attempted to subpoena Ross or compel him to testify, but he chose not to do so.

AFFIRMED.