Unpublished Disposition, 863 F.2d 886 (9th Cir. 1988)

Annotate this Case
U.S. Court of Appeals for the Ninth Circuit - 863 F.2d 886 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,v.Butch BURKE, aka Abbitt Owens, Jr., Defendant-Appellant.

No. 87-1331.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 28, 1988.* Decided Dec. 5, 1988.

Before NELSON, NOONAN, and LEAVY, Circuit Judges.


Butch Burke appeals his conviction for being a felon who knowingly received a firearm which had been shipped and transported in interstate and foreign commerce, in violation of 18 U.S.C. §§ 922(h) (1) and 924(a), and for being a felon who knowingly received and possessed in commerce and affecting commerce a firearm, in violation of 18 U.S.C. Appendix Sec. 1202(a). Burke contends the district court erred by granting a motion in limine excluding evidence regarding his knowledge of his felon status and the lawfulness of receiving and possessing a firearm. He also contends the district court likewise erred in excluding evidence in support of his entrapment by estoppel defense.

The district court did not err in excluding Burke's proffered evidence regarding his knowledge because such evidence is irrelevant in a conviction under section 1202(a). Fed.R.Evid. 402; United States v. Houston, 547 F.2d 104, 108 (9th Cir. 1978); United States v. Locke, 542 F.2d 800, 801 (9th Cir. 1976). The district court did not err in denying Burke's proffered evidence in support of an entrapment by estoppel defense because the state court judge was not authorized to interpret a federal statute, the state court judge did not affirmatively mislead Burke, and Burke's reliance on the state judge's statements was not reasonable. See United States v. Tallmadge, 829 F.2d 767, 776 (9th Cir. 1987) (Kozinski, J. dissenting).

We hold that the issues presented to the district judge on the motion in limine were correctly decided. We further note that the issues presented by the motion bear little relationship to the defendant's testimony at trial when he said:

A. Somewhere along the line it's very difficult for me to remember exactly what happened ...

Q. Okay.

A. ... during that time of the gun. But I had just been convicted of a felony, and I had just surrendered my other shotguns and rifles that I had, and I wasn't about to purchase another one to get myself in trouble again.

I know that I wasn't supposed to buy or sell a gun.

The judgment is AFFIRMED.


The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit Rule 34-4. Accordingly, Burke's request for oral argument is denied


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3