Unpublished Disposition, 880 F.2d 1323 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 880 F.2d 1323 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Frederick FISHER, Defendant-Appellant.

No. 88-1094.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 26, 1989.Decided July 25, 1989.

Before TANG, REINHARDT and WIGGINS, Circuit Judges.


Frederick Fisher appeals his convictions, after a jury trial, for making a false statement in acquisition of a firearm (Count I), in violation of 18 U.S.C. §§ 922(a) (6) and 924(a); being a felon in receipt of a firearm shipped in interstate commerce (Count II), in violation of 18 U.S.C. §§ 922(h) (1) and 924(a); and being a felon in possession of firearms (Count III), in violation of 18 U.S.C. app. Sec. 1202(a).1  Fisher contends that the district court erred in denying his: (1) motion to suppress statements he made to an agent of the Bureau of Alcohol, Tobacco and Firearms (ATF); and (2) motion for acquittal on Counts I and II because of insufficient evidence. Fisher also contends that he was denied the effective assistance of counsel. We affirm.


* Suppression of Statements

This court reviews de novo a district court's determination that a criminal suspect's statement to law enforcement officers was voluntary. United States v. Guerrero, 847 F.2d 1363, 1365 (9th Cir. 1988). The district court's finding of facts are reviewed for clear error. United States v. Wolf, 813 F.2d 970, 974 (9th Cir. 1987).

Fisher contends that the district court erred in not suppressing his statements to agent Celaya because Celaya's deception in advising him that an ATF agent had not been to his house caused him to involuntarily confess to possessing the firearms.

A defendant in a criminal case is deprived of due process if his conviction is founded, in whole or in part, upon an involuntary confession. United States v. Tingle, 658 F.2d 1332, 1334 (9th Cir. 1981) (quoting Jackson v. Denno, 378 U.S. 368, 376 (1964)). The test is: whether, considering the totality of the circumstances, the government obtained the statement by physical or psychological coercion or by improper inducement such that the suspect's will was overborne. Haynes v. Washington, 373 U.S. 503, 513-14 (1963); United States v. Guerrero, 847 F.2d 1363, 1366 (9th Cir. 1988) (citations omitted).

While the conduct of the ATF agent in lying to Fisher should not be condoned, it did not coerce Fisher into involuntarily confessing. When asked about the firearms in his possession, Fisher gave agent Celaya all of the details, without hesitation. Fisher voluntarily called agent Celaya back with the complete and correct serial numbers of the guns in his possession. When the agents went to Fisher's house, identified themselves, and asked to see the guns, Fisher invited the agents into his house and showed them a gun. Fisher then invited the agents to accompany him to another location to see the other weapons.

Fisher voluntarily responded to all of the agents' questions, even those pertaining to his prior felony conviction. Indeed, the agents did not press Fisher for any information or make improper promises or threats to coerce Fisher into giving them the information they sought. The agents were merely investigating Fisher and their actions were of an investigatory nature. Fisher was never handcuffed or restrained in any way. The agents did not draw their weapons during the course of their questioning. It appears that Fisher could have refused to answer the questions at any time and asked the agents to leave. Based upon the totality of these circumstances, Fisher's inculpatory statements were not involuntary. See Guerrero, 847 F.2d at 1366.


Sufficiency of the Evidence

This court reviews the sufficiency of the evidence to support a criminal conviction by viewing the evidence in the light most favorable to the government and determining whether any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Harris, 792 F.2d 866, 868 (9th Cir. 1986). Circumstantial evidence is sufficient to sustain a conviction, and the government's evidence need not exclude every reasonable hypothesis consistent with innocence. United States v. Miller, 688 F.2d 652, 663 (9th Cir. 1982); see Holland v. United States, 348 U.S. 121, 140 (1954) (circumstantial evidence is intrinsically as probative as direct evidence).

A. False Statement in Acquisition of Firearm

To constitute a violation of 18 U.S.C. § 922(a) (6), an individual need only make a false statement in connection with the acquisition or attempted acquisition of a firearm; the offense is committed whether or not a firearm is acquired. United States v. Goodheim, 686 F.2d 776, 780 (9th Cir. 1982). A firearm is defined as "(A) any weapon ... which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device." 18 U.S.C. § 921(a) (3). The statute does not require the weapon to be operable. United States v. Harris, 792 F.2d 866, 868 (9th Cir. 1986).

Fisher argues that the government failed to prove that the Eddystone rifle was a firearm as defined in 18 U.S.C. § 921, because the gun was never introduced into evidence at trial and no witnesses testified that they ever saw the rifle.

The government introduced into evidence a certified copy of Fisher's prior felony conviction, which Fisher confirmed was true to agent Celaya. The government also introduced into evidence a copy of the pawn slip Fisher completed when he redeemed the rifle from the pawnshop, stating that he had never been convicted of a felony. Fisher told agent Celaya that he completed this form at the pawnshop. The clerk at the pawnshop testified that this form must be filled out whenever a person pawns a firearm or takes a firearm out of the pawnshop. The jury's conclusion that Fisher made a false statement on the pawn slip in order to redeem a firearm is thus reasonably supported by the record. Therefore, the evidence is sufficient to show that Fisher violated 18 U.S.C. § 922(a) (6). See Goodheim, 686 F.2d at 780.

18 U.S.C. § 922(h) (1) forbids a felon to "receive any firearm ... which has been shipped or transported in interstate or foreign commerce." Section 922(h) applies to a purchaser's intrastate acquisition of a firearm that, prior to the purchaser's receipt, had been transported in interstate commerce. Barrett v. United States, 423 U.S. 212, 225 (1976); United States v. Robbins, 579 F.2d 1151, 1153 (9th Cir. 1978).

The government did not produce the rifle which Fisher is charged with receiving. Instead, they presented circumstantial evidence from which the jury could reasonably conclude that Fisher did receive a firearm. In addition, the government admitted into evidence the pawn slip Fisher completed when he redeemed the rifle. The slip contained the make, model and serial number of the rifle. At oral argument, the government presented information that, although not explicitly stated, it was implicit in the pawnshop clerk's testimony that she gave the gun to Fisher. Indeed, Fisher told Celaya that he had an Eddystone rifle that was at a friend's house for safekeeping. Based upon the make, model, and serial number of the Eddystone rifle which was obtained from the pawn slip, ATF agent Carenco testified that research revealed the rifle was manufactured outside of Arizona. This circumstantial evidence was sufficient for the jury to conclude that Fisher did in fact receive a firearm, shipped in interstate commerce, in violation of 18 U.S.C. § 922(h). See Miller, 688 F.2d at 663.


Ineffective Assistance of Counsel

Fisher contends that he received ineffective assistance of counsel at trial. The customary procedure for bringing claims of ineffective assistance of counsel in federal criminal trials is by collateral attack on the conviction under 28 U.S.C. § 2255. United States v. Johnson, 820 F.2d 1065, 1074 (9th Cir. 1987) (citations omitted). Although this court may address ineffective assistance claims on direct appeal, such action should be taken only where the record is sufficient to make such a determination. See United States v. Birges, 723 F.2d 666, 670 (9th Cir.), cert. denied, 469 U.S. 863 (1984). The record is insufficient here: there is no indication of the alleged errors or even any allegations of prejudice. See Birges, 723 F.2d at 670. Therefore, we decline to address the merits of this claim.


Special Assessment

The trial court levied a $150.00 special assessment against Fisher pursuant to 18 U.S.C. § 3013. The special assessment was declared unconstitutional by this court because it was enacted in violation of the origination clause. United States v. Munoz-Flores, 863 F.2d 654, 657-61 (9th Cir. 1988). Therefore, we vacate the special assessment levied against Fisher sua sponte. See United States v. Anguiano, 873 F.2d 1314, 1321 (9th Cir. 1989).

Affirmed in part; Vacated in part.


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Circuit R. 36-3


Section 1202(a) was repealed by the Firearms Owners' Protection Act, effective 180 days after May 19, 1986. Pub. L. No. 99-308, 100 Stat. 449 (1986). Section 1202(a) is applicable to this case, however, because Fisher committed the underlying offense prior to the effective date of the repeal. See 1 U.S.C. § 109; United States v. Van Horn, 836 F.2d 1235, 1237 (9th Cir. 1988)