Unpublished Disposition, 930 F.2d 29 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 930 F.2d 29 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Eric Dean BROWN, Defendant-Appellant.

No. 90-30255.

United States Court of Appeals, Ninth Circuit.

Submitted March 6, 1991.* Decided April 2, 1991.

Before JAMES R. BROWNING, WRIGHT and FARRIS, Circuit Judges.


Eric Dean Brown appeals his conviction for illegal possession of an unregistered firearm in violation of 26 U.S.C. § 5861(d). Brown was arrested when a police officer approached his car because he was suspected of drunk driving. As he stepped out of the car, a sawed-off shotgun fell out.

Brown challenges the sufficiency of the indictment, arguing it needed to specifically allege that he knew he possessed the weapon.1  The offense was described with sufficient particularity to show a violation of law; Brown was fairly informed of the charge against him, and he was able to plead an acquittal or conviction in bar of future prosecution for the same offense. That is enough to uphold the sufficiency of the indictment. Hamling v. United States, 418 U.S. 87, 117 (1974).

The indictment tracks the language of the statute, and is therefore sufficient as long as it sets forth all the elements necessary to constitute the offense. United States v. Fitzgerald, 882 F.2d 397, 398 (9th Cir. 1989). The offense at issue is one of general intent. United States v. Freed, 401 U.S. 601, 607 (1971). The cases in this circuit where an indictment tracking the words of the statute has been held insufficient involve specific intent offenses where notice of the requisite criminal intent was missing. See United States v. Morrison, 536 F.2d 286, 288 (9th Cir. 1976); United States v. Keith, 605 F.2d 462, 464 (9th Cir. 1979). That is not the case here, where the offense merely requires knowledge of the fact of possession, and the indictment fairly imports this marginal mental state. See United States v. Wilson, 884 F.2d 174, 180-81 (5th Cir. 1989).

Brown also alleges the evidence supporting his conviction is insufficient because it showed the firearm was not registered in the National Firearms Register as of March 8, 1990, almost six months after the date of the offense. We agree with the Eleventh Circuit that " [c]ommon sense indicates that if the device were registered in the past, the device would still appear ... on the record as registered with the Bureau." United States v. Allen, 842 F.2d 1265, 1266 (11th Cir. 1988). Sufficient evidence supports Brown's conviction.

Finally, Brown argues that because he used the weapon solely for lawful sporting purposes, the district court erred by not reducing his base sentencing level pursuant to U.S.S.G. 2K2.1(b) (1). The only evidence to support his claim is his own statement that he used the gun for target practice and for hunting. The district court need not believe a defendant's self-serving statements. See United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir. 1989); United States v. Smith, 905 F.2d 1296, 1301-02 (9th Cir. 1990). Taking into account defendant's failure to corroborate his story, his intoxicated state, the fact that the weapon was loaded and that its serial number was erased, we cannot say the district court's determination was clearly erroneous.2 



The panel finds this case appropriate for submission without argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. 34(a)


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 Cir.R. 36-3


We reach his argument because an objection that an indictment fails to properly state the offense is not waived even when first raised on appeal. See United States v. Calabrese, 825 F.2d 1342, 1346-47 (9th Cir. 1987)


Because the district court's decision was not clearly erroneous, we do not address the issue whether Brown was prejudiced