EDDIE BISHOP JONES, PETITIONER V. UNITED STATES OF AMERICA No. 90-6187 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fourth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1a-7a) is not reported, although the judgment is noted at 911 F.2d 725 (Table). JURISDICTION The judgment of the court of appeals was entered on August 6, 1990. The petition for a writ of certiorari was filed on Monday, November 5, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether there was sufficient evidence to support petitioner's convictions for making false material statements to firearms dealers, in violation of 18 U.S.C. 922(a)(6). 2. Whether the district court properly instructed the jury about the meaning of the term "residence" for purposes of the false statement charges. 3. Whether the Double Jeopardy Clause barred petitioner's conviction for unlawfully delivering firearms to an interstate carrier for interstate transportation, in violation of 18 U.S.C. 922(e). 4. Whether admission of evidence regarding the value of the weapons petitioner purchased and the prosecutor's reference to petitioner's "gun running" deprived him of a fair trial. STATEMENT After a jury trial in the United States District Court for the Eastern District of Virginia, petitioner was convicted on fifteen counts of making false material statements to a firearms dealer, in violation of 18 U.S.C. 922(a)(6) (Counts 1 through 15), and one count of unlawfully delivering firearms to an interstate carrier for interstate transportation, in violation of 18 U.S.C. 922(e) (Count 16). He was sentenced to a total term of 12 years' imprisonment, to be followed a term of five years' probation. The court of appeals affirmed. 1. The evidence at trial showed that petitioner orchestrated and carried out a scheme to buy firearms in Virginia and then transport them back to New York, where he resided. Petitioner, who lived in New York City, obtained a Virginia driver's license in March 1987. In connection with this license application, petitioner falsely represented that he lived at a Lawrenceville, Virginia, address belonging to his foster parents. Pet. App. 3a; Gov't C.A. Br. 2-6. /1/ Between March and the end of May 1987, petitioner bought 33 guns from various federally licensed firearms dealers in Virginia. Petitioner used his Virginia driver's license to show proof of state residence; for each purchase, he signed a federal firearms transaction record that contained representations that he was a state resident. Petitioner also recruited Marvin Jarrett and Alan Layton to buy guns in Virginia for him. For three firearms transactions, Jarrett or Layton falsely represented that he would be the owner of the guns. Pet. App. 2a-3a, 4a-5a; Gov't C.A. Br. 2-6. Petitioner's scheme came to a halt on May 30, 1987. On that date, petitioner bought three guns -- a .38 caliber revolver and two 9 mm handguns with 36-round clips -- from a firearms dealer in Chesterfield County, Virginia. Petitioner then boarded a Greyhound bus in Richmond; the bus was traveling to Washington, D.C. Upon arriving at the Greyhound terminal in Washington later that day, petitioner "aroused the suspicions of a security guard at the bus station." Pet. App. 6a. Police officers responded to the guard's alert and arrested petitioner; /2/ a search of petitioner's carry-on bag uncovered the three handguns and ammunition he had bought earlier that day, petitioner's birth certificate and social security card, and other documents showing his ties to New York. Pet. App. 4a, 6a; Gov't C.A. Br. 6-7. /3/ 2. At trial, the government, over petitioner's objection, elicited testimony from one of the investigating agents from the Bureau of Alcohol, Tobacco, and Firearms, that petitioner and his associates spent approximately $11,000 to buy the guns involved in the case. See C.A. Jt. App. 315-316; Pet. App. 5a. In closing argument, the prosecutor, over petitioner's objection, also referred to petitioner's activities as "gun running." C.A. Jt. App. 391; see id. at 393, 394; Pet. App. 5a. With respect to the charges of making false material statements to a firearms dealer, in violation of 18 U.S.C. 922(a)(6), the district court gave the jury the following instruction about the contested issue of petitioner's residence: A residence, once established, continues until it is superseded by a new one. Generally, a state of residence is the state in which an individual regularly resides or maintains a home. A temporary stay in a state does not make the state of temporary stay a state of residence. To establish a new residence, one must physically reside in a new location with an intent to make his home there permanently. The temporary removal or absence from one's residence or domicile with an intent to return there will not suffice to establish a new residence. C.A. Jt. App. 441-442. 3. The court of appeals affirmed. Pet. App. 1a-7a. In the court of appeals, petitioner contended that since there was insufficient evidence to prove he was not a resident of Virginia, his convictions for making false material statements to a firearms dealer could not stand. The court found that the record showed that petitioner resided in New York City from April 1986 until late March 1987, and that "(t)he landlord who had evicted him continued to see (petitioner) in New York after March 29 (, 1987)." Id. at 3a. In addition, the court pointed to the documents seized from petitioner after his arrest, which showed petitioner's continuing ties to New York. Id. at 4a; see note 3, supra. "In light of this evidence," the court concluded, there is "no doubt that any rational juror could have found (petitioner) was a resident of New York when he purchased the firearms in Virginia." Pet. App. 4a. /4/ The court of appeals also rejected petitioner's claim that there was insufficient evidence to convict him as an aider and abettor in the unlawful purchases made by Jarrett and Layton. The court determined that "(t)he record is replete * * * with evidence that the two associates purchased the guns and gave them to (petitioner) knowing that he was using them as purchasers because he was apprehensive of purchasing any more weapons in this own name." Pet. App. 5a. Accordingly, the court concluded that "(t)he transactions obviously were direct purchases for (petitioner), and only by blind adherence to a strained logic could be conclude other than that false information was provided to facilitate the transactions." Ibid. Petitioner next contended that the admission of evidence regarding the value of the weapons he purchased and the prosecutor's reference to his "gun running" deprived petitioner of a fair trial. The court of appeals noted that the trial court had "instructed the jury that closing arguments are not evidence and that the jury is the judge of the weight to be given evidence." Pet. App. 6a. And it determined that "the jury * * * could have properly considered the relevance, if any, of (petitioner's) actions to his claim to a Virginia residence." Ibid. "Given the instructions and the weight of evidence against (petitioner)," the court concluded that petitioner was not "denied a fair trial." Ibid. Finally, petitioner contended that, in view of the previous weapons prosecution in the District of Columbia, the Double Jeopardy Clause barred petitioner's conviction for unlawfully delivering firearms to an interstate carrier for interstate transportation, in violation of 18 U.S.C. 922(e). The court of appeals rejected that contention, since, as petitioner conceded, "the Section 922(e) offense required proof of elements which are not part of the District of Columbia offense -- whether the firearms were transported on a common carrier and whether written notice was given to the common carrier." Pet. App. 7a. Moreover, as the court pointed out, "(it) is also clear that the government in the Section 922(e) prosecution proved different conduct than that grounding the District of Columbia illegal possession conviction." Pet. App. 7a (citing Grady v. Corbin, 110 S. Ct. 2084, 2087 (1990); Blockburger v. United States, 284 U.S. 299, 304 (1932)). ARGUMENT 1. Petitioner contends (Pet. 8-22) that since there was insufficient evidence to prove he was not a resident of Virginia, his convictions for making false material statements to a firearms dealer may not stand. The record showed that petitioner resided in New York City from April 1986 until late March 1987, and that "(t)he landlord who had evicted him continued to see (petitioner) in New York after March 29(, 1987)." Pet. App. 3a. In addition, documents seized from petitioner after his arrest in May 1987 showed petitioner's continuing ties to New York. Id. at 4a; see note 3, supra. "In light of this evidence," the court of appeals' conclusion that it had "no doubt that any rational juror could have found (petitioner) was a resident of New York when he purchased the firearms in Virginia" is unimpeachable. Pet. App. 4a. /5/ 2. Petitioner also contends (Pet. 29-32) that the district court erred in instructing the jury about the meaning of the term "residence." The district court's instruction effectively required the jury to find that New York was petitioner's domicile, i.e., the State where petitioner resided with a present intention to make it his permanent residence. See C.A. Jt. App. 441-442; pp. 4-5, supra. Contrary to petitioner's assertion (Pet. 31-32), there are no indications that Congress intended to incorporate by reference the various state law definitions of "residence" in prohibiting the sale of firearms to any person who "resides in any State other than that in which the transferor resides." 18 U.S.C. 922(a)(5). A State may define residence as referring to the place where a person currently makes his home. See, e.g., State-Planters Bank v. Virginia, 174 Va. 289, 295 (1940). Congress did not intend to create a loophole in the firearms statutes by which an individual could claim residence -- and thus purchase weapons legally out of State -- merely by renting a motel room on a given day. Rather, it is more reasonable to assume that Congress considered that a person resides in only one State at a time, i.e., his domicile. /6/ 3. Petitioner next contends (Pet 24-29) that, in view of his previous weapons prosecution in the District of Columbia, the Double Jeopardy Clause barred his conviction for unlawfully delivering firearms to an interstate carrier for interstate transportation, in violation of 18 U.S.C. 922(e). The Double Jeopardy Clause has been held to bar successive prosecutions for District of Columbia and federal offenses because the District is a federal entity. See United States v. Shepard, 515 F.2d 1324, 1331 (D.C. Cir. 1975). Under the rule of Blockburger v. United States, 284 U.S. 299, 304 (1932), however, the Section 922(e) federal offense is not the same as either of the District of Columbia weapons offenses, because each offense includes at least one essential element that the other does not. The Section 922(e) offense requires interstate transportation of firearms by an interstate carrier, without notifying the carrier in writing about the weapons; each District offense requires possession of a firearm within the District of Columbia. See note 2, supra. Petitioner fares no better under the rule set forth in Grady v. Corbin, 110 S. Ct. 2084, 2087 (1990), namely, "that the Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted." Here, the government's proof of petitioner's unlawful delivery of firearms to an interstate carrier for interstate transportation consisted of evidence that he purchased the firearms in Virginia, that he boarded the bus in Richmond without notifying Greyhound that he was carrying weapons, and that the weapons crossed state lines into the District of Columbia. Pet. App. 4a, 6a; Gov't C.A. Br. 6-7; C.A. Jt. App. 245-253, 274-283; see id. at 445 (jury instructions). Since petitioner's possession of the firearms in the District was not an element of the Section 922(e) offense, the fact that the government's evidence bore on that aspect of petitioner's previous District offenses does not amount to a violation of the Double Jeopardy Clause. 4. Finally, petitioner contends (Pet. 32-34) that the admission of evidence regarding the value of the weapons he purchased and the prosecutor's reference to his "gun running" deprived him of a fair trial. The fact that petitioner and his associates spent approximately $11,000 to purchase weapons over a three month period helped explain the scheme petitioner devised for purchasing weapons. The evidence thus bore directly on the principal issue contested at trial -- the representations petitioner made in order to purchase large quantities of weapons. The record also showed that petitioner, by purchasing weapons in Virginia and then taking them to New York, did engage in activity commonly known as "gun running." Since the record supported the prosecutor's reference, and since the district court properly instructed the jury that arguments of counsel were not evidence, see C.A. Jt. App. 433, the court of appeals correctly determined that the prosecutor's comments did not deprive petitioner of a fair trial. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General RICHARD A. FRIEDMAN Attorney JANUARY 1991 /1/ Petitioner was raised in Lawrenceville, Virginia, by foster parents. In the mid-1970s, petitioner left home and moved to New York City. From April 1986 through March 1987, petitioner and his girlfriend resided in a rented room on West 147th Street in Manhattan. In late March, petitioner was evicted, but his former landlord continued to see him in New York. Pet. App. 3a; Gov't C.A. Br. 2, 8-9. /2/ Petitioner later pleaded guilty in the District of Columbia Superior Court to charges of illegal possession of weapons. Under D.C. Code Section 22-3204, it is a crime for any "person * * * within the District of Columbia (to) carry either openly or concealed on or about his person, except in his dwelling house or place of business on other land possessed by him, a pistol, without a license (from the District)." The .38 caliber revolver petitioner possessed is a "pistol" for purposes of that criminal provision. See D.C. Code Section 22-3201(a) (pistol includes "any firearm with a barrel less than 12 inches in length"). Under D.C. Code Section 22-3214(a), it is also a crime for any "person * * * within the District of Columbia (to) possess any machine gun." Since petitioner's two 9 mm handguns were equipped with 36-round clips, they qualified as machine guns, i.e., "any firearm which shoots automatically or semiautomatically more than 12 shots without reloading," D.C. Code Section 22-3301(c). /3/ Those documents included a Harlem Hospital card showing appointments scheduled in February, March, and April 1987, a New York optician's bill showing a pickup date of May 18, 1987, a New York car repair bill dated May 14, 1987, and an airline ticket showing that petitioner had flown from New York to Richmond on May 30. Pet. App. 4a; Gov't C.A. Br. 7. /4/ Petitioner also challenged the district court's instruction to the jury about the meaning of the term "residence," asserting that it erroneously placed the burden on petitioner to prove his State of residence. Pet. C.A. App. 27-30. The court of appeals summarily rejected that claim, "find(ing) no error in the trial court's instruction concerning what the jury could consider in determining residency in the discrete circumstances of this case." Pet. App. 4a. /5/ Petitioner also renews his claim (Pet. 22-23) that there was insufficient evidence to convict him as an aider and abettor in the unlawful purchases made by Jarrett and Layton. But as the court of appeals correctly pointed out, "(t)he record is replete * * * with evidence that the two associates purchased the guns and gave them to (petitioner) knowing that he was using them as purchasers because he was apprehensive of purchasing any more weapons in this own name." Pet. App. 5a. /6/ Contrary to petitioner's assertion, the district court's instruction was actually favorable to him, since it required the government to bear the greater burden of proving that petitioner was domiciled in New York, as opposed to merely residing there. For that reason, petitioner suffered no prejudice from the district court's instruction.