DAVID ALLEN STEWART, PETITIONER V. UNITED STATES OF AMERICA No. 90-5143 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 Sixth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A6) is not reported. JURISDICTION The judgment of the court of appeals was entered on April 16, 1990. The petition for a writ of certiorari was filed on Monday, July 16, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the court of appeals correctly concluded that there was insufficient evidence to support petitioner's proposed theory-of-defense jury instruction. STATEMENT After a jury trial in the United States District Court for the Southern District of Ohio, petitioner was convicted on six counts of making false statements in connection with the acquisition of firearms, in violation of 18 U.S.C. 922(a)(6). He was sentenced to seven months' imprisonment, to be followed by three years' supervised release. The court of appeals affirmed (Pet. App. A1-A6). 1. The evidence at trial showed that in May 1989 petitioner made multiple purchases of handguns from five federally licensed gun dealers. On each of the applications for these purchases, petitioner certified that he was the actual buyer. In fact, however, he bought the guns for another person, with that person's money, and then turned the guns over to that person. The investigation of these purchases began on May 19, 1989, when Rodney Russell, an agent of the Bureau of Alcohol, Tobacco and Firearms (ATF), received reports that over the two previous days petitioner had made multiple purchases of handguns at a gun store in Galloway, Ohio. Pet. App. A1-A2; Tr. 19-20, J.A. 30-31. Agent Russell began the investigation because the weapons involved -- .22 and .25 caliber handguns -- were the sort favored by drug dealers and often recovered at "crack" cocaine houses. Tr. 21, J.A. 32. In the course of his investigation, Agent Russell obtained six ATF Form 4473's from five gun dealers in the Columbus, Ohio, area concerning additional firearm purchases by petitioner. Tr. 21-23 & 25-28, J.A. 32-38; Gov't Exhs. 1 through 6, J.A. 9-20; Tr. 80, J.A. 66. Five of the forms reported purchases of more than one weapon. Gov't Exhs. 1 through 6, J.A. 9-20. Agent Russell visited the address listed by petitioner on the Form 4473's and was told by the occupants of that residence that petitioner did not live there. Tr. 29-31, J.A. 39-41. Soon after that visit, petitioner telephoned Russell and gave an account of the purchases that Russell was investigating. Tr. 31, J.A. 41. Petitioner said that he had bought the 25 handguns for Tony Baker, that Baker had supplied the money for these purchases, and that petitioner had turned all of the guns over to Baker. Pet. App. A2; Tr. 31-32, J.A. 41-42. Petitioner also admitted during this phone conversation that he did not live at the address that he had reported on the Form 4473's. Pet. App. A2; Tr. 32, J.A. 42. Petitioner gave Agent Russell a somewhat different account in a later, face-to-face meeting. As before, petitioner said that he had purchased the guns for someone else with that person's money, but this time petitioner called the person Parnell "Tony" Pardue. Pet. App. A2; Tr. 35-36, J.A. 43-44. Also as before, petitioner said that he did not keep any of the guns, but rather, in this account, immediately turned them over to Pardue. Pet. App. A2; Tr. 35-36, J.A. 43-44. Petitioner added the detail that he had engraved the plastic grips of two of the guns and that there were plans to resell the guns at a profit. Tr. 35-37 & 39, J.A. 43-46. However, Agent Russell never found any engraved guns, any engraving equipment, or anyone named either Baker or Pardue. Ibid. Petitioner later signed a statement in which he alleged that he had bought the guns for Pardue with Pardue's money and turned the guns over to Pardue. Gov't Exh. 7, J.A. 21-22; Tr. 80-81, J.A. 66-67. 2. At trial, petitioner asked the district court to instruct the jury that he could be deemed a true purchaser or transferee of the firearms if he was engaging in a joint enterprise at the time of the purchases. Pet. App. A4; J.A. 23. The district court declined to give the instruction in this form, finding petitioner's theory more appropriate for closing argument. Tr. 85-87, J.A. 71-73. The district court did, however, instruct the jury that the prosecution had to prove beyond a reasonable doubt that in connection with the handgun purchases petitioner "knowingly made a false or fictitious written statement likely to deceive the firearm dealer." Tr. 103. The district court further instructed the jury on the terms "knowingly," "false or fictitious," and "likely to deceive." /1/ 3. On appeal to the United States Court of Appeals for the Sixth Circuit, petitioner argued that the district court's refusal to give the jury his theory-of-defense instruction was erroneous. Pet. App. A4. The court of appeals rejected this argument. The court recognized that a defendant is entitled to a theory-of-defense instruction "if (a) there is evidence to support it, and (b) it is appropriate in form and substance." Ibid. At the same time, the court observed, a trial judge need not give the instruction if its substance is covered in other instructions. Id. at A4-A5. The court concluded that petitioner's "joint enterprise" theory was not sufficiently supported by evidence in the record to require that petitioner's instruction be given. Ibid. The court also concluded that the trial court's charge fairly submitted the issues at trial to the jury. Id. at A5. /2/ ARGUMENT The court of appeals decision is correct and presents no issue warranting review by this Court. 1. Petitioner contends (Pet. 4) that the court of appeals imposed a requirement that he present through his own case evidence supporting his theory-of-defense instruction. This contention is incorrect. The court of appeals recognized that petitioner was entitled to have his theory-of-defense instruction given if there was evidence to support his theory anywhere in the record. That recognition is manifest in the court's statement that the instruction must be given if "there is evidence to support it." Pet. App. A4. The court did not, in setting forth this principle, say that the supporting evidence had to be presented by the petitioner. Nor did the court state such a requirement when it applied the principles governing theory-of-defense instructions to the facts of this case. Although the court did say that the instructions as given were adequate "because (petitioner) did not offer sufficient evidence to support the proposed jury instruction" (Pet. App. A5), this statement must be understood in light of the fact that following the prosecution's case petitioner offered no evidence. Tr. 84, J.A. 70. Furthermore, the only evidence arguably supportive of petitioner's "joint enterprise" theory was adduced through direct examination by the prosecutor. /3/ Thus, when the court stated that evidence supporting petitioner's instruction was not "sufficient," the court could only have been referring to evidence presented by the government. In short, contrary to petitioner's contention, the court of appeals properly reviewed the entire record for evidence supporting petitioner's proposed instruction. 2. The court of appeals correctly concluded that the district court was not required to give petitioner's theory-of-defense instruction. There was virtually no evidence at trial to support petitioner's "joint enterprise" theory. The crux of this theory, as stated in petitioner's proposed instruction, was that petitioner gained a "property interest" in the guns by agreeing with a third party to purchase guns and "share in the profits" from resale. J.A. 23. There was absolutely no evidence at trial of any agreement to this effect. Some government witnesses testified that petitioner told them he was engraving the guns for resale. See note 3, supra. However, there was no testimony to indicate that petitioner made an agreement with the person who paid for the guns to share in any profits from resale. Nor was there any evidence that by engraving the guns petitioner obtained any sort of property interest in them. A court is only required to give a theory-of-defense instruction when there is "evidence before the jury to reasonably support such theory." Devine v. United States, 403 F.2d 93, 95 (10th Cir. 1968), cert. denied, 394 U.S. 1003 (1969). Accord, e.g., United States v. Jackson, 726 F.2d 1466, 1468 (9th Cir. 1984). The court below correctly concluded there was no such evidence here. For this reason, the instructions that the district court did give adequately submitted the issues to the jury. Although the evidence that petitioner engraved some guns did not support petitioner's "joint enterprise" theory, this evidence conceivably could have been deemed by the jury to bear upon petitioner's state of mind when he purchased the guns: It arguably could be inferred that petitioner believed, though mistakenly, that he would gain a property interest in the guns by engraving them. The jury was fully informed about the pertinence of petitioner's mental state by the district court's instructions on the requirement for proof that petitioner "knowingly" made a "false or fictitious" written statement that was "likely to deceive" the firearm dealer. See note 1, supra. CONCLUSION For the reasons set forth above, the petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Acting Assistant Attorney General LOUIS M. FISCHER Attorney SEPTEMBER 1990 /1/ The district court stated (Tr. 104): To act "knowingly" means to act voluntarily and intentionally, and not because of mistake or accident. Since ordinarily a defendant's mental state may not be proved directly, you may infer the defendant's state of mind from the surrounding circumstances, including statements made or omitted by the defendant and all other facts and circumstances. A statement is "false or fictitious" if it was untrue when made and it was then known to be untrue by the person making it. A false statement is "likely to deceive" if the nature of the statement, considering all of the surrounding circumstances at the time it is made, would probably mislead or deceive a reasonable person of ordinary prudence. /2/ The court of appeals also rejected petitioner's argument that there was insufficient evidence to support his convictions, and that the district court erred when it ruled that the materiality of petitioner's false statements was a question of law. Petitioner does not renew those claims here. /3/ This evidence consisted of the following testimony by government witnesses, all of which was elicited through direct examination: (1) Agent Russell's testimony that during their meeting petitioner indicated that "he engraved two of the pistols and that he had plans to engrave the rest of them at a later date" (Tr. 35, J.A. 43), and that there were plans "to engrave the pistols and resell them and make a profit from them" (Tr. 39, J.A. 46); (2) gun dealer Kellin's testimony that petitioner told Kellin "I want to engrave these guns" (Tr. 56, J.A. 55); (3) gun dealer Mendel's testimony that petitioner told Mendel that petitioner "wanted to buy the guns and I guess engrave them and resell them" (Tr. 60, J.A. 58); and (4) gun dealer Cooper's testimony that petitioner "indicate(d) that he was going to try to engrave the guns" (Tr. 69, J.A. 61).