United States v. Donald Allen Ellis

Citations: 747 F.2d 1205; 1984 U.S. App. LEXIS 16957Docket: 83-2508

Court: Court of Appeals for the Eighth Circuit; November 6, 1984; Federal Appellate Court

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Donald Allen Ellis was convicted by a jury in the District Court for the District of Minnesota for unlawful possession of a firearm, aiding and abetting the receipt of firearms, and engaging in the business of dealing in firearms without a license, all in violation of various sections of U.S. law. He received a concurrent sentence of two years for unlawful possession and five years for unlawful receipt, along with an additional two-year consecutive sentence for dealing in firearms. Ellis's appeal raises four main arguments: (1) the district court's improper interjection in favor of the government during trial; (2) the refusal to conduct an evidentiary hearing or declare a mistrial over improper juror communications; (3) the upholding of convictions based on multiplicitous charges; and (4) denial of his motion for acquittal due to insufficient evidence. The appellate court vacated the conviction for unlawful receipt but affirmed the remaining convictions. The case involved undercover police work that began in July 1982, with officers posing as house painters and eventually leading to interactions with Ellis and others regarding stolen items, including firearms. Key evidence included conversations where Ellis facilitated arrangements to sell stolen guns to the undercover officers.

Halliburton was found to have nine operable rifles and shotguns in the trunk of his Buick, which Officer Adelson and others removed and inspected. The officers expressed dissatisfaction with the guns' quality, prompting appellant to suggest that better quality guns had been overlooked during a burglary. A negotiated sale resulted in a price of $275.00 for all nine guns, despite appellant being a convicted felon without a license to sell firearms. After the transaction, Officer Adelson handed appellant the money, while Hauser took $75.00 as his share. Subsequent to this, on January 26, 1983, the officers acquired additional stolen items from Halliburton and appellant, excluding firearms.

All three individuals involved—appellant, Hauser, and Halliburton—were convicted felons at the time of these events. Hauser and Halliburton pleaded guilty to unlicensed firearms dealing under 18 U.S.C. Sec. 922(a)(1), while Halliburton also pleaded guilty to being a felon in possession of a handgun. Hauser testified for the prosecution, and Halliburton testified for the defense during appellant's trial.

Appellant contended that the district court improperly favored the government during the trial, compromising his right to a fair trial. The government countered that appellant failed to object to the alleged biased comments, asserting that the court's actions were intended to assist the jury's understanding. Absent timely objections, appellate courts are limited to addressing only plain errors affecting substantial rights. Upon review, it was determined that no plain errors occurred, as the district court acted to facilitate both parties' presentations.

The trial commenced on August 26, 1983, with evidence concluding the following morning. The district court offered jurors the option to begin deliberations that afternoon or to reconvene on Monday, allowing the jury to decide their preference for deliberation timing.

Following the presentation of evidence, the district court recessed for a discussion on jury instructions before recalling the jury. A juror indicated a desire for consensus on the verdict, leading to a decision for deliberations to begin the following Monday, August 29. The appellant did not object to this decision or the jurors' discussion during the recess. It was only after closing arguments and jury instructions that defense counsel moved for an evidentiary hearing regarding potential improper discussions among jurors, which the district court denied. The appellant contended that the court erred by not further investigating juror discussions before the case submission, but the government argued that this issue was not preserved due to the lack of a timely objection from defense counsel. The court found no plain error, reasoning that the district court's instructions prohibited any case discussion before submission.

In addressing duplicative convictions, the appellant argued against being sentenced for both aiding and abetting unlawful firearm receipt and unlawful possession, claiming double jeopardy due to identical factual bases. However, the court noted that the government agreed to vacate the unlawful possession conviction if the aiding and abetting convictions were affirmed.

Regarding sufficiency of evidence, the appellant claimed insufficient evidence to prove he aided and abetted the unlawful receipt of firearms, arguing that his mere presence at Hauser's apartment was inadequate. The court dismissed this argument, citing Hauser's testimony that he discussed obtaining guns with the appellant, who actively participated in negotiations and was aware of the illegal nature of the transaction. The court concluded that there was sufficient evidence to support the conviction for aiding and abetting unlawful firearm receipt.

Appellant contends that evidence is insufficient to uphold his conviction for aiding and abetting in the unlawful dealing of firearms, arguing that the government did not prove that Hauser and Halliburton were engaged in such a business. The court defines a 'dealer' as anyone engaged in the business of selling firearms for livelihood or profit, without a specified minimum for sales volume. Previous cases indicate that even having firearms available for sale may constitute being in the business. Although the specific transaction on January 21, 1983, may not alone establish Hauser and Halliburton's status as dealers, other evidence supports their involvement, including a prior transaction on January 19 where Halliburton sold a gun to an undercover officer and indications of additional merchandise being obtainable. 

The critical issue is whether appellant knew of Hauser and Halliburton's unlawful business activities. Previous case law suggested that mere participation in a single sale does not imply knowledge of a dealer's activities. However, in this case, appellant had direct knowledge of Hauser and Halliburton, was aware of discussions regarding obtaining guns for sale, and actively participated in negotiations for the sale. The evidence demonstrated that appellant knew of their unlawful dealings, leading the court to conclude that he aided and abetted their activities without a license.

The court affirms the convictions for aiding and abetting the unlawful receipt of firearms and aiding and abetting others in the unlawful business of dealing in firearms, while vacating the conviction for unlawful possession of firearms. The case is distinguished from United States v. Singer, where the district court's actions potentially biased the jury. The appellant's claim of double jeopardy regarding the aiding and abetting charge is dismissed, referencing recent Supreme Court clarifications on the issue. It is acknowledged that the appellant, along with Halliburton and Hauser, was unlicensed to deal in firearms. Unlike in previous cases, there is sufficient evidence demonstrating that the appellant was aware of Hauser's intentions to acquire guns for sale to undercover officers, actively participated in negotiations, and received payment for transactions, thereby affirming his involvement in the unlawful firearm business.