UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 96-4734

WILLIE BERRY HUDSON, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, District Judge.
(CR-96-9)

Submitted: June 3, 1997

Decided: June 23, 1997

Before WILLIAMS and MICHAEL, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Paul G. Beers, GLENN, FELDMANN, DARBY & GOODLATTE,
Roanoke, Virginia, for Appellant. Robert P. Crouch, United States
Attorney, Anthony P. Giorno, Assistant United States Attorney, Roa-
noke, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Appellant Willie Berry Hudson, Jr., was convicted for his part in
a scheme in which he enlisted the aid of a third party ("Staples") to
purchase a firearm for his adult son ("Barry"), who was a convicted
felon. On appeal, Hudson raises six issues: (1) whether his statements
to ATF agents should have been suppressed because they were tainted
by his illegal arrest; (2) whether his motion for judgment of acquittal
should have been granted; (3) whether the district court erred by
admitting previously undisclosed evidence and by allowing the ATF
agent in charge to testify as an expert; (4) whether he was entitled to
a mistrial; (5) whether the district court erred in instructing the jury;
and (6) whether the Government improperly used a peremptory chal-
lenge against a black juror. Finding no reversible error, we affirm.

A federally licensed firearms dealer twice refused to sell a firearm
to Hudson and Barry because they lacked proper identification.1 They
then offered Staples fifty dollars to purchase the firearm for them.
However, when Staples attempted to purchase the weapon, the sales-
man ("Dillon") recognized Hudson and Barry and, suspecting a "straw
purchase," refused the sale. Dillon immediately contacted law
enforcement personnel and gave them a description of Staples and a
description and license plate number for Hudson's car.

The Defendants then went to another firearms dealer ("On Tar-
get"), where Staples again attempted to purchase the weapon Barry
wanted.2 However, when the store manager ("Owens") contacted the
State Police for authorization, he was informed that the transaction
was not approved because the Bureau of Alcohol, Tobacco, & Fire-
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1 Barry produced an out-of-state driver's license, and Hudson could not
produce sufficient identification.
2 Barry provided the funds to purchase the firearm.

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arms ("BATF") suspected a straw purchase. Owens informed Staples
that the sale was not approved yet and for Staples to return the next
day. Staples put a deposit on the firearm and left. The next day, the
Defendants returned to On Target, but Owens had left for the day, and
the store owner, who had been briefed by BATF agents, told Staples
that he would have to return the following day when Owens returned.
Staples relayed this message to Hudson and Barry, who were waiting
outside in the car. Barry became upset and told Staples to get his
money back. The store owner informed Staples that he would have to
return the following day to receive a refund from Owens.

Hudson and Staples returned the following day without Barry.
Owens asked Staples if he wanted a refund or the firearm. Staples
replied that he wanted the weapon and paid the remaining balance.
BATF agents detained Staples as he attempted to leave the store, and
they detained Hudson in the parking lot. Both men were informed of
their rights, even though they were told they were not under arrest,
and asked to accompany the agents to their office, where they were
again advised of their rights and, after signing written waiver forms,
provided incriminating statements.

We review the district court's ultimate suppression decision de
novo, but the underlying factual decisions are reviewed for clear error.
United States v. Rusher, 966 F.2d 868, 873 (4th Cir. 1992). Applying
this standard, we find that even assuming his detention constituted a
de facto arrest, the district court properly admitted Hudson's confes-
sion because BATF agents had probable cause to arrest him based on
the information provided by Dillon and Owens and the Defendants'
own actions. We further find that while agents may not have known
about Barry's criminal record, there was ample evidence to support
a probable cause determination that Staples was attempting an illegal
straw purchase for one or more individuals who were not authorized
to make the purchase themselves. Since Hudson's arrest was not ille-
gal, we decline to address his assertion that the district court failed to
apply the test set forth in Brown v. Illinois , 422 U.S. 590 (1975).

In reviewing the denial of a motion for judgment of acquittal, we
will sustain the conviction if the evidence, viewed in the light most
favorable to the Government, was sufficient for a rational trier of fact
to find the essential elements of the offense beyond a reasonable

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doubt, United States v. Brewer, 1 F.3d 1430, 1437 (4th Cir. 1993),
and we find the evidence here meets this requirement. Dillon, Owens,
and the BATF agent in charge ("Fairburn") all provided testimony
concerning the license status of the two stores. We find this testimony
was sufficient to establish that both dealers were federally licensed at
the time of the offenses. We further find that the evidence was suffi-
cient to show that the Defendants knowingly made false statements
or misrepresentations to federally licensed firearms dealers.

We review the district court's evidentiary decisions for abuse of
discretion, and we find no such abuse here.3 We find that Hudson was
not prejudiced by the admission of a letter from the BATF to On Tar-
get because he had ample opportunity to address it during the trial.
Likewise, we find that Hudson was not prejudiced by Fairburn's
expert testimony. Defense counsel suggested that Fairburn testify on
the interstate nexus issue and nothing in his testimony was a surprise.

We reject Hudson's claim that he was entitled to a mistrial after
Fairburn stated that Hudson, Staples, and Barry provided sworn state-
ments "confessing" to the offenses. On appeal, Hudson asserts that his
confrontation rights under Bruton v. United States, 391 U.S. 123
(1968), were violated. We disagree. This court has previously held
that a Bruton problem exists only where the non-testifying co-
defendant's statement implicates the defendant. United States v.
Locklear, 24 F.3d 641, 646 (4th Cir. 1994). In the present case, the
only non-testifying co-defendant was Barry, and his statement was
never offered into evidence. Therefore, the only potential Bruton
problem concerns Fairburn's reference to Barry's statement. But the
court immediately corrected Fairburn's misstatement to reflect that
agents received only statements (not confessions) from the Defen-
dants.

We review the district court's decision not to give an instruction
for abuse of discretion. United States v. Russell, 971 F.2d 1098, 1107
(4th Cir. 1992). The court's refusal to give a defense instruction "con-
stitutes reversible error only if the instruction: (1) was correct; (2) was
not substantially covered by the court's charge to the jury; and (3)
dealt with some point in the trial so important, that failure to give the
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3 See United States v. Hassan El , 5 F.3d 726, 731 (4th Cir. 1993).

                    4
requested instruction seriously impaired the defendant's ability to
conduct his defense." United States v. Lewis , 53 F.3d 29, 32 (4th Cir.
1995) (citations and internal quotation marks omitted). We find no
reversible error in the present case.

Hudson's proposed instruction number four was substantially cov-
ered in the court's charge; only the proposed example was missing.
Proposed instruction numbers eight and nine were properly refused
because they were not correct. The identity of the intended recipient
of the firearm was not an essential element of the offense; the offense
only required proof that Staples misrepresented that he was the actual
purchaser. Hudson's oral request for an instruction requiring the Gov-
ernment prove that Valley Guns and On Target were federally
licensed at the time of the offense was substantially covered by the
court's charge.

Finally, we reject Hudson's assertion that the district court erred in
overruling his objection based on Batson v. Kentucky, 476 U.S. 79
(1986). The Government provided a race-neutral explanation for its
peremptory challenges, and we find that the district court's factual
determination accepting the Government's reasoning was supported
by the record and not clearly erroneous.4

We therefore affirm the judgment of the district court. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the material before the court and argument would
not aid the decisional process.

AFFIRMED
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4 See United States v. Tindle, 860 F.2d 125, 129 (4th Cir. 1988).

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