                                                                          FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                    December 7, 2007
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 07-3124
                                                 (D.C. No. 06-CR-10216-MLB)
    CHRISTOPHER LEE-CLARK,                                 (D. Kan.)

                Defendant-Appellant.


                             ORDER AND JUDGMENT *


Before TYMKOVICH, BALDOCK, and EBEL, Circuit Judges.



         Christopher Lee-Clark appeals his convictions for being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and for possession

of a stolen firearm, in violation of 18 U.S.C. § 922(j). Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm.




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                         I.

      Count One of the indictment charged Mr. Lee-Clark with being a felon in

possession of two firearms, a Colt .38 revolver and a High Standard .22

Derringer. Under Count Two he was charged with possessing a stolen

firearm–the Colt .38 revolver. 1

      At trial, witness Matthew Somers testified that he put his Colt .38 revolver

and its holster in a locked tool box in the bed of his pick-up truck on April 1,

2006. The next day he noticed that the toolbox lid was open, the lock was

damaged, and his gun and holster were gone. On April 1 and 2, his truck had

been parked at his current residence, on West 36th Street in Hays, Kansas.

Mr. Somers testified that at that time he also had approximately 300 shells of .22

caliber Remington long rifle ammunition in a cardboard box inside his tool box.

When he discovered that his .38 revolver was missing on April 2, he noticed that

the ammunition box was still in the tool box, but he did not look inside it.

Several months later, in October 2006, Mr. Somers cleaned out his tool box

before selling his truck and found that the ammunition box was empty. He

testified that he had not used any of the .22 caliber shells between April 2, 2006,

and when he discovered the ammunition box was empty in October. He did not



1
       An additional count charged Mr. Lee-Clark with possession of cocaine
under 21 U.S.C. § 844. He does not challenge his conviction on that count.


                                         -2-
testify regarding any subsequent thefts from his tool box between April and

October. Mr. Somers positively identified Government’s Exhibits 1 and 8 as his

Colt .38 revolver and holster. He identified Government’s Exhibit 5 as .22

caliber Remington long rifle shells, which he said were the same type of

ammunition he had in his tool box. Mr. Somers testified that he was acquainted

with Mr. Lee-Clark, who was a friend of his former roommate. He said that the

defendant had been a social visitor at his former apartment on 8th Street in Hays,

Kansas, on approximately ten occasions prior to April 2006.

      On April 8, 2006, six days after Mr. Somers discovered that his gun and

holster had been stolen, two police officers responded to a disturbance at a bus

stop outside of a convenience store in Hays, Kansas. When Lieutenant Scheibler

arrived at that location, he observed Officer Anderson, Mr. Lee-Clark, and the bus

driver standing outside of a parked bus. As Lieutenant Scheibler approached, the

defendant picked up some luggage and began walking away from the store and

bus stop area. At that point, Officer Anderson instructed him to return and speak

to Lieutenant Scheibler. Mr. Lee-Clark came back, put his luggage back on the

ground outside of the store, and entered the store. Officer Anderson testified that

the defendant told him that the bags outside the store belonged to him.

Lieutenant Scheibler arrested Mr. Lee-Clark inside the store, and Officer

Anderson transported him to the police station.




                                         -3-
         After arresting Mr. Lee-Clark, Lieutenant Scheibler transported his bags to

the police station. Both police officers stated that the defendant had two

bags–one was a musical instrument case and the other was a soft-sided duffle bag.

Lieutenant Scheibler testified that he had no doubt that the bags he picked up

outside the store were the same bags Mr. Lee-Clark had left there. Neither officer

saw any other luggage or people in the area, other than the bus driver, and Officer

Anderson testified that he had kept an eye on the bags while he was inside the

store.

         The officers testified that they found two guns, a holster, and .22 caliber

ammunition inside the duffle bag. They stated more specifically that they found

Government’s Exhibits 1 and 8 (Mr. Somers’ Colt .38 revolver and holster) inside

that bag. They also found Government’s Exhibits 2 and 5 in the duffle bag. They

identified Exhibit 2 as a High Standard brand Derringer .22 magnum caliber

pistol. Lieutenant Scheibler identified Exhibit 5 as approximately 250 rounds of

.22 caliber long rifle ammunition in a plastic bag. Finally, they also found

several items inside the duffle bag with Mr. Lee-Clark’s name on them.

         Following his arrest, the defendant was interviewed by a police department

investigator. He stated that he had gotten the Colt .38 handgun (Exhibit 1) from

an address close to the college campus on April 6, 2006. He stated further that he

picked up the .22 caliber Derringer handgun (Exhibit 2) in a crawl space at an

apartment complex. The address he gave for that apartment complex was across

                                            -4-
the street from Mr. Somers’ residence, where Mr. Somers’ truck was parked when

someone broke into his tool box and stole his Colt .38 revolver. Mr. Lee-Clark

did not make any statement regarding the .22 caliber ammunition found in the

duffel bag.

      An agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives

(BATFE) testified that he test fired Exhibits 1 and 2 and that they were both

operational firearms. He also testified that Exhibit 5 consisted of 337 Remington

.22 caliber long rifle rounds of ammunition. Another agent with BATFE testified

that Exhibits 1 and 2 were both manufactured in Connecticut, concluding that

they had traveled in interstate commerce. Mr. Lee-Clark stipulated that he had

previously been convicted of a felony. The jury found him guilty on Counts One

and Two.

                                          II.

      Mr. Lee-Clark makes four claims of error on appeal: (1) the statutes

underlying his convictions on Counts One and Two are unconstitutional to the

extent that they regulate solely intrastate possession of a firearm; (2) the district

court erred in admitting irrelevant evidence of .22 caliber ammunition, and in

giving a jury instruction on that evidence that differed from his proposed jury

instruction; (3) the district court erred in giving an instruction on recently stolen

property with regard to the ammunition evidence; and (4) there was insufficient




                                          -5-
evidence to support the jury’s verdict on the charge of possessing a stolen firearm.

                                         A.

      Mr. Lee-Clark contends that 18 U.S.C. §§ 922(g)(1) and 922(j)–the bases of

Counts One and Two, respectively–exceed Congress’s constitutional authority to

regulate interstate commerce. Specifically, he argues that Congress lacks the

authority to criminalize the intrastate possession of a firearm when the firearm’s

only connection with interstate commerce was that it crossed state lines at some

point in the past. He concedes that this issue is governed by the Supreme Court’s

decision in Scarborough v. United States, 431 U.S. 563 (1977), as applied by this

court in United States v. Patton, 451 F.3d 615 (10th Cir. 2006), cert. denied,

127 S. Ct. 1247 (2007). He raises this issue only to preserve it in the event the

Supreme Court or this court issues a decision which alters the current rule.

      In Patton, we applied the Supreme Court’s implicit holding in Scarborough

“that Congress may regulate any firearm that has ever traversed state lines.”

451 F.3d at 634. We acknowledged “considerable tension” between Scarborough

and later Supreme Court cases, including United States v. Lopez, 514 U.S. 549

(1995). Patton, 451 F.3d at 636. In Lopez, the Court held that 18 U.S.C.

§ 922(q), which criminalized possession of firearms in school zones, exceeded

Congress’s authority to regulate interstate commerce. 514 U.S. at 551. But we

concluded in Patton that the holding in Scarborough survived Lopez, as

acknowledged by our post-Lopez decisions. Patton, 451 F.3d at 636. Our prior

                                         -6-
decisions are controlling. “We cannot overrule the judgment of another panel of

this court. We are bound by the precedent of prior panels absent en banc

reconsideration or a superseding contrary decision by the Supreme Court.” In re

Smith, 10 F.3d 723, 724 (10th Cir. 1993).

      Nonetheless, Mr. Lee-Clark urges us to apply the “constitutional doubt”

doctrine of Jones v. United States, 529 U.S. 848 (2000), whereby a statute

susceptible to two constructions should be interpreted to avoid “grave and

doubtful constitutional questions.” 529 U.S. at 857 (quotation omitted). He

suggests that we should apply this doctrine to “require a greater ‘nexus’ to

interstate commerce than the mere fact that the pistols were manufactured outside

of the state of possession.” Aplt. Br. at 22. Mr. Lee-Clark misapprehends the

doctrine of constitutional doubt, which “does not trump the principle of stare

decisis. If a precedent of the Supreme Court has direct application in a case, yet

appears to rest on reasons rejected in some other line of decisions, the Court of

Appeals should follow the case which directly controls, leaving to the Court the

prerogative of overruling its own decisions.” United States v. Grisel, 488 F.3d

844, 847 (9th Cir.) (en banc) (quotation and brackets omitted), cert. denied,

128 S. Ct. 425 (2007).

                                         B.

      Mr. Lee-Clark next argues that the district court erred in admitting the

evidence related to .22 caliber ammunition and in giving an instruction to the jury

                                         -7-
on that evidence. Following the government’s opening statement, in which the

prosecutor referred to the ammunition missing from Mr. Somers’ tool box and the

ammunition found in the defendant’s duffle bag, Mr. Lee-Clark objected to the

admission of that evidence on relevance grounds. The district court

acknowledged the government’s inability to establish directly that the .22 caliber

rounds found in the duffle bag were the same rounds that Mr. Somers’ had in his

tool box, but the court concluded that the evidence would be relevant assuming

that a witness could place ammunition in the tool box with the .38 revolver that

was stolen. In that event, the court ruled that the ammunition evidence fell within

the definition of res gestae, which literally means “[t]hings done.” Black’s Law

Dictionary 1173 (5th ed. 1979). The court ultimately instructed the jury as

follows with respect to the ammunition evidence:

             There is evidence that .22 caliber ammunition was found in a
      duffel bag along with the .38 caliber Colt revolver.
             You are instructed that you may consider this evidence only
      for the purpose of establishing defendant’s knowledge, if any, that
      the .38 caliber Colt revolver was stolen, as charged in Count 2.

R., Vol. I, Doc. 29, Instruction No. 14. 2

      We review a district court’s admission of evidence for an abuse of

discretion. See United States v. Condrin, 473 F.3d 1283, 1285 (10th Cir.),



2
       Instead of this instruction, Mr. Lee-Clark asked the district court to instruct
the jury that the ammunition evidence was not relevant and direct them to
disregard it.

                                             -8-
cert. denied, 127 S. Ct. 2925 (2007). “Under Federal Rule of Evidence 401,

evidence is relevant if it tends to make a material fact ‘more probable or less

probable than it would be without the evidence.’” Id. at 1285 (quoting Fed. R.

Evid. 401).

      As for materiality, under Rule 401 a fact is of consequence when its
      existence would provide the fact-finder with a basis for making some
      inference, or chain of inferences, about an issue that is necessary to a
      verdict. As for the degree of probative value required under
      Rule 401, the rule sets the bar very low. The rule establishes that
      even a minimal degree of probability-i.e., any tendency-that the
      asserted fact exists is sufficient to find the proffered evidence
      relevant.

United States v. McVeigh, 153 F.3d 1166, 1190 (10th Cir. 1998) (quotations and

citations omitted).

      Mr. Lee-Clark argues that the ammunition evidence was not relevant

because there was no connection between the bullets found in his duffle bag and

the bullets missing from Mr. Somers’ tool box, other than the fact that all of the

shells were the same caliber. We disagree. The government’s theory of the case

was that the defendant stole the Colt .38 revolver, the holster, and the .22 caliber

shells from Mr. Somers’ tool box at the same time. It presented circumstantial

evidence supporting that inference: the testimony showing that the bullets in the

tool box and in Mr. Lee-Clark’s duffle bag were all .22 caliber Remington long

rifle shells; the comparable number of shells that Mr. Somers estimated were in

his tool box before the gun was stolen and those found in the duffle bag; and


                                          -9-
Mr. Somers’ testimony that he had not used any of the .22 caliber shells from the

time that he learned that his gun had been stolen until he discovered that the

ammunition box was empty several months later, further supporting the inference

that the shells were taken at the same time as the gun. Again, based upon the

government’s theory of the case, evidence of Mr. Lee-Clark’s possession of

ammunition stolen at the same time as the Colt .38 revolver was relevant to his

knowledge that the gun was stolen, and we conclude that the district court did not

abuse its discretion in admitting the ammunition evidence.

      In light of that conclusion, we also reject Mr. Lee-Clark’s contention that

the district court erred in instructing the jury that they could consider the

ammunition evidence “only for the purpose of establishing defendant’s

knowledge, if any, that the .38 caliber Colt revolver was stolen.” R., Vol. I, Doc.

29, Instruction No. 14. “We review a district court’s decision to give a particular

jury instruction for an abuse of discretion . . . .” United States v. Gwathney,

465 F.3d 1133, 1142 (10th Cir. 2006). Mr. Lee-Clark asserts that this instruction

“virtually direct[ed] the jury to associate the .22 bullets with the .38 revolver

despite the lack of evidence of any connection.” Aplt. Br. at 11. But as we have

noted, the ammunition evidence was relevant to his knowledge that the Colt .38

revolver was stolen, and therefore this instruction appropriately limited the jury’s

consideration of the evidence to that issue.




                                          -10-
      Moreover, we also agree with the district court that the ammunition

evidence was properly admitted as part of the res gestae. We have stated that

“[e]vidence of other crimes should not be suppressed when those facts come in as

res gestae–as part and parcel of the proof of the offense charged in the

indictment.” United States v. Kimball, 73 F.3d 269, 272 (10th Cir. 1995)

(quotation and brackets omitted). We have also held that “other acts” evidence is

admissible when it is “so linked together in point of time and circumstances with

the crime charged that it is part of the res gestae of the crime charged.” United

States v. Cook, 745 F.2d 1311, 1317 (10th Cir. 1984) (quotations omitted). Here,

the evidence of the ammunition missing from the tool box, and a similar amount

of the same kind and caliber of ammunition found in Mr. Lee-Clark’s duffle bag,

tended to “complete the story of the crime” based upon the government’s theory

of the case. Id. (quotation omitted). 3




3
       Mr. Lee-Clark also asserts that the ammunition evidence should have been
excluded under Fed. R. Evid. 403 because its probative value was far outweighed
by its prejudicial effect. “Unfair prejudice in the Rule 403 context ‘means an
undue tendency to suggest decision on an improper basis, commonly, though not
necessarily, an emotional one.’” United States v. Tan, 254 F.3d 1204, 1211
(10th Cir. 2001) (quoting Fed. R. Evid. 403 advisory committee’s note).
Mr. Lee-Clark fails to provide any argument in support of this contention or
identify any unfair prejudice resulting from the admission of the evidence.

                                          -11-
                                           C.

      Mr. Lee-Clark next contends that the district court erred in giving the jury

an instruction on recently stolen property, 4 as that instruction applied to the

ammunition evidence. He argues that the district court should have expressly

limited the application of that instruction to the Colt .38 revolver, and by failing


4
      The district court instructed the jury as follows:

            Possession of recently stolen property, if not satisfactorily
      explained, is ordinarily a circumstance from which a jury may
      reasonably draw an inference and find, in the light of the surrounding
      circumstances shown by the evidence and in the case, that the person
      in possession knew the property had been stolen.
            You are not, however, required to draw this inference. It is the
      exclusive province of the jury to determine whether the facts and
      circumstances shown by the evidence in this case warrant any
      inference that the law permits the jury to draw from the possession of
      recently stolen property.
            The term “recently” is a relative term, and has no fixed
      meaning. Whether property may be considered as recently stolen
      depends upon the nature of the property, and all the facts and
      circumstances shown by the evidence in the case. The longer the
      period of time since the theft, the more doubtful becomes the
      inference that may reasonably be drawn from unexplained
      possession.
            In considering whether possession of recently stolen property
      has been satisfactorily explained, you are reminded that, in the
      exercise of his constitutional rights, the accused need not take the
      witness stand and testify on his own behalf.
            Remember that the burden of proof is on the government to
      prove beyond a reasonable doubt that the defendant committed the
      crime charged.
            Possession may be satisfactorily explained, of course, by
      looking to other circumstances or evidence.

R., Vol. I, Doc. 29, Instruction No. 13.

                                           -12-
to do so, the jury was permitted to infer the defendant’s knowledge that the

ammunition found in his bag was also stolen property. He asserts that the

instruction was given in error with respect to the ammunition because it was not

discovered missing until six months after the Colt .38 revolver was stolen.

      As Mr. Lee-Clark fails to acknowledge until his reply brief, he did not raise

this issue in the district court. While he did object to the recently-stolen-property

instruction as it applied to the Colt .38 revolver, he does not raise that issue on

appeal. And his objection was not sufficient to preserve his argument regarding

application of the instruction to the ammunition evidence. See United States v.

Bornfield, 184 F.3d 1144, 1146 n.2 (10th Cir. 1999) (holding generalized

objection to instruction insufficient; party must “state distinctly the matter to

which that party objects and the grounds of the objection” (quotation and brackets

omitted)). Therefore, we review the district court’s instruction only for plain

error. See United States v. Torres-Laranega, 476 F.3d 1148, 1154 (10th Cir.),

cert. denied, 128 S. Ct. 176 (2007). Mr. Lee-Clark “must show that the district

court not only committed error, but that such error was plainly evident; that it

affected his substantial rights; and that it seriously affected the fairness, integrity,

or public reputation of the judicial proceedings.” Id. This is a “high standard” to

satisfy. Id.

      Mr. Lee-Clark’s arguments of error regarding the recently-stolen-property

instruction echo his contentions that we have previously considered regarding the

                                          -13-
relevance of the ammunition evidence. He advances one argument we will

address specifically: that a recently-stolen-property instruction was not

appropriate where there was a six-month delay in discovering the theft and the

property is not unique. For this proposition he relies on United States v. Tisdale,

647 F.2d 91, 93 (10th Cir. 1981). But Tisdale addressed a different issue:

whether a sixteen-month interval between the date of theft and the first evidence

of possession of unique stolen property by defendants was too long to permit

giving an instruction permitting an inference of knowledge that the property was

stolen. See id. Here, despite Mr. Somers’ discovery that the ammunition was

missing from his tool box several months after his gun was stolen, we have

concluded that there was circumstantial evidence supporting an inference that the

ammunition was stolen at the same time as the Colt .38 revolver–which was only

six days before the defendant was arrested with that gun and .22 caliber

ammunition in his possession.

      It is evident that the district court and the parties intended the

recently-stolen-property instruction to apply only to the Colt .38 revolver–the

specific stolen property that Mr. Lee-Clark was charged with knowingly

possessing. Indeed, he only objected to the instruction as it related to that

property. But even if the jury applied the instruction to the ammunition as well,

Mr. Lee-Clark has failed to identify any error, much less plain error, affecting




                                         -14-
both his substantial rights and the fairness, integrity, or public reputation of the

judicial proceedings.

                                          D.

      Mr. Lee-Clark’s final argument is that the evidence was insufficient to

establish, in support of his conviction on Count Two, that he knew or had

reasonable cause to know that the Colt .38 revolver was stolen. “We review de

novo whether the government presented sufficient evidence to support a

conviction. In so doing, we view the facts in evidence in the light most favorable

to the government.” United States v. Sells, 477 F.3d 1226, 1235 (10th Cir. 2007).

In support of his argument, Mr. Lee-Clark merely reviews the evidence in the

light most favorable to him. We conclude that “a reasonable jury could find guilt

beyond a reasonable doubt, based on the direct and circumstantial evidence,

together with the reasonable inferences to be drawn therefrom.” Id.

                                          III.

      The judgment of the district court is affirmed.


                                                      Entered for the Court



                                                      David M. Ebel
                                                      Circuit Judge




                                          -15-
