                                                                                F IL E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                              October 10, 2006
                                    TENTH CIRCUIT
                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,

 v.                                                             No. 05-5112

 BILLY JOE HILL,                                        (D.C. No. 03-CR-71-CVE)
                                                              (N. D. Okla.)
           Defendant-Appellant.



                                 ORDER AND JUDGMENT *


Before BRISCOE and BALDOCK, Circuit Judges, and BRORBY, Senior Circuit Judge.


       A jury convicted Defendant Billy Joe Hill of being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1), and making a false statement during the

purchase of a firearm in violation of 18 U.S.C. § 922(a)(6). On appeal, Defendant argues

(1) the Government did not present sufficient evidence to sustain his § 922(g)(1)

conviction; (2) his § 922(g)(1) conviction violates the prohibition against ex post facto

laws; (3) the district court prevented him from presenting certain testimonial evidence; (4)

the district court improperly instructed the jury; and (5) the district court improperly



       *
          This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
calculated his sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742, and affirm.

                                            I.

      The evidence the Government introduced at trial revealed that on April 30, 2002,

Ina Sanchez, manager of Fast-Buck Pawnworld, and Suzanne Lee, assistant manager,

observed Defendant enter the pawnshop carrying a shotgun. According to Ms. Sanchez,

Defendant was a regular customer. Ms. Sanchez testified she assisted Defendant who

wanted to pawn the shotgun. At trial, the Government presented the pawn ticket Ms.

Sanchez prepared for the transaction. The ticket contained Defendant’s name and address

and identified the shotgun as a 12-gauge Springfield Model 67. Both Ms. Sanchez and

Ms. Lee testified that several times thereafter, Defendant returned to the pawnshop to

refinance the shotgun.

      Ms. Sanchez further testified that on May 25, 2002, Defendant returned to the

pawnshop and attempted to re-acquire the shotgun. Defendant completed and signed the

required ATF Form 4473, a form necessary to verify the purchaser’s identity and

determine if the purchaser is legally allowed to possess a firearm. In the form, Defendant

denied having been previously convicted of a felony. After calling in Defendant’s

application, Ms. Sanchez informed Defendant his application was denied.

                                            II.

      Defendant first argues the Government did not present sufficient evidence to



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support his conviction for possession of a firearm. According to Defendant, “his

possession was merely incidental to the pawn transaction,” and insufficient to constitute

dominion and control over the firearm. We review a denial of a motion of acquittal de

novo. United States v. Williams, 376 F.3d 1048, 1051 (10th Cir. 2004). In conducting

our inquiry, we view the evidence in the light most favorable to the Government to

determine whether the evidence the Government presented, if believed by a reasonable

jury, would establish each element of the crime. Id.

       Contrary to Defendant’s suggestion, “a conviction for being a felon in possession

of a firearm under § 922(g) does not require evidence of a lengthy possession[.]” United

States v. Williams, 403 F.3d 1188, 1194 (10th Cir. 2005). As we noted, “even if a felon

held a firearm for a mere second or two, unless that felon truly did not know that what he

possessed was a firearm or there was some recognized legal justification for his holding

the firearm, § 922(g) will still impose criminal liability.” United States v. Adkins, 196

F.3d 1112, 1115 (10th Cir. 1999). Both Ms. Sanchez and Ms. Lee testified at trial they

observed Defendant carry the shotgun into the pawnshop. Based on their testimony, a

reasonable jury could have found beyond a reasonable doubt Defendant knowingly

possessed a firearm, even if for a brief moment. Therefore, the Government’s evidence

was sufficient to sustain Defendant’s conviction.

                                            III.

       Defendant next argues his § 922(g)(1) conviction violates the Ex Post Facto clause



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of the Constitution. According to Defendant, applying § 922(g)(1) to him is an ex post

facto violation because the Government did not introduce any evidence the gun traveled

in interstate commerce after 1968, the year the Gun Control Act was enacted. Contrary to

Defendant’s argument, § 922(g)(1) criminalizes a felon’s possession of a firearm, not the

interstate transportation of a firearm in commerce. The mere fact the firearm a felon

possesses traveled in interstate commerce prior to the law’s enactment does not make a

defendant’s conviction unconstitutional. See United States v. Woods, 696 F.2d 566, 571-

72 (8th Cir. 1982). The “in or affecting commerce” language, only “describes what kind

of a gun felons may not possess” and provides the necessary jurisdictional basis for the

federal law. United States v. Gillies, 851 F.2d 492, 495 (1st Cir. 1988). The evidence the

Government presented at trial established Defendant possessed the firearm in the spring

of 2002, well after the enactment of the Gun Control Act of 1968. Accordingly,

Defendant’s conviction does not constitute an ex post facto violation.

                                             IV.

       Defendant also argues the district court erred by refusing to continue the trial to

allow him to subpoena Jay Jones, owner of Fast-Buck Pawnworld, to testify. At trial,

Defendant asserted Mr. Jones would testify he “was the one that was at the pawnshop and

a witness to the fact that [Defendant] did not pawn the gun.” The district court denied

Defendant’s request because it was untimely and Mr. Jones’s proposed testimony was not

relevant in light of Ms. Sanchez and Ms. Lee’s testimony. We review a district court’s



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evidentiary ruling for an abuse of discretion. United States v. Dowlin, 408 F.3d 647, 659

(10th Cir. 2005). This means we will not disturb an evidentiary ruling “absent a distinct

showing that it was based on a clearly erroneous finding of fact or an erroneous

conclusion of law or manifests a clear error in judgment.” United States v. Jenkins, 313

F.3d 549, 559 (10th Cir. 2002).

       The district court did not abuse its discretion. Because Defendant sought to

continue the trial to obtain Mr. Jones’s testimony, he had to show what Mr. Jones’s

testimony would be and that the testimony was competent and relevant. See Dowlin, 408

F.3d at 663. Testimony is relevant if “it was of such exculpatory nature that its exclusion

affected the trial’s outcome.” Id. at 559. For starters, Defendant did not bring this

witness to the attention of the district court until the trial was underway despite the court

having previously continued the trial so Defendant could make arrangements for his

witnesses. In addition, the record reveals Mr. Jones was incarcerated in federal prison,

but his location was unknown. Nothing in the record shows Defendant spoke with Mr.

Jones prior to his trial and that Mr. Jones would testify as Defendant suggested.

Defendant was simply speculating. Moreover, whether Mr. Jones was in the store on the

day Defendant allegedly pawned the shotgun is unclear. Ms. Sanchez testified it was

“possible” he was in the store, but she was not certain. But regardless of whether Mr.

Jones was in the pawnshop and would have testified as Defendant believes, the district

court correctly noted both Ms. Sanchez and Ms. Lee observed Defendant enter the



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pawnshop carrying the shotgun. Accordingly, the exclusion of Mr. Jones’s

testimony–whatever it might have been– would not have affected the outcome of the

trial.1

                                               V.

          Fourth, Defendant argues the district court improperly instructed the jury on his

§ 922(a)(6) charge. After the jury began deliberating, the district court received the

following question from the jury concerning the ATF Form 4473 Defendant completed

during his attempt to re-acquire the shotgun: “Your Honor, with regards to the firearms

record, jurors have expressed concerns that Section B was signed, ‘Jay Jones,’ by Ina

Sanchez. Has this invalidated the document?” The court responded: “you are instructed

that the form has not been invalidated for any purpose germane to the issue before you.”

Defendant objected to the court’s response.

          Defendant argues on appeal the district court’s response was “akin to giving the

Government a directed verdict” on the false statement claim. We disagree. We review

jury instructions to determine whether the jury was misguided concerning the applicable

law. See United States v. Arias-Santos, 39 F.3d 1070, 1075 (10th Cir. 1994). The

submission of supplemental instructions to the jury is a matter committed to the trial

court’s discretion. Id. To sustain a conviction for making a false statement under


          1
        Defendant also argues the district court deprived him of the right to call Clara
Mulrain, whom Defendant referred to as his wife. We disagree. The record is clear;
Defendant voluntarily decided not to call Ms. Mulrain as a witness.

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§ 922(a)(6), the Government must prove beyond a reasonable doubt that (1) the defendant

knowingly made a false statement; (2) the statement was intended to deceive or likely to

deceive a licensed firearms dealer; and (3) the false statement was a material fact to the

lawfulness of the sale or disposition of the firearm. See United States v. Ortiz, 318 F.3d

1030, 1036 (11th Cir. 2004). Contrary to Defendant’s argument, the validity of Mr.

Jones’s signature on the ATF Form 4473 was in no way relevant to the issue before the

jury–whether Defendant made a statement in the ATF Form 4473 intending that it be

relied upon by a firearms’ dealer during the attempted acquisition of a firearm. In no way

did the district court’s supplemental instruction misguide the jury as to the applicable law.

Accordingly, the district court’s clarification was not an abuse of discretion.

                                            VI.

       Defendant lastly argues the district court erred in sentencing him as an armed

career criminal pursuant to 18 U.S.C. § 924(e). The district court determined Defendant

was subject to an enhanced sentenced under § 924(e) on the basis of three prior

convictions for violent felonies and sentenced him to 210 months imprisonment on the

possession charge. Defendant argues the district court improperly considered

Defendant’s 1988 conviction for assault and battery with a dangerous weapon, as well as

his 1975 armed robbery conviction. We disagree.

       Defendant first asserts the district court inappropriately considered his 1988 assault

and battery conviction because it is not a violent felony. This is a question of law we



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review de novo. See United States v. Moore, 401 F.3d 1220, 1225 (10th Cir. 2005). The

term “violent felony” means “any crime punishable by imprisonment for a term exceeding

one year,” that “has as an element the use, attempted use, or threatened use of physical

force against the person of another.” § 924(e)(1)(B)(I). To determine whether a prior

conviction is a violent felony under § 924(e)(1), a court is “generally limited to examining

the statutory definition, charging document, written plea agreement, transcript of plea

colloquy, and any explicit factual finding by the trial judge to which the defendant

assented.” United States v. Austin, 426 F.3d 1266, 1271 (10th Cir. 2005). The statute

under which Defendant was convicted reads in part: “Every person who, with intent to do

bodily harm and without justifiable or excusable cause, commits any assault, battery, or

assault and battery, upon the person of another with any sharp or dangerous weapon . . .

upon conviction is guilty of a felony . . . .” 21 Okla. Stat. § 645. According to the felony

information, while Defendant was incarcerated at the Joseph Harp Correctional Center in

Lexington, Oklahoma, Defendant struck a corrections’ officer on the head with a metal

handcuff and chain. Based on this evidence, as well as the plain language of the statute,

Defendant’s assault and battery conviction constitutes a crime of violence as defined by §

924.

       Defendant next argues the district court improperly considered his 1975 robbery

conviction. According to Defendant, this conviction is unconstitutional because the

prosecution used Defendant’s 1965 juvenile robbery conviction to impeach him, and his



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1965 conviction had been declared unconstitutional under Lamb v. Brown, 456 F.2d 18

(10th Cir. 1972). Defendant’s attempt to collaterally attack his state conviction fails. In

Custis v. United States, 511 U.S. 485 (1994), the Supreme Court held that a defendant in

a federal sentencing proceeding can not collaterally attack the validity of prior state




conviction under the Armed Career Criminal Act of 1984. Accordingly, Defendant’s

argument is without merit.

       AFFIRMED.

                                           Entered for the Court,




                                           Bobby R. Baldock
                                           Circuit Judge




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