                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         DEC 5 2000
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellant,


 v.                                                     No. 00-2070
 THOMAS EVERETTE MOODY, also                     (D.C. No. CR-99-874-BB)
 known as Tom Moody,                                    (D. N.M.)

          Defendant-Appellee.



                             ORDER AND JUDGMENT         *




Before KELLY , ANDERSON , and BRISCOE , Circuit Judges .


      The United States appeals the district court’s dismissal of an indictment

charging defendant Thomas Everette Moody with making a false statement in

connection with the attempted acquisition of a firearm, in violation of 18 U.S.C.

§§ 922(a)(6), 924(a)(1)(A). The district court held that Moody was not “under

indictment” within the meaning of New Mexico law when he tried to purchase a

handgun and therefore did not answer falsely when he responded in the negative


      *
        This order and judgment is not binding precedent, except under the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.
to a question asking if he was. Exercising jurisdiction under 18 U.S.C. § 3731,

we reverse and remand.

                                          I.

      In 1998, the grand jury of Bernalillo County, New Mexico returned an

indictment charging Moody with four felony counts of aggravated assault with a

deadly weapon. On March 26, 1999, Moody, a first-time offender, entered into a

plea and disposition agreement in which he would plead no contest to two counts

in the indictment, the State would dismiss the remaining two counts, and he

would receive a conditional discharge and be placed on probation. That same

day, a state judge approved the agreement and accepted Moody’s no contest plea

to counts one and two of the indictment. On May 12, 1999, the state judge filed a

conditional discharge order that deferred all further related proceedings against

Moody and placed him on probation for three years. On May 17, 1999, the state

prosecutor filed a nolle prosequi as to counts three and four of the indictment.

      On April 22, 1999 -- almost one month after Moody pleaded no contest to

the first two counts of the indictment but several weeks before the prosecutor

dismissed the other two counts -- Moody tried to retrieve a 9mm handgun he had

pawned at The Loan Rangers Guns & Pawn Shop, a federally licensed firearms

dealer. In doing so, he filled out and signed ATF Form 4473, which included the

question: “Are you under indictment or information in any court for a crime for


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which the judge could imprison you for more than one year?” Moody answered

“no.” Because the National Instant Checking System subsequently denied

authorization for the transaction, Moody did not obtain the firearm.

      In August 1999, a federal grand jury returned a two-count indictment

against Moody. Count one charged that he knowingly made a false statement or

representation concerning information required by Chapter 44 of Title 18, in

violation of 18 U.S.C. § 924(a)(1)(A). Count two charged him with knowingly

making a false statement in the attempted acquisition of a firearm, in violation of

18 U.S.C. § 922(a)(6). The basis for both counts was Moody’s statement on ATF

Form 4473 that he was not under indictment for any crime punishable by more

than one year imprisonment.

      Moody moved to dismiss the federal indictment. He argued that he was no

longer “under indictment” within the meaning of New Mexico law when he tried

to purchase the handgun because the charging phase, i.e., the “under indictment”

phase, ended when he entered his conditional discharge plea. He also asserted

that the state offenses were no longer crimes for which he could be imprisoned

for more than one year because probation was the only penalty awaiting him

under the plea agreement’s terms. The government countered that a conditional

discharge plea or order does not amount to a “conviction” necessary to remove a

defendant from the charging phase under New Mexico law. In addition, it argued


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that Moody was still “under indictment” for purposes of state law because he

could be subject to conviction and imprisonment for more than one year if he

violated the terms of his parole.

         Applying New Mexico law, the district court granted Moody’s motion and

dismissed the indictment. While it agreed with the government that a conditional

discharge does not constitute a “conviction” that would end the charging phase

under state law, the district court held that the charging phase nonetheless

concluded when Moody entered his plea because it resolved all pending charges

against him. The district court also reasoned that because Moody still retained his

right to possess firearms under state law, he was not the type of irresponsible or

potentially dangerous person that Congress intended the federal firearms statute to

cover.

         The government timely appeals, arguing (1) that the district court should

have applied federal rather than state law to decide whether Moody was “under

indictment” and (2) that regardless of whether federal or state law controls this

issue, Moody was still “under indictment” when he tried to obtain the handgun

from the pawn shop.

                                           II.

         Though we generally review an order dismissing an indictment for abuse of

discretion, our review in this appeal is de novo because the order is based on the


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district court’s interpretation of law. United States v. Oxx, 127 F.3d 1277, 1278

(10th Cir. 1997).

      As an initial matter, we decline to address the government’s argument that

federal law controls the determination of whether a person is “under indictment”

because the government did not raise this argument in the district court. See

United States v. Moore, 91 F.3d 96, 99 (10th Cir. 1996) (declining to consider

issue that the government did not raise below). Although the government insists

that our de novo scope of review requires us to decide in the first instance which

law governs, we recently emphasized that “we will not conduct a de novo review

to consider [issues raised] for the first time on appeal.” City of Stilwell v. Ozarks

Rural Elec. Coop. Corp., 166 F.3d 1064, 1073-74 (10th Cir. 1999). And, while

we may properly consider a new theory offered on appeal in a criminal case as an

alternative basis for affirming the trial court, cf. United States v. Sandoval, 29

F.3d 537, 542 n.6 (10th Cir. 1994), the situation is much different where, as here,

the government advances a new theory as a reason for reversing the trial court.

As we explained in Moore, we will address such a contention “only in the most

unusual circumstances.” 91 F.3d at 99. These may include issues of jurisdiction

and sovereign immunity, instances in which the public interest is implicated, or

situations where manifest injustice would result. Smith v. Rogers Galvanizing

Co., 128 F.3d 1380, 1386 (10th Cir. 1997). In this case, the government urges the


                                           5
application of federal law for the first time on appeal in an attempt to obtain a

reversal of the district court’s decision absent any unusual circumstances. Thus,

we decline to consider that argument.

      In the alternative, the government contends that even applying New Mexico

law, Moody was still under indictment when he tried to acquire the handgun from

the pawn shop. As noted above, the district court held that Moody was not under

indictment because the conditional discharge plea resolved all four counts

pending against him, thereby ending the charging phase. The government argues

that notwithstanding his no contest plea to the first two counts, Moody remains

under indictment for those counts because he has not yet completed his three-year

probation term as required by the conditional discharge statute. The government

also argues that Moody was still under indictment for counts three and four at the

time he tried to buy the handgun because they were not dismissed until after that

attempted transaction.

      Ultimately, we need not decide whether the conditional discharge ended

Moody’s charging phase for the first two counts because we conclude that he was

still under indictment within the meaning of state law for the two counts that had

not yet been dismissed when he tried to obtain the firearm. In New Mexico, the

“indictment is the means by which a defendant learns of the charges against him.”

New Mexico v. Morton, 760 P.2d 170, 171 (N.M. Ct. App. 1988). Once an


                                          6
indictment is filed, the State and the defendant “may engage in discussions with a

view toward reaching an agreement that, upon the entering of a plea of guilty [or]

no contest . . . to a charged offense or to a lesser or related offense, the attorney

for the state will move for dismissal of other charges.” N.M.R.A. 5-304(A)(1).

“If the court accepts the plea agreement, the court shall inform the defendant that

it will embody in the judgment and sentence the disposition provided for in the

plea agreement.” N.M.R.A. 5-304(C). Here, the district court accepted the plea

agreement between Moody and the State of New Mexico, which provided that

Moody would plead no contest to the first two counts of the indictment, that the

State would dismiss the other two counts, and that Moody would receive a

conditional discharge and three years of probation.

      According to Moody, once the state court accepted the plea agreement, he

was no longer under indictment for counts three and four because the adversarial

proceedings against him were effectively over. However, Moody does not cite,

and we have not found, any case law that supports his position. As we interpret

New Mexico law, merely because a plea agreement provides that the prosecutor

will dismiss certain counts does not mean that the defendant is automatically

removed from the charging phase as soon as the court accepts the plea. Instead, it

is the nolle prosequi itself which serves “to dismiss criminal charges that have

been brought against a defendant.” New Mexico v. Gardea, 989 P.2d 439, 441


                                           7
(N.M. Ct. App. 1999). The plea agreement, on the other hand, simply provides a

vehicle for memorializing the prosecutor’s agreement to seek such a dismissal.

See generally New Mexico v. Mares, 888 P.2d 930, 931 (N.M. 1994); In re Cox,

874 P.2d 783, 783 (N.M. 1994); Weiss v. New Mexico Bd. of Dentistry, 798 P.2d

175, 178 (N.M. 1990). Accordingly, even though the State agreed to dismiss two

counts of the indictment, that dismissal did not actually take effect, and therefore

Moody was still under indictment, until the prosecution filed its nolle prosequi.

Because the prosecution did not do so until almost one month after Moody

completed ATF Form 4473, the district court erred in holding as a matter of New

Mexico law that Moody was not “under indictment” at that time.

                                          III.

      We hold that Moody was “under indictment” within the meaning of New

Mexico law for the two counts that had not yet been dismissed when he completed

the ATF form. Accordingly, the district court’s order dismissing the federal

indictment against Moody is REVERSED and the case is REMANDED for further

proceedings. Moody’s motion to supplement the record on appeal with a

transcript and a state court filing that was not a part of the district court record is

DENIED.

                                                 Entered for the Court

                                                 Mary Beck Briscoe
                                                 Circuit Judge

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