     Case: 10-50856       Document: 00512410956         Page: 1     Date Filed: 10/17/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         October 17, 2013

                                       No. 10-50856                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

               Plaintiff - Appellee

v.

JOHN THOMAS SHIPLEY,

               Defendant - Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:09-CR-1867


Before DENNIS, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Defendant-appellant John Thomas Shipley was convicted at trial of
illegally dealing firearms without a license in violation of 18 U.S.C.
§ 922(a)(1)(A) (count one), causing a firearms dealer to maintain false records in
violation of 18 U.S.C. § 924(a)(1)(A) (counts two through five), and making a
false statement in a matter within the jurisdiction of the federal government in
violation of 18 U.S.C. § 1001(a)(3) (count six). In this appeal, Shipley contends


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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that his convictions should be set aside for a number of reasons: the transcript
for one day of the eight-day trial is missing, thus frustrating adequate appellate
review; there was insufficient evidence at trial to support the convictions; the
statute criminalizing conduct that causes a lawful firearms dealer to maintain
false records should be declared unconstitutionally void for vagueness; the
district court abused its discretion in excluding a witness’s testimony relating
to Shipley’s good character and in refusing to instruct the jury on such character
evidence; and, the government’s prosecutor made improper statements at trial.
He also contends that the district court’s order forfeiting his interest in certain
firearms and ammunition seized by the government should be reversed. We
affirm.
                                         I.
      This case involves unlawful dealing in firearms. Under federal law,
individuals may not deal in firearms without first receiving a license.
Individuals without licenses may make periodic sales of firearms from their
personal collections, although they may not engage in the regular business of
dealing firearms for profit. When a purchaser buys a firearm from a lawfully
licensed dealer, both the dealer and the buyer must record the transaction with
a Bureau of Alcohol, Tobacco, Firearms and Explosives Form 4473, a transaction
record form that dealers are required by law to keep. The form requires the
purchaser to provide certain personal information and to certify that he is the
“actual buyer” of the firearm. In other words, the purchaser must certify that
he is buying the firearm for himself, not for an unnamed person. Federal law
also requires licensed dealers to maintain “Acquisition and Disposition” (“A&D”)
record books, which are also used to record information about transactions.
      The evidence presented at trial showed that Shipley was a Federal Bureau
of Investigations agent who collected firearms as a hobby between 1996 and
2005. In early 2005, Shipley sold a substantial portion of his collection to finance
the costs of a child adoption he and his wife were attempting. Although Shipley


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never received a license to deal in firearms, those sales, being limited sales from
his personal collection, were lawful. Shortly after that, however, Shipley, despite
not having a license, began dealing in firearms as a regular side business to
supplement his lawful income as an FBI agent.
      The investigation into Shipley began as an investigation into someone else,
Luis Armando “Mando” Rodriguez, a deputy sheriff in El Paso, Texas, who was
suspected of illegally sneaking high-powered firearms into Mexico. American
federal government agents traveled to Mexico to examine weapons recently
seized by the Mexican military after a shootout that resulted in one person's
death. The agents traced one of the weapons, a Barrett .50 caliber rifle, to a
lawful firearms dealer in Missouri that had sold the firearm to Shipley. The
agents contacted Shipley to try to obtain further information about how the
firearm had eventually landed in Mexico. Shortly after the agents made contact,
Shipley ordered two new A&D books. Over the course of a few telephone
conversations between Shipley and an investigating agent, Shipley stated that
he had sold Rodriguez the rifle that was used in the shootout in Mexico as well
as two other firearms. Shipley offered his assistance in the investigation and
volunteered his records for the agent’s review. Several days later, Shipley and
the agent met in person and Shipley handed over voluntarily an A&D book with
four pages of recorded sales, including the three sales to Rodriguez that Shipley
had told the agent about. The book purported to cover the entire period from
1996 to the present. Shipley told the agent that the book reflected all sales he
had made during the relevant period.
      Several months later, federal agents searched Shipley’s residence and
motor vehicles. During the search, agents uncovered a second A&D book.
Compared to the one Shipley had turned over, this one, which also purported to
cover the same period from 1996 to the present, was pages longer and listed a
number of additional sales, including the sale of armor-piercing and incendiary
ammunition. The government analyzed this newly discovered book and the one


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previously handed over. According to the government’s expert, the shorter book
was written in a single sitting and with the same pen, and the longer book was
written over numerous sittings and with different pens.           The search also
uncovered    on   Shipley’s   home    computer     additional   records   covering
approximately twenty-two firearms sales as well as photographic images and
email correspondence relating to firearms transactions. The agents found a
number of firearms, several of which were not mentioned in either of the A&D
books and many of which were mass-produced firearms of similar make and
model that, according to testimony at trial, were not likely to be part of a
personal collection. Also uncovered were hundreds of bullets, thousands of
dollars in cash, and a number of postal-service records and other items tending
to indicate that Shipley had been sending firearms through the mail.
      Following an eight-day trial, Shipley was convicted on all six counts of the
indictment. The district court sentenced him to two years’ imprisonment and
three years’ supervised release.
                                        II.
      Shipley contends that he should be granted a new trial because the
transcript of proceedings in the district court is missing the testimony from a full
day of trial, thus frustrating adequate appellate review. In this circuit, if “a
criminal defendant is represented on appeal by counsel other than the attorney
at trial, the absence of a substantial and significant portion of the record, even
absent any showing of specific prejudice or error, is sufficient to mandate
reversal,” United States v. Selva, 559 F.2d 1303, 1306 (5th Cir. 1977) (Selva II)
(footnote omitted), unless the district court can reconstruct “a ‘substantially
verbatim account of the proceedings,’” United States v. Pace, 10 F.3d 1106, 1123
(5th Cir. 1993) (quoting United States v. Selva, 546 F.2d 1173, 1174 (5th Cir.
1977) (Selva I)). Here, following a limited remand to the district court to
attempt to reconstruct the record, the district court considered evidence and
other party submissions during two days of hearings. Those hearings resulted

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in a reconstructed record that the district court found constituted a substantially
verbatim account of the proceedings. “[A]bsent a showing of intentional
falsification or plain unreasonableness,” the district court’s finding as to the
accuracy of the reconstructed record “is conclusive.” United States v. Margetis,
975 F.2d 1175, 1177 (5th Cir. 1992); see also United States v. Mori, 444 F.2d 240,
246 (5th Cir. 1971). Because there has not been a showing of intentional
falsification or plain unreasonableness, we accept the district court’s findings
and we further conclude that the record is sufficient for appellate review.
                                       III.
      Shipley contends that insufficient evidence was presented at trial to
support his convictions, which is an issue we review de novo. See United States
v. Ragsdale, 426 F.3d 765, 770 (5th Cir. 2005). We “will affirm the jury’s verdict
if a reasonable trier of fact could conclude from the evidence that the elements
of the offense were established beyond a reasonable doubt, viewing the evidence
in the light most favorable to the verdict and drawing all reasonable inferences
from the evidence to support the verdict.” Id. at 770-71.
                                        A.
      The first count of conviction, count one, was for unlicensed firearm
trafficking in violation of 18 U.S.C. § 922(a)(1)(A), under which it is “unlawful
. . . for any person . . . except a licensed importer, licensed manufacturer, or
licensed dealer, to engage in the business of importing, manufacturing, or
dealing in firearms, or in the course of such business to ship, transport, or
receive any firearm in interstate or foreign commerce.” To be “engaged in the
business” of “dealing in firearms” means, “a person who devotes time, attention,
and labor to dealing in firearms as a regular course of trade or business with the
principal objective of livelihood and profit through the repetitive purchase and
resale of firearms, but such term shall not include a person who makes
occasional sales, exchanges, or purchases of firearms for the enhancement of a
personal collection or for a hobby, or who sells all or part of his personal

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collection of firearms.” Id. § 921(a)(21)(C). The statute further defines the term
“with the principal objective of livelihood and profit” to mean “that the intent
underlying the sale or disposition of firearms is predominantly one of obtaining
livelihood and pecuniary gain, as opposed to other intents, such as improving or
liquidating a personal firearms collection.” Id. § 921(a)(22). To determine
whether the defendant unlawfully engaged in the business of firearms dealing,
as so defined, the jury “must examine the intent of the actor and all
circumstances surrounding the acts alleged to constitute engaging in business.”
United States v. Tyson, 653 F.3d 192, 201 (3d Cir. 2011) (citation omitted). The
evidence at trial showed that Shipley did not have a license and that he
nevertheless engaged in a regular course of dealing firearms for profit for a
number of years, and that evidence was sufficient to support the jury’s verdict.
Shipley’s primary argument for why this result should not follow is that he
presented evidence at trial showing that, contrary to the government’s
contentions and evidence, his firearms transactions actually caused him to suffer
a net loss.     The jury, however, was entitled to disbelieve that evidence.
Furthermore, a conviction requires that the defendant had the “principal
objective” of making a profit, but it does not require that he succeeded in that
endeavor. Accordingly, the jury’s verdict was rational and we will not set it
aside.
                                       B.
         Counts two through five charged Shipley with causing a firearms dealer
to maintain false records in violation of 18 U.S.C. § 924(a)(1)(A), under which it
is unlawful to “knowingly make[] any false statement or representation with
respect to the information required by this chapter to be kept in the records of
a person licensed under this chapter,” which includes the Form 4473s that
dealers must use to record customers’ purchases. The counts against Shipley
involve four separate instances in which he purchased a firearm, certified on the
Form 4473 that he was the “actual buyer” of the firearm, and then turned

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around almost immediately and sold the firearm to a third party. During the
time relevant to this case, Form 4473 asked in question 11.a.:
      Are you the actual buyer of the firearm(s) listed on this form?
      Warning: You are not the actual buyer if you are acquiring the
      firearm(s) on behalf of another person. If you are not the actual
      buyer, the dealer cannot transfer the firearm(s) to you.
The form further explained:
      Actual Buyer: For purposes of this form, you are the actual buyer if
      you are purchasing the firearm for yourself or otherwise acquiring
      the firearm for yourself (for example, redeeming it from
      pawn/retrieving it from consignment, firearm raffle winner). You
      are also the actual buyer if you are legitimately acquiring the
      firearm as a gift for a third party.
      ACTUAL BUYER EXAMPLES: Mr. Smith asks Mr. Jones to
      purchase a firearm for Mr. Smith. Mr. Smith gives Mr. Jones the
      money for the firearm. Mr. Jones is NOT the actual buyer of the
      firearm and must answer ‘no’ to question 11.a. The licensee may not
      transfer the firearm to Mr. Jones.
And, directly above the signature line that Shipley signed, the form contained
the following certification and warning:
      I certify that the answers to Section A are true and correct. . . . I
      understand that answering ‘yes’ to question 11.a if I am not the
      actual buyer of the firearm is a crime punishable as a felony.
      The evidence at trial was sufficient to support the jury’s finding that
Shipley was not in fact the “actual buyer” of the firearms but was rather buying
them for the purpose of transferring to the true purchaser that had already been
lined up or would soon be lined up, and thus, his statements on the forms were
knowingly false and were illegally made. See United States v. Johnson, 680 F.3d
1140 (9th Cir. 2012) (affirming convictions under § 924(a)(1)(A) for falsely
certifying on Form 4473s that the defendant was the “actual buyer” and then
turning around and reselling the firearms). We decline to set aside these
convictions.




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                                        C.
      Lastly, count six charged Shipley with making a false statement in a
matter within the jurisdiction of the federal government in violation of 18 U.S.C.
§ 1001(a)(3), under which it is unlawful for a person to, “in any matter within the
jurisdiction of the executive, legislative, or judicial branch of the Government of
the United States, knowingly and willfully . . . make[] or use[] any false writing
or document knowing the same to contain any materially false, fictitious, or
fraudulent statement or entry.” The material falsity may be a willful omission
of information. United States v. Wright, 211 F.3d 233, 238 (5th Cir. 2000); see
also United States v. Mattox, 689 F.2d 531, 533 (5th Cir. 1982) (“Silence may be
falsity when it misleads.”). Here, the evidence at trial showed that Shipley
provided to federal agents an A&D book purporting to represent his only
firearms transaction records while he actually maintained a second A&D book
showing far more transactions, thus masking the true extent of his dealing, and
such evidence was sufficient to support the jury’s verdict.
                                       IV.
      Next, Shipley contends that, even if there is sufficient evidence to support
the conviction under count one, for unlicensed firearm trafficking, the conviction
should be vacated because the statutes defining the offense and certain relevant
terms,   18   U.S.C.    §§   921(a)(21)(C),   (a)(22),   and   924(a)(1)(A),   are
unconstitutionally vague. “We review whether a statute is void for vagueness
de novo.” United States v. Monroe, 178 F.3d 304, 308 (5th Cir. 1999).
      “[T]he void-for-vagueness doctrine requires that a penal statute define the
criminal offense with sufficient definiteness that ordinary people can understand
what conduct is prohibited and in a manner that does not encourage arbitrary
and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983).
A statute is not unconstitutionally vague when it is “set out in terms that the
ordinary person exercising ordinary common sense can sufficiently understand
and comply with, without sacrifice to the public interest.”          Broadrick v.

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Oklahoma, 413 U.S. 601, 608 (1973). However, “one who has received fair
warning of the criminality of his own conduct from the statute in question is
[not] entitled to attack it because the language would not give similar fair
warning with respect to other conduct which might be within its broad and
literal ambit.     One to whose conduct a statute clearly applies may not
successfully challenge it for vagueness.” Parker v. Levy, 417 U.S. 733, 756
(1974). “[E]ven if the outermost boundaries of [the statute] may be imprecise,
any such uncertainty has little relevance . . . where [the defendant’s] conduct
falls squarely within the ‘hard core’ of the statute’s proscriptions.” Broadrick,
413 U.S. at 608.
      Although it may be true that there is a degree of ambiguity in locating
precisely the border between, on the one hand, an unlicensed dealer that
unlawfully engages in the regular business of dealing firearms and, on the other
hand, an unlicensed hobbyist that lawfully engages in periodic sales, the jury
here found Shipley guilty of making, over a number of years, numerous
repetitive sales in quick succession, sometimes to repeat customers, and such
conduct is unquestionably prohibited by the statutes’ text. Shipley’s void-for-
vagueness claim is therefore without merit.
                                       V.
      Shipley argues that the district court erred in excluding from evidence the
testimony of Enrique Moreno, one of Shipley’s witnesses, relating to Shipley’s
good character. “[W]e review the district court’s ruling regarding the exclusion
of character evidence against an abuse of discretion standard.” United States v.
Marrero, 904 F.2d 251, 260 (5th Cir. 1990). “Rarely and only upon a clear
showing of prejudicial abuse of discretion will appellate courts disturb the
rulings of trial courts in the admissibility of character evidence.” United States
v. Davis, 546 F.2d 583, 592 (5th Cir. 1977).
      “A defendant may introduce character testimony to show that the general
estimation of his character is so favorable that the jury may infer that he would

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not be likely to commit the offense charged.” United States v. John, 309 F.3d
298, 303 (5th Cir. 2002) (internal quotation marks omitted); see also Fed. R.
Evid. 404(a)(2)(A) (allowing criminal defendants to “offer evidence of the
defendant’s pertinent trait”). “[E]vidence of a person’s character . . . may be
proved by testimony about the person’s reputation or by testimony in the form
of an opinion.” Fed. R. Evid. 405.
       Here, the district court found that Moreno did not have sufficient
familiarity with Shipley to offer an opinion about his character, as the two had
limited interaction for only a brief period, nor did Moreno have sufficient
knowledge of Shipley’s reputation in the community to testify on that matter
either. The district court also found that the limited probative value of the
character evidence was sufficiently outweighed by danger of confusing the issues
and wasting time, see Fed. R. Evid. 403, because allowing Moreno’s testimony
would have opened the door to further examination regarding the relations
between him and Shipley, a matter divorced from the central issues at trial. We
do not believe that the district court abused its discretion.
       Because the district court did not abuse its discretion in excluding the
character evidence, it also did not err in declining to give the jury an instruction
regarding the jury’s consideration of character evidence. See John, 309 F.3d at
303 (“A character instruction is warranted only if the defendant first introduces
admissible character evidence.”).1
                                             VI.
       Shipley’s final argument regarding the validity of his conviction is that
certain comments made by the prosecutor during trial were improper and
warrant a new trial. Because Shipley did not object to the comments at trial, we
review for plain error. United States v. Gracia, 522 F.3d 597, 599-600 (5th Cir.
2008).
       1
         We do not construe Shipley’s testimony at trial to have been character evidence since
it neither discussed his reputation in the community nor purported to be an opinion of his own
character.

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      “This court’s review of an assertion of prosecutorial misconduct takes place
in two steps. First, we must initially decide whether or not the prosecutor made
an improper remark. If an improper remark was made, we must then evaluate
whether the remark affected the substantial rights of the defendant.” United
States v. Gallardo-Trapero, 185 F.3d 307, 319 (5th Cir. 1999) (citations omitted).
Overturning a jury verdict for prosecutorial misconduct is appropriate only
when, “taken as a whole in the context of the entire case,” the prosecutor’s
comments “prejudicially affect[ed] [the] substantial rights of the defendant.”
United States v. Risi, 603 F.2d 1193, 1196 (5th Cir. 1979). We consider “the
magnitude of the prejudicial effect of the statement, the efficacy of any
cautionary instruction, and the strength of the prosecution’s evidence.” United
States v. Crooks, 83 F.3d 103, 107 (5th Cir. 1996).
      First among the numerous statements Shipley complains of are several
references to one of the firearms Shipley sold having been found in Mexico, at
the scene of a shootout.     Those statements related to evidence that was
presented at trial, and the evidence was relevant. We do not find plain error
warranting reversal here. Second, Shipley complains that certain statements
made during the prosecutor’s closing statements were improper appeals to
passion or prejudice that were calculated to inflame the jury. We disagree and
find no plain error. Third, Shipley contends that the prosecutor improperly
vouched for the credibility of the government’s witnesses. We read the trial
transcript differently and find no statements plainly vouching for any witness’s
credibility. In sum, we do not believe that any of the challenged statements were
improper ones sufficient to warrant reversal under plain error review.
                                       VII.
      Shipley contends that the forfeiture order contained in the district court’s
written judgment should be reversed for three separate reasons. The first is that
the district court did not give an oral forfeiture order at sentencing. The Federal
Rules of Criminal Procedure provide that, “in advance of sentencing,” “[i]f the

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court finds that property is subject to forfeiture, it must promptly enter a
preliminary order of forfeiture,” and then, “[a]t sentencing,” “the preliminary
forfeiture order becomes final as to the defendant.”            Fed. R. Crim. P.
32.2(b)(2)(A), (b)(2)(B), and (b)(4)(A). The rules further provide that the district
court must “include the forfeiture when orally announcing the sentence or must
otherwise ensure that the defendant knows of the forfeiture at sentencing.” Fed.
R. Crim. P. 32.2(b)(4)(B). We, however, will reverse a court for failing to include
the forfeiture when orally announcing the sentence only if the defendant shows
“a reasonable probability that, but for the error claimed, the result of the
proceeding would have been different.” United States v. Dominguez Benitez, 542
U.S. 74, 76 (2004) (alteration and citation omitted). Here, Shipley has shown no
such reasonable probability.
      Second, Shipley contends that the criminal forfeiture commenced outside
the legal time limitations.     Under 18 U.S.C. § 924(d)(1), “[a]ny action or
proceeding for the forfeiture of firearms or ammunition shall be commenced
within [120] days of [the] seizure.”      Shipley, however, did not raise this
argument in the district court. See United States v. Arky, 938 F.2d 579, 582 (5th
Cir. 1991) (“[T]he defendant must affirmatively assert a limitations defense at
trial to preserve it for appeal.”). If there was error, it was not plain.
      Lastly, Shipley contends that there was not a nexus between his forfeited
firearms and ammunition and the counts of conviction. Under the Federal Rules
of Criminal Procedure, “the court must determine whether the government has
established the requisite nexus between the property and the offense.” Fed. R.
Crim. P. 32.2(b)(1)(A). Here, the government sought and obtained a court order
finding such a nexus, and Shipley did not object. Because there was sufficient
evidence in the record for the district court to so find, we do not believe there
was any error, let alone plain error.
                                        ***
      We AFFIRM.

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