UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 96-4445

ERNEST EUGENE RICHARDSON, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Anderson.
William B. Traxler, Jr., District Judge.
(CR-95-298)

Argued: April 10, 1997

Decided: June 23, 1997

Before MURNAGHAN and WILLIAMS, Circuit Judges, and
CLARKE, Senior United States District Judge for the
Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Russell Doyle Ghent, LEATHERWOOD, WALKER,
TODD & MANN, P.C., Spartanburg, South Carolina, for Appellant.
Harold Watson Gowdy, III, Assistant United States Attorney, Green-
ville, South Carolina, for Appellee. ON BRIEF: J. Rene Josey,
United States Attorney, Greenville, South Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

FACTS

A prisoner receiving medical treatment, overpowered a deputy
sheriff, stole the deputy's Glock automatic pistol, and escaped from
the deputy's custody. The Sheriff, James Singleton, was aware that
Ernest Eugene Richardson, Jr., the defendant in the present case, was
acquainted with the prisoner who had escaped and stolen the firearm
from the deputy.

The Sheriff approached Richardson about the return of the firearm.
The Sheriff and Richardson, who was represented by counsel, entered
into an agreement that the Sheriff would not charge Richardson "with
any criminal offense whatsoever" for any crime"related to the return
of [the] Glock." The Defendant, having previously sold the gun to his
father at a poker game, knew where the gun was located. He stole the
gun from his father and returned it to the Sheriff.

The Sheriff did not prosecute the Defendant. However, federal offi-
cials independently investigated the incident and learned that Richard-
son was a convicted felon and possessed the gun before the agreement
was signed. Moreover, federal officials discovered that prior to the
agreement with the Sheriff, Richardson entered a poker game and
offered to sell the Glock to his father.

The federal government indicted Richardson in the United States
District Court for the District of South Carolina charging him with
being a felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1)1 and § 924(e)(1).2
_________________________________________________________________
1 18 U.S.C. § 922(g) provides "it shall be unlawful for any person (1)
who has been convicted in any court of, a crime punishable by imprison-
ment for a term exceeding one year; . . . to ship or transport in interstate
or foreign commerce, or possess in or affecting commerce, any firearm
. . . ."
2 18 U.S.C. § 924(e)(1) provides that if a person who violates § 922(g)
has three previous violent felony convictions then the person shall be
imprisoned for not less than fifteen years.

                    2
Richardson claims that the agreement with the Sheriff prevented
federal prosecution for his offense. The United States argues that
1) the agreement with the Sheriff, a state employee, does not bind the
federal government; and 2) even if the agreement binds the federal
government, the plain language of the agreement does not apply since
the possession of the handgun occurred before the agreement was
entered into and therefore was not related to the return of the gun. The
district court agreed with the government and the jury found Richard-
son guilty. Richardson appeals the district court's determination.

DISCUSSION

The Defendant and the Sheriff for Oconee County, South Carolina,
entered into an agreement which stated:

          IT IS FURTHER AGREED that Ernest E. Richardson, Jr.,
          will not be charged with any criminal offense whatsoever,
          nor will he be subpoenaed to testify or in any other way
          implicated in any offenses, if there be any, related to the
          return of a Glock .40 caliber pistol, #YU456.

Richardson claims that this agreement prevents prosecution for pos-
session of the firearm since it says he will not be"charged with any
criminal offense whatsoever."

Federal prosecution of Richardson was proper since an agreement
with the county sheriff, absent an agency relationship with the federal
government, cannot bind the federal government. In addition, even if
the agreement was binding upon the federal government, the agree-
ment in the case at bar does not prohibit prosecution because it does
not apply to actions entered into before the agreement was signed.

The United States is not bound by agreements by parties unless
they are its agents. United States v. McIntosh , 612 F.2d 835, 837 (4th
Cir. 1979) ("A bare representation by an unauthorized party cannot
bind federal prosecutors to forego prosecution."). Thus, absent an
agency relationship, the federal government is not bound by an agree-
ment made by state officials promising not to prosecute a defendant.
United States v. Long, 511 F.2d 878, 881 (7th Cir. 1975).

                    3
Since the Sheriff was not an agent of the federal government, he
could not waive federal prosecution. This is especially true in a case
such as the present one where counsel was actively involved in nego-
tiating the agreement.

In addition, even if the agreement between the Sheriff and Richard-
son were binding upon the federal government, the agreement itself
does not bar prosecution of offenses which occurred prior to its incep-
tion. The agreement between the Sheriff and Richardson must be
interpreted based on contract principles. United States v. Peglera, 33
F.3d 412, 413 (4th Cir. 1994). The agreement specifically states that
the defendant will not be prosecuted for any action"[w]hatsoever . . .
related to the return" of the Glock. The key words are "related to the
return." Since the poker game occurred before the agreement, it was
not "related to the return" of the weapon. The agreement could be
seen as a method to protect the Defendant if he possessed the gun
while returning it to the Sheriff, but it in no way shields the Defendant
from prior actions. The sale of the gun at a poker game was not "re-
lated to the return" of the weapon; therefore, even if the agreement
applied to federal officials, it would not apply to the present situation.

Richardson's argument that the district court erred when it refused
to permit the introduction of the agreement fails for similar reasons.
Since the agreement did not bar prosecution, the agreement was not
relevant for Richardson's defense. The Court reviews the district
court's evidentiary determinations based on an abuse of discretion
standard. United States v. McMillon, 14 F.3d 948, 954 (4th Cir. 1994).
The agreement was not relevant to the charge of possession of a hand-
gun by a convicted felon and the district court did not err by refusing
to admit such evidence.3

Richardson next argues that he was selectively prosecuted due to
_________________________________________________________________
3 Had the federal authorities attempted to prosecute the Defendant for
the period of time that he possessed the gun while returning it to the
Sheriff the agreement would at least, by its terms, be relevant to show
that the Defendant was acting under what he thought was police author-
ity. However, in the instant case, the possession of the firearm had noth-
ing to do with the agreement since the agreement was signed after the
possession occurred.

                     4
the Sheriff's animosity towards him. Yet, he has produced no evi-
dence that others similarly situated, i.e., felons in possession of a
handgun, were not prosecuted. Nor has he sought to prove an uncon-
stitutional motivation in prosecuting him. Therefore, the district court
did not err in denying Richardson's claim for selective prosecution.

Richardson also contends that the district court erred when it
admitted evidence that the firearm was stolen from a law enforcement
official. We review the district court's decision under an abuse of dis-
cretion standard. McMillon, 14 F.3d at 954. The district court admit-
ted evidence regarding the fact that a third party stole the weapon in
question from a law enforcement official. The prosecutor sought to
introduce this evidence in order to prove the date of the poker game;
and therefore, the date that Richardson possessed the weapon.4 Since
the date of possession was at issue, the prosecution wanted to show
that the defendant possessed the weapon prior to the date of the agree-
ment. The establishment of the date of possession of the firearm at a
time prior to the agreement with the Sheriff was a necessary ingredi-
ent of the prosecution's case, and the district court did not err in
allowing its admission.5

Richardson also contends that the government failed to prove that
the weapon traveled in interstate commerce as required by the indict-
ment and by § 924(g). However, a prosecution witness testified that
Glocks are made in Austria and exclusively imported in Smyrna,
Georgia. Such transportation satisfies the commerce element in
§ 924(g).

Richardson's contentions of vagueness in the indictment, supposed
invasion of a right not to testify and unjustified sentencing have all
been considered and have been found to be without merit. The judg-
ment is accordingly

AFFIRMED.
_________________________________________________________________
4 A prosecution witness testified that the poker game was the Friday
night after the weapon was stolen from the deputy sheriff.
5 Richardson had ample opportunity on cross-examination to show that
a third party stole the weapon.

                    5
