                                                                 F I L E D
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                     UNITED STATES COURT OF APPEALS               SEP 27 2001
                                   TENTH CIRCUIT
                                                             PATRICK FISHER
                                                                       Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 00-8079
v.                                                 (District of Wyoming)
                                                   (D.C. No. 00-CR-75-J)
DONALD LEE ROLLE,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before HENRY, BRISCOE, and MURPHY, Circuit Judges.


      After examining the briefs and appellate record, this court has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      After a jury trial, appellant Donald Lee Rolle was convicted of possession

of an unregistered sawed-off rifle in violation of 26 U.S.C. §§ 5841, 5845,


      *
       This order and judgment is not binding precedent, except under the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.
5861(d), and 5871; being a fugitive from justice in possession of a firearm in

violation of 18 U.S.C. § 922(g)(2); and possession of a firearm by a person who

is subject to a restraining order in violation of 18 U.S.C. § 922(g)(8). Rolle was

sentenced to a term of forty-one months’ imprisonment on each count, to be

served concurrently, and three years’ supervised release. In this appeal, Rolle

argues that the evidence is insufficient to sustain his convictions. This court

conducts a de novo review of the sufficiency of evidence presented at trial.   See

United States v. Wilson , 107 F.3d 774, 778 (10th Cir. 1997). Evidence is

sufficient to support a conviction if the direct and circumstantial evidence and

the reasonable inferences drawn therefrom, viewed in the light most favorable to

the government, would allow a reasonable jury to find the defendant guilty

beyond a reasonable doubt.    See id. Having carefully reviewed the record, this

court concludes there is no merit to Rolle’s arguments regarding the sufficiency

of the evidence supporting his convictions.



      Rolle was taken into custody on December 3, 1999 in Casper, Wyoming

after a National Crime Information Center check disclosed an outstanding

Montana warrant for his arrest. An officer with the Casper Police Department

conducted an inventory search of Rolle’s vehicle. During the search, the officer

discovered a .22 caliber semi-automatic rifle behind the front seat of the vehicle.


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The barrel and stock of the rifle had both been cut down. A subsequent

investigation conducted by the Bureau of Alcohol, Tobacco and Firearms

(“ATF”) revealed that the rifle was not registered in the National Firearms

Registration and Transfer Record (“NFRTR”), that Rolle had failed to appear for

a hearing in Montana in connection with a charge filed against him for driving

under the influence, and that Rolle was subject to a restraining order issued by

the Justice Court of Custer County, Montana. Based on the information obtained

by the ATF investigators, Rolle was arrested on May 8, 2000 and charged in a

three-count indictment with possession of an unregistered firearm, possession of

a firearm by a fugitive from justice, and possession of a firearm by a person

subject to a restraining order. Rolle was convicted of all three counts.

      With respect to his argument that the evidence was insufficient to sustain

the conviction for possession of an unregistered firearm, Rolle asserts that he did

not know the firearm was in his vehicle on December 3, 1999.   1
                                                                   At trial, the

government presented evidence that the rifle had been given to Rolle by a former

girlfriend and that Rolle was the sole occupant of the vehicle on December 3,

1999. In addition, the ATF officer who arrested Rolle testified that Rolle was

Mirandized before he was interviewed, admitted that he knew the rifle was in his


      1
        Rolle repeats this argument in his challenge to the sufficiency of the
evidence to sustain his convictions on the remaining two counts. Our resolution
of the issue is equally applicable to those counts.

                                         -3-
vehicle on December 3, 1999, admitted cutting off a portion of the barrel and

stock of the rife, and admitted that he had not registered the rifle with the

NFRTR. The officer further testified that the rifle was in working order and that

the barrel had been cut down to a length that required its registration with the

NFRTR.

      Rolle first challenges the voluntariness of the statements he made after his

arrest on May 8, 2000. Rolle’s argument that his statements were involuntary

because the Miranda warnings were given orally and he was not provided with a

written waiver form has been previously considered and rejected by this court.

See United States v. Gell-Iren , 146 F.3d 827, 830 (10th Cir. 1998) (upholding the

validity of an oral Miranda waiver and concluding that the failure to provide the

defendant with a waiver-of-rights form did not render the Miranda waiver

involuntary). Rolle next challenges the accuracy of the ATF officer’s testimony.

His argument that the officer’s testimony is questionable because the officer had

only one hour of sleep prior to the interview is meritless. When reviewing a

sufficiency-of-the-evidence claim, this court does not assess witness credibility

but views the evidence in the light most favorable to the government.     See

Wingfield v. Massie , 122 F.3d 1329, 1332 (10th Cir. 1997). The admissible

evidence presented in this case, including the statements Rolle made to the ATF




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officer, was sufficient to sustain Rolle’s conviction of possession of an

unregistered firearm.

       Rolle next contends that there was insufficient evidence to convict him of

possession of a firearm by a fugitive from justice because the government failed

to prove that he left Montana with the intent to avoid arrest or prosecution. A

fugitive from justice is defined as “any person who has fled from any state to

avoid prosecution for a crime or to avoid giving testimony in any criminal

proceeding.” 18 U.S.C. § 921(1)(15). At trial, the government introduced a

certified copy of a bench warrant issued by a Montana court on October 21, 1999

as a result of Rolle’s failure to appear on a charge of driving under the influence;

testimony that Rolle was in Wyoming on December 3, 1999; and Rolle’s

statement to the ATF officer that he was aware of the outstanding warrant. The

jury was entitled to draw reasonable inferences from this evidence regarding

Rolle’s subjective intent.   See United States v. Magleby , 241 F.3d 1306, 1312

(10th Cir. 2001) (“In making its determination regarding a defendant’s intent, a

jury is permitted to draw inferences of subjective intent from a defendant’s

objective acts.” (quotation omitted)). The evidence amply supports the jury’s

conclusion that Rolle left Montana with the intent to avoid the charges pending

against him in that state.




                                          -5-
      Finally, Rolle contends that the evidence was insufficient to sustain his

conviction on the charge of possession of a firearm by a person subject to a

protective order because the government failed to show that he was subject to a

restraining order described in 18 U.S.C. § 922(g)(8). To sustain the conviction,

the government was required to prove,    inter alia , that Rolle was subject to a

order that restrains him “from harassing, stalking, or threatening an intimate

partner . . . or engaging in other conduct that would place an intimate partner in

reasonable fear of bodily injury to the partner.” 18 U.S.C. § 922(g)(8)(B).

Additionally, the restraining order must include a finding that Rolle represents a

credible threat to the intimate partner or “by its terms explicitly prohibit[] the

use, attempted use, or threatened use of physical force against such intimate

partner.” 18 U.S.C. § 922(g)(8)(C)(i), (ii). Rolle argues that the protective order

issued by the Montana court does not specifically contain the words “stalking or

threatening” and thus does not meet the requirements of 18 U.S.C. §

922(g)(8)(B). He also argues that the restraining order does not comply with 18

U.S.C. § 922(g)(8)(C) because it does not contain all of the language required by

that subsection.

      At trial, the government introduced the restraining order issued by the

Justice Court of Custer County, Montana. The order states that Rolle “must not

harass, annoy, or disturb the peace of” his former girlfriend. This language


                                          -6-
prohibits Rolle from engaging in conduct “that would place an intimate partner in

reasonable fear of bodily injury,” and, thus, meets the requirements of 18 U.S.C.

§ 922(g)(8)(B). The restraining order also contains a finding that Rolle’s former

girlfriend “is in danger of harm.” This finding is sufficient to satisfy the

requirement of 18 U.S.C. § 922(g)(8)(C)(i) that the restraining order include a

finding that Rolle represents a credible threat to the physical safety of his former

girlfriend. Finally, the restraining order prohibits Rolle from threatening to

commit or committing acts of violence against his former girlfriend. Thus, it

explicitly prohibits Rolle from using or attempting to use physical force against

his former girlfriend, thereby meeting the requirements of 18 U.S.C. §

922(g)(8)(C)(ii).   2
                        We conclude that the evidence was sufficient to sustain

Rolle’s conviction on the charge of possession of a firearm by a person subject to

a restraining order.

       This court concludes that the evidence was sufficient to convict Rolle of

all three counts contained in the indictment. Accordingly, Rolle’s convictions

are hereby affirmed .

                                          ENTERED FOR THE COURT:




       2
        Although 18 U.S.C. § 922(g)(8)(C) is phrased in the disjunctive, we note
that the requirements of both § 922(g)(8)(C)(i) and § 922(g)(8)(C)(ii) were met.

                                            -7-
Michael R. Murphy
Circuit Judge




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