UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 94-5452

NATHAN Y. MASON, SR.,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of North Carolina, at Shelby.

Richard L. Voorhees, Chief District Judge.

(CR-93-23)

Submitted: July 9, 1996

Decided: July 19, 1996

Before ERVIN, Circuit Judge, and BUTZNER and PHILLIPS,

Senior Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Jack W. Stewart, Asheville, North Carolina, for Appellant. Mark T.

Calloway, United States Attorney, Thomas R. Ascik, Assistant United

States Attorney, Asheville, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

A jury convicted Nathan Y. Mason, Sr., of selling firearms without

keeping records as required by 18 U.S.C.A. § 923 (West 1976 &

Supp. 1996), in violation of 18 U.S.C.A. §§ 922(b)(5), 924 (West

Supp. 1996), 27 C.F.R. § 178.124 (1996) (Counts 1-3, 6); and soliciting another to commit a felony involving the use of physical force in

violation of 18 U.S.C.A. § 373 (West Supp. 1996) (Count 4).1 Mason

appeals, contending that the district court erred in allowing the jury

to use transcripts as aids while they listened to tape-recorded conversations between Mason and undercover officers, a three-week delay

in the trial prejudiced him, and the evidence was not sufficient to convict him. Finding no error, we affirm.

I.

Taking the evidence in the light most favorable to the Government,

see United States v. Smith, 44 F.3d 1259, 1269-70 (4th Cir.), cert.

denied, ___ U.S. ___, 63 U.S.L.W. 3817 (U.S. May 15, 1995) (No.

94-8163), testimony disclosed that Mason owned and operated a

used-car dealership and was a firearms dealer licensed by the federal

government. As a federal firearms dealer, Mason must keep certain

firearms transaction records, including Form 4473 promulgated by the

Bureau of Alcohol, Tobacco, and Firearms ("BATF"). Form 4473 has

two sections. The purchaser must complete Section A by filling in his

name, sex, height, weight, race, date and place of birth, and address

and by answering eight questions, including whether he is prohibited

from possessing a firearm; the dealer must complete Section B at the

time of the sale by checking the purchaser's identification, listing

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1 The jury found Mason not guilty of retaliating against another for participating in a federal proceeding in violation of 18 U.S.C.A.

§ 1513(a)(1) (West Supp. 1996) (Counts 5, 8); and selling a stolen firearm and ammunition in violation of 18 U.S.C.A. §§ 922(j), 924 (West

Supp. 1996) (Count 7). Further, the Government moved to dismiss the

portion of Count 7 that referred to ammunition. Hearing no objection

from Mason, the district court granted the Government's motion.

 2
information about the firearm sold, and retaining Form 4473 in his

records.

Local authorities investigated Mason for possible drug and gun

violations. Officer Lempia testified that he met Mason on several

occasions while working undercover as a drug dealer. Lempia purchased from Mason a .357 magnum for $350 and received a bill of

sale written by Mason with the name "Weldon Gates" as the seller.

Lempia testified that Mason did not present Form 4473 to him.

Officer Edney testified that he discussed guns with Mason and purchased a .22-caliber pistol while working undercover posing as a convicted felon. According to Edney, Mason did not present Form 4473

--or any other paperwork--to him. Edney and Officer McDonald

later contacted Mason about purchasing a TEC-9 pistol. Edney testified that they followed Mason's instructions and obtained a handgun

permit in the fictitious name of "Susan Edwards King" so that Mason

would sell the TEC-9 pistol to them.

Officer McDonald testified that he worked undercover as a biker

and met Mason through a mutual friend. Mason told McDonald that

he could sell him two weapons without any paperwork. McDonald

corroborated Edney's testimony that Mason told them how a convicted felon could obtain a handgun permit. When McDonald and

Edney purchased the TEC-9 pistol, they gave Mason the "Susan

Edwards King" handgun permit, and Mason produced Form 4473.

McDonald followed Mason's instructions and signed the name

"Susan Edwards King" as the buyer. Mason also sold another TEC-9

pistol to McDonald, who used the name "Susan Edwards King" on the

paperwork.

During the gun transactions, Mason mentioned to McDonald that

he had repossessed a van he had sold to a customer of his used-car

dealership and that he was in some trouble over it. 2 McDonald testi-

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2 Mason's reference to the repossession stemmed from his sale of a van

to Curtis and Doris Greenway. Mason financed the purchase, and the

Greenways agreed to pay $100 a month. After missing a few payments,

the Greenways filed for bankruptcy. The Greenways gave the bankruptcy

 3
fied that Mason said he wanted to send someone a message and that

pipe bombs were a good way to do so. Mason asked McDonald how

much it would cost to "mess somebody up" and told McDonald to

contact the person who could help him do the job. Mason stated that

he would pay $2000 in advance and $2000 when Curtis Greenway

was shot in the kneecaps. McDonald testified that Mason said he

could provide the person with the Greenways' routine and where they

lived. Mason also identified Curtis Greenway as the target, and

Mason drew a map to the Greenways' house and offered untraceable

tags for the car used in the assault. Mason later wanted to postpone--

but not cancel--the assault on Greenway. The assault on Greenway

never happened, however, because the officers' undercover identities

were compromised and, as a result, Mason was arrested. On the fourth

day of trial, McDonald was hospitalized, which necessitated a threeweek delay in the trial and interrupted defense counsel's crossexamination.

During the Government's case-in-chief, the court admitted into evidence tape-recorded conversations between Mason and the undercover officers. While the jury listened to the tapes, the court allowed

the Government, over Mason's objection, to distribute transcripts of

the conversations to the jurors to aid their understanding of the tapes.3

The court also admitted the transcripts into evidence but gave a limiting instruction regarding the purpose for which they could be used.

The court instructed the jury that the only evidence before them were

the tapes--more particularly, the words on the tapes; that they must

evaluate the officer's testimony as to how the tapes were made,

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court the wrong address for Mason. As a result, only the Greenways

appeared in court when their bankruptcy plan was adopted. When the

Greenways returned home, their van was gone. Because the Greenways

believed Mason took their van, they filed for sanctions against him in

bankruptcy court for violating the automatic stay. Mason settled the

sanctions action by paying the Greenways $1100, giving them the title

to the van, and paying attorneys' fees.

3 On cross examination, Mason's counsel questioned the accuracy of

some of the transcripts and tapes, objected to the portions of the tapes

that were not transcribed, and objected to tapes that were not the original

recordings.

 4
whether they were made accurately, and whether they actually represented what the officers said they represented; that the transcripts

were allowed not as evidence of what was said on the tapes, but only

as a guide; and that if any discrepancy existed between what was said

on the tapes and what was shown on the transcripts, the tapes must

prevail.

After presenting Mason's defense, counsel moved to dismiss

Counts 1-3, 6-8 against Mason, which the court denied. The court

then instructed the jurors, among other things, that the evidence consisted of the exhibits admitted at trial and that they were the sole

judges of the credibility of the witnesses and the weight to be given

their testimony. The court instructed the jurors to rely on their own

recollection of the testimony and reiterated that the tapes were evidence but the transcripts were not, and if they perceived a conflict

between the tapes and the transcripts, they should be guided solely by

the tapes.

The jury convicted Mason of selling firearms without recording the

proper information, (Counts 1-3, 6), and of soliciting another to commit a felony involving the use of physical force (Count 4). The court

sentenced Mason to thirty-six months imprisonment on each count,

with all counts to run concurrently, ordered three years of supervised

release on each count to run concurrently, and imposed a $2000 fine

and a $250 special assessment. This appeal followed.

II.

Mason contends that the Government's use of tapes and transcripts

prejudiced him. He claims that the "transcripts were inherently unreliable . . . due to an incessant number of omissions and misinterpretations [of the tapes] in the transcripts." (Appellant's Br. at 18). We

review for an abuse of discretion the district court's decision to allow

the use of transcripts to aid in the presentation of tape-recorded evidence. United States v. Capers, 61 F.3d 1100, 1107 (4th Cir. 1995),

cert. denied, ___ U.S. ___, 64 U.S.L.W. 3779 (U.S. May 20, 1996)

(No. 95-7022); United States v. Collazo, 732 F.2d 1200, 1203 (4th

Cir. 1984), cert. denied sub nom. Alvarez v. United States, 469 U.S.

1105 (1985); see also United States v. Clark, 986 F.2d 65, 68-69 (4th

Cir. 1993).

 5
Mason's counsel conducted thorough cross-examinations of the

undercover officers who made the tape recordings by challenging the

accuracy of the transcripts, objecting to portions on the tapes that

were not transcribed by the Government, and objecting to tapes that

were not the original recordings. See Capers, 61 F.3d at 1107; Clark,

986 F.2d at 69; Collazo, 732 F.2d at 1204. Moreover, the district

court gave an appropriate limiting instruction. 4 The court stated that

the tapes were the evidence before the jury--not the transcripts that

could only be used as aids--and that if they found any discrepancy

between the tapes and the transcripts, the tapes must prevail. See

Capers, 61 F.3d at 1107; Collazo, 732 F.2d at 1203 (finding that cautionary instructions cured prejudice that might have resulted from discrepancies between tape and transcript). We find no abuse of

discretion in the district court's decision to allow the jury to use the

transcripts while listening to the tapes. See Capers, 61 F.3d at 1107.

III.

Mason next contends that the three-week delay in the trial caused

by the illness of a key Government witness, Officer McDonald,

unfairly prejudiced him because it impaired counsel's "ability to conduct a vigorous and effective cross-examination of Officer McDonald" and because the delay permitted the jury undue reflection on the

Government's evidence. (Appellant's Br. at 21-22). Because Mason

did not object to this delay during the trial, we review the district

court's decision to delay the trial only for plain error. See United

States v. Olano, 507 U.S. 725, 732-37 (1993).

Although Mason contends that he was prejudiced, we find for several reasons that he was not. First, because the district court acknowledged that McDonald was a key witness in the trial, the delay was

necessary so that he would then be subject to cross-examination. Further, it does not appear that the Government used the delay to gain

an unfair advantage in light of McDonald's sudden illness. Finally,

Mason's counsel had an opportunity to extensively cross-examine

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4 Mason cites United States v. Schanerman, 150 F.2d 941 (3d Cir.

1945), as support for his contention that he was prejudiced because the

transcripts were so misleading that the discrepancies could not be cured

by a cautionary instruction. We do not find Schanerman dispositive.

 6
McDonald after the delay. McDonald's cross-examination, followed

by Mason's presentation of evidence, was the last evidence presented

to the jury. Cf. United States v. LaRouche, 896 F.2d 815, 823-24 (4th

Cir.), cert. denied, 496 U.S. 927 (1990); United States v. Little, 567

F.2d 346, 348-49 (8th Cir. 1977) (noting that when deciding whether

to grant continuance before trial, court must balance nature of case,

diligence of party requesting continuance, conduct of other party,

effect of continuance, and asserted need for continuance), cert.

denied, 435 U.S. 969 (1978). We therefore find no plain error. See

Olano, 507 U.S. at 732-37.

IV.

Finally, we review a denial of a motion for acquittal under a sufficiency of evidence standard. Fed. R. Crim. P. 29; see Smith, 44 F.3d

at 1269-70. The relevant question is not whether we are convinced of

guilt beyond a reasonable doubt, but rather whether the evidence,

when viewed in the light most favorable to the Government, was sufficient for a rational trier of fact to have found the essential elements

of the crime beyond a reasonable doubt. Smith , 44 F.3d at 1269-70;

see Glasser v. United States, 315 U.S. 60, 80 (1942). If substantial

evidence exists to support a verdict, the verdict must be sustained.

Glasser, 315 U.S. at 80.

Mason contends that the jury failed to consider and weigh the testimony of defense witnesses. Mason also asserts that"this Court is

allowed to weigh the credibility of all witnesses and evidence and

does not bow merely to a consideration of that evidence in a light

most favorable to the Government." (Appellant's Br. at 24). But contrary to Mason's assertion, even if some facts support a contrary conclusion, we do not weigh the evidence or judge the credibility of

witnesses. United States v. Reavis, 48 F.3d 763, 771 (4th Cir.) (citing

United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989)), cert.

denied, ___ U.S. ___, 63 U.S.L.W. 3890 (U.S. June 19, 1995) (No.

94-9316). Here, the jury rejected Mason's version of events and chose

to believe the Government. Such a decision is not reviewable. Reavis,

48 F.3d at 771.

Mason also alleges that the evidence was insufficient to convict

him of selling firearms without the proper records because the Gov-

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ernment did not introduce the records into evidence. 5 Under

§ 922(b)(5), Mason, as a licensed firearms dealer, must note in his

records the name, age, and residence of the individual purchaser. 18

U.S.C.A. § 922(b)(5); see 27 C.F.R.§ 178.124(c), (f) (requiring purchaser to certify he is not prohibited from possessing firearm; requiring licensed dealer to identify purchaser and note method of

identification; requiring dealer to sign form if he does not know or has

reasonable belief that purchaser is prohibited from possessing firearm).

Although the records were not produced at trial, testimony disclosed numerous violations by Mason. Mason sold four firearms to

undercover officers--one of whom said he was a convicted felon--

and either did not offer Form 4473 to them or encouraged them to use

false information, such as the name "Susan Edwards King." This evidence was sufficient for a reasonable jury taking the evidence in the

light most favorable to the Government to convict Mason of selling

firearms without the proper records. See Glasser , 315 U.S. at 80.

V.

Accordingly, we affirm Mason's convictions. We dispense with

oral argument based on our previously entered order granting

Mason's motion to waive oral argument and submit the case on the

briefs.

AFFIRMED

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5 The records were suppressed before trial.

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