* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This 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. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 7 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. RANDALL MARTY Defendant-Appellant. No. 96-1533 (D. Colo.) (D. Ct. No. 96-CR-85-S)

ORDER AND JUDGMENT *

Before TACHA , LUCERO , and MURPHY , Circuit Judges.

This case stems from defendant Randall Lee Marty’s possession of stolen firearms. After a three-day trial, the jury return ed a guilty verdict, finding violations of 18 U.S.C. § 922(g)(1) (felon in posse ssion of a firearm), 18 U.S.C. § 922(j) (possession of stolen firearms), and 18 U.S. C. § 371 (conspiracy to violate the felon-in-possession and stolen firearm statutes ). The district court sentenced Marty to 171⁄2 years in prison. Marty here challenge s the convictions and the basis of his sentence. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.- 2 -

I. Background Marty was arrested after assisting an acquaintance, James Swiftbird, in transporting at least 12 stolen rifles from Swiftbi rd’s motel room to a pawnshop where Swiftbird sold the guns. Marty had met Swiftbird while Marty was incarcerated at the Canyon City State Prison in Col orado for a 1992 conviction for sexual assault on a child. According to Swiftbird’ s testimony at trial, Marty agreed to take Swiftbird and the guns to a pawn sho p in exchange for a share of the sale proceeds. On three different trips during a two-day period, Marty and Swiftbird drove in Marty’s car to the pawnshop withthe guns. Swiftbird had stolen the guns, but he had initially told Marty th at the guns belonged to a friend and that he was selling them on the friend’s behalf. Swiftbird did not inform Marty that the guns had been stolen until after the men had made their second of three trips to the pawnshop. Police issued a warra nt for Marty’s arrest after the pawnshop learned that the guns had been stolen and informed the police of the license number of Marty’s car, recorded by the pawn shop owner. Prior to trial, Marty stipulated that he was a conv icted felon and could not lawfully possess firearms. At trial, the government called his Colorado probation officer. Marty objected to the government’s introd uction of a State of Colorado document that the probation officer had given Marty informing Marty that he could not lawfully possess firearms. The district court excluded the document,- 3 -

but ruled that the probation officer could testify that he had explained the contents of the document to Marty, so long as the o fficer did not testify as to the nature of Marty’s prior convictions. After a three -day trial, the jury returned a guilty verdict in all three counts. The district court sentenced Marty to 210 months in carceration for Count I (felon in possession of a firearm) under 18 U.S.C. § 924(e)(1), the Armed Career Criminal Act. The Act imposes a minimum 15-year se ntence if the defendant has committed at least three prior violent crimes and i s convicted of being a felon in possession of a firearm under § 922(g)(1). Marty’s three prior crimes supporting a sentence enhancement under § 924(e)(1) were a 198 3 conviction for burglary in Texas, a 1983 conviction for burglary in Florida, a nd the 1992 Colorado conviction for sexual assault upon a child, for whi ch he was on probation at the time of the events in this case. The court sentenc ed Marty to lesser concurrent periods of incarceration on the other two counts. II. Discussion Marty raises three issues on appeal. First, he arg ues that the district court abused its discretion by permitting the probation o fficer’s testimony. Second, he argues that the evidence presented by the governmen t was not sufficient to support a conviction on any of the three counts. T hird, he argues that the district court erred in sentencing him on Count I according to the Armed Career Criminal- 4 -

Act, asserting that his 1992 conviction for sexual assault on a child was not a violent crime under the Act and that Colorado law p recluded the district court from using the two 1983 burglary convictions to enh ance his sentence. A. Probation Officer’s Testimony Marty first argues that the district court should n ot have allowed the probation officer’s testimony because the testimonywas not relevant to any issue in the case and it was more prejudicial than probat ive. We review the district court’s decision for abuse of discretion. See United States v. Wacker , 72 F.3d 1453, 1471 (10th Cir.), cert. denied , 117 S. Ct. 136 (1996). The government’s stated purpose for presenting the probation officer ’s testimony was to demonstrate “‘strong and probative evidence of intent’ on the d efendant’s part in that the defendant had been apprised of his duty notto possess firearms, [but] disregarded [this duty].” Appellee’s Br. at 14 (quoting Tr. at225) (emphasis in original). Marty asserts that this alleged purpose for introdu cing the testimony was bogus because “[k]nowledge that one was aware he was viol ating a criminal statute by firearm possession is not an element of the governm ent’s case.” Appellant’s Br. at 11. He contends that the actual purpose of the evidence was to “urg[e] the jury to make the impermissible inference that due to [Ma rty’s] recent conviction and incarceration he was a person more likely to committhe crimes charged.” Id. at 10. He further asserts that because he had stipulated before trial that he had a- 5 -

prior felony conviction, the testimony was unnecess ary for the government to prove the felon-in-possession charge. The district court should have excluded the testimo ny because the defendant’s knowledge of the criminal law was not r elevant to any issue in the case. However, “[a] trial court’s admission of ina dmissible evidence will disturb a defendant’s conviction only if the error is not h armless.” United States v. Cass , 127 F.3d 1218, 1225 (10th Cir. 1997). The question , then, is whether the admission of the probation officer’s statements that the defendant knew he could not lawfully possess firearms, that he had recentlybeen incarcerated, and that he was on probation at the time of his arrest in this case had a “substantial influence” on the jury’s verdict. Id. We conclude that they did not. The government’s case against Marty was a strong on e. There was no question that he transported firearms in his car on three occasions. On at least one of these occasions, he knew that the firearms h ad been stolen. The only questions the jury had to grapple with were whetherthe defendant had possession of the guns and whether he knew they were stolen. We have no doubt that the jury’s verdict would have been the same even withou t the probation officer’s testimony that the defendant knew that he could notlawfully possess firearms. Cf. United States v. Tome , 61 F.3d 1446, 1455 (10th Cir. 1995) (grave doubt as to whether error is harmless requires reversal) (quoti ng Kotteakos v. United States ,- 6 -

328 U.S. 750, 765 (1946)). Moreover, evidence thatMarty recently had been incarcerated had already properly come in through S wiftbird’s testimony. Swiftbird testified that he recently had been incar cerated and had met Marty while in prison. The defendant points us to no cases, no r could we find any, in which there was reversible error in a § 922(g)(1) case be cause a trial court admitted evidence that the defendant recently had been relea sed from prison and placed on probation. That a convicted felon served time in p rison, even if recently, and that he was on probation at the time of a § 922(g)(1) vi olation, flow directly from the fact that the defendant has a felony conviction. B. Sufficiency of the Evidence Marty next asserts that the government presented in sufficient evidence to support convictions on each of the three counts. W e review the evidence in the light most favorable to the government to determine if a reasonable jury could find the defendant guilty beyond a reasonable doubt . See United States v. Mills , 29 F.3d 545, 549 (10th Cir. 1994). The three necessary elements to sustain a convictio n under the felon-inpossession statute, 18 U.S.C. § 922(g)(1), are a pr ior felony conviction, knowledge that the instrument possessed is a firearm, and possession of the firearm in or affecting interstate commerce. See United States v. Capps , 77 F.3d 350, 352 (10th Cir. 1997), cert. denied , 116 S. Ct. 2568 (1996). The only issue- 7 -

the defendant raises regarding his conviction under§ 922(g)(1) is whether he had possession of the stolen weapons. He argues that h e had neither actual nor constructive possession of the firearms. Construct ive possession is sufficient to sustain a conviction under § 922(g)(1). See Mills , 29 F.3d at 549. One has constructive possession when he knowingly has owner ship, dominion, or control over the object and the premises where it is found. See id. Marty owned the car in which he and Swiftbird transported the firearms. Marty had possession of the keys to the car, voluntarily allowed Swiftbird to l oad the guns into the car, drove Swiftbird and the guns to the pawnshop, and knew th at he was carrying the guns in his car. He, therefore, knowingly had control o ver the objects (i.e., the firearms) and the premises (i.e., the car) where th ey were located. Cf. United States v. Eldridge , 984 F.2d 943, 946 (8th Cir. 1993) (“[Defendant] h ad dominion and control over the firearms because he had contro l of the keys to the trunk of the car.”). Thus, sufficient evidence existed to c onvict the defendant of being a felon in possession of firearms. Turning to Count II, a defendant may be convicted for possession of stolen firearms under 18 U.S.C. § 922(j) if he eith er had actual knowledge that the firearms he possessed were stolen or had reason able cause to believe that the firearms were stolen. According to the trial testi mony of Swiftbird and ATF agent Scot Thomasson, prior to Swiftbird and Marty’ s third and final trip to the- 8 -

pawnshop, Swiftbird told Marty that Swiftbird had s tolen the firearms. The jurors also heard testimony that, equipped with the knowle dge that the firearms had been stolen, Marty still drove Swiftbird and the firearm s to the pawnshop where Swiftbird sold them. This testimony is evidence th at Marty had actual knowledge that the guns were stolen prior to him transporting them in his car to the pawnshop. The jury believed that testimony, and th eir conclusion was not unreasonable. Marty contends in his brief, contrary to this evide nce, that he did not assist Swiftbird in transporting the guns after learning t hat Swiftbird had stolen them. Thus, Marty argues not that the evidence was legall y insufficient to convict him under § 922(j), but rather that the facts are diffe rent than determined by the jury. “Findings of fact, whether based on oral or documen tary evidence, shall not be set aside unless clearly erroneous, and due regard shal l be given to the opportunity of the trial court to judge the credibility of the wit nesses.” Fed. R. Civ. P. 52(a); see also Salve Regina College v. Russell , 499 U.S. 225, 233 (1991). There is nothing in the record to suggest that the jury’s findings w ere clearly erroneous, and thus, we uphold the conviction for possession of stolen f irearms. Finally, Marty was charged under 18 U.S.C. § 371 wi th conspiring with Swiftbird to violate the felon-in-possession and st olen firearms statutes. To sustain a conviction for conspiracy, the governmentmust prove that there was an- 9 -

agreement to violate the law, the defendant knew th e essential objectives of the conspiracy, the defendant knowingly and voluntarilytook part in the conspiracy, and the co-conspirators were interdependent. See United States v. Richardson , 86 F.3d 1537, 1546 (10th Cir.), cert. denied , 117 S. Ct. 588 (1996). The government presented evidence at trial that was sufficient fora jury to find that each of these four elements had been satisfied. The evidence was as follows. First, Marty agreed with Swiftbird to use his car to transport S wiftbird and the stolen guns, in violation of federal law, to a pawnshop where Swift bird sold them. Second, Marty knew that the essential objective of the cons piracy was to split the proceeds of the sale of stolen firearms. Third, Marty knowi ngly and voluntarily assisted Swiftbird in transporting the guns to the pawnshop. Fourth, Swiftbird and Marty acted together. Marty drove his car with the guns, and Swiftbird took the guns into the pawnshop to sell them. Marty received a p ortion of the sale proceeds. Thus, there was sufficient evidence to support Marty’s conspiracy conviction under 18 U.S.C. § 371. C. Sentencing under the Armed Career Criminal Act Marty’s final challenge on appeal concerns his sent ence under 18 U.S.C. § 924(e)(1) for violating the felon-in-possession s tatute, 18 U.S.C. § 922(g)(1). Section 924(e)(1) provides:

In the case of a person who violates section 922(g) of this title and has three previous convictions . . . for a viol ent felony . . . , such- 10 -

person shall be fined not more than $25,000 and imp risoned not less than fifteen years . . . . The three violent felonies that qualified as predic ate offenses for sentenceenhancement under § 924(e)(1) were a 1983 Florida b urglary conviction, a 1983 Texas burglary conviction, and a 1992 conviction fo r sexual assault on a child. Marty first contends that his 1992 sexual assault c onviction should not be considered a violent felony. We disagree. Section 924(e)(2)(B)(i) defines “violent felony” as a felony that “has as an elemen t the use, attempted use, or threatened use of physical force against the person of another.” The Colorado statute under which Marty was convicted in 1992 inc luded actual physical force or threatened physical force as an element of the c rime of sexual assault on a child. See Pre-Sentence Report, at 9; Colo. Rev. Stat. §§ 18- 3-402(1)(a)-(c), 18- 3-405(2)(a) (1991). Accordingly, the 1992 sexual a ssault conviction is a violent felony for purposes of sentence enhancement under 1 8 U.S.C. § 924(e)(1). Marty also asserts that although his burglary convi ctions would qualify as predicate offenses for § 924(e)(1) sentence enhance ment purposes, they do not here because Colorado law had restored his civil ri ghts for those crimes at the time he committed the offenses in this case. The p rior convictions that will support a § 924(e)(1) enhancement are described andrestricted by 18 U.S.C. § 921(a)(20). See United States v. Norman , Nos. 96-1342, 96-1359, 1997 WL 735338, at *3 (10th Cir. Nov. 28, 1997) (looking to § 921(a)(20) to determine- 11 -

who is a felon for purposes of § 922(g)(1)). Secti on 921(a)(20) reads, in relevant part: What constitutes a [felony] conviction . . . shall be determined in accordance with the law of the jurisdiction in whic h the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civ il rights restored shall not be considered a conviction for purposes o f this chapter . . . . In United States v. Sanders , this circuit held that the question whether the § 921(a)(20) exemptions apply, including restoratio n of one’s civil rights, is “determined according to the law of the jurisdictio n where the conviction was obtained.” United States v. Sanders , 18 F.3d 1488, 1490 (10th Cir. 1994). Marty acknowledges that neither Texas nor Florida, the st ates in which he was convicted for the burglaries, had restored his civil rights. Because neither Florida nor Texas had restored his civil rights, the district court c orrectly considered those two crimes as predicate offenses for sentence enhanceme nt under 18 U.S.C. § 924(e)(1). III. Conclusion Having concluded that the district court did not ab use its discretion in allowing the testimony of the defendant’s probation officer, that the evidence that the government presented was sufficient to sustain all three convictions, and that the district court properly enhanced his sentence u nder 18 U.S.C. § 924(e)(1), we AFFIRM the defendant’s conviction and sentence.- 12 - ENTERED FOR THE COURT,

Deanell Reece Tacha Circuit Judge