UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 97-4282

BARRY HUDSON, a/k/a Pedro

Morales,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Virginia, at Roanoke.

James C. Turk, District Judge.

(CR-96-9)

Submitted: November 18, 1997

Decided: December 5, 1997

Before WILLIAMS and MICHAEL, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Randy V. Cargill, MAGEE, FOSTER, GOLDSTEIN & SAYERS,

P.C., Roanoke, Virginia, for Appellant. Robert P. Crouch, Jr., United

States Attorney, Anthony P. Giorno, Assistant United States Attorney,

Roanoke, Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellant Barry Hudson was convicted of aiding and abetting the

making of false statements to a federally licensed firearms dealer in

violation of 18 U.S.C. §§ 2, 922(a)(6) (1994), and conspiracy to

acquire and transfer a firearm in violation of 18 U.S.C. § 371 (1994).

On appeal he challenges that there was insufficient evidence to support his conviction and that the district court erred by refusing his

request for a jury instruction that his withdrawal from the conspiracy

is a defense to the conspiracy charge. We affirm.

Appellant's conviction stems from his attempt to have Dennis Staples purchase for him a handgun that he could not purchase directly

because he was a convicted felon and not a Virginia resident. Appellant instigated a series of events in which he offered Staples $50 to

purchase a specific type of gun, repeatedly drove Staples to different

gun stores, and then provided Staples with money to buy the gun

while he waited in the car. In support of Appellant's conviction the

government is not required to produce direct evidence that Appellant

willfully participated in the false representations Staples made when

attempting to purchase the gun for Appellant. See United States v.

Hern, 926 F.2d 764, 767 (8th Cir. 1991). Based on the evidence the

government produced at trial, a jury could have reasonably found that

Appellant willfully associated and participated in Staples' false representations. See United States v. Ortiz-Loya, 777 F.2d 973, 980 (5th

Cir. 1985). Accordingly, we find that there was sufficient evidence to

support Appellant's conviction for aiding and abetting the making of

false statements.

We also reject Appellant's contention that there was insufficient

evidence establishing that the gun store in which Staples made his

false representations was a federally licensed firearms dealer.

Although the store's license had expired one month prior to the inci-

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dents giving rise to Appellant's conviction, the store owner had filed

a timely application for renewal and the Bureau of Alcohol, Tobacco,

and Firearms explicitly granted the store permission to continue operating under the old license. In light of this evidence and because the

store's license had never been suspended or revoked, the jury could

reasonably have found that the store was a federally licensed firearms

dealer.

Appellant's final claim is that the district court erred in refusing to

instruct the jury that his withdrawal from the conspiracy to acquire a

firearm is a complete defense to the conspiracy charge. We review a

district court's decision not to give a jury instruction for an abuse of

discretion. See United States v. Russell, 971 F.2d 1098, 1107 (4th Cir.

1992). The district court denied Appellant's jury instruction request

because there was ample evidence that Appellant committed overt

acts in furtherance of the conspiracy prior to showing any intent to

withdraw. Withdrawal from a conspiracy will not preclude a conspiracy conviction if overt acts have been taken in furtherance of the conspiracy prior to the withdrawal. See United States v. Gonzalez, 797

F.2d 915, 916-17 (10th Cir. 1986); United States v. Wooten, 688 F.2d

941, 947 (4th Cir. 1982). An effective withdrawal would only preclude liability for future crimes the remaining co-conspirators might

commit. See Gonzalez, 797 F.2d at 916-17. Appellant committed

numerous overt acts in furtherance of acquiring a firearm prior to

showing any intention to withdraw, and thus was not entitled to an

instruction that his withdrawal provides a defense to the conspiracy

charge. Hence, the district court properly denied the requested

instruction.

Accordingly, we affirm the district court judgment finding Appellant guilty of aiding and abetting the making of false representations

to a federally licensed firearms dealer and conspiracy to acquire a

firearm. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the court

and argument would not aid the decisional process.

AFFIRMED

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