UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_______________

No. 94-40358

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LUCIUS BREELAND, II,

Defendant-Appellant.

__________________________________________________

Appeal from the United States District Court

for the Western District of Louisiana

__________________________________________________

(May 15, 1995)

Before DAVIS, JONES, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Lucius Breeland II appeals from his conviction for possession

of an unregistered firearmin violation of the National Firearms

Act, 26 U.S.C. § 5861(d) (1988). Finding no reversible error, we

affirm.

I

Louisiana State Trooper David Desormeaux stopped Breeland on

Interstate Highway 10, and after discovering that Breeland did not

have a driver's license, he placed Breeland under arrest. Trooper

Desormeaux then called a wrecker to tow the vehicle to a pound and,

pursuant to Louisiana State Police policy, conducted an inventory1 In addition, Breeland's couns el contends that the district court

erroneously denied his motion for excess compensation under the Criminal Justice

Act, 18 U.S.C. 3006A(d)(3) (1988). We do not reach this issue because it is not

properly raised in an appeal from the defendant's conviction. S ee United States

v. Todd , 475 F.2d 757, 759 n.3 (5th Cir. 1973); United States v. Sullivan , 456

F.2d 1273, 1275 (5th Cir. 1972).

-2- search of the vehicle. When he opened the vehicle's tailgate, he

discovered two weapons: a pump-action shotgun designed to look

like a machine gun, and a sawed-off double barrel shotgun, the

stock of which had been converted into a pistol grip.

A federal grand jury indicted Breeland on two counts. In

Count One, Breeland was charged with possession of an unregistered

sawed-off shotgun in violation of 26 U.S.C. § 5861(d), and in Count

Two, he was charged with transportation of a firearm while under

indictme nt for a crime punishable by imprisonment for a term

exceeding one year in violation of 18 U.S.C. § 922(n) (1988).

After a brief trial, a jury found Breeland guilty on Count One and

not guilty on Count Two.

Breeland now appeals, contending (1) that the district court

erroneously denied Breel and's motion to suppress the sawed-off

shotgun recovered from his vehicle, (2) that Breeland's sawed-off

sho tgun did not meet the definition of a "firearm" in 28 U.S.C.

§ 5845(a) (1988), (3) that the prosecutor's statements during his

closing argument amounted to prosecutorial misconduct, and (4) that

the district court deprived Breeland of his right to counsel when

it refused to allow him to discharge his appointed counsel and

obtain new appointed counsel. 1-3- II

A

Breeland appeals from the district court's denial of his

motion to suppre ss the sawed-off shotgun, arguing that Trooper

Desormeaux improperly stopped Breeland's vehicle. The government

may not use evidence obtained in violation of the Fourth

Amendment's prohibition against unreasonable searches and seizures

to prove a defendant's guilt at trial. U nited States v. Thomas

, 12

F.3d 1350, 1366 (5th Cir.) (citing Weeks v. United States

, 232 U.S.

383, 398, 34 S. Ct. 341, 346, 58 L. Ed. 652 (1914)), cert. denied

,

___ U.S.

___, 114 S. Ct. 1861, 128 L. Ed. 2d 483 (1994). A police

officer's brief investigatory stop of a vehicle and its driver does

not violate the Fourth Amendment provided it is based on "the

`reasonable suspicion' that the person is engaged or is about to be

engaged in criminal activity." U nited States v. Tellez

, 11 F.3d

530, 532 (5th Cir. 1993) (citing Terry v. Ohio

, 392 U.S. 1, 21-22,

88 S . Ct. 1868, 1879-80, 20 L. Ed. 2d 889 (1968)), c ert. denied

,

___ U.S.

___, 114 S. Ct. 1630, 128 L. Ed. 2d 354 (19 94). Such

criminal activity includes traffic violations. T homas

, 12 F.3d at

1366; United States v. Shabazz

, 993 F.2d 431, 434-35 (5th Cir.

1993).

The district court denied Breeland's motion to suppress based

on the Report and Recommendation of a United States Magistrate

Judge. The magistrate judge determined that Trooper Desormeaux's

investigatory stop was proper because before he initiated the stop2 Breeland also contends that his violation of Louisiana's excessive

smoke statute, La. Rev. Stat. Ann. § 32:352C (West 198 9), could not form the

basis of an investigatory stop because the statute is unconstitutionally vague.

We do not address the merits of Breeland's constitutional claim because we affirm

the district court's denial of the motion to suppress based on its finding that

Trooper Desormeaux observed the defective tail light before initiating the stop.

-4- he observed that the vehicle was emitting excessive smoke and that

the vehicle's tail light was defective. Breeland contests the

magistrate judge's finding , adopted by the district court, that

Troop er Desormeaux observed the defective tail light before

ini tiating the stop. 2 "In reviewing a district court's ruling on

a motion to suppress evidence based on testimony at a suppression

hearing, we must accept the district court's factual findings

unless they are clearly erroneous or are influenced by an incorrect

view of the law." United States v. Garcia , 849 F.2d 917, 917 n.1

(5th Cir. 1988). We view the evidence in the light most favorable

to the Government, the party that prevailed below, id.

, and if the

magistrate judge's account of the evidence is "plausible in light

of the record viewed in its entirety," we may not reverse, Anderson

v. City of Bessemer City

, 470 U.S. 564, 574, 105 S. Ct. 1504, 1511,

84 L. Ed. 2d 518 (1985).

The magistrate judge held two evidentiary hearings on

Breeland's motion to suppress. After the first, she found as

follows: "Having considered the substance of the testimony

offered, and the credibility of the witnesses, I find that the

officer observed an inoperable right rear tail light before pulling

Lucius Breeland's vehicle off the highway, and thus, that he had a3 Trooper Desormeaux testifie d that he began following the vehicle

after noticing its exhaust emissions, but that he observed the m alfunctioning

tail light before initiating the stop.

-5- legitimate reason for pulling the vehicle off of the roadway." 3

Based on Breeland's assertio n of "new evidence," the

magistrate judge conducted another evidentiary hearing. At the

second hearing, Breeland called eight witnesses )) five relatives and

t hree friends of relatives )) to testify that the tail l ight was

working at various times, some near the time of his arrest. In her

Second Supplemental Report and Recommendation, the magistrate judge

noted that:

[T]he credibility determination was ultimately narrowed

to an evaluation of Trooper Desormeaux's testimony versus

the testimony of Lucius Breela nd, Sr. [the defendant's

father] and Ray Earnest [an acquaintance of Lucius

Breeland, Sr.], the only two witnesses who testified

specifically about the condition of the vehicle

immediately after the defendant's arrest, and that of

Lucius Breeland, II. Breeland, II, testified at the

state hearing and at the hearing on June 8, 1993. Yet,

he never offered any testimony under oath as to whether

the light was or was not operable on January 4, 1991.

Record on Appeal, vol. 2. at 299-300. The magistrate judge, after

weighing the testimony of these various individuals, again found

that Trooper Desormeaux observed the inoperable tail light before

initiating the stop.

Breeland conte nds that the magistrate judge's findings are

contrary to the "great weight of evidence and te stimony" because

she credited Trooper Desormeaux's testimony over that of the eight

witnesses who testified on Breeland's behalf. On appeal, however,

we must accept the magistrate judge's findings unless they are4 The magistrate judge made specific findings regarding the credibility

of Breeland's father and Ray Earnest:

With respect to the testimony of Lucius Breeland, Sr., who testified

both at the state hearing in January 1991 and at the hearing on

August 30, 1993, I note that his answers were frequently evasive and

his attitude belligerent. Finally, I note with respect to the

testimony of Mr. Earnest that his respect for the authority of this

court is sub ject to question. He admitted on cross-examination,

inter alia, that he did not believe himself to be a citizen of the

United States, that he had once sent documents to the United States

Attorney's office seeking to renounce his citizenship, that only

"positive" laws apply to him, and that this Court was legitimate "in

its rightful place . . . ."

Record on Appeal, vol. 2, at 299.

-6- clearly erroneous. Garcia , 849 F.2d at 917 n.1. "Clear error is

especially rigorous when applied to credibility determinations

because the trier of fact has seen and judged the witnesses."

United States v. Casteneda

, 951 F.2d 44, 48 (5th Cir. 1992). With

due deference to the magistrate judge's credibility determination, 4

and viewing the evidence in the light most favorable to the

government, we hold that her finding was "plausible in light of the

record viewed in its entirety." A nderson

, 470 U.S. at 574, 105 S.

Ct. at 1511.

Breeland also challenges the magistrate ju dge's finding on

legal grounds, asserting that it conflicted with a "binding

stipulation of fact" Breeland entered into w ith the Government.

The stipulation to which Breeland refers is a document prepared and

filed by the magistrate judge memorializing a pretrial conference.

In it, the magistrate judge stated:

The following facts were stipulated.

On January 4, 1991, at approximately 7:25 a.m.,

Trooper David Desormeaux obs erved a 1982 Datsun Maxima

stationwagon bearing an Alabama license plate west bound

on Interst ate Highway 10 in Lafayette Parish. He

observed a great deal of smoke emitting from the exhaust5 Congress amended the National Firearms Act in respects not relevant

to this case in the Violent Crime Control and Law Enforcement Act of 1994, Pub.

L. No. 103-322, 108 Stat. 1796 § 110301, codified at 26 U.S.C.A. § 5802 (West

Supp. 1995).

-7- of the vehicle and followed for approximately one-quarter

of a mile observing the vehicle. He then turned on his

lights to signal the vehicle to pull over.

At this point, a factual dispute arises. The

Government contends that Trooper Desormeaux observed an

inoperable rear tail light during the time that the

Breeland vehicle was pulling off to the side of the

highway. The defendant disputes this contention.

Record on Appeal, vol. 1, at 97. When Breeland objected to the

magistrate judge's first Report and Recommendation on the grounds

that her findings conflicted with the above "stipulation ," the

magistrate judge issued a Supplemental Report and Recommendation in

which she stated that the parties had not stipulated to the timing

of Trooper Desormeaux's observation of the tail light. As the

above-quoted language makes cl ear, the parties did not stipulate

th at Trooper Desormeaux observed the tail light only after

initiating the traffic stop. In fact, the parties disputed whether

Trooper Desormeaux observed the tail light at all. Consequently,

we do not decide whether, if the parties had stipulated as to the

timing of Trooper Desormeaux's observation of the tail light, the

magistrate judge would have been bound by that stipulation.

B

Breeland also challen ges the sufficiency of the evidence to

convict him on Count One of his indictment, arguing that the weapon

produc ed at trial was not a "firearm" as that term is defined in

the Na tional Firearms Act, 26 U.S.C. §§ 5801-5872 (1988). 5 In6 It is undisputed in this case that Breeland's sawed-off shotgun was

not registered to him.

7 It is also undisputed that Breeland's sawed-off shotgun had a barrel

of less than 18 inches in length and an overall length of less than 26 inches.

-8- pertinent part, the Act prohibits the possession of a firearm that

is not registered to the possessor in the National Firearms

Registration and Transfer Record. 26 U.S.C. § 5861(d). 6 The

statute defines the term "firearm" as, among other things, "(1) a

shotgun having a barrel or b arrels of less than 18 inches in

length; [and] (2) a weapon made from a shotgun if such w eapon as

modified has an overall length of less than 26 inches or a barrel

or barre ls of less than 18 inches in length." 26 U.S.C.

§ 5845(a). 7 The Act then defines a "shotgun" as:

a weapon designed or redesigned, made or remade, and

intended to be fired fromthe shoulder and designed or

redesigned and made or remade to use the energy of the

explosive in a fixed shotgun shell to fire through a

smooth bore either a number of projectiles (ball shot) or a single projectile for each pull of the trigger, and

shall in clude any such weapon which may be readily

restored to fire a fixed shotgun shell.

26 U.S.C. § 5845(d).

Breeland contends that the sawed-off shotgun produced at trial

does not meet the definition of shotgun in § 5845(d) because, as

modified, it was not intended to be fired from the shoulder. This

argument overlooks the fact that a weapon need not be a shotgun to

meet the definition of "firearm" in § 5845(a). Section 5845(a)(2)

provides that the term "firearm" includes "a weapon made from a

shotgun" (emphasis added) which, as modified, has a barrel of less8 The stock of the shotgun had apparently been partially sawed off and

filed down to make a pistol grip. Trooper Guy Barnett, who test-fired the sawedoff shotgun, testified that he did so by holding the pistol grip in his right

hand and the forearm grip in his left.

-9- than eighteen inches or an overall length of less than twenty-six

inches. Breeland's weapon, as modified, may not have been intended

to be fired from the sh oulder, 8 but under § 5845(a)(2), the

relevant inquiry is whether it was made from a weapon intended to

be fired from the shoulder.

To this extent, we adopt the reasoning of the First Circuit in

United States v. Cabral

, 475 F.2d 715 (1st Cir. 1973). In response

to a similar argument, that court held:

Appellant's additional argument that the government was

required, under the indictment, to prove that the weapon

in issue was a sawed-off shotg un "intended to be fired

from the shoulder" merits little discussion. The short

answer to this contention is that Title 26 of the United

States C ode, under which he was indicted, does not

contain any definition of "sawed-off shotgun," let alone

a definiti on which would require that such a weapon be

designed to be fired in a particular manner. 26 U.S.C.

§ 5845(d ), which defines "shotgun," does contain a

provision that such weapons, as originally manufactured,

must be designed to be fired from the shoulder and it is

undisputed that the firearm which was taken from

appellant fel l within this definition before it was

altered. Subsection (a)(2) of the same provision defines

the word "firearm" as used in the indictment as follows:

"a weapon made from a shotgun if such weapon as modified

has an overall length of less than 26 inches or a barrel

or barrels of less than 18 inches in length."

Id. at 720 (footnote omitted). See also United States v. Bogers

,

635 F.2d 749, 751 (8th Cir. 1980) ("Appellant contends that the

weapon [a sawed-off shotgun] does not fit the definition of shotgun

found in 26 U.S.C. § 5845(d). However, appellant was charged with9 Breeland specifically complains of two remarks. First, the

Government stated, "Now, the defense counsel says, you shouldn't find him guilty

of these firearms because he hasn't done anything bad with them, he didn't rob

any place, he didn't shoot anybody. The question becomes do you want the federal

government to wait until he's killed somebody with these things

. . . ," at which

point Breeland's counsel objected and the court instructed the jury to disregard

the remark. Second, the Government ended its closing argument by urging the jury

to return a verdict of guilty and stating, "To do otherwise is to put each and

everyone of us at risk. Thank you."

-10- illegally possessing and transferring a firearm

, the definition of

which includes a `weapon made from a sho tgun' of less than legal

length.").

Breel and does not challenge the sufficiency of the evidence

tending to show that Breelan d's weapon was manufactured as a

shotgun and later altered, and he acknowledged at oral argument

that the weapon had apparently been modified. The evidence at

trial supporting this conclusion consisted of Officer Barnett's

testimony that the stock appeared to have been sawed off and filed

down, an d the weapon itself, the stock of which has been visibly

changed into a pistol-grip . Viewing this evidence and all

reasonable inferences to be drawn from it in the light most

favorable to the jury's verdict, we hold that a rational jury could

find beyond a reasonable doubt that Breeland's weapon was (1) "made

from a shotgun," and (2) shorter than the dimensions provided in

§ 5845(a)(2), thereby satisfying the definition of a firearm in the

National Firearms Act.

C

Breeland also argues tha t the Government made improper

statements in its closing argument. 9 In light of our holding that1 0 The only issue with respect to Count One that Breeland contested at

trial was the legal qu e stion of whether his sawed-off shotgun was a "firearm"

within the meaning of the Act; he did not contest any factual issues relating to

his guilt.

-11- Bree land's sawed-off shotgun met the definition of firearm in 26

U.S.C. § 5845(a)(2), the Government's proof that Breeland possessed

an unregistered firearm was overwhelming. 10 Consequently, we hold

that the Government's statements, even if improper, were harmless.

See United States v. Hasting

, 461 U.S. 499, 511-12, 10 3 S. Ct.

1974, 1982, 76 L. Ed. 2d 96 (1983) (holding that prosecutorial

misconduct was harmless in the face of overwhelm ing evidence of

guilt); see also United States v. Rodriguez

, 43 F.3d 117, 124 (5th

C ir. 1995) ("To warrant reversal of a conviction, prosecuto rial

misconduct must be so pronounced and persistent that it casts

serious doubts upon the correctness of the jury's verdict.").

We similarly decline to reverse Breeland's conviction based on

the allegedly erroneous admission of Government Exhibit 2, a

National Firearms Registration and Transfer Record certificate

offered to prove that Breeland's firearm was not registered to him.

The certificate contained the erroneous statement that the serial

number on the weapon had been obliterate d (in fact, it had been

manufactured without a serial number). Even if this statement

improperly prejudiced the jury, as Breeland contends, its admission

was harmless in light of the overwhelming proo f of Breeland's

guilt. S ee Schneble v. Florida

, 405 U.S. 427, 432, 92 S. Ct. 1056,

1060, 31 L. Ed. 2d 340 (1972) ("[U]nless there is a reasonable1 1 The remainder of Breeland's arguments are frivolous. Breeland argues

that t he district court erred in refusing to provide the jury with seven

supplemental instructions that he offered. "We review jury instructions for

abuse of discretion." Tomblin , 46 F.3d at 1378. "The refusal to give a jury

instruction constitutes error only if the ins truction (1) was substantially

correct, (2) was not substantially covered in the charge delivered to the jury,

and (3) concerned an important issue so that the failure to give it seriously

impaired the defendant's ability to present a given defense." U nited States v. Penningt on , 20 F.3d 593, 600 (5th Cir. 1994). With the exception of

"Supplemental Jury Instruction No. 4," Breeland's proposed instructions are

quotations from cases and regulations that are irrelevant to his conviction on

Count One. Breeland's fourth supplemental instruction defined "shotgun" and is

identical in all relevant respects to the court's instruction. Because

Breeland's supplemental instructions were either irrelevant to Count One or

identical in all relevant respects to the court's instructions, we conclude that

the court did not abuse its discretion in rejecting Breeland's seven supplemental

instructions.

Breeland's appeal from the district court's refusal to dismiss his courtappointed counsel is similarly frivolous. Breeland asked the district court for

new counsel because he believed that the Government had intimidated his appointed

counsel. Without citing any authority, Breeland contends that "[t]he federal

constitution g uarantees a criminal defendant the right to counsel, either

retained or appointed, which includes within its scope the right to counsel of

one's choice." We have repeatedly held that the right to counsel guaranteed by

the Sixth Amendment does not include the right to counsel of one's choice. S ee,

e.g., Yohey v. Collins

, 985 F.2d 222, 228 (5th Cir. 1993); U nited States v.

Norris

, 780 F.2d 1207, 1211 (5th Cir. 1986); United States v. Magee

, 741 F.2d 93,

94 (5th Cir. 1984).

-12- poss ibility that the improperly admitted evidence contributed to

the conviction, reversal is not required."); United States v.

Tomblin

, 46 F.3d 1369, 1388 (5th Cir. 1995) (holding that erroneous

admission of imp roper and prejudicial evidence did not require

reversal "because the jury would have returned a verdict of guilty

against [the defendant] even without the prejudicial testimony");

United States v. Washington

, 44 F.3d 1271, 1283 (5th Cir. 1995)

(holding that any error that court may have made in admitting

inadmissible evidence was harmless because government presented

overwhelming evidence establishing defendant's guilt). 11

III

For the foregoing reasons, we AFFIRM Breeland's conviction.