### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 10-50856

UNITED STATES OF AMERICA, Plaintiff - Appellee

v. JOHN THOMAS SHIPLEY, Defendant - Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:09-CR-1867

Before DENNIS, CLEMENT, and SOUTHWICK, Circuit Judges. PER CURIAM: * Defendant-appellant John Thomas Shipley was convict e d at trial of ille g a l l y d ealing firearms without a license in violation of 18 U.S.C. § 922(a)(1)(A) (count o ne), causing a firearms dealer to maintain f alse records in violation of 18 U.S.C. § 92 4 ( a) ( 1 ) (A) (counts t wo through five), and making a false statement in a matter within the jurisdiction o f the federal government in violation of 1 8 U.S.C. § 1001(a)(3) (count six). I n this appeal, S hipley contends U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D October 17, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 10-50856 Document: 00512410956 Page: 1 Date Filed: 10/17/2013that his convictions should be set aside for a number of r easons: the transcript

for one day of the eight-day trial is missing, thus frustrating adequate a ppellate review; there was insufficient evidence at t r i al to support the convictions; the statute criminalizing conduct that causes a lawful firearms dealer to m aintain f alse records should be declared unconstitutionally void for vagueness; t h e district court abused its discretion in e xcluding a witness’s t e s t i m o n y relating to Shipley’s good character and in refusing to instruct the jury on such character evidence; and, the government’s prosecutor made improper statements at trial. He also contends that the district court’s order forfeiting his i nterest in certain firearms and a mmunition seized b y t h e government should be reversed. We affirm. I. This case involves u n l awful dealing in firearms. Under federal law, individuals may not deal in firearms without first receiving a l i c e nse. Individuals without licenses may m ake periodic sales of f i r e a rms f

rom their
p e r sonal collections, although they may not engage in the regular busine s s o f dealing f

irearms for profit. When a p u r c h a s er buys a firearm from a lawfully licensed dealer, both the dealer and the buyer must record the transaction with

a B ureau of Alcohol, Tobacco, Firearms and Explosives Form 4473, a transaction record form that dealers are required by l aw to keep. The fo r m requires the purchaser to provide certain personal i nformation and to certify that h e i s the “actual buyer” of the fir e a r m . I n other words, the purchaser must c ertify that he is buying the firearm for himself, not f o r a n unnamed person. F ederal law also r e quires licensed dealers to maintain “Acquisition a nd Disposition” (“A&D”) record books, which are also used to record information about transactions. The evidence presented at trial showed th at Shipley was a Federal Bureau of Investigations a gent who collected firearms as a hobby be t w e e n 1 996 and 2005. In early 2005, Shipley sold a substantial portion of his collection to finance the costs of a c hild adoption he and his wife were attempting. Although Shipley

2 Case: 10-50856 Document: 00512410956 Page: 2 Date Filed: 10/17/2013never received a license t o deal in firearms, those sales, being limited sales from

his personal collection, were l awf ul

. S h o rtly af

t e r that, however, S hipley, despite not having a license, b egan dealing in firearms as a regular side business to supplement his lawful income as an FBI agent. Th e i nv e s ti g ati o n i nt o S hip ley began as an investigation into someone e l s e , Luis Armando “Mando” R odriguez, a deputy sheriff i n El Paso, Texas, who was suspected of illegally sneaking high-powered firearms into M exico. American fed e ral government agents traveled to Mexico to e xamine weapons recently seized by the Mexican milit a ry after a shootout that resulted in one person's d e a t h

. The agents traced one of the weapons, a Barrett .50 caliber rifle , t o a lawful firearms dealer in Mis s o u r i t h a t had s old the firearm to S hipley. The

a gents c ontacted Shipley to try to obtain further information about how the firearm h ad eventually landed in Mexico. S hortly after the agents made contact, Shipley ordered two new A&D books. O ver t h e c o u r s e of a few t e lephone conversations between Shipley and an i nvestigating agent, Shipley s tated that he h ad sold Rodriguez the rifle that w a s used in the shootout in Mexico as well

as two o t h e r firearms. Shipley o ffered his assistance in the investigation and volunteered his records for the agent’s review. Several d ays later, Shipley and the agent met in person and Shipley handed over voluntarily an A&D book with four pages of recorded sales, including the three sales to Rodriguez that Shipley had t o ld the agent about. The book p ur p orted t o cover the entire period from 1996 to the present. Shipley told the agent that the book reflected all sales he had made during the relevant period. Several months later, feder a l agents searched S hipley’s residence and motor vehicles. During the search, agents uncovered a second A & D b o ok. Compared to the one S hipley had turned over, this one, which also purported to

cover the same period f rom 1996 to the present, was pages longer and listed a number of additional sales, including the sale of armor-piercing a nd incendiary ammunition. The government analyzed this newly discovered book a nd the one

3 Case: 10-50856 Document: 00512410956 Page: 3 Date Filed: 10/17/2013previously handed over. According to the government’s e xpert, the shorter book

was written in a s ingle sitting and with the same pen, and the l onger book was written over numerous s ittings and with different pens. The search also uncovered on S h i p l ey’s home c omputer additional records c overing approximately twenty- t w o f i rearms sales a s well a s photographic images and email c orrespondence relating t o firearms transactions. The a gents found a number of firearms, several of which were not mentioned in either of the A&D books and many of which were m ass-produced f irearms of s imilar make and model that, according t o testimony at trial, w ere not likely t o be part of a personal collection. Also uncovered were hundreds o f bullets, t h o u s a n ds of dollars in cash, and a number of postal-service records and other items tending to indicate that Shipley had been sending firearms through the mail. Following an eight-day trial, Shipley was convicted on all six counts of the indictment. The district court sentence d him to t w o years’ imprisonment and three years’ supervised release. II. Shipley contends that he should be gr a n t e d a new trial because the transcript of proceedings in the district court is missing the testimony from a full day of trial, thus f

rustrating adequate appe l l a t e r eview. In this c ircuit, if “a criminal defendant is represented on appeal by counsel other than the attorney at trial, the absence of a substantial and significant portion of the record, even absent any showing of specific prejudice or e rror, is suffic i e nt to mandate reversal,” United States v. Selva , 559 F.2d 1 303, 1306 (5th Cir. 1977) ( Selva II ) (footnote omitted), u n l ess the district court can reconstruct “ a ‘substantially verbatim account o f the p roceedings,’” United S tates v. Pace , 10 F.3d 1 106, 1123 (5th Cir. 1993) (quoting United States v. Selva , 546 F.2d 1173, 1174 (5th Cir. 1977) ( Selva I

) ). Here, following a limited remand t o the district court to attempt to re c o n struct the record, the district court considered evidence and other p arty submissions during t wo days of hearings. Those hearings resulted

4 Case: 10-50856 Document: 00512410956 Page: 4 Date Filed: 10/17/2013in a reconstructed r e c ord that the district court found constituted a substantially

verbatim acc o u nt of the proceedings. “[A]bsent a showing of intentional falsification or plain unreasonableness,” th e d istrict court’s f inding as to the accuracy of the reconstructed record “is conclusive.” United States v. Margetis , 975 F.2d 1175, 1177 (5th Cir. 1992); see also U nited States v. Mori , 444 F.2d 240, 246 (5th C ir. 1971). B e c a u s e t h ere h a s not been a showing of intentional falsification or plai n u n r e asonableness, we accept the district court’s findings and we further conclude that the record is sufficient for appellate review. I II. Shipley cont e n d s that insufficient evidence was presented at trial to support his convictions, which is an issue we review de novo . See U nited States

v. Ragsdale , 426 F .3d 765, 770 (5th Cir. 2005). W e “will affirm the j ury’s verdict if a reasonable trier of fact c ould conclude f rom the evidence that the elements of the offense were established beyond a reasonable doubt, viewing the evidence in the light most favorable t o the verdict and drawing all reasonable inferences from the evidence to support the verdict.” Id . at 770-71. A. The first count of conviction, count one, w a s f or unlicensed firearm trafficking in violation of 18 U.S.C. § 922(a)(1)(A), under which it is “unlawful

. . . for any person . . . except a licensed importer, licens e d m a n ufacturer, or licensed dealer, t o e ngage in the business o f importing, manufacturing, or dealing i n firearms, or in the course of s uch business to ship, transport, or receive any firearm in interstate or foreign commerce.” T o be “engaged in the business” of “dealing in firearms” means, “a person who devotes time, attention, and labor t o d ealing in firearms a s a regular course o f trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms, but such term shall not i n c l u de a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part o f h i s p e r sonal

5 Case: 10-50856 Document: 00512410956 Page: 5 Date Filed: 10/17/2013collection of firearms.” Id

. § 921(a)(21)(C). The statute further defines the term

“with the pr i n c i p a l objective of livelihood and profit” to m ean “that the intent underlying the s ale or disposition of firearms is predominantly one of obtaining livelihood and pecuniary gain, as opposed to other intents, such as improving or liquidating a personal f i r e a rms collection.” Id

. § 921(a)(22). To determine whether the defendant unlawfully engaged i n the business of firearms dealing,

as so defined, the jury “must examine the intent of t h e a c t o r and all circumstances surrounding the acts alleged to c o nstitute engaging in business.” United States v. Tyson , 653 F.3d 192, 201 (3d Cir. 2011) (citation omitted). The evidence at trial showed that Shipley did not have a license and tha t h e nevertheless engaged i n a regular c o u r s e o f dealing firearms for profit for a number of years, a nd that evidence was sufficient to s upport the jury’s verdict. Shipley’s primary argument for why this result s h o u ld n ot follow is that he presented evidence at trial showing that, contr a r y t o the government’s

cont e ntio n s a n d evi d e nc e , hi s firearms transactions a ctually caused him to suffer

a net loss. The jury, however, was entitled to disbelieve that evidence. Furthermore, a convic t i o n r e quires that the defendant had the “principal

o bj ective” of making a profit, but it does not require that he succeede d i n t h a t endeavor. Accordingly, the j ury’s v erdict was rational and w e will not set it aside. B. Counts two through five charged Shipley with causing a firearms dealer to maintain false records in violation o f 18 U.S.C. § 9 24(a)(1)(A), under which it is unlawful t o “knowingly make[] any false s tatement or representation with respect to the information required by this chapter t o be k ept i n the records of

a p erson licensed under th i s chapter,” which includes the Form 4 473s that dealers must use to record customers’ purchases. Th e counts against Shipley involve f our s eparate i nstances i n which he purchased a firearm, certified on the Form 4473 that he was the “actual b uyer” of the firearm, and then turned

6 Case: 10-50856 Document: 00512410956 Page: 6 Date Filed: 10/17/2013around almost i mmediately and sol d the firearm to a third party. During the

time relevant to this case, Form 4473 asked in question 11.a.: Are you the actual buyer of the firearm(s) listed on this form? W a rning: You are not the actual buyer if you are acquiring th e f i r e arm(s) on behalf of another p erson. If you are not the ac t u a l buyer, the dealer cannot transfer the firearm(s) to you. The form further explained: Actual Buyer: For purposes of this form, you are the actual buyer if you are purchasing the firearm for yourself o r otherwise acquiring the firearm for y o u r s e lf (for e xample, redeeming it from pawn/retrieving it f

r o m c onsignment, firearm raffle winner). Yo u are also the actual b uyer if you are l egitimately a c q u i ri ng th e firearm as a gift for a third party. ACTUAL BUYER EXAMPLES: Mr. Smith asks Mr. J ones to purch a s e a f

irearm for Mr. Smith. Mr. Smith gives Mr. Jones th e money f o r t h e firearm. Mr. Jones is NOT the actual b uyer of th e firearm and must a nswer ‘no’ to question 11.a. The licensee may n ot transfer the firearm to Mr. Jones. And, directly above the signature line that Shipley signed, th e f o r m c ontained the following certification and warning: I certify that the answers t o Section A are true and correct.

. . . I understand that answering ‘yes’ t o question 11.a if I am not th e actual buyer of the firearm is a crime punishable as a felony. The evidence at trial w as suf f i c i e n t to support the jury’s f inding that Shipley was not in fact th e “ actual buyer” of the firearms but was rather buying them for the purpose o f transferring to the true purchaser that had already been lined up or would soon be lined up, and thus, his statements on the forms were knowingly false and were illegally made. See United States v. J ohnson , 680 F.3d 1140 ( 9th Cir. 2 012) (affirming convictions u nder § 924(a)(1)(A) f o r falsely certifying on Form 4473s that th e d e f e n dant was the “ actual buyer” and then turnin g a r o u n d and reselling the firearms). We d ecline to s et aside these convictions.

7 Case: 10-50856 Document: 00512410956 Page: 7 Date Filed: 10/17/2013C.

L a s tly, count s ix charged S hipley with making a false s tatement in a matter within the j urisdiction of the federal government in violation of 18 U.S.C. § 1001(a)(3), under which it i s unlawful f or a person to, “in any m atter within the jurisdiction of the executive, legislative, or j udicial branch o f the Government of the U nited States, knowingly and willfully

. . . make[] o r use[] any false writing

or document knowing the same t o contain a ny m aterially f a l se, fictitious, or fraudulent statement or entry.” The material falsity may be a willful omission of inf o r m a t i o n. United S tates v. Wright , 211 F .3d 233, 238 (5th Cir. 2000); see also United States v. Mattox , 6 89 F.2d 531, 533 (5th Cir. 1982) (“Silence may be falsity when it misleads.”). He r e, the evidence at trial showed that Shipley provided to f

e deral agents a n A&D b ook p u rporting to represent his only firearms transaction records while he actually maintained a second A&D book showing far more transactions, thus masking the true extent o f his dealing, and such evidence was sufficient to support the jury’s verdict. IV. Next, Shipley contends that, even if there is sufficient evidence to support the conviction under count one, for unlicensed firearm trafficking, the conviction should be vacated because the statutes defining the offense and certain relevant t e r m s , 1 8 U

. S

. C

. § § 9 2 1(a)(21)( C ) , ( a) ( 2 2 ) , a n d 9 2 4 ( a) ( 1 ) (A) , a r e unconstitutionally vague. “We r eview whet h e r a statute is void for vagueness de novo .” United States v. Monroe , 178 F.3d 304, 308 (5th Cir. 1999). “[T]he void-for-vagueness doctrine requires that a p e nal statute define the

c ri m i nal offense w ith s ufficient definitenes s th at o r di n ary p e o p l e c a n u n d e r s t a n d what conduct is prohibited and in a manner that does not e ncourage arbitrary and discriminatory enforcement.” Kolender v . Lawson , 461 U .S. 352, 357 (1983). A statute is not unconstitutionally vague when it i s “ set out i n terms that the ordinary person exercising o rdinary c ommon s ense c an sufficiently understand and c omply with, without sacrifice to the public interest.” Broadrick v.

8 Case: 10-50856 Document: 00512410956 Page: 8 Date Filed: 10/17/2013Oklahoma , 413 U.S. 601, 6 08 (1973). However, “one who has received fair

warning of the criminality of his own conduct from the s tatu t e i n question is [not] entitled to attack it because the l a n guage would n ot give similar fair

w a r n i n g with respect to other c onduct which might be within its broad and literal a mbit. O ne to whose conduct a statute clear l y applies may not successfully c h a l l e n g e it f or vagueness.” Parker v . Levy , 417 U.S. 733, 756 ( 1 9 74). “ [E]ven if the outermost boundaries of [the statute] may b e imprecise , any such u ncertainty has little relevance

. . . where [the defendant’s] conduct falls s quarely within the ‘ h a r d c ore’ of the statute’s proscriptions.” Broadrick , 413 U.S. at 608. Although it may be true that there is a degree of ambi gu i t y i n l o cating precisely the border between, on the o ne hand, an unlicensed d e a l e r t h a t unlawfully engages in the regular business of dealing firearms and, on the other hand, an unlicensed h obbyist t hat lawfully engages in periodic sales, the jury here found Ship l e y guilty o f making, over a number of y ears, numerous

r e p e t itive sales in quick succession, sometimes to repeat customers, and such conduct i s unquestionably prohibited b y the statutes’ t ext. Shipley’s void-forvagueness claim is therefore without merit. V. Shipley argues that the district court erred in excluding from evidence the testimony of E nrique Moreno, one of Shipley’s witnesses, r e l ating to S hipley’s good character. “[W]e review the district court’s ruling regarding the exclusion of c haracter evidence against an abuse of discretion s tandard.” United States v. Marr e ro , 9 0 4 F.2d 251, 260 (5th C ir. 1990). “Rarely and only upon a clear showing of prejudicial abuse of discretion will a ppellate courts disturb the rulings of trial courts in the admissibility of character evidence.” United States v. Davis , 546 F.2d 583, 592 (5th Cir. 1977). “A defendant may i ntroduce character testimony to show that the general estimation of his character is so favorable that the jury may infer that h e would

9 Case: 10-50856 Document: 00512410956 Page: 9 Date Filed: 10/17/2013not be l i kely to c ommit the o ffense charged.” United States v. John , 309 F.3d

298, 303 (5th Cir. 2002) (internal quotation marks omitted); s e e also Fed. R. Evid. 4 0 4 ( a) (2)(A) (allowing criminal defendants to “offer evidence of the defendant’s pertinent trait”). “[E]vidence o f a person’s character

. . . may be proved by testimony about the person’s reputation or by testimony in the form of an opinion.” Fed. R. Evid. 405. Here, the district c o u r t found that M oreno did not have sufficient familiarity with Shipley to o ffer an o pinion about his character, as the two had limited interaction for o n l y a b rief period, nor did Moreno h ave sufficient knowledge of Shipley’s reputati o n i n the community to t estify o n that matter

e i t h er. The district court also f ound that the limited probative value o f t h e character evidence w as suffici e ntly o utw eighed by danger of confusing the issues and w a s t i n g time, s ee Fed. R. Evid. 403, because allowing Moreno’s t estimony would h ave opened the door to further e xa m i n a t i o n regarding the relations between him and Shipley, a matter divorced from th e central issues at trial. We do not believe that the district court abused its discretion. Because the district court did not abuse its discretion in excluding the character evidence, it also did not err i n declining t o give the jury an instruction regarding the jury’s consideration of character evidence. See John , 309 F.3d at 303 (“A character instruction is warranted o nly if the defendant first introduces admissible character evidence.”). 1 VI. Shipley’s final argument regardi n g the validity of his c onviction is that certain comments made by t h e p rosecutor during trial were improper and warrant a new trial. B ecause Shipley did not object t o the comments at trial, we review for plain error. United States v. Gracia , 522 F.3d 597, 599-600 ( 5th Cir. 2008).

1 We d o not cons true Ship ley’s tes tim ony at trial to have been character evid ence since it neither d is cus sed his rep utation in the com m unity nor p urp orted to be an op inion of his ow n character. 10 Case: 10-50856 Document: 00512410956 Page: 10 Date Filed: 10/17/2013“This court’s review of an asserti o n o f p ro s e c ut o ri al misconduct takes place

in two steps. First, we must initially decide whether or not the prosecutor made

an improper remark. If a n i mproper r emark was made, we must then evaluate whether the remark affected the substantial rights o f the def e n d a n t .” United States v . Gallardo-Trapero , 185 F.3d 307, 319 (5th Cir. 1 999) (citations omitted). Overturning a jury verdict for prosecutori a l misconduct is appropriate only when, “taken as a whole i n the c ontext of the entire case , ” t he p rosecutor’s comments “prejudicially affect[ed] [ t h e ] substantial rights of the defendant.” United States v. Risi , 603 F .2d 1 1 9 3 , 1 1 96 (5th Cir. 1979). We consider “the magnitude of the prejudicial e ffect o f the statement, the efficacy of a n y cautionary instruction, and the strength of the prosecution’s evidence.” United States v. Crooks , 83 F.3d 103, 107 (5th Cir. 1996). First among the numerous s t a t e m ents Shipley complains of are several references to one of the f irearm s S h i pley sold having been found i n Mexico, at the s cene of a shootout. Those statements related to evidence that was presented at trial, and the e v i d ence was relevant. We do n ot find plain error warranting reversal h e r e . Second, Shipley complains that certain statements

ma d e d u r i ng the prosecutor’s closing statements were improper appeals to passion or prejudice that were calculated t o inflame the jury. We disagree and find no plain error. Third, Shipley contends that the prosecutor imp r o p erly vouched for the c redibility of the government’ s w i t nesses. W e read the trial transcript differently and find no statements plainly vouching for any witness’s credibility. In sum, we do not believe that any o f the challenged statements were improper ones sufficient to warrant reversal under plain error review. VII. Shipley contends that the forfeiture o rder contained in the district court’s written judgment s hould be reversed for three separate reasons. The first is that the district court did not give a n oral forfeiture order at sentencing. The Federal Rules of Criminal Procedure provide that, “i n advance of sentencing,” “[i]f the

11 Case: 10-50856 Document: 00512410956 Page: 11 Date Filed: 10/17/2013court finds that property is subject to forfeiture, it must promptly enter a

preliminar y o r d er of forfeiture,” and then, “ [a]t sentencing,” “the p reliminary forfeiture ord e r b e c o mes final as to the defendant.” Fed. R. Crim. P. 32.2(b)(2)(A), (b)(2)(B), and (b)(4)(A). The rules further provide that the district court must “include the forfeiture when orally announcing the s entence or must otherwise ensure that the defendant k nows o f the forfeiture at sentencing.” Fed. R. Crim. P. 3 2.2(b)(4)(B). We, however, will reverse a court f or failing to include the forfeiture when orally announcing the sentence only if the defendant shows “a r easonable p robability that, but for the error claimed, th e result of the proceeding w ould have been different.” United States v. Dominguez Benitez , 542 U.S. 74, 76 (2004) (alteration and citation omitted). Here, S hipley has s hown no such reasonable probability. Second, Shipley contends that the c riminal forfeiture commenced outside the legal time limitations. Under 18 U.S.C. § 9 24(d)(1), “[a] n y action or proceeding for the forfeiture of firearms or ammunition s h all b e commenced within [120] days of [t h e ] s eizure.” Shipley, however, did n ot raise this argument in the district court. See United States v . Arky , 9 38 F .2d 579, 582 (5th Cir. 1991) (“[T]he defendant must affirmatively assert a limitations defense at trial to preserve it for appeal.”). If there was error, it was not plain. Lastly, S hipley contends that there was not a nexus b etween his f orfeited firearms and ammunition a nd the counts of conviction. Under the Federal Rules of Criminal Procedure, “the court must d etermine whether the government has established the requisite nexus between the property and the offense.” Fed. R. Crim. P. 32.2(b)(1)(A). Here, the government s ought and obtained a court order finding such a nexus, and Shipley did not object. Because there was sufficient evidence in the record f o r t h e d i strict c ourt to so find, we do not b elieve there was any error, let alone plain error. * * * We AFFIRM.

12 Case: 10-50856 Document: 00512410956 Page: 12 Date Filed: 10/17/2013