UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4445

ERNEST EUGENE RICHARDSON, JR.,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Anderson.

William B. Traxler, Jr., District Judge.

(CR-95-298)

Argued: April 10, 1997

Decided: June 23, 1997

Before MURNAGHAN and WILLIAMS, Circuit Judges, and

CLARKE, Senior United States District Judge for the

Eastern District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Russell Doyle Ghent, LEATHERWOOD, WALKER,

TODD & MANN, P.C., Spartanburg, South Carolina, for Appellant.

Harold Watson Gowdy, III, Assistant United States Attorney, Greenville, South Carolina, for Appellee. ON BRIEF: J. Rene Josey,

United States Attorney, Greenville, South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

FACTS

A prisoner receiving medical treatment, overpowered a deputy

sheriff, stole the deputy's Glock automatic pistol, and escaped from

the deputy's custody. The Sheriff, James Singleton, was aware that

Ernest Eugene Richardson, Jr., the defendant in the present case, was

acquainted with the prisoner who had escaped and stolen the firearm

from the deputy.

The Sheriff approached Richardson about the return of the firearm.

The Sheriff and Richardson, who was represented by counsel, entered

into an agreement that the Sheriff would not charge Richardson "with

any criminal offense whatsoever" for any crime"related to the return

of [the] Glock." The Defendant, having previously sold the gun to his

father at a poker game, knew where the gun was located. He stole the

gun from his father and returned it to the Sheriff.

The Sheriff did not prosecute the Defendant. However, federal officials independently investigated the incident and learned that Richardson was a convicted felon and possessed the gun before the agreement

was signed. Moreover, federal officials discovered that prior to the

agreement with the Sheriff, Richardson entered a poker game and

offered to sell the Glock to his father.

The federal government indicted Richardson in the United States

District Court for the District of South Carolina charging him with

being a felon in possession of a firearm in violation of 18 U.S.C.

§ 922(g)(1)1 and § 924(e)(1).2

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1 18 U.S.C. § 922(g) provides "it shall be unlawful for any person (1)

who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; . . . to ship or transport in interstate

or foreign commerce, or possess in or affecting commerce, any firearm

. . . ."

2 18 U.S.C. § 924(e)(1) provides that if a person who violates § 922(g)

has three previous violent felony convictions then the person shall be

imprisoned for not less than fifteen years.

 2
Richardson claims that the agreement with the Sheriff prevented

federal prosecution for his offense. The United States argues that

1) the agreement with the Sheriff, a state employee, does not bind the

federal government; and 2) even if the agreement binds the federal

government, the plain language of the agreement does not apply since

the possession of the handgun occurred before the agreement was

entered into and therefore was not related to the return of the gun. The

district court agreed with the government and the jury found Richardson guilty. Richardson appeals the district court's determination.

DISCUSSION

The Defendant and the Sheriff for Oconee County, South Carolina,

entered into an agreement which stated:

IT IS FURTHER AGREED that Ernest E. Richardson, Jr.,

will not be charged with any criminal offense whatsoever,

nor will he be subpoenaed to testify or in any other way

implicated in any offenses, if there be any, related to the

return of a Glock .40 caliber pistol, #YU456.

Richardson claims that this agreement prevents prosecution for possession of the firearm since it says he will not be"charged with any

criminal offense whatsoever."

Federal prosecution of Richardson was proper since an agreement

with the county sheriff, absent an agency relationship with the federal

government, cannot bind the federal government. In addition, even if

the agreement was binding upon the federal government, the agreement in the case at bar does not prohibit prosecution because it does

not apply to actions entered into before the agreement was signed.

The United States is not bound by agreements by parties unless

they are its agents. United States v. McIntosh , 612 F.2d 835, 837 (4th

Cir. 1979) ("A bare representation by an unauthorized party cannot

bind federal prosecutors to forego prosecution."). Thus, absent an

agency relationship, the federal government is not bound by an agreement made by state officials promising not to prosecute a defendant.

United States v. Long, 511 F.2d 878, 881 (7th Cir. 1975).

 3
Since the Sheriff was not an agent of the federal government, he

could not waive federal prosecution. This is especially true in a case

such as the present one where counsel was actively involved in negotiating the agreement.

In addition, even if the agreement between the Sheriff and Richardson were binding upon the federal government, the agreement itself

does not bar prosecution of offenses which occurred prior to its inception. The agreement between the Sheriff and Richardson must be

interpreted based on contract principles. United States v. Peglera, 33

F.3d 412, 413 (4th Cir. 1994). The agreement specifically states that

the defendant will not be prosecuted for any action"[w]hatsoever . . .

related to the return" of the Glock. The key words are "related to the

return." Since the poker game occurred before the agreement, it was

not "related to the return" of the weapon. The agreement could be

seen as a method to protect the Defendant if he possessed the gun

while returning it to the Sheriff, but it in no way shields the Defendant

from prior actions. The sale of the gun at a poker game was not "related to the return" of the weapon; therefore, even if the agreement

applied to federal officials, it would not apply to the present situation.

Richardson's argument that the district court erred when it refused

to permit the introduction of the agreement fails for similar reasons.

Since the agreement did not bar prosecution, the agreement was not

relevant for Richardson's defense. The Court reviews the district

court's evidentiary determinations based on an abuse of discretion

standard. United States v. McMillon, 14 F.3d 948, 954 (4th Cir. 1994).

The agreement was not relevant to the charge of possession of a handgun by a convicted felon and the district court did not err by refusing

to admit such evidence.3

Richardson next argues that he was selectively prosecuted due to

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3 Had the federal authorities attempted to prosecute the Defendant for

the period of time that he possessed the gun while returning it to the

Sheriff the agreement would at least, by its terms, be relevant to show

that the Defendant was acting under what he thought was police authority. However, in the instant case, the possession of the firearm had nothing to do with the agreement since the agreement was signed after the

possession occurred.

 4
the Sheriff's animosity towards him. Yet, he has produced no evidence that others similarly situated, i.e., felons in possession of a

handgun, were not prosecuted. Nor has he sought to prove an unconstitutional motivation in prosecuting him. Therefore, the district court

did not err in denying Richardson's claim for selective prosecution.

Richardson also contends that the district court erred when it

admitted evidence that the firearm was stolen from a law enforcement

official. We review the district court's decision under an abuse of discretion standard. McMillon, 14 F.3d at 954. The district court admitted evidence regarding the fact that a third party stole the weapon in

question from a law enforcement official. The prosecutor sought to

introduce this evidence in order to prove the date of the poker game;

and therefore, the date that Richardson possessed the weapon.4 Since

the date of possession was at issue, the prosecution wanted to show

that the defendant possessed the weapon prior to the date of the agreement. The establishment of the date of possession of the firearm at a

time prior to the agreement with the Sheriff was a necessary ingredient of the prosecution's case, and the district court did not err in

allowing its admission.5

Richardson also contends that the government failed to prove that

the weapon traveled in interstate commerce as required by the indictment and by § 924(g). However, a prosecution witness testified that

Glocks are made in Austria and exclusively imported in Smyrna,

Georgia. Such transportation satisfies the commerce element in

§ 924(g).

Richardson's contentions of vagueness in the indictment, supposed

invasion of a right not to testify and unjustified sentencing have all

been considered and have been found to be without merit. The judgment is accordingly

AFFIRMED.

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4 A prosecution witness testified that the poker game was the Friday

night after the weapon was stolen from the deputy sheriff.

5 Richardson had ample opportunity on cross-examination to show that

a third party stole the weapon.

 5