COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Decker, Judges Fulton and Ortiz

Argued by videoconference

DOUGLAS LEON MINER

OPINION BY

v. Record No. 1964-22-1 JUDGE JUNIUS P. FULTON, III

MARCH 12, 2024

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON

Christopher W. Hutton, Judge1

Brook M. Thibault (The Coastal Virginia Law Firm, on brief), for 

appellant.

Andrew T. Hull, Assistant Attorney General (Jason S. Miyares, 

Attorney General, on brief), for appellee.

Douglas Leon Miner appeals his conviction in a bench trial for making a materially false 

statement on a criminal history information check in connection with the purchase of a firearm, in 

violation of Code § 18.2-308.2:2(K). Miner challenges his conviction on three grounds: 1) his 

conduct was not unlawful under the language of the statute; 2) even if his alleged conduct was 

unlawful, the evidence adduced against him was not sufficient to sustain a conviction under the 

statute; and 3) the Due Process Clause of the Fourteenth Amendment requires that his conviction be 

reversed, given that he relied on the statements of a public officer before allegedly making the false 

statement. Finding no error, we affirm.

1

Judge Hutton retired on February 1, 2023.

PUBLISHED
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BACKGROUND2

On April 4, 2018, Miner was indicted in the Norfolk Circuit Court for burglary. On August 

21, 2018, he entered into a plea agreement with the Commonwealth on this charge. Under the 

agreement, adjudication of the charge would be deferred until August 17, 2020, upon which date it 

would be reduced to a misdemeanor subject to Miner’s compliance with the terms of the agreement. 

On September 18, 2019, Miner attempted to purchase a .22 rifle at the Bass Pro Shop in the 

City of Hampton. As part of the purchase process, Miner was required to complete criminal history 

check forms—ATF Form 4473 and Virginia State Police Form SP-65. At the time, ATF Form 

4473, question 11(b), inquired: “Are you under indictment or information in any court for a felony, 

or any other crime for which the judge could imprison you for more than one year?” Miner 

answered “No.”

Virginia State Police Trooper Luis Aviles was notified of Miner’s attempted purchase by the 

Firearm Transaction Center and began an investigation. During an interview on October 21, 2019, 

Trooper Aviles advised Miner that he was investigating him for a possible firearms violation and 

showed Miner copies of the transaction forms that Miner had completed during his attempted

purchase on September 18, 2019. 

At trial, Trooper Aviles testified that Miner acknowledged that he had marked “No” on ATF 

Form 4473 question 11(b). Trooper Aviles also informed Miner that when he completed the form, 

Miner was under felony indictment for burglary and petit larceny in Norfolk. Miner answered that 

2

“Consistent with the standard of review when a criminal appellant challenges the 

sufficiency of the evidence, we recite the evidence below ‘in the “light most favorable” to the 

Commonwealth, the prevailing party in the trial court.’” Hammer v. Commonwealth, 74 

Va. App. 225, 231 (2022) (quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). This 

standard “requires us to ‘discard the evidence of the accused in conflict with that of the 

Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and 

all fair inferences to be drawn therefrom.’” Cady, 300 Va. at 329 (quoting Commonwealth v. 

Perkins, 295 Va. 323, 324 (2018)).
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he thought his felony charge had been reduced to a misdemeanor “and that when he returned to 

court next year, all he would do is a few days in jail.” During cross-examination, Trooper Aviles 

testified that Miner stated that his “attorney said that he was good as far as trying to purchase a 

firearm.” 

The Commonwealth offered Exhibit 1, a document that included an indictment and plea 

agreement from the Circuit Court of the City of Norfolk dated August 21, 2018. Before admitting

the document into evidence, the trial court noted that it was “three pages in length” and discussed “a 

plea agreement that was entered with a Douglas Leon Miner, and that occurred on August 21, 

2018.” The trial court specifically asked defense counsel, “Any objection to this document?”

Miner’s attorney stated that he had “[n]o objection,” and the trial court admitted the three-page 

document into evidence. The Commonwealth also introduced Exhibit 2, the ATF Form 4473 on 

which Miner answered that he was not under indictment. 

Miner moved to strike at the conclusion of the Commonwealth’s evidence, arguing that the 

evidence was insufficient because the Commonwealth had not presented a certified copy of an 

indictment to demonstrate that he was “under indictment” at the relevant time. Absent such a

certified copy, he argued, the evidence proved only that Miner entered into a plea agreement on a

felony charge, but did not establish whether he remained under indictment at the time he purchased 

the firearm. Miner also argued that his answering “No” to whether he was under indictment is not a 

chargeable offense because, in his view, making a false statement on the ATF Form 4473 is not an 

offense under Code § 18.2-308.2:2(K). The trial court took Miner’s motion to strike under 

advisement, directed the parties to brief it, and suspended the trial. 

In his written brief, Miner reiterated his argument that the Commonwealth’s evidence was 

insufficient because the Commonwealth “failed to present a certified indictment thus failing to 

prove an essential element of the crime charged.” Miner also restated his argument that “the 
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legislative intent of 18.2-308.2:2(K) was to NOT criminalize any statement made under ATF [Form 

4473] question 11(b).” (Capitalization in original). Finally, Miner argued that he had reasonably 

relied upon the advice of a “government official”—his private attorney—that he could legally

purchase a firearm.

Following several continuances, trial resumed on July 26, 2022.3 The trial court denied 

Miner’s motion to strike and convicted him of willfully and knowingly making a materially false 

statement in connection with a background check for a firearms purchase, in violation of Code 

§ 18.2-308.2:2. On November 29, 2022, the trial court fixed Miner’s sentence at five years of 

incarceration, suspending the entire sentence contingent upon Miner’s good behavior for five years 

and successfully completing a term of supervised probation. This appeal followed.

ANALYSIS

I. Sufficient evidence was presented that Miner was under indictment.

Miner argues on appeal that the evidence was insufficient to sustain his conviction because 

the “trial court erred by admitting into evidence a copy of the previous indictment, over appellant’s 

objection, and in violation of appellant’s due process rights, and after the Commonwealth rested.” 

We disagree.

3 Miner did not timely file the transcript for the second day of trial on July 26, 2022, thus 

it was not properly made part of the record, and we cannot consider it. “The transcript of any 

proceeding is a part of the record when it is filed in the office of the clerk of the trial court no 

later than 60 days after entry of the final judgment.” Rule 5A:8(a). This Court may extend the 

deadline “upon a written motion filed within 90 days after the entry of final judgment.” Id. 

Miner obtained an extension to file transcripts until February 27, 2023, but he failed to file the 

July 26, 2022 transcript by the deadline. “[I]t is axiomatic that an appellate court’s review of the 

case is limited to the record on appeal.” Turner v. Commonwealth, 2 Va. App. 96, 99 (1986). In 

the absence of a transcript or written statement of facts pertaining to the July 26, 2022 

proceedings, our review of Miner’s arguments on appeal is limited to the written briefs in closing 

submitted pursuant to the trial court’s order, and other materials properly admitted into the 

record.
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At the beginning of its case on November 5, 2021, the Commonwealth sought admission of 

Exhibit 1, a plea agreement between Miner and the Commonwealth in Norfolk Circuit Court 

concerning a felony burglary charge and a misdemeanor petit larceny charge. The trial court 

inquired of Miner’s counsel whether he had any objection to the admission of this document, to 

which counsel replied “[n]o objection.” Under the agreement, the parties stipulated that there was 

sufficient evidence for a finding of guilt on the charges, but the adjudication of those charges was 

deferred until August 17, 2020. On that date, if Miner had complied with the terms of the 

agreement, the felony burglary charge would be reduced to a misdemeanor and Miner would spend 

one month in jail. 

At the conclusion of the Commonwealth’s case, Miner moved to strike the “evidence as 

insufficient,” in part because the trial court erred in admitting the copy of the indictment contained 

in Exhibit 1. Arguing in support of his motion to strike at trial, Miner argued that the plea 

agreement entered into evidence could have been “disposed of in some way,” or the underlying 

charge “may have been dismissed,” before he denied being under indictment on the ATF Form 

4473. Miner further argued that “the appropriate and proper way to adjudicate this would have been 

to present the actual certified copy of the indictment.” The trial court took his motion under 

advisement and ordered the parties to submit written briefs concerning the motion to strike.

4

 The 

trial court subsequently overruled Miner’s motion and convicted him of the charge. 

On appeal, Miner alleges that “[s]urprisingly . . . after the Commonwealth rested, the trial 

[c]ourt found a ‘copy’ of the ‘indictment’ [i]n the [c]ourt[’]s file” and that the trial court entered this 

document into evidence “sua sponte,” though “no motion to offer it into evidence was made by the 

Commonwealth.” The record before us plainly contradicts this claim. The trial court described the 

4 The trial court heard argument on the parties’ written closing arguments on July 26, 

2022. Because Miner did not timely file this transcript, however, we do not consider it here.
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exhibit on the record during the first day of trial as “apparently from the Circuit Court from the City 

of Norfolk. It is three pages in length. It talks about a plea agreement that was entered with 

Douglas Leon Miner, and that occurred on August 21, 2018.” (Emphasis added). Exhibit 1 itself is 

in the record. As the trial court observed, it is three pages long. Affixed to the back of the third 

page at the bottom right corner, is a label identifying the document as “Commonwealth’s Exhibit 

#1,” dated November 5, 2021. This label is identical in all respects to the label applied to the back 

of Exhibit 2, a copy of the ATF Form 4473, including the size and color of the label itself, the font 

and color of the printed text, and the handwriting and color of ink used on the handwritten label 

entries. The first two pages of the exhibit consist of a plea agreement between Miner and the 

Commonwealth discussed above. The third page consists of a copy of the underlying indictment for 

burglary entered on April 4, 2018. Pages 2 (signature page of the plea agreement) and 3 

(indictment) bear the raised seal of Norfolk Circuit Court, a stamp of the Clerk of the Norfolk 

Circuit Court confirming the document as a “Copy Teste,” a handwritten signature, and a 

handwritten date of December 13, 2019. The handwriting on both is identical. 

“[E]very act of a court of competent jurisdiction shall be presumed to have been rightly 

done, till the contrary appears.” James v. Commonwealth, 18 Va. App. 746, 751 (1994) (quoting

Parke v. Raley, 506 U.S. 20, 30 (1992)). The clerk of the Norfolk Circuit Court certified that the

copy of the indictment was what it appeared to be before Miner’s trial. Given the facts on the 

record, “it [was] not an abuse of discretion to admit” the plea agreement and indictment, letting 

“what doubt there may be go to the weight to be given the evidence.” Brown v. Commonwealth, 21 

Va. App. 552, 556 (1996) (quoting Reedy v. Commonwealth, 9 Va. App. 386, 391 (1990)).

“[A] trial court does not err by admitting evidence that is material and relevant . . . . [W]hen 

we consider the sufficiency of the evidence . . . we review the totality of the evidence to determine 

whether it was sufficient to prove an offense.” Bowling v. Commonwealth, 51 Va. App. 102, 107 
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(2007) (internal citation omitted). The copy of the indictment admitted as part of Exhibit 1 was 

clearly both material and relevant, and taken in its entirety, the evidence in the record was more than 

sufficient to enable a rational factfinder to conclude that Miner was under indictment when he 

denied such on the ATF Form 4473.

II. Miner’s conduct was proscribed by Code § 18.2-308.2:2.

Relying on our decision in Brooks v. Commonwealth, 19 Va. App. 563 (1995), Miner 

argues that his conduct was not unlawful. The statute, Miner argues, “only criminalizes false 

statements to questions required or enumerated under Sections B and C”; he argues further that 

“the legislative intent of [the statute] was to NOT criminalize any statement made under ATF 

question 11(b)” and “the answer to the question ‘are you under indictment’ was never meant to 

be criminalized.” 

Miner misreads Brooks. Code § 18.2-308.2:2(K) reads, “Any person willfully and 

intentionally making a materially false statement on the consent form required in subsection B or 

C or on such firearm transaction records as may be required by federal law shall be guilty of a 

Class 5 felony.” (Emphasis added). The defendant in Brooks had been charged with a felony 

but not indicted. He was subsequently “convicted of making a ‘materially false statement on a 

consent form’ incidental to the purchase of a firearm, in violation of Code § 18.2-308.2:2.” 

Brooks, 19 Va. App. at 564. Our decision in Brooks turned on the distinction between a criminal 

charge and an indictment. The Court explained that “[n]either Code § 18.2-308.2:2(B)(1) nor 

. . . ATF Form 4473 and attendant regulations require information from a prospective firearms 

purchaser pertaining to criminal charges.” Id. at 566. Rather, the Court continued, “ATF Form 

4473, asks: ‘Are you under indictment.’” Id. (emphasis added). Since Brooks had merely been 

charged, but not indicted, he did not violate Code § 18.2-308.2:2(K) when he answered “No” in 

response to this question.
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We addressed this distinction again in Richardson v. Commonwealth, 21 Va. App. 93 

(1995). In that case the defendant denied being under indictment when attempting to purchase a 

firearm. “We distinguish[ed] Richardson’s case from Brooks . . . who . . . had only been 

charged, but not indicted, at the time of the attempted firearm’s purchase.” Id. at 98 (citing 

Brooks, 19 Va. App. at 565). Unlike Brooks, Richardson was under indictment. Id. at 96. 

“Thus, by answering [the question about whether he was under indictment] falsely, Richardson 

was subject to criminal sanctions under Code § 18.2-308.2:2(K).” Id. at 98; see also 

Maldonado-Mejia v. Commonwealth, 287 Va. 49, 55 (2014) (stating “that Code 

§ 18.2-308.2:2(K) applies to ATF Form 4473”).

Richardson controls here. Miner was under indictment at the time he attempted to 

purchase the firearm. His denial of that fact on the ATF Form 4473 was a “materially false 

statement” made in violation of Code § 18.2-308.2:2(K).

III. Miner’s privately retained attorney was not a public officer.

Asserting the doctrine of good faith reliance articulated in Palmer v. Commonwealth, 48 

Va. App. 457 (2006), Miner argues that when he attempted to purchase the firearm, he was 

relying on the advice of his attorney, that he was legally entitled to rely on such advice, and that 

the trial court should have granted his motion to strike on that basis. Because his former attorney 

was an “officer of the court” and at the time was “his actual counsel for the underlying charges” 

in the indictment, Miner argues that he relied “reasonab[ly] and in good faith” on his former 

attorney’s advice as a “public officer or body charged by law with responsibility for defining the 

permissible conduct with respect to the offense at issue.” 

In Palmer we reiterated a doctrine recognized in Miller v. Commonwealth, 25 Va. App. 

727 (1997), that a “due process defense [is] available to a defendant who is on trial ‘for 

reasonably and in good faith doing that which he was told he could do,’ by ‘a public officer or 
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body charged by law with responsibility for defining permissible conduct with respect to the 

offense at issue.’” 48 Va. App. at 462 (quoting Miller, 25 Va. App. at 737, 739). But Miner’s 

reliance on Miller and Palmer is misplaced. Both cases involved felons who relied on the advice 

of their probation officers that they could own certain firearms. Palmer, 48 Va. App. at 465; 

Miller, 25 Va. App. at 743-44. By contrast, the “government official” upon whose advice Miner 

allegedly relied was his previous privately retained attorney. Virginia has not officially

considered the question of whether a private attorney can constitute a government official per 

Miller and Palmer. In Miller, we cited authority from another jurisdiction holding that a “private 

attorney [is] not [a] government official.” Miller, 25 Va. App. at 739 (citing United States v. 

Indelicato, 887 F. Supp. 23, 25 (D. Mass. 1995), modified in part on other grounds, 97 F.3d 627 

(1st Cir. 1996)). Further, in an unpublished opinion, this Court did opine on this question, 

concluding that “a private attorney is not a government official.” Lett v. Commonwealth, No. 

2611-99-1, slip op. at 5 (Va. Ct. App. Oct. 24, 2000).

5

Other authorities agree. “It is often said that lawyers are ‘officers of the court.’ But . . . a 

lawyer representing a client is not, by virtue of being an officer of the court, a state actor[.]” 

Polk County v. Dodson, 454 U.S. 312, 318 (1981). Rather, “[i]n our system a defense lawyer 

characteristically opposes the designated representatives of the State[,]” and “serves the public, 

not by acting on behalf of the State or in concert with it, but rather by advancing ‘the undivided 

interests of his client.’ This is essentially a private function, traditionally filled by retained 

counsel, for which state office and authority are not needed.” Id. at 318-19 (quoting Ferri v. 

Ackerman, 444 U.S. 193, 204 (1979)). “Although lawyers are generally licensed by the States, 

5

“While Rule 5A:1(f) provides that unpublished opinions may be cited as informative, 

‘unpublished opinions are merely persuasive authority and not binding precedent.’” Coffman v. 

Commonwealth, 67 Va. App. 163, 172 n.7 (2017) (quoting Baker v. Commonwealth, 59 Va. App. 

146, 153 n.3 (2011)).
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‘they are not officials of government by virtue of being lawyers.’” Id. at 319 n.9 (quoting In re 

Griffiths, 413 U.S. 717, 729 (1973)). “A criminal lawyer’s professional and ethical obligations 

require him to act in a role independent of and in opposition to the State.” West v. Atkins, 487 

U.S. 42, 50 (1988) (citing Polk County, 454 U.S. at 318-19). “[H]e ‘is not acting on behalf of the 

State; he is the State’s adversary.’” Id. (quoting Polk County, 454 U.S. at 323 n.13); see also 

Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 936 n.18 (1982).

Miner’s former attorney was not “a public officer . . . charged by law with responsibility 

for defining the permissible conduct with respect to the offense at issue,” and the trial court 

therefore did not err in denying Miner’s motion to strike on that basis. Palmer, 48 Va. App. at 

464 (quoting Branch v. Commonwealth, 42 Va. App. 655, 671 (2004)).

CONCLUSION

For the foregoing reasons, we conclude that the trial court did not err in overruling Miner’s 

motion to strike. We therefore affirm the trial court’s judgment.

Affirmed.