No. 96-8072 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 RAFIQ ZAREEF MUHAYMIN, aka IVORY MOSBY, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General DEMETRA LAMBROS Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514 - 2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED 1. Whether, in light of Old Chief v. United States, 117 S. Ct. 644 (1997), the district court abused its discretion in admitting evidence of petitioner's prior conviction for criminal sexual conduct to impeach his testimony and to prove his felony status under 18 U.S.C. 922 (g) (1). 2. Whether the court of appeals correctly ruled that petitioner's possession of rounds of ammunition manufactured with out-of-state components that themselves satisfy the definition of "ammunition" provided the requisite nexus to interstate commerce under 18 U.S.C. 922 (g) (1). 3. Whether petitioner's statements to federal agents, which were made before the attachment of his Sixth Amendment right to counsel, were properly admitted at trial. (I) -------------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 No. 96-8072 RAFIQ ZAREEF MUHAYMIN, aka IVORY MOSBY, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-12a) is reported at 101 F.3d 1278. A related opinion of the court of appeals is reported at 60 F.3d 454. JURISDICTION The judgment of the court of appeals was entered on December 6, 1996. The petition for a writ of certiorari was filed on February 28, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254 (1). STATEMENT Following a jury trial in the United States District Court for ---------------------------------------- Page Break ---------------------------------------- 2 the District of Minnesota, petitioner was convicted of being a felon in possession of ammunition, in violation of 18 U.S.C. 922 (g) (1). Pet. App. 1a. The district court granted petitioner's motion for a judgment of acquittal on the ground that the interstate commerce requirement of the statute had not been satisfied. Id. at 2a n.3. The court of appeals reversed. Ibid. On remand, the district court reinstated the jury's verdict and sentenced petitioner to 180 months' imprisonment. Id. at 13a-14a. The court of appeals affirmed. Id. at 2a. 1. On July 29, 1994, while investigating a burglary of several handguns in Brooklyn Park, Minnesota, police officers executed a search warrant at petitioner's residence. They discovered, among other items, 89 rounds of .44 magnum caliber ammunition. Pet. App. 2a-3a. On August 6, 1994, a warrant issued for petitioner's arrest for a parole violation. Two days later, a detective saw petitioner leaving his house in his car, followed him, and signaled for him to stop. Petitioner pointed a loaded hand-held crossbow at the detective's vehicle, and evaded him by driving through a stoplight. Petitioner was subsequently apprehended several miles away by other officers. When arrested, he had with him a .22 caliber starter pistol in addition to the crossbow. Pet. App. 3a-4a. Petitioner was charged under state law with aggravated assault and being a felon in possession of a firearm. Pet. App. 4a, 7a. The starter pistol was sent to the Bureau of Alcohol, Tobacco, and Firearms (BATF) for testing. Id. at 4a. While detained pending ---------------------------------------- Page Break ---------------------------------------- 3 the state charges, petitioner contacted the BATF to inquire about the starter pistol. Ibid. BATF agents agreed to talk to him, and they met with him in the jail where he was being detained. Before the interview, the agents informed petitioner of his Miranda rights, and he waived his right to have an attorney present. Petitioner told the agents that the starter pistol he was carrying when arrested was a toy, and that the ammunition found at his residence was being kept there for a friend. Two months later, on November 23, 1994, petitioner was indicted on a federal charge of being a felon in possession of ammunition, in violation of 18 U.S.C. 922 (g) (1). Ibid. 2. At trial, to prove that petitioner was a previously convicted felon under Section 922 (g) (1), the government presented a certificate of his 1985 conviction for first degree attempted murder and first degree criminal sexual conduct. Pet. App. 10a. 1 Petitioner at no time offered to stipulate to his felony status. Id. at 11a n.9. The government witness who testified about the certificate made no reference to the conviction for criminal sexual conduct. Id. at 10a. When petitioner testified in his defense, the government was allowed to impeach his testimony by asking about his prior conviction for criminal sexual conduct. Id. at 10a n.8. Specifically, the government asked petitioner if he had been "found guilty in January of [1985] for criminal sexual conduct in the first degree." Petitioner responded "yes," and the cross- ___________________(footnotes) 1 The two convictions appeared on the same document because they arose from the same incident and were prosecuted together. Gov't C.A. Br. 18. ---------------------------------------- Page Break ---------------------------------------- 4 examination then turned to other subjects. Ibid. The evidence at trial showed that the rounds of ammunition found at petitioner's residence had been manufactured in Minnesota from out-of-state component parts. United States v. Mosby, 60 F.3d 454, 455 (8th Cir. 1995), cert. denied, 116 S. Ct. 938 (1996). The cartridge casing and primer were manufactured in Arkansas, the hollow point bullet was manufactured in Nebraska, and the propellant powder was also manufactured outside of Minnesota. Gov't C.A. Br. 5-6 (No. 95-1510); see Mosby, 60 F.3d at 457. The various components were then assembled in Minnesota into the finished rounds. After assembly, the ammunition rounds did not travel out of Minnesota. Mosby, 60 F.3d at 455. The jury found petitioner guilty of being a felon in possession of ammunition. Pet. App. 5a. Petitioner then moved for a judgment of acquittal. The district court granted the motion, finding that the interstate commerce requirement of Section 922 (g) (1) -- that the felon possess ammunition "in or affecting commerce" -- was not satisfied by a showing that the component parts of the rounds of ammunition had traveled in interstate commerce. Mosby, 60 F.3d at 457. 3. The court of appeals reversed, based on the statutory definition of "ammunition": The term 'ammunition' means ammunition or cartridge cases, primers, bullets, or propellant powder designed for use in any firearm. 18 U.S.C. 921 (a) (17) (A); see Mosby, 60 F.3d at 456 & n.2. Because the definition of "ammunition" includes cartridge components as --------------------------------------- Page Break ---------------------------------------- 5 well as finished rounds of ammunition, the court found that: [Petitioner's] possession of the assembled cartridges, which are not in interstate commerce, is also possession of the individual components of the cartridges which are in interstates commerce. At least some of these components satisfy the definition of ammunition in 921 (a) (17). Id. at 457. Petitioner's possession of those components thus constituted possession of "ammunition" that was "in interstate commerce." Ibid. 2. The court remanded for entry of judgment in accordance with the jury verdict. 3 On remand, the district court sentenced petitioner to 180 months' imprisonment to be followed by five years' supervised release. Pet. App. 13a-15a. 4. Petitioner appealed, claiming that the evidence of his conviction for criminal sexual conduct should not have been admitted into evidence at trial, that Congress lacked authority under the Commerce Clause to criminalize the possession of ammunition rounds assembled and possessed within Minnesota, and that his Sixth Amendment rights were violated when the BATF officers interviewed him about the ammunition without his attorney present. Pet. App. 1a-2a. The court of appeals rejected each of petitioner's claims. ___________________(footnotes) 2 The court also found that application of the statute to petitioner was constitutional under United States v. Lopez, 115 S. Ct. 1624 (1995), because the ammunition components were "in interstate commerce. Mosby, 60 F.3d at 456 & n.3. 3 Petitioner filed a petition for certiorari following the court of appeals' remand of the case. The government opposed the petition on the ground that the case was not ripe for review. This Court denied certiorari. Mosby v. United States, 116 S. Ct. 938 (1996). ---------------------------------------- Page Break ---------------------------------------- 6 First, it ruled that the district court had not abused its discretion by admitting into evidence petitioner's conviction for criminal sexual conduct. Pet. App. 10a-11a. In doing so, the court acknowledged that this Court had yet to issue its decision in Old Chief v. United States, 117 S. Ct. 644 (1997), but found that case inapposite to the circumstances of petitioner's trial: Unlike in Old Chief, which involved the question "whether the government has to accept a 922 (g) (1) defendant's stipulation that he had been convicted of a felony," petitioner "did not offer to stipulate that he was a felon, and instead forced the government to carry its burden of proving this element of his crime." Pet. App. 11a n.9. In rejecting petitioner's interstate commerce claim, the court restated its prior ruling in the case that petitioner's possession of out-of-state ammunition components provided the requisite nexus to interstate commerce, both under the statute and under the Commerce Clause. Pet. App. 2a n.3. Finally, the court's rejection of petitioner's Sixth Amendment argument was based on the holding of McNeil v. Wisconsin, 501 U.S. 171 (1991), that the Sixth Amendment right to counsel is offense specific. Pet. App. 7a. Because petitioner was not charged with the federal offense at issue in this case until "well after" his interview with the BATF agents, his Sixth Amendment right to counsel had not attached and his statements in the interview were properly admitted into evidence. Ibid. ARGUMENT 1. Petitioner repeats his claim (Pet. 11-13) that the ---------------------------------------- Page Break ---------------------------------------- 7 district court abused its discretion by admitting into evidence the certificate of his prior conviction for criminal sexual conduct. He asks this Court to grant the petition for a writ of certiorari, vacate the judgment below, and remand the case, contending (Pet. 13) that Old Chief v. United States, 117 S. Ct. 644 (1997), decided after his trial, is dispositive of his claim. That contention is without merit. In Old Chief, this Court ruled that, where a defendant in a Section 922 (g) (1) case offers to stipulate to his status as a convicted felon, it is an abuse of discretion to admit into evidence a record naming the particular offense of conviction. 117 S. Ct. at 655. Here, however, petitioner did not offer to stipulate to his felony status. Pet. App. 11a n.9. Old Chief thus has not bearing on the introduction into evidence of the record of petitioner's prior conviction for first degree attempted murder and criminal sexual conduct. Moreover, as petitioner observes (Pet. 12), the jury did not know of petitioner's conviction for criminal sexual conduct until after petitioner took the stand, at which time the government was allowed to impeach his testimony by asking him whether he had been convicted of that offense. Because Old Chief addresses only the admissibility of evidence of a prior conviction for purposes of proving felony status, and does not speak to the admissibility of questions about a prior conviction for purposes of impeachment, see 117 S. Ct. at 648 n.2, petitioner's reliance on ---------------------------------------- Page Break ---------------------------------------- 8 that decision is in error. 4 2. Contrary to petitioner's assertion (Pet. 14-18), the decision of the court of appeals does not conflict with United States v. Travisano, 724 F.2d 341 (2d Cir. 1983), on the issue of whether possession of out-of-state ammunition components satisfies the interstate commerce element of Section 922 (g) (1). In Travisano, the defendant was charged with being a felon in possession of a firearm in violation of former 18 U.S.C. 1202 (a) -- the predecessor to Section 922 (g) (1) -- which prohibited the possession of a firearm "in commerce or affecting commerce." 724 F.2d at 347. The government, conceding that the defendant had not possessed a firearm "in" commerce, sought to establish that he had possessed a firearm "affecting" commerce by showing that the process of manufacturing the gun "affected" commerce. Ibid. The court rejected that reasoning, concluding that "the manufacture of any firearm has some impact on interstate commerce," and that, under the government's logic, "the commerce requirement set forth in the statute would have no meaning since any convicted felon with ___________________(footnotes) 4 Any error in admitting the evidence of petitioner's prior conviction for criminal sexual conduct was harmless in light of the overwhelming evidence that petitioner possessed the ammunition. Cf. Old Chief, 117 S. Ct. at 656 n.11 (expressing "no opinion on the possibility of harmless error, an issue not passed upon below"). The ammunition was found in petitioner's house, his identification card was found nearby, and petitioner separately told a police detective, his probation officer, and BATF agents that the ammunition was in his possession. Pet. App. 3a-4a. Moreover, petitioner does not challenge the admission of evidence of his past conviction for first degree attempted murder, so any incremental prejudicial effect from his conviction for criminal sexual conduct (which arose from the same set of events) is marginal at best. ----------------------------------------- Page Break ---------------------------------------- 9 a gun would be guilty of a federal crime without proof of nexus." Id. at 348. The decision in this case is distinguishable from Travisano in two significant respects. First, this case involves possession of ammunition, not firearms. The definition of "ammunition" includes "cartridge cases, primers, bullets, or propellent powder," 18 U.S.C. 921 (a) (17) (A), and the evidence at trial indicated that the cartridge cases, primer, bullets, and propellant powder used to assemble the rounds of ammunition found in petitioner's residence were manufactured outside of Minnesota. 5. Second, unlike in Travisano, the decision of the court of appeals in this case did not turn on whether petitioner possessed ammunition "affecting" commerce. See Mosby, 60 F.3d at 456 n.3. Instead, the court focused solely on whether petitioner possessed ammunition "in" commerce -- an argument that was not at issue in Travisano -- and it found that petitioner's possession of out-of-state components that met the statutory definition of "ammunition" established that he possessed ammunition "in" commerce. See id. at 456 n.3, 457. 6 ___________________(footnotes) 5 Although the court in Travisano expressed some question, in passing, as to whether the component parts of a firearm can themselves be considered "firearms," it indicated that those components that are expressly included in the definition of a firearm -- the "frame" and "receiver" -- "arguably" qualify as a firearm. 724 F.2d at 348. Here, the out-of-state components possessed by petitioner are expressly encompassed by the statutory definition of "ammunition." See Mosby, 60 F.3d at 457. 6 Petitioner's suggestion (Pet. 16-17) that the decision of the court of appeals conflicts with this Court's decisions in United States v. Bass, 404 U.S. 336 (1971), and United States v. Lopez, 115 S. Ct. 1624 (1995), is also in error. In Bass, this Court held that, under the predecessor to Section 922 (g) (1), the government must establish more than mere possession of a firearm -------------------------------------------- Page Break ---------------------------------------- 10 3. Finally, petitioner contends (Pet. 18-21) that his statements to BATF agents were taken in violation of his Sixth Amendment right to counsel and should have been suppressed at trial. That contention was correctly rejected by the court of appeals. Petitioner initiated discussions with BATF agents while he was detained pending state charges. Pet. App. 4a. Before the interview, he was given Miranda warnings, and he waived his right to have counsel present. He made statements both about the starter pistol found in his possession when he was arrested (the subject of the pending state charge that he was a felon in possession of a firearm) and about the ammunition found at his residence (the subject of the subsequent federal charge that he was a felon in possession of ammunition). He was not charged with the federal offense until several weeks after the interview. Ibid. McNeil v. Wisconsin, 501 U.S. 171 (1991), involved very similar circumstances. In that case, the defendant, while in jail pending a charge of armed robbery and after waiving his Miranda ___________________(footnotes) and must demonstrate some nexus with interstate commerce. 404 U.S. at 349-350. Here, the court of appeals did not rule that a nexus to interstate commerce was unnecessary; instead, it found that the requisite nexus had been demonstrated by petitioner's possession of out-of-state components meeting the statutory definition of "ammunition." The statute at issue in Lopez contained "no jurisdictional element which would ensure, through case-by-case inquiry" that a nexus to interstate commerce exists. 115 S. Ct. at 1631. Here, by contrast, Section 922 (g) (1) requires a showing that ammunition is possessed "in or affecting commerce." See Mosby, 60 F.3d at 456 n.3 (because ammunition components possessed by petitioner were "in" interstate commerce, case falls into category of activity that Lopez recognized could be regulated under the Commerce Clause). ---------------------------------------- Page Break ---------------------------------------- 11 rights, made incriminating statements about a murder with which he had not been formally charged. This Court rejected the defendant's argument that the attachment of his Sixth Amendment right to counsel on the armed robbery charge required suppression of his statements in his subsequent trial for murder. According to this Court, [t]he Sixth Amendment right * * * is offense specific. It cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced, that is, at or after the initiation of adversary judicial criminal proceedings -- whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. Id. at 175 (internal quotations and citations omitted). It follows that, because petitioner had not been charged with violating federal law at the time of his interview with the BATF agents, his Sixth Amendment right to counsel had not attached on the subsequent federal charge that he was a felon in possession of ammunition. Petitioner's claim that his statements to the BATF agents should have been suppressed in his federal trial is thus in error. As this Court has observed, "to exclude evidence pertaining to charges as to which the Sixth Amendment right to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the public's interest in the investigation of criminal activities." Maine v. Moulton, 474 U.S. 159, 180 (1985). As a result, "[i]ncriminating statements pertaining to other crimes, as to which the Sixth Amendment right has not yet attached, are * * * ---------------------------------------- Page Break ---------------------------------------- 12 admissible at a trial of those offenses." Id. at 180 n.16. 7 CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General DEMETRA LAMBROS Attorney APRIL 1997 ___________________(footnotes) 7 Petitioner's suggestion (Pet. 20) that the decision of the court of appeals is in conflict with the "rationale" of Michigan v. Jackson, 475 U.S. 625 (1986), is also without merit. In Jackson, this Court held that once the Sixth Amendment right to counsel has attached and has been invoked, any subsequent waiver of that right is invalid. Id. at 636. Here, petitioner's Sixth Amendment right to counsel had not attached as to the federal charge that he was a felon in possession of ammunition, and there is thus no issue regarding the legitimacy of any "waiver" of that right, the issue presented by Jackson. Moreover, this Court indicated in McNeil that, "just as the [Sixth Amendment] right is offense specific, so also its Michigan v. Jackson effect of invalidating subsequent waivers in police-initiated interviews is offense specific." 501 U.S. at 175.