United States v. Valentine

In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-40557
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JERRY LEONARDO VALENTINE,
Defendant-Appellant
_________________________
Appeal from the United States District Court
for the Eastern District of Texas
______________________________
Before HIGGINBOTHAM, SMITH, and
BENAVIDES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Jerry Valentine appeals his conviction, un-
der 18 U.S.C. § 922(n), of receiving a firearm
that traveled in interstate commerce while he
was under indictment for a felony. We con-
clude that a Texas state defendant who is on
probation pursuant to a deferred adjudication
of a felony charge remains, as a matter of law,
under indictment. Based on that conclusion,
and because there is no merit to Valentine’s
other issues on appeal, we affirm.
I.
On January 2, 2003, Detectives Paul Marti-
nez and Chris Jones received an anonymous tip
that there was drug-related activity at an
apartment complex. Later that day, as they
approached the complex, they saw two indi-
United States Court of Appeals
Fifth Circuit
F I L E D
February 25, 2005
Charles R. Fulbruge III
Clerk

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viduals who appeared to be exiting apartment
1412. Later identified as Valentine and Ty-
wona Harvey, they entered a parked car that
Jones and Martinez approached, identifying
themselves as police officers. Martinez asked
Valentine to step out of the car, at which point
he patted down Valentine but found no weap-
ons or contraband. At the same time, Jones
patted down Harvey and discovered marihuana
in his pocket; Harvey, however, was not ar-
rested at that time.
Martinez explained that they were investi-
gating a tip regarding narcotics activity in-
volving apartment 1412. Valentine admitted
that he and his girlfriend, Crystal Taylor, re-
sided in that apartment, but he was leaving for
his mother’s house because the couple was
having a dispute. Valentine, as well as Taylor
(who had come outside while all of this was
transpiring), gave Martinez consent to search
their apartment, at which time, Martinez,
Jones, Taylor, and Harvey went inside the
apartment. Jones searched the apartment, yet
found no evidence of drugs or contraband.
What happened next is a matter of some de-
bate among Valentine, his witnesses, and the
detectives. The district court found the detec-
tives’ account more credible, a decision on
which it denied a suppression motion. Ac-
cording to the government, Martinez next
asked whether Valentine had any illegal be-
longings in his car, to which Valentine re-
sponded in the negative. Accordingly, Marti-
nez inquired whether Valentine had any prob-
lem with the vehicle’s being searched; Valen-
tine said he did not. Martinez testified at the
suppression hearing that Jones proceeded out-
side, alone, to search Valentine’s belongings in
the car, and turned up a handgun.1
Valentine indicated that the gun was his and
that he had purchased it in the previous month
or two. Although Martinez did not immedi-
ately recognize it as an offense, he noticed that
there were no serial numbers on the gun.
Martinez decided to take the gun and have
police technicians attempt to retrieve the serial
numbers from it. Martinez told Valentine that
if the gun checked out (i.e., did not turn out to
be stolen), it would be returned. Martinez
subsequently learned that it was illegal to
possess a firearm without serial numbers.
Before this incident, in January 2002, Val-
entine had been indicted for theft under Texas
law and received a five-year deferred adjudi-
cation. Consequently, after the January 2003
incident, he was convicted under § 922(n) of
receiving a firearm while under indictment.2
At trial, Martinez gave testimony that var-
ied somewhat from his narrative at the sup-
1 Valentine claims he was never asked for con-
sent for the vehicle to be searched. Harvey testified
that the detectives asked him for consent but that
he told them he could not consent because it was
not his vehicle. Harvey testified that one of the
detectives then searched the vehicle without con-
sent. As noted above, the court found the detec-
tives more credible and concluded that consent was
given.
Valentine alternatively argues that any consent
was involuntary. Following United States v. Phil-
lips, 664 F.2d 971, 1023-24 (Former 5th Cir. Dec.
1981), the district court held that under the totality
of the circumstances, Valentine’s consent was
voluntary.
2 Valentine was acquitted of one count of pos-
sessing a firearm with an obliterated serial number.
See 18 U.S.C. § 922(k).

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pression hearing. Specifically, he indicated
that Harvey had, in fact, accompanied Jones
outside for the search of the vehicle. Based on
this inconsistency, Valentine requested that the
court reconsider his motion to suppress, and
later moved for a new trial based in part on
Martinez’s testimony. Both motions were
denied.
The other basis for Valentine’s motion for
new trial was the admission of testimony by
ATF Special Agent Joe Patterson that Valen-
tine was, in his opinion, under indictment at
the time the gun was discovered. The district
court also rejected the notion that this was
improper opinion testimony, and further con-
cluded that any error was harmless because
Valentine was under indictment as a matter of
law.
II.
Valentine urges that the district court
wrongfully refused to suppress the firearm
found by the police as well as any statements
deriving from its discovery. Valentine must
convince us that the court committed clear er-
ror with respect to its factual determinations.
See Muñoz, 150 F.3d at 411. According to
Valentine, the determination that he gave con-
sent and did so freely, under the totality of the
circumstances, constitutes such clear error.
We disagree.
In United States v. Tompkins, 130 F.3d
117, 121 (5th Cir. 1997), we held that the to-
tality of the circumstances under which the
voluntariness of consent is to be reviewed
includes
(1) the voluntariness of the defendant’s
custodial status; (2) the presence of coer-
cive police procedures; (3) the extent and
level of the defendant’s cooperation with
the police; (4) the defendant’s awareness of
his right to refuse to consent; (5) the defen-
dant’s education and intelligence; and
(6) the defendant’s belief that no incrimi-
nating evidence will be found.
All six factors are relevant, yet none is disposi-
tive or controlling. Id.
The district court found that, although Val-
entine was initially stopped and frisked without
reasonable suspicion in contradiction of Terry
v. Ohio, 392 U.S. 1 (1968), there was no
evidence of coercive police tactics. This de-
termination is illuminating not just of the sec-
ond above-listed factor, but indicated that Val-
entine was voluntarily present and not in cus-
tody. There was no evidence that he was re-
strained in any waySSin fact, Harvey and
Taylor testified that they felt free to leave.
Additionally, the evidence indicated that
Valentine was cooperative with the police and
their investigation. For example, it is not dis-
puted that he voluntarily gave consent for the
search of his apartment. Thus, the third factor
also weighs in favor of the government.
Based on Valentine’s education and his past
experiences with the criminal justice system,
the court further found that his education and
intelligence did not point to a finding that his
consent was coerced. Lastly, because the
detectives’ entire encounter with Valentine had
been related to reports of drug activity, the
court felt that Valentine did not believe in-
criminating evidence would be found in the
vehicle.
The only factor that pointed in Valentine’s
favor, according to the district court, was that
he was not notified of his right to refuse con-
sent to the search. Nevertheless, the lack of
such a notification has never been held to
require a finding of involuntariness. See, e.g.,

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United States v. Solis, 299 F.3d 420, 438 (5th
Cir. 2002).
Although reasonable jurists might reach dif-
ferent conclusions based on the evidence pre-
sented, we cannot say that the voluntariness
conclusion was clearly erroneous. The only
argument Valentine puts forth that appears to
have any substantial validity is his claim that
the court erred in determining that he did not
believe any incriminating evidence would be
found. Valentine contends that any defendant
who places an illegal firearm in a vehicle
would obviously realize that it would be dis-
covered if the vehicle is searched by detectives
seeking evidence of narcotics.
The government answers by pointing out
that there is nothing in the record to indicate
that Valentine knew it was illegal to possess a
firearm without serial numbers. This reasoning
is unconvincing. Just because the record does
not reflect this fact does not mean Valentine
was not well aware of it.
The absence, therefore, of anything in the
record indicating that Valentine was aware
that possessing the gun was a crime is far from
conclusive proof that he did not believe in-
criminating evidence would be found in the
car. The government’s argument also com-
pletely ignores the possibility that Valentine
was aware that his possession of a firearm
constituted a violation of § 922(n) in light of
his deferred adjudication.
Nevertheless, even if the district court erred
with respect to that factor, the weight of the
evidence is certainly substantial enough to jus-
tify the determination, under the totality of the
circumstances, that consent was given volun-
tarily. Viewing the evidence in the light most
favorable to the government, as we must,3
there is no clear error.
III.
As noted above, Martinez testified at the
suppression hearing that Jones left the apart-
ment alone to conduct the search of Valen-
tine’s vehicle. At trial, however, Martinez
agreed with defense witnesses that Harvey left
with Jones during the search of the car.
Based on this inconsistency, Valentine
moved the court to reconsider its decision on
his suppression motion, and later moved for a
new trial. Both requests were denied. Valen-
tine contends that the decision not to grant a
new trial, pursuant to Federal Rule of Criminal
Procedure 33,4 was an abuse of discretion.
See Solis, 299 F.3d 441-42. According to
Valentine, the inconsistency in Martinez’s tes-
timony was sufficient to undermine his credi-
bility with respect to his testimony at the sup-
pression hearing. Therefore, goes the argu-
ment, it was unjust to allow the trial to go
forward based on evidence that should have
been suppressed, and testimony of a witness
whose credibility the court knew to be suspect.
In response to Valentine’s motion, the dis-
trict court, relying on Unites States v. Robin-
son, 110 F.3d 1113, 1117 (5th Cir. 1997), not-
ed that unless the weight of the evidence is
heavily against the verdict, it is not a miscar-
riage of justice to let the verdict stand. Be-
cause all Valentine relied on was the slight
change in Martinez’s testimony, the court
found that Valentine could not “cast sufficient
doubt on Martinez’s credibility as to change
3 See Solis, 299 F.3d at 435-36.
4 “The court on motion of a defendant may
grant a new trial to that defendant if required in the
interest of justice.” FED. R. CRIM. P. 33.

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the Court’s credibility determination” and en-
title him to a new trial.
The district court was able to observe the
demeanor of the witness at the suppression
hearing and trial and thus was in a unique po-
sition to gauge credibility. Additionally, the
grant of a new trial “should be exercised with
caution . . . [and] should be invoked only in
exceptional cases.” United States v. Scrog-
gins, 379 F.3d 233, 239 (5th Cir. 2004), va-
cated on other grounds, 2005 U.S. LEXIS
1288 (U.S. Jan. 24, 2005). It was therefore no
abuse of discretion to deny a new trial.
IV.
Valentine’s most substantial argument is
that the evidence is insufficient to establish, be-
yond a reasonable doubt, that his conduct
constituted a violation of § 922(n). Such a
conviction requires a finding that the defendant
received a firearm shipped in interstate com-
merce5 while he was “under indictment for a
crime punishable by imprisonment for a term
exceeding one year . . . .” 18 U.S.C. § 922(n).
As noted above, in January 2002 Valentine
was indicted for theft and received five years’
deferred adjudication. The relevant question,
therefore, is whether the deferred adjudication
is tantamount to being “under indictment.”
Denials of motions for judgment of acquit-
tal are reviewed de novo, using the same stan-
dard as did the district court, i.e., whether any
rational trier of fact could have found the es-
sential elements of the offense beyond reason-
able doubt. United States v. Daniel, 957 U.S.
162, 164 (5th Cir. 1992). Here, however, the
question is one of pure lawSSwhether Valen-
tine was “under indictment” as a result of his
deferred adjudication in Texas court. That
question is reviewed de novo. United States v.
Bellew, 369 F.3d 450, 452 (5th Cir. 2004). If,
as a matter of law, a Texas deferred adjudica-
tion is equivalent to remaining under indict-
ment, then no reasonable jury could have
found otherwise, and the evidence was suf-
ficient. If, as a matter of law, the opposite is
true, no conviction could stand.
We have yet to rule definitively on this
question. In an analogous situation, we held
that Texas’s deferred adjudication scheme
leaves a defendant with a “pending charge”
such that he is not qualified to serve as a juror
because he currently has “a charge pending
against him for the commission” of a felony.
United States v. Bishop, 264 F.3d 535, 555
(5th Cir. 2001) (citing 28 U.S.C. § 1865-
(b)(5)). Similarly, we held that a Texas de-
ferred adjudication leaves a defendant without
an adjudication of guilt or “conviction” under
Federal Rule of Evidence 609. See United
States v. Hamilton, 48 F.3d 149, 153 (5th Cir.
1995). Consequently, a deferred adjudication
does not subject a witness to impeachment
with the use of a prior “conviction.” Id.
Based on these precedents, the government
argues that lacking any final disposition of his
case, Valentine remains “under indictment” for
the entire term of his deferred adjudication.
In United States v. Hill, 210 F.3d 881, 883-
84 (8th Cir. 2000), the court reached a differ-
ent conclusion, considering Missouri’s sus-
pended sentencing scheme. Just as in Texas,
the Missouri system requires that the defen-
dant plead guilty and is then given a suspended
sentence. The court held that, because the
purpose of an indictment is to give notice of
the charges, the function of the indictment is
satisfied after a guilty plea, so the indictment is
extinguished. 5 The existence of an interstate nexus is not
challenged in this case.

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The question whether Valentine is “under
indictment” for purposes of § 922(n) is one of
federal law. Although the statute does not ex-
plicitly define what it means to be “under in-
dictment,” in situations in which “neither Con-
gress nor the Constitution has provided a rule
of decision for the resolution of a federal
question case that is properly within the
subject-matter jurisdiction of the federal courts
. . . it can be inferred from congressional or
constitutional intent that the federal courts
should supply the necessary rule of decision by
pronouncing common law to fill the interstices
of a pervasively federal substantive frame-
work.” 19 CHARLES A. WRIGHT ET AL.,
FEDERAL PRACTICE AND PROCEDURE: JURIS-
DICTION 2D § 4514, at 467 (1996). In such
cases, we may reference, and find persuasive,
state law in crafting federal common law to fill
the voids in a comprehensive federal scheme.
See id; see also Hill, 210 F.3d at 883-84.
Consequently, Hill, in addition to not being
binding authority, dealt with a different ques-
tionSSthat is, it examined Missouri’s system,
not Texas’s. One may therefore be under in-
dictment for purposes of § 922(n) while being
subject to deferred adjudication in Texas, and
yet be free from indictment were the defendant
under deferred adjudication in Missouri. The
differences in those respective states’ systems
and the precedents dealing with them con-
sequently yield different, yet not contradictory,
results.
Though the two systems are fairly similar,
we operate under the binding authority of
Bishop and Hamilton, which conclude that
Texas’s deferred adjudications leave a charge
pending against the defendant. It would be in-
congruous, to say the least, to hold that Valen-
tine is not under indictment and thus entitled
to receive a firearm, but at the same time is
barred from serving on juries and is immune to
impeachment based on his state felony charge.
Under Texas law, a defendant must chal-
lenge a deferred adjudication at the time it is
entered, rather than waiting until after it is re-
voked. See Manuel v. State, 994 S.W.2d 658,
661-62 (Tex. Crim. App. 1999). Based on this
proposition, Valentine posits that Texas law
deems a deferred adjudication final, and by
implication, removes the defendant from under
an indictment. But, as the government points
out, “what the Court of Criminal Appeals
sought in Manuel was to avoid giving a de-
fendant two bites at the apple or two chances
to appeal matters regarding the validity of the
order deferring adjudication.” Webb v. State,
20 S.W.3d 834, 836 (Tex. App.SSAmarillo
2000, no writ). Manuel did not conclusively
hold that a deferred adjudication renders the
indictment null as a matter of Texas law.
V.
Valentine avers that the district court com-
mitted reversible error by admitting, over ob-
jection, Patterson’s testimony that Valentine’s
deferred adjudication rendered him “under in-
dictment” for purposes of § 922(n). Eviden-
tiary decisions are reviewed for abuse of dis-
cretion and are subject to the harmless error
rule. Bishop, 264 F.3d at 546.
In light of the foregoing discussion, this
question is moot: Because Valentine was un-
der indictment as a matter of law, the admis-
sion of any testimony regarding that question,
even if erroneous, was harmless. Because Mil-
ler was under indictment, no reasonable jury
could have found contrary to Patterson’s
testimony.
AFFIRMED.

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