United States v. Potts
2011 U.S. App. LEXIS 12069
| 5th Cir. | 2011Background
- Potts, a felon, was convicted of being in possession of firearms in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) after police found guns in his car and on his person.
- In December 2008, Dallas police observed Potts’ car in a restaurant parking lot; Potts moved as if attempting to leave and a gun was seen protruding from under the seat.
- A search of the car yielded two additional firearms and ammunition; Potts was arrested and tried for felon in possession of a firearm.
- During trial, the prosecutor elicited Potts’s silence when asked who owned the pistol; Potts objected and the court offered a curative instruction.
- The court instructed that Potts had no legal obligation to answer officers’ questions; the prosecution continued; Potts did not move for mistrial or reassert objections.
- Potts was convicted and sentenced to 30 months’ imprisonment, to run consecutively to state sentences to be imposed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether references to Potts's silence violated the Fifth Amendment | Potts argues the silence evidence infringes Fifth Amendment rights. | Potts contends the government used his silence to shift burden improperly. | No reversible error; plain error not established under controlling law. |
| Whether knowledge that the firearm moved in interstate commerce was required | Rose requires knowing possession of a firearm that moved in commerce. | Potts argues knowledge is required for the interstate-commerce element. | Rose controls; knowledge not required to prove § 922(g)(1) with § 924(a)(2). |
| Whether consecutive federal sentence to un-imposed state sentences was proper | Statutory framework supports consecutive sentences to be imposed later. | Potts challenges the consecutive sentence given state proceedings. | Foreclosed by precedent; district court properly imposed consecutive sentence. |
Key Cases Cited
- United States v. Salinas, 480 F.3d 750 (5th Cir. 2007) (plain-error framework for preserved and unpreserved Fifth Amendment claims)
- United States v. Juarez, 626 F.3d 246 (5th Cir. 2010) (three-element plain-error test and correction discretion)
- United States v. Zanabria, 74 F.3d 590 (5th Cir. 1996) (assumed pre-arrest silence protection under Fifth Amendment without deciding scope)
- United States v. Elashyi, 554 F.3d 480 (5th Cir. 2008) (pre-arrest silence not necessarily triggers Fifth Amendment per se)
- United States v. Rose, 587 F.3d 695 (5th Cir. 2009) (knowledge requirement debate; alternate holding binding precedent)
- United States v. Brown, 920 F.2d 1212 (5th Cir. 1991) (consecutive sentencing considerations with future state sentences)
- Pruitt v. Levi Strauss & Co., 932 F.2d 458 (5th Cir. 1991) (alternative holdings binding precedent)