United States v. Nathan Valerio

We must decide whether a person has a “conviction” for purposes of the federal felon in possession of a firearm statute, under a New Mexico deferred sentence procedure. There are also evidentiary issues.

Facts

The Las Vegas Metropolitan Police Department sent an undercover informant to Valerio’s home to try to buy a gun from him. The informant, who was surreptitiously recording their conversation, told Valerio that he was a convicted felon, yet Valerio sold him a .357 magnum.

The police got a search warrant for Val-erio’s house, and found a 12-gauge shotgun and a .22 revolver. Valerio had previously been convicted of a felony. He was convicted of felon in possession of a firearm and sale of a firearm to a felon under 18 U.S.C. §§ 922 (g)(1), 924(a)(2), and 922(d).

Valerio entered a guilty plea after the jury had already been selected. The government had disclosed that it did not intend to put its undercover informant on the witness stand. It proposed to use the tape recording as evidence that Valerio sold a gun to someone who told him that he was a felon. That could be proved with Valerio’s words on the recording, whether the informant was telling Valerio the truth or not. To…