U.S. v. Murray ( 1993 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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NO. 91-7261
_____________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DENNIS J. MURRAY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Mississippi
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(April 1, 1993)
Before DUHE', and BARKSDALE, Circuit Judges and HUNTER1, District
Judge.
EDWIN F. HUNTER, JR., District Judge
On November 6, 1992, a five count indictment was returned
against defendant-appellant, Dennis Murray, for his alleged role in
an illegal firearms transfer. The basis of the indictment was that
Murray, a previously convicted felon, participated with, and
facilitated Glenn Reid in the sale of a sawed-off shotgun and a .38
caliber revolver to acting, undercover agents for the Bureau of
Alcohol, Tobacco, and Firearms. After trial by jury, defendant
was found guilty on four charges. We affirm Murray's conviction on
Counts II, III, and IV. Murray's conviction on Count V is reversed
for insufficient evidence.
1
Senior Judge of the Western District of Louisiana,
sitting by designation.
Background
In April of 1990, Dennis Murray went to work for Glenn Reid at
Reid's business, "Fat Charlie's Buy and Sell". While at the pawn
shop, Murray performed a variety of tasks including, receiving
broken appliances, repairing appliances, and moving heavy items
around the store. Whenever Reid was away from the store, Murray
was often left in charge of the business.
Reid's business encompassed more than just buying and selling
appliances. He was also a licensed gun dealer; and consequently,
guns were kept in the shop under lock and key. Due to his previous
felony conviction, Murray was not allowed to handle the guns.
The Bureau of Alcohol, Tobacco, and Firearms ("ATF") began an
investigation of "Fat Charlie's" when Thomas Walker, an ex-police
officer, notified them of possible illegal gun transactions. Under
the auspices of the ATF, Walker secured the assistance of Jerry
Atkinson, a former employee at "Fat Charlie's". They agreed to
participate in an undercover ATF investigation to purchase illegal
firearms from Glenn Reid.
On April 20, 1990, Atkinson (in a recorded conversation)
telephoned Reid, and arranged for the purchase of an unregistered,
sawed-off shotgun, plus other handguns. Reid agreed to supply the
weapons, despite his knowledge that Atkinson was a previously
convicted felon, and could not purchase firearms through legitimate
channels.
On April 26, 1990, Reid asked Murray to take a ride with him
in his van. Reid placed a rectangular styrofoam box between the
front seats. From one end of the styrofoam, the stock of a shotgun
was clearly visible. The barrel of the gun extended from the
opposite side. Despite the obvious nature of the box's contents,
Murray contends that he never suspected that the styrofoam
contained a firearm.
Reid and Murray drove to Atkinson's house, where Reid and
Atkinson were to consummate the firearm transaction. Unbeknownst
to Reid and Murray, Atkinson had a hidden microphone taped to his
body. Special Agent Wright of the ATF hid in another room of the
house, monitoring and recording the proceedings. Murray carried
the styrofoam package inside the house, and waved it about
exclaiming, "Smile, I'm taking your picture." Subsequently, Murray
handed the styrofoam-encased shotgun to Atkinson, who turned it
over to Walker. The styrofoam package was opened, and the shotgun
exposed to view. Reid also offered to sell a .38 caliber revolver
to the ATF informants, which they agreed to buy.
The conversation between the men focused upon the purchase of
the firearms and the characteristics of the weapons. Murray took
an active role in the dialogue. Instead of indicating surprise or
apprehension upon learning the true purpose of the visit, Murray
laughed, joked, and contributed as if he knew all along what had
been planned. When Atkinson asked Reid whether the shotgun would
fire, Murray responded, "Na. That son of a bitch will shoot."
When Reid was asked whether he had any shells for the shotgun,
Murray volunteered, "I think you do have, didn't somebody come by
there and sell you a bunch of them the other day?...Did you buy
them from that boy, he had a box full of them." After the
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discussion ended, Reid was paid. The weapons were left with the
informants.
Dennis J. Murray was charged with a five count indictment.
The charges included: I) conspiracy with Glenn Reid to violate
federal firearms law, 18 U.S.C. § 371; II) possession by a
previously convicted felon of a firearm which had been transported
in interstate commerce - 18 U.S.C. § 922(g)(1); III) aiding and
abetting Reid in the transfer of an unregistered firearm - 26
U.S.C. §§ 861(c) and 5871; IV) possession of an unregistered
firearm - 26 U.S.C. §§ 5861(d) and 5871; and V) aiding and
abetting Reid in the sale of a firearm to a convicted felon - 18
U.S.C § 922(d)(1).
Murray was tried by jury on September 9, 1991. At the close
of the government's case, the court granted an acquittal on Count
I, and as to the sale of a .357 Magnum listed in Count V, due to
insufficient evidence. The remaining charges went to the jury.
Murray was found guilty on Counts II, III, IV and V. Appellant was
sentenced to thirty months imprisonment on each count to run
concurrently, plus two years supervisory release. Murray appeals
the sufficiency of the evidence, and questions the admission of
Reid's guilty plea. We consider these issues in turn.
Sufficiency of the Evidence
Counts II-IV
The appropriate standard of review is whether, "any rational
trier of fact could have found the essential elements beyond a
reasonable doubt." United States v. Webster, 960 F.2d 1301 (5th
4
Cir.), cert. denied, in Nelson v. United States, 113 S. Ct. 355
(1992); Jackson v. Virginia, 443 U.S. 307, 319 (1979). A
conviction challenged for insufficiency of the evidence must be
considered in the light most favorable to the prosecution. United
States v. Hopkins, 916 F.2d 207 (5th Cir. 1990); Jackson v.
Virginia, 443 U.S. at 318-319.
The basis for Murray's appeal on Counts II-IV is that he
remained unaware of the contents of the styrofoam package until
after the transfer. Thus, he argues that he could not possibly
have knowingly possessed the firearm as required to sustain the
conviction. United States v. Parker, 566 F.2d 1304, 1306 (5th Cir.
1978), cert. denied, 435 U.S. 956 (1978).
The evidence reveals that the styrofoam-encased shotgun rested
under the counter at "Fat Charlie's" for a considerable time; and
that Murray picked up the package from inside the van, and carried
it to the transfer site. Then, too, Murray waved the shotgun
around, and pointed it at the undercover agents exclaiming, "Smile,
I want to take your picture." Obviously, either Murray thought he
was carrying a camera, or he was making a joke, knowing full well
that the styrofoam contained a shotgun. We reject defendant's
argument that the evidence did not suffice to prove beyond a
reasonable doubt that he knowingly possessed the firearm.
Count V
Murray was convicted of aiding and abetting co-defendant,
Reid, in the sale of firearms to a previously convicted felon
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(Atkinson) in violation of 18 U.S.C. § 922(d)(1).2 The statute
requires that the perpetrator either know or have reasonable cause
to believe that the transferee was a previously convicted felon.
Murray argues that the evidence is insufficient to establish beyond
a reasonable doubt that he knew that Atkinson had been previously
convicted. The government implicitly argues that even if the
evidence is insufficient to conclude that Murray personally knew
that Atkinson was a convicted felon, it is undisputed that co-
defendant, Reid, was aware of Atkinson's status, and this knowledge
was attributable to Murray as an aider and abettor.
The only evidence presented by the government that Murray had
personal knowledge of Atkinson's prior conviction was testimony by
Atkinson and Bobby Williams (a friend of Glenn Reid's). Atkinson
stated that Reid used to joke about Atkinson's conviction "all the
time" in front of Murray and other employees. But, there was no
proof offered that Murray was definitely present on any specific
occasion, or that he was within earshot of the conversations.
Williams merely testified that it was common knowledge around "Fat
Charlie's" that Atkinson was a previously convicted felon. On no
2
18 U.S.C. § 922(d) (1) provides in pertinent part:
It shall be unlawful for any person to sell
or otherwise dispose of any firearm or
ammunition to any person knowing or having
reasonable cause to believe that such person
is
(1) under indictment for, or has
been convicted in any court, of a
crime punishable by imprisonment
for a term exceeding one year.
(emphasis added).
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occasion prior to the transfer had Murray actually met or talked
with Atkinson. Atkinson's prior conviction was not discussed or
referred to at the time of the firearms sale. No witness testified
that Murray was present, or that Murray definitely overheard
references to Atkinson's prior criminal history. We find that the
evidence was not sufficient to support the conclusion that
defendant was aware of Atkinson's record.
Having decided that the evidence was insufficient to establish
that Murray was personally aware of Atkinson's conviction, our next
focus is to consider whether a principal may supply the requisite
criminal knowledge or intent which is necessary to satisfy a
conviction against an aider and abettor.
In order to sustain a conviction for aiding and abetting, the
government must demonstrate that the defendant: 1) associated with
a criminal venture; 2) participated in the venture; and 3) sought
by action to make the venture succeed. United States v.
Martiarena, 955 F.2d 363, 366 (5th Cir. 1992). "Association" means
that the defendant shared in the criminal intent of the principal.
"Participation" means that the defendant engaged in some
affirmative conduct designed to aid the venture. Mere presence and
association are insufficient to sustain a conviction for aiding and
abetting. Id. The essence of aiding and abetting is a "community
of unlawful intent" between the aider and abettor and the
principal. United States v. Pena, 949 F.2d 751, 755 (5th Cir.
1991). Although the aider and abettor need not know the means by
which the crime will be carried out, he must share in the requisite
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intent. United States v. Westbo, 746 F.2d 1022, 1025 (5th Cir.
1984).
Under 18 U.S.C. § 922 (d)(1), it is the purchaser's status as a
felon which makes the activity criminal. If the aider and abettor
does not know this fact, it is difficult to say that he shared in
the criminal intent of the principal.
There is no doubt that Murray was in possession of an
unregistered firearm. But, since 28 U.S.C. § 922(d)(1) is an added
offense with enhanced elements, it was incumbent upon the
prosecutor to establish that Murray knew or had reasonable cause to
believe that Atkinson was a convicted felon. United States v.
Longoria, 569 F.2d 422, 425 (5th Cir. 1978). The mental state of
the principal alone, is insufficient to inculpate an aider and
abettor. United States v. Williams, No. 91-7284, 1993 WL 46565
(5th Cir. Feb. 24, 1993); United States v. Beck, 615 F.2d 441
(5th Cir. 1980). Murray may very well have known that Reid was
going to transfer unregistered firearms, but he did not know (or at
least there is precious little evidence to show) that Reid was
committing the additional offense of selling firearms to a felon.
The very intent which makes this conduct criminal is the knowledge
or reasonable belief that the transferee is a previously convicted
felon. We must conclude that the evidence adduced by the
government at trial, when viewed most favorably to the verdict,
cannot support an inference of guilt as to Count V.
Prejudicial Reference
Murray's co-defendant, Reid, testified in favor of the
8
defense. Before tendering the witness, defense counsel elicited
the fact that Reid pled guilty to conspiring with Murray to violate
the federal firearms laws. On cross-examination, the prosecutor
extensively questioned Reid concerning the apparent inconsistencies
between his testimony at Murray's trial, and the implications of
his guilty plea to the conspiracy charge. Despite these references
to Reid's guilty plea, the judge was never requested to, nor did he
sua sponte instruct the jury on the limited evidentiary purpose of
the co-defendant's guilty plea. Also, defense counsel made no
objection at trial. Accordingly, we review this issue under the
plain error standard, examining whether the error seriously
affected the defendant's substantial rights. United States v.
Leach, 918 F.2d 464, 467 (5th Cir. 1990), cert. denied, 111 S. Ct.
2802 (1991) (citing United States v. Mattoni, 698 F.2d 691 (5th
Cir. 1983)). Plain error is an error, "so obvious that our failure
to notice it would seriously affect the fairness, integrity, or
public reputation of [the] judicial proceedings and result in a
miscarriage of justice." United States v. Fortenberry, 914 F.2d
671, 673 (5th Cir. 1990), cert. denied, 111 S. Ct. 1333 (1991)
(citing United States v. Graves, 669 F.2d 964, 971 (5th Cir.
1982)).
In United States v. Black, the Court enumerated the factors to
be considered when evaluating the impact of a witness' guilty plea.
They include: 1) the presence or absence of a limiting
instruction; 2) whether there was a proper evidentiary purpose for
introduction of the guilty plea; 3) whether the plea was improperly
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emphasized or used as substantive evidence of guilt; and 4) whether
the introduction of the plea was invited by defense counsel.
United States v. Black, 685 F.2d 132, 135 (5th Cir.), cert. denied,
459 U.S. 1021 (1982); United States v. Leach, 918 F.2d at 467;
United States v. Borchardt, 698 F.2d 697, 701 (5th Cir. 1983). Our
analysis of the facts reveal that two of the four factors are
present. First, the prosecution clearly had a proper purpose in
emphasizing the guilty plea. The plea served to impeach the
witness' testimony. Second, it was the defendant who originally
introduced the guilty plea. Moreover, the defendant did not object
to the prosecutor's questioning, nor did he request a limiting
instruction from the judge. See United States v. Cook, 461 F.2d
906 (5th Cir.), cert. denied, 409 U.S. 949 (1972) (found no plain
error when defendant's attorney introduced co-defendants' guilty
pleas) and United States v. Bass, 562 F.2d 967 (5th Cir. 1977) (no
plain error where: government elicited guilty pleas, no objection
by defense, and defense emphasized guilty pleas on cross-
examination).
Similarly, in United States v. Howard, the Court found no
plain error where the same two Black factors were present as in the
case sub judice. United States v. Howard, 961 F.2d 1571 (5th Cir.
1992) (unpublished opinion)3. The facts in Howard are virtually
3
According to local rule 47.5.3, unpublished opinions are
precedent, but may only be cited when: "1) it establishes the law
of the case, 2) is relied upon as a basis for res judicata or
collateral estoppel, or 3) involves related facts." Finding the
circumstances in Howard closely related to the facts herein, a
copy of the opinion is attached.
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identical to the facts in this case. Not only did defense counsel
not object to the testimony, he was the one who introduced it.
Howard, supra. Murray suffered no plain error as a result of
Reid's guilty plea.
Conclusion
We affirm Murray's conviction on Counts II, III, and IV.
Murray's conviction on Count V is reversed. A review of the pre-
sentencing report indicates that the reversed charge factored into
defendant's sentence calculation, and accordingly, resentencing is
necessary.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
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