United States v. Moses, Christopher ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1123
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHRISTOPHER M. MOSES,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 05 CR 200—Lynn Adelman, Judge.
____________
ARGUED OCTOBER 25, 2007—DECIDED JANUARY 22, 2008
____________
Before EASTERBROOK, Chief Judge, and RIPPLE and
KANNE, Circuit Judges.
KANNE, Circuit Judge. Christopher Moses challenges
his five convictions for possessing destructive devices
that were not registered to him in the National Firearms
Registration and Transfer Record. See 26 U.S.C. § 5861(d);
see also id. § 5845(a)(8), (f)(1)(B). Specifically, he argues
that (1) the indictment underlying his convictions was
multiplicitous, and thus violated the Fifth Amendment’s
guarantee against double jeopardy; and (2) the govern-
ment failed to prove at trial that he possessed the de-
structive devices. We affirm.
2 No. 07-1123
I. HISTORY
In August 2005, a federal grand jury indicted Moses with
one count of violating 18 U.S.C. § 922(g)(1) for possessing
firearms after having been previously convicted of a felony,
and five counts of violating 26 U.S.C. § 5861(d). Section
5861(d), a provision in the Internal Revenue Code, makes
it illegal for an individual “to receive or possess a firearm
which is not registered to him in the National Firearms
Registration and Transfer Record,” and thus evade the
excise tax that would have been due had the firearm been
properly registered. See 26 U.S.C. § 5861(d); see also id.§§ 5811, 5841; United States v. Lim, 444 F.3d 910, 912 (7th
Cir. 2006). The “firearms” to which the excise tax applies
are not the handguns or rifles familiar to most people;
in this statutory context, “firearms” means sawed-off
shotguns, modified rifles, machine guns, silencers, and, as
pertinent here, “destructive devices,” meaning “any
explosive . . . grenade.” See 26 U.S.C. §§ 5811, 5841,
5845(a)-(e), (f)(1)(B). Moses was charged with knowingly
possessing five such destructive devices, which, the
indictment stated, are “more fully described as . . . gold top
40mm cartridge[s] marked ‘HEDP.’ ”
Moses moved to dismiss the indictment on the ground
that the multiple counts of possessing non-registered
destructive devices violated his Fifth Amendment right
against double jeopardy by allowing for more than one
prosecution of the simultaneous possession of the devices.
When the district court denied that motion, Moses exer-
cised his right to a jury trial. After the parties stipu-
lated that Moses had been previously convicted of a
felony, the government presented its case against him.
That evidence, which we recount in a light most favorable
to the government, see United States v. Morris, 498 F.3d
634, 637 (7th Cir. 2007), was as follows:
In April 2005, several police officers in Fond du Lac,
Wisconsin, received an anonymous tip that Moses’s
No. 07-1123 3
girlfriend, Christine Stoffel, was dealing crack cocaine
and other drugs. The officers investigated the tip by
visiting Stoffel at home. At that time, Stoffel resided with
Moses in the duplex that he owned; they lived in the
duplex’s downstairs apartment while Moses rented the
apartment upstairs to a mutual acquaintance. The officers
met with Stoffel on the duplex’s front porch when Moses
was away, and she eventually consented to a search of her
belongings; incident to that search, the officers recovered
marijuana and nearly 50 pills of Vicodin from Stoffel’s
purse. Based on that discovery, the officers obtained a
warrant to search the entire apartment. Moses had
returned home by the time the officers executed the
warrant, and was present for the ensuing search.
During the search of Moses’s residence, the officers noted
that the apartment appeared “cluttered,” as if someone
was moving in or out; among the clutter the officers
found a letter addressed to reach Moses at the apartment.
The officers also recovered a fanny-pack, in which they
later discovered a picture of Moses dressed in military
fatigues, standing next to very large guns, and on top of
what appeared to be a military vehicle of some sort. The
officers then searched Moses’s bedroom, where they found
three rifles, three handguns, and approximately 2,100
rounds of ammunition of various kind and caliber; some of
the rounds were stored in a military-style, metal am-
munition box. After they located the weapons, the officers
ran a criminal-background check on Moses, confirmed
that he had a felony conviction, and arrested him. The
officers then continued the search by moving to the du-
plex’s basement, which was accessed by a stairway shared
by both apartments. There they located a closed, metal
ammunition box similar to the one recovered from the
bedroom, except that this box contained six blue-tipped
and five gold-tipped 40mm rounds. Because the officers
did not recognize the rounds, they carefully placed them
4 No. 07-1123
on the duplex’s front porch and called the bomb squad to
remove them.
Once the 40mm rounds were safely removed from Mo-
ses’s duplex, the police officers contacted federal law
enforcement agents who could help identify the rounds.
The federal agents explained that the gold-tipped rounds
are actually military-grade, 40mm high-explosive, dual-
purpose (HEDP) grenades, and the blue-tipped rounds
are nonexplosive practice rounds. The grenades and
practice rounds are available to the military only, which
uses them as ammunition for its Mark-19 automatic
grenade launcher. Because the grenades contain “anti-
personnel” shrapnel and can “penetrate armored vehicles,”
they constitute “destructive devices,” meaning that any
individual possessing them must, under federal law,
register in the National Firearms Registration and Trans-
fer Record. See 26 U.S.C. §§ 5841, 5845(a)(8), (f)(a)(B),
5861(d). Moses, as it turned out, was not listed in the
registry.
Further investigative work by the federal law enforce-
ment agents revealed that Moses served in the military,
where he had substantial experience with HEDP grenades
and the other types of ammunition recovered from his
apartment. Specifically, from 1990 to 1994, Moses served
in the Marine Corps as an Amphibian Assault Vehicle
Crewman in the 2nd Amphibian Assault Battalion, 2nd
Marine Division, in Camp Lejuene, North Carolina. In
that position he was trained to operate the Marine
Corps’s amphibious assault vehicle’s weapons system,
which primarily utilized the Mark-19 and HEDP grenades.
Accordingly, Moses had ready access to the grenades
for training purposes; in fact, the agents found out, the
photograph recovered from Moses’s apartment depicted
him standing next to a Mark-19 mounted on top of an
amphibious assault vehicle. Furthermore, while inven-
torying the ammunition recovered from Moses’s bedroom,
No. 07-1123 5
the agents discovered numerous .223 caliber tracer
rounds. The tracer rounds are manufactured to be fired
from the Marine Corps’s M249 automatic rifle, which
Moses was trained to use as well. While serving in the
Marine Corps, Moses had regular access to the tracer
rounds for training purposes, much like he had with the
grenades; the tracer rounds also are available only to
the military.
The government rested its case after it presented the
evidence regarding Moses’s arrest, his military experi-
ence, and the HEDP grenades. Moses elected to present
no evidence or testimony in his defense. But at the close
of evidence, he moved for a judgment of acquittal on the
basis that the government failed to prove that he pos-
sessed the weapons, including the grenades. See Fed. R.
Crim. P. 29(a). Specifically, Moses asserted that the
government merely had proved that he “owned a house
where these things were found, and had some connection
11 years prior to items similar to the destructive devices
that were found in the basement.” The court reserved a
decision on the motion and submitted the case to the jury,
which, in turn, found Moses guilty on all six counts. In
response, Moses renewed his motion for a judgment of
acquittal, see Fed. R. Crim. P. 29(c), which the court
denied on the basis that the government introduced
sufficient evidence from which the jury could conclude
that he knowingly possessed the grenades. The court
then sentenced Moses to six concurrent terms of 84
months’ imprisonment—one term for his felon-in-posses-
sion conviction under 18 U.S.C. § 922(g)(1), and five terms
for his § 5861(d) convictions.
II. ANALYSIS
On appeal, Moses challenges only his five § 5861(d)
convictions for possessing the non-registered HEDP
6 No. 07-1123
grenades; he does not appeal his felon-in-possession
conviction under 18 U.S.C. § 922(g)(1). In so doing, he
renews his arguments that the indictment underlying his
convictions was multiplicitous, and that the government
failed to prove at trial that he possessed the grenades. We
address those arguments in turn.
A. Moses’s Multiplicity Challenge
Moses argues that the government violated his Fifth
Amendment right against double jeopardy by indicting
him on five counts for what he asserts was a single offense:
the simultaneous possession of the five HEDP grenades.
Moses accordingly contends that the district court erred
by allowing the government to prosecute him separately
for “each and every” grenade he possessed, when he
should have been prosecuted only once for the sole act of
possessing the grenades. Our review is de novo. United
States v. Starks, 472 F.3d 466, 468 (7th Cir. 2006).
Although the government may prosecute an individual
for every separate criminal act he commits, see Fed. R.
Crim. P. 8(a); United States v. Berardi, 675 F.2d 894, 898
(7th Cir. 1982), the Double Jeopardy Clause prohibits the
government from prosecuting an individual more than
once for the same criminal act, see Schiro v. Farley, 510
U.S. 222, 229 (1994); Starks, 472 F.3d at 469. The perti-
nent issue here is not whether the government prosecuted
Moses more than once; the five-count indictment is
clear on that score. Instead, the dispositve question is
whether multiple and simultaneous violations of § 5861(d)
constitute one criminal act or several separate acts.
Specifically, we must determine whether the govern-
ment could prosecute Moses (a) only for the one alleged
act of possessing non-registered destructive devices, or
(b) separately for each of the five non-registered destruc-
tive devices alleged to have been in his possession. In
No. 07-1123 7
answering that question we must look to § 5861(d) to
discern the allowable “unit of prosecution” under that
statute—that is, “the minimum amount of activity for
which criminal liability attaches.” United States v.
Allender, 62 F.3d 909, 912 (7th Cir. 1995); see also United
States v. Buchmeier, 255 F.3d 415, 421 (7th Cir. 2001).
This is not the first time that we have examined the
intended unit of prosecution for crimes involving fire-
arms. We have held on numerous occasions that the
Double Jeopardy Clause prohibits the government from
separately charging possession of multiple firearms
under 18 U.S.C. § 922 when the possession of the firearms
in question was “simultaneous and undifferentiated.” See,
e.g., United States v. Parker, 508 F.3d 434, 439-41 (7th Cir.
2007); United States v. Conley, 291 F.3d 464, 470 (7th Cir.
2002); Buchmeier, 255 F.3d at 423; United States v.
McKinney, 919 F.2d 405, 418 (7th Cir. 1990); United States
v. Oliver, 683 F.2d 224, 233 (7th Cir. 1982); McFarland v.
Pickett, 469 F.2d 1277, 1279 (7th Cir. 1972). In such
circumstances, we concluded, the unit of prosecution
was the act of possession, and not the number of firearms
possessed. But that holding was not based on a determina-
tion that the act of possession was the clearly intended
unit of prosecution; in fact, the intended unit of prosecu-
tion was not clear at all. Indeed, because Congress did not
clearly articulate the intended unit of prosecution for
simultaneous § 922 violations, we declined to turn “ ‘a
single transaction into multiple offenses.’ ” Buchmeier, 255
F.3d at 421 (quoting Bell v. United States, 349 U.S. 81, 84
(1955)); see also Conley, 291 F.3d at 470; McFarland, 469
F.2d at 1278-79.
Nevertheless, the issue of the intended unit of prosecu-
tion for violations of § 5861(d) is one of first impression
for this court, though other circuit courts of appeals
have been addressing the issue for quite some time. As
8 No. 07-1123
Moses admits in his brief, the courts that have ad-
dressed the issue unanimously agree that the unit of
prosecution for simultaneous and multiple violations of
§ 5861(d) is the number of the non-registered firearms
possessed. See, e.g., Jackson v. United States, 926 F.2d
763, 764 (8th Cir. 1991) (per curiam); United States v.
Nichols, 731 F.2d 545, 547 (8th Cir. 1984); United States
v. Alverson, 666 F.2d 341, 347 (9th Cir. 1982); United
States v. Tarrant, 460 F.2d 701, 704 (5th Cir. 1972);
Sanders v. United States, 441 F.2d 412, 414-15 (10th Cir.
1971). Moses further concedes that these decisions sup-
port the conclusion that the indictment underlying his
convictions was not multiplicitous. Yet, for reasons
unexplained, he does not assert that the decisions are
incorrect or inapplicable.
Moses cannot prevail without explaining why we
should ignore the conclusions of the many circuit courts
of appeals, particularly when the Fifth and Ninth Circuits
have articulated compelling explanations as to why an
individual may be prosecuted under § 5861(d) for each non-
registered firearm he is alleged to have possessed. See
Alverson, 666 F.2d at 347; Tarrant, 460 F.2d at 704. As
those courts explained, although a violation of § 5861(d)
necessarily involves the possession of a firearm, the crime
is more aptly characterized as a form of tax evasion. See
Alverson, 666 F.2d at 347; Tarrant, 460 F.2d at 704; see
also Lim, 444 F.3d at 912. Section 5861(d) makes it unlaw-
ful for any person “ ‘to receive or possess a firearm,’ ”
as defined by 26 U.S.C. § 5845, “ ‘which is not registered
to him in the National Firearms Registration and Transfer
Record.’ ” Tarrant, 460 F.2d at 704 (quoting 26 U.S.C.
§ 5861(d)); see also Alverson, 666 F.2d at 347. The National
Firearms Registration and Transfer Record, in turn, is
a central registry of all firearms in the United States
created to help enforce the excise tax on firearms trans-
fers. See Alverson, 666 F.2d at 347; Tarrant, 460 F.2d at
No. 07-1123 9
704; see also 26 U.S.C. §§ 5811, 5841, 5845; Lim, 444 F.3d
at 912. Because that tax is evaded each time a firearm is
not registered, each non-registered firearm deprives the
federal government of the proper tax due on that weapon;
simply put, each non-registered firearm represents a
separate instance of tax evasion that may be prosecuted
separately. See Alverson, 666 F.2d at 347; Tarrant, 460
F.2d at 704.
We agree with the several courts of appeals that there is
one unit of prosecution under § 5861(d) for each non-
registered firearm possessed, and that an individual
accordingly may be prosecuted for each non-registered
firearm he is alleged to have possessed. We further
adopt the Fifth and Ninth Circuits’ reasoning that the
purpose of the statutory scheme from which § 5861(d)
derives dictates that each non-registered firearm (and
thus each instance of tax evasion) corresponds to one
unit of prosecution. Accord Lim, 444 F.3d at 912. Indeed,
the discernable need to prosecute each violation of the
excise tax on firearms transfers explains why multiple
and simultaneous violations of § 5861(d) may be prose-
cuted separately, while “simultaneous and undifferenti-
ated” violations of 18 U.S.C. § 922 may not. Compare
Tarrant, 460 F.2d at 704 (“Since Congress was interested
in collecting the tax on each weapon, clearly separate
offenses for each firearm were intended to provide incen-
tive for sellers and buyers to declare their weapons and
pay the tax.”), with Conley, 291 F.3d at 464 (“Congress
intended that persons convicted of violating 18 U.S.C.
§ 922(g)(1) should be punished only for possessing weap-
ons in separate courses of conduct.”). Moses’s multiplicity
challenge accordingly fails.
B. Moses’s Sufficiency-of-the-Evidence Argument
Moses also argues that the district court erred by fail-
ing to grant his motion for a judgment of acquittal be-
10 No. 07-1123
cause the government did not introduce sufficient evid-
ence that he had “actual possession” of the HEDP gre-
nades. But in so arguing, Moses makes the puzzling
concession that “it is clear that the Government presented
a case of ‘constructive’ possession.” Moses continues,
however, the government failed to show that he “had any
control over the [grenades] with the exception that his
name was on the deed [of his duplex].” Our review, once
again, is de novo. United States v. O’Hara, 301 F.3d 563,
569 (7th Cir. 2002).
A district court should grant a motion for a judgment of
acquittal only when there is insufficient evidence to
sustain a conviction. See Fed. R. Crim. P. 29(a), (c); United
States v. Jones, 222 F.3d 349, 351-52 (7th Cir. 2000). On
appeal, Moses bears the heavy burden of demonstrating
that the evidence insufficiently established that he pos-
sessed the HEDP grenades; in fact, that burden is best
described as “nearly insurmountable.” See United States
v. Jackson, 177 F.3d 628, 630 (7th Cir. 1999). Viewing
the evidence presented at trial in the light most favor-
able to the government, Morris, 498 F.3d at 637, we
will overturn Moses’s guilty verdict only if “the record
contains no evidence, regardless of how it is weighed,”
from which the jury could have concluded beyond a
reasonable doubt that he is guilty, United States v.
Gougis, 432 F.3d 735, 743-44 (7th Cir. 2005) (internal
quotation marks and citation omitted).
At the outset, we note that Moses’s concession that the
government established that he constructively possessed
the HEDP grenades dooms his argument. At trial, the
government shouldered the burden of proving that Moses
knowingly possessed the grenades. See 26 U.S.C. § 5861(d);
United States v. Hite, 364 F.3d 874, 881 (7th Cir. 2004),
vacated on other grounds, 543 U.S. 1103, 116 (2005)
(vacating judgment and remanding for further consider-
No. 07-1123 11
ation in light of United States v. Booker, 543 U.S. 220(2005)). And contrary to what Moses asserts, the govern-
ment did not need to show that he “actually” possessed
the grenades; constructive possession was enough, see
Hite, 364 F.3d at 881; Alverson, 666 F.2d at 345, which the
government could prove by showing that Moses had “the
power and intent to exercise control” over the grenades
“either directly or through others,” United States v.
Stevens, 453 F.3d 963, 965-66 (7th Cir. 2006); see also
United States v. Morris, 349 F.3d 1009, 1014 (7th Cir.
2004). Simply put, there is no legal difference here be-
tween actual and constructive possession. See Stevens, 453
F.3d at 965 (“Possession may be either actual or construc-
tive, exclusive or joint.”); Morris, 349 F.3d at 1014 (“As we
have stated many times, possession ‘may be either actual
or constructive and it need not be exclusive but may be
joint . . . .’ ” (quoting United States v. Garrett, 903 F.2d
1105, 1110 (7th Cir. 1990))). Thus, Moses’s challenge
ended as soon as his concession was made.
In any event, at trial the government introduced abun-
dant evidence showing that Moses knowingly possessed
the HEDP grenades. Specifically, the government estab-
lished that Moses had the power and intent to control the
grenades based on the uncontradicted evidence that he
(1) owned the duplex where the grenades were recovered;
(2) lived in the bottom apartment of the duplex, as shown
by the mail addressed to him at that apartment; (3) had
direct access from the apartment to the basement
where the grenades were found; and (4) controlled who
had access to the basement as landlord of the duplex. See
United States v. Harris, 325 F.3d 865, 869-71 (7th Cir.
2003) (holding evidence sufficient to find defendant
guilty of possessing drugs when drugs were found in
defendant’s home, even though defendant claimed that
she was not aware of drugs); United States v. Thomas,
321 F.3d 627, 636 (7th Cir. 2003) (“[W]here we have
12 No. 07-1123
found constructive possession of firearms when they are
found in close proximity to the defendants, the weapons
were found in areas over which the defendant exercised
control, such as a bedroom, garage, or workplace.” (inter-
nal citations omitted)); United States v. Richardson, 208
F.3d 626, 632 (7th Cir. 2000) (finding constructive pos-
session when defendant admitted being landlord of
residence, medicine bottles with defendant’s name were
found at residence, and defendant received mail at resi-
dence).
Moreover, Moses’s military background supports the
conclusion that he possessed the HEDP grenades. The
grenades are available only to members of the military
and, based on their size and destructive capability, obvi-
ously exist solely for military use. (Appended to this
Opinion are photographs of both the fist-sized HEDP
grenades recovered from Moses’s basement and the Mark-
19 automatic grenade launcher.) And Moses, as an Am-
phibian Assault Vehicle Crewman, was trained specif-
ically to fire the grenades with the Mark-19 and had
ready access to the grenades; indeed, Moses was pictured
standing on top of an amphibious assault vehicle next to
a Mark-19. Even more, the grenades were not the only
military-grade weaponry recovered from Moses’s home;
the search of the apartment also turned up tracer rounds
that are available only to the military. Because Moses
presented no evidence showing that anyone else would
have had a similar opportunity to encounter and possess
the extremely exclusive grenades, the jury could have
easily inferred that Moses had a penchant for pilfering
ammunition that he came across during his service as a
Marine—indeed, Moses admits in his brief that the
grenades could be seen as “almost a souvenir.” We thus
cannot fault the district court for denying Moses’s mo-
tion for a judgment of acquittal. See O’Hara, 301 F.3d at
569; Gougis, 432 F.3d at 743-44.
No. 07-1123 13
III. CONCLUSION
We AFFIRM Moses’s five convictions under 26 U.S.C.
§ 5861(d).
14 No. 07-1123
APPENDIX
HEDP Grenades Recovered from Moses’s Basement
Mark-19 Automatic Grenade Launcher
(Mounted on a tripod for use in the field)
No. 07-1123 15
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-22-08