United States v. Walter Burnette , 524 F.2d 29 ( 1975 )

GEE, Circuit Judge:

The United States appeals the granting of a judgment of acquittal¹ after a jury verdict of guilty. The charge was' receiving a rifle and a pistol “in commerce” in violation of 18 U.S.C.App. § 1202(a)(1), it being undisputed that defendant Burnette was a previously-convicted felon.

The government’s appeal is proper under United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975). There the Supreme Court said:

We therefore conclude that when a judge rules in favor of the defendant after a verdict of guilty has been entered by the trier of fact, the Government may appeal from that ruling without running afoul of the Double Jeopardy Clause.

420 U.S., at 352-3, 95 S.Ct. at 1011. And, in U. S. v. Jenkins, 420 U.S. 358, 365, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975), the Court stated, in words which might have been written of this case:

When a case has been tried to a jury, the Double Jeopardy Clause does not prohibit an appeal by the Government providing that a retrial would not be required in the event the Government is successful in its appeal. United States v. Wilson, 420 U.S. at 343, 351, 95 S.Ct. at 1022, 1026. When this principle is applied to the situation where the jury returns a verdict of guilt but the trial court thereafter enters a judgment of acquittal, an appeal is permitted. In that situation a conclusion by an appellate court that the judgment of acquittal was improper does not require a criminal defendant to submit to a second trial; the error can be corrected on remand by the entry of a judgment on the verdict.

Should the government prevail on the basis of evidence which was admitted here, no second trial for this offense will be necessary: only a judgment on the verdict.²

The case comes down to whether there is evidence, viewed in the light most favorable to the verdict as required by Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), to establish receipt of either gun by Burnette in the Western District of Louisiana.³ Concluding there is, we reverse the judgment of acquittal and remand for entry of judgment on the verdict.

Under the Supreme Court’s construction of 18 U.S.C.App. § 1202(a)(1), the enactment is intended to forbid, inter alia, receipt of any firearm by specified classes of especially risky people, if the firearm received has previously traveled in interstate commerce. United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). This being so, it is apparent that the offense denounced is committed each time a person of the disfavored class obtains possession and control of a firearm. It is undisputed that appellee Burnette was of the class — a previously-convicted felon — and that, pri- or to the occasion of his apprehension, the guns involved had moved in interstate commerce. Our inquiry is therefore limited to considering whether evidence was admitted sufficient to ground a belief by the jury that beyond a reasonable doubt Burnette received at least one of the weapons at the mobile home where he was apprehended.

The jury heard testimony by the officer who arrested defendant Burnette on other charges in the Western District of Louisiana, that as he approached the bedroom where Burnette was found — he and another officer having rushed the front entrance of the mobile home involved, knocked, shouted, and taken two or three other people into custody along the way — he saw a pistol shoulder-holster lying on the bed. As he reached the door-sill, he heard the sound of a heavy, metallic object striking the floor inside. Looking toward the sound, he saw a revolver on the bedroom floor. Burnette, clad only in undershorts, stood inside with his hands raised. The pistol lay within three feet of Burnette, and there were no other objects on the floor in that area which could have made such a sound in falling. A rifle could be seen standing in a closet. Testimony was also received from Thornberg, Burnette’s friend and companion who had been secured in the front room of the mobile home, that he had seen the two weapons for the first time at the mobile home and that he did not know who owned them. He refused to answer, on Fifth Amendment grounds, how they got there but admitted that he knew how they did and that Burnette did not bring them. He did testify, however, that Burnette had never had possession of either of them in his presence. He also testified that Burnette first came to the mobile home the afternoon or night of his arrest there and that the weapons were there before Burnette ever came there, the pistol being in a holster in the closet. There was also testimony from the officers that Burnette, on the scene of his arrest and while receiving a Miranda warning, observed one of them tinkering with the rifle and interrupted to exclaim, “Be careful, my rifle’s loaded,” and that at a later time he spontaneously claimed ownership of the pistol-holster.⁴

The jury could reasonably have believed that such evidence established, beyond a reasonable doubt, that appellee Burnette possessed the weapons on the night of the arrest and had not possessed them before arriving at the place of his arrest, the mobile home in the Western District of Louisiana. It is a legitimate inference that, to have done so, he must have received them there. See United States v. Haley, 500 F.2d 302 (8th Cir. 1974). Thus, the verdict rests on a solid basis of sufficient evidence and reasonable inference. 18 U.S.C.App. § 1202(a)(1) forbids convicted felons such as Burnette from taking custody or possession of such firearms as these. The verdict must be reinstated and judgment entered upon it, with an appropriate sentence imposed.

Reversed and remanded.

1 . Pursuant to Fed.R.Crim.P. 29(c).

2 . Defendant relies on certain expressions of the district court at the hearing on his Rule 29 motion to differentiate his case from Wilson’s. These to the effect that the United States had not produced “any evidence whatsoever” of where Burnette received the guns, are said to constitute a “fact finding that there was no evidence on the point so that a new trial, at which some evidence on the point could be introduced, would be requisite to a valid conviction. Leaving aside questions of the appropriateness of such a “finding” in a case like this, we do not so construe the court’s ruling. Other expressions, such as that the govern-merit’s case . falls short of that degree of proof that is required . . . convince us that no more than a favorable ruling in response to the fourth and fifth grounds of defendant’s motion asserting insufficiency of the evidence to support the verdict was intended by the court below.

3 . Receipt was an element of venue, provable for its determination by a preponderance of the evidence, as well as of the substantive offense and the court below ruled against the United States on both heads.

4 . The United States also sought to introduce a later statement by Burnette that he received the pistol from somedne in Lafayette. which, had it been admitted, would have been well-nigh conclusive of the issues before us. But this statement was excluded, and the government’s appeal must stand or fall without aid from it. No jury has ever considered it and, because Burnette cannot be retried in the circumstances presented, none ever will.