United States v. Ronald White, Jr.

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-2027
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Ronald F. White, Jr.
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Western District of Missouri - Kansas City
____________
Submitted: November 17, 2015
Filed: June 2, 2016
____________
Before COLLOTON, GRUENDER, and SHEPHERD, Circuit Judges.
____________
SHEPHERD, Circuit Judge.
A jury convicted Ronald F. White of one count of possession of an unregistered
firearm in violation of 26 U.S.C. §§ 5841, 5861(d), 5871, and one count of possession
of a stolen firearm in violation of 18 U.S.C. §§ 922(j), 924(a)(2). White argues that:
(1) the government did not present sufficient evidence that White knew the firearm
in his possession had been stolen; (2) the court improperly instructed the jury on
possession of an unregistered firearm by not requiring the jury to find that White
knew of the characteristics of the firearm or had observed the firearm; and (3) the
court abused its discretion when it admitted evidence that White was under
investigation for a series of violent criminal offenses. Finding that the government
did not provide sufficient evidence of possession of a stolen firearm, we reverse this
conviction. We affirm the conviction for possession of an unregistered firearm.1
I.
In October of 2013, White was a person of interest in Kansas City law
enforcement’s investigation of a series of felonies. As a part of the investigation, law
enforcement conducted surveillance of White’s parents’ house in Lee’s Summit,
Missouri, where White sometimes stayed when visiting. The police searched trash
left outside of the residence and found marijuana and rolling papers. Based on this
contraband, law enforcement obtained a search warrant for the residence and
conducted a search. In searching the top shelf of a closet in a guest bedroom, law
enforcement found a black duffel bag containing five guns, magazines for the
firearms, an Amtrak ticket in White’s name dated January or February of 2013, and
a credit card receipt. One gun was a Romarm Draco, a 7.62x39 handgun, and another
was a Street Sweeper, a 12 gauge shotgun. In other rooms, law enforcement found
mail bearing the names “Ronald F. White” and “Ronald F. White, Jr.,” and lyrics with
“Ron Ron” written at the top.
A Bureau of Alcohol, Tobacco, and Firearms (“ATF”) agent examined the guns
and determined that because each gun had been manufactured outside of the state of
Missouri, all had traveled in interstate commerce. No latent fingerprints were found
1
Generally, this court refuses to consider pro se briefs when the party is
represented by counsel. United States v. Hunter, 770 F.3d 740, 746 (8th Cir. 2014).
Thus, we deny White’s outstanding pro se motions.
-2-
on the guns. White’s DNA was discovered on the trigger of one of the five guns, but
not on the Romarm Draco or Street Sweeper. The Romarm Draco had been legally
owned by Richard Cushingberry and reported stolen in Kansas City, Missouri, on
July 3, 2011. At trial, Cushingberry testified that he fell asleep in his bedroom while
holding the gun, woke up to find the gun missing, looked out the window, and saw
a man called Rashaad walking away from him. Cushingberry further testified that
Rashaad had a friend named “Ron Ron.”
White was charged by indictment with one count of possession of an
unregistered firearm under 26 U.S.C. §§ 5841, 5861(d), 5871, for the Street Sweeper,
and one count of possession of a stolen firearm in violation of 18 U.S.C. §§ 922(j),
924(a)(2), for the Romarm Draco. The case proceeded to jury trial on July 21 and 22,
2014. White submitted a motion in limine seeking to prohibit evidence that White
was a person of interest in a series of homicides and a home invasion in the Kansas
City area, asserting that such evidence was irrelevant, unduly prejudicial, and
constituted improper evidence of other bad acts under Federal Rules of Evidence 401,
402, 403, and 404(b). The government argued that the evidence was admissible to
explain the context of the police investigation of White. The district court denied the
motion, determining that such evidence was “admissible to show context and the
circumstances of the crimes charged in this case.” White renewed the motion at trial
and the district court instructed the government that it should limit any reference to
the fact that White was under investigation for other felonies or other criminal
activity.
At trial, Loran Freeman, a Kansas City Police Department Detective who
secured the search warrant and conducted the search, testified. He explained that he
was assigned to the career criminal unit which investigated “violent crimes, whether
it be weapons-related offenses, violent assaults, serious crime in the way of robbery,
whether it be armed or not, and other violent offenses.” Freeman further testified that
he was told by an officer investigating “a series of violent criminal offenses” to start
-3-
surveillance of White. The court admitted the signed application for the search
warrant, which referred to homicides, but prohibited the government from displaying
it to the jury. A second detective testified that he investigated those offenders who
“are [of] career criminal status[,] repeat offenders, [or the] more violent type of
offenders.” (sic).
The court instructed the jury as to possession of an unregistered firearm as
follows:
INSTRUCTION NO. 16
The crime of possession of an unregistered firearm, a Street
Sweeper, Model Street Sweeper, 12 gauge shotgun, serial number SH
12277 as charged in Count One of the Superseding Indictment has five
elements, which are:
One, on or about October 31, 2013, the defendant knowingly
possessed a firearm, a Street Sweeper, Model Street Sweeper, 12 gauge
shotgun, serial number SH12277;
Two, the firearm was a shotgun having a barrel which has a bore
of more than one-half inch in diameter;
Three, the firearm is not generally recognized as suitable for
sporting purposes;
Four, the firearm was capable of operating as designed; and
Five, the firearm was not registered to the defendant in the
National Firearms Registration and Transfer Record.
For you to find the defendant guilty of possession of an
unregistered firearm, the Government must prove all of these elements
beyond a reasonable doubt; otherwise, you must find the defendant not
guilty.
-4-
White objected to Instruction No. 16, stating that it failed to require that the
jury find that White “knew of the characteristics of the firearm, that the defendant
knew the barrel had a bore of more than one-half inch, and the defendant knew that
the firearm was not generally recognized for sporting purposes,” which brought it
under the coverage of the National Firearms Act. Registration would be required if
the Street Sweeper was a weapon “which will, or which may be readily converted to,
expel a projectile by the action of an explosive or other propellant, the barrel . . . of
which ha[s] a bore of more than one-half inch in diameter, except a shotgun or
shotgun shell which the Secretary finds is generally recognized as particularly
suitable for sporting purposes.” 26 U.S.C. § 5845(f)(2). White offered an alternate
instruction, Instruction C, which modified the third element to state, “Three, the
defendant knew of the characteristics of the firearm, that is it had a barrel which has
a bore of more than one-half inch in diameter,” which the district court refused.
White asserted that the court erred when it overruled the objection and failed to give
his proposed instruction. White moved for a judgment of acquittal at the close of all
evidence, and the motion was denied. The jury convicted White of both counts in the
indictment, and the district court sentenced White to concurrent 57-month terms of
imprisonment. The district court denied White’s post-trial motion for a new trial.
II.
First, White contends that there was insufficient evidence for the jury to
convict him of being in possession of a stolen firearm in violation of
18 U.S.C. § 922(j). The elements of this crime are “(1) the defendant knowingly
possessed the firearm, (2) the firearm was stolen, (3) the defendant knew or had
reasonable cause to believe the firearm was stolen, and (4) the firearm was shipped
or transported in interstate commerce either before or after it was stolen.” United
States v. Provost, 237 F.3d 934, 938 (8th Cir. 2001) (citing 18 U.S.C. § 922(j)).
-5-
Specifically, White asserts that there was insufficient evidence to support element
three, “the defendant knew or had reasonable cause to believe the firearm was stolen.”
This court reviews the sufficiency of evidence de novo. United States v.
Johnson, 745 F.3d 866, 868-869 (8th Cir. 2014). We view the evidence in the light
most favorable to the verdict and give the government the benefit of all reasonable
inferences which could be drawn from the evidence. Provost, 237 F.3d at 937. This
means that if there is any construction of the evidence that could have permitted the
jury to find beyond a reasonable doubt that White knew or had reason to believe the
firearm was stolen, we must affirm. See id.; United States v. Beltz, 385 F.3d 1158,
1163 (8th Cir. 2004). “We do not weigh the evidence or assess the credibility of
witnesses;” all credibility issues are resolved in favor of the verdict. United States
v. Johnson, 688 F.3d 494, 502 (8th Cir. 2012).
At trial, no direct evidence was presented that White knew that the Romarm
Draco had been stolen. But circumstantial evidence alone can constitute sufficient
evidence. See United States v. Arteaga, 436 F.App’x. 343, 349 (5th Cir. 2011)
(unpublished per curiam) (finding sufficient evidence that the defendant knew the
firearm was stolen where he purchased it for 26% of the market price from an
unlicensed seller who neither claimed to have lawfully acquired the firearm, nor
produced documentation indicating he had lawfully acquired the firearm). The
government points to Cushingberry’s testimony and the hidden location of the
Romarm Draco as evidence that it was stolen. Indeed, this is the extent of the
evidence presented regarding White’s knowledge that the Romarm Draco had been
stolen.
White points to United States v. Howard and United States v. Ayala-Garcia to
show the limits of what inferences jurors can reasonably make to reach certainty
beyond a reasonable doubt. 214 F.3d 361 (2d. Cir. 2000); 574 F.3d 5 (1st Cir. 2009).
In Howard, the defendant was convicted for possession of a stolen firearm based on
-6-
evidence that the defendant, a convicted felon, could not have obtained the weapon
legally, and that the gun in question was found alongside another gun with an
obliterated serial number. 214 F.3d at 363. The jury convicted the defendant of
being in possession of a stolen firearm based on this evidence. Id. On appeal, the
government argued that when the defendant obtained the gun through the black
market, he shared in the knowledge that the gun was likely stolen. Id. at 364. The
Second Circuit rejected this contention, finding that neither the proximity to the gun
with the obliterated serial number nor Howard’s status as a convicted felon was
sufficient to allow a reasonable jury to conclude beyond a reasonable doubt that
Howard knew or had reason to know that the firearm was stolen. Id. In Ayala-
Garcia, the defendant was convicted of aiding and abetting possession of a stolen
firearm based on evidence that the defendant paid cash for a gun and bought it in a
public housing parking lot from a man who had an AK-47 and drugs within his car.
574 F.3d at 9. The First Circuit reversed, finding that this constituted insufficient
evidence to support the conviction. Id. at 15. It reasoned that the suspicious
circumstances would apply equally if the seller was unlawfully reselling a firearm that
an associate had legitimately acquired. Id.The evidence presented in this case does not rise to the level of the evidence
in Ayala-Garcia or Howard. No evidence was presented regarding how or under what
circumstances White obtained the gun. The evidence does not indicate whether the
circumstances were suspicious, nor does the proof indicate that White had reasonable
cause to believe the firearm was stolen. Even if the jury could infer from White’s
placement of the gun that he did not believe it was legally obtained, as explained in
Ayala-Garcia, no reasonable jury could find beyond a reasonable doubt that the
reason that White believed he needed to hide the gun was because it had been stolen.
Indeed, the government presented no evidence that three other firearms “hidden” with
the Romarm Draco were unlawful to possess. Adequate proof of scienter is simply
not here. We therefore find there was insufficient evidence to support White’s
conviction for possession of a stolen firearm.
-7-
III.
Next, White argues that the district court abused its discretion when it rejected
White’s proposed jury instruction,2 which required the jury to find that White “knew
of the characteristics of the firearm, that is it had a barrel which has a bore of more
than one-half inch in diameter.” Alternatively, if the Street Sweeper is quasi-suspect,
White argues that the court erred in failing to provide a jury instruction that required
the jury to find that White had observed the Street Sweeper, although White proposed
2
INSTRUCTION NO. C
The crime of possession of an unregistered firearm as charged in Count One
of the Indictment has five elements, which are:
One, on or about October 31, 2013, the defendant knowingly possessed a
firearm, a Street Sweeper, Model Street Sweeper, 12 gauge shotgun, serial number
SH12277;
Two, the firearm was a shotgun having a barrel which has a bore of more than
one-half inch in diameter;
Three, the defendant knew of the characteristics of the firearm, that is it had a
barrel which has a bore of more than one-half inch in diameter;
Four, the firearm was in operating condition; and
Five, the firearm was not registered to the defendant in the National Firearms
Registration and Transfer Record.
For you to find the defendant guilty of possession of an unregistered firearm,
the Government must prove all of these elements beyond a reasonable doubt;
otherwise, you must find the defendant not guilty.
-8-
no such instruction. The government argues that: (1) the Street Sweeper is quasi-
suspect, so knowledge of the characteristics bringing it under the National Firearm
Act is not required; (2) White did not object to the instructions on the basis that they
failed to require a finding that White observed the characteristics of the gun; and (3)
the absence of an instruction containing such an element does not constitute error.
The court reviews jury instructions for abuse of discretion and reverses where
errors “misled the jury or had a probable effect on the jury’s verdict.” United States
v. Thompson, 686 F.3d 575, 579 (8th Cir. 2012). Instructions are adequate if, taken
as a whole, they inform the jury of the essential elements of the offense charged and
of the government’s burden of proof. United States v. Fast Horse, 747 F.3d 1040,
1042 (8th Cir. 2014). Error may be disregarded if it appears “beyond a reasonable
doubt that a rational jury would have found the defendant guilty absent the error.”
United States v. Fiorito, 640 F.3d 338, 349 (8th Cir. 2011). But where the party fails
to object to jury instructions, the court will review only for plain error. Fast Horse,
747 F.3d at 1041; United States v. Poitra, 648 F.3d 884, 887 (8th Cir. 2011).
White argues that Staples v. United States requires the court to instruct the jury
that knowledge of the characteristics bringing a weapon under the coverage of the
National Firearms Act is a necessary element of the offense of possession of an
unregistered firearm in violation of 26 U.S.C. § 5861(d). 511 U.S. 600 (1994).
However, Staples also instructs that “certain categories of guns—no doubt including
the machineguns, sawed-off shotguns, and artillery pieces that Congress has subjected
to regulation—as items the ownership of which would have . . . quasi-suspect
character.” Id. at 611-12 (citing United States v. Freed, 401 U.S. 601, 609 (1971)
(recognizing regulations may be premised on the theory that “one would hardly be
surprised to learn that possession of hand grenades is not an innocent act,” in part
because hand grenades “are highly dangerous offensive weapons”)). The court’s
reasoning “depend[ed] upon a commonsense evaluation of the nature of the particular
-9-
device or substance Congress has subjected to regulation and the expectations that
individuals may legitimately have in dealing with the regulated items.” Id. at 620.
In United States v. Barr, this court further explained that where the weapon is
“clearly not a traditionally lawful weapon and [the party has] no legitimate
expectation that the weapon was not subject to regulation,” it is quasi-suspect. 32
F.3d 1320, 1324 (8th Cir. 1994). Where the firearm is quasi-suspect, the “‘common-
sense’ evaluation [required in Staples] indicates that a specific jury finding of
knowledge of the weapon’s incriminating characteristics is unnecessary.” Id. “The
Government need only prove that the defendant possessed the ‘quasi-suspect’ weapon
and observed its characteristics.” Id. Thus, if the Street Sweeper is clearly not a
traditionally lawful weapon such that White could not have legitimately expected it
to be free from regulation, the court did not err in overruling White’s objection to the
jury instructions’ failure to require a finding that White knew of the characteristics
of the Street Sweeper which bring it under the coverage of the National Firearms Act.
Whether the semi-automatic Street Sweeper 12 gauge shotgun qualifies as a quasi-
suspect weapon is an issue of first impression.3
Other circuits have disagreed with Barr, explaining that even when a weapon
is quasi-suspect, the government must prove a defendant’s knowledge of the
characteristics that bring the weapon within the purview of the statute. United States
v. Gergen, 172 F.3d 719, 724 (9th Cir. 1999); United States v. Reyna, 130 F.3d 104,
108 (5th Cir. 1997); United States v. Edwards, 90 F.3d 199, 204 (7th Cir. 1996). See
3
In United States v. Backer, this court found that the jury could reasonably have
inferred that the possessor of a Street Sweeper shotgun, which had been modified in
obvious internal and external ways which enabled it to act as a fully automatic
machine gun, knew of the Street Sweeper’s fully automatic characteristics. 362 F.3d
504, 507 (8th Cir. 2004). Unlike the gun in Backer, in this case, the Street Sweeper
was unmodified.
-10-
also Rogers v. United States, 522 U.S. 252, 254 (1998) (plurality opinion) (“[T]he
mens rea element of a violation of § 5861(d) requires the Government to prove that
the defendant knew that the item he possessed had the characteristics that brought it
within the statutory definition of a firearm.”). The government conceded such a
knowledge requirement in United States v. Dewalt, 92 F.3d 1209, 1212 (D.C. Cir.
1996). This panel, too, has reservations about the reasoning of Barr, but of course we
must apply it as circuit precedent.
Using the common-sense evaluation required by Barr, we find that the Street
Sweeper 12 gauge shotgun is quasi-suspect. “A ‘Street Sweeper’ is a short-barreled
twelve-gauge shotgun with a twelve-round drum feed, which originated in South
Africa. In 1994, the weapon was classified as a destructive device because the
weapon failed to meet sporting-weapon criteria.” Backer, 362 F.3d at 506 n.1. It has
been described as a “rapid-fire, high-powered shotgun” and “has the appearance of
a large machine gun.” United States v. Brown, No. CR-07-111-PCT-DGC, 2008 WL
2225762, at *2 (D. Ariz. May 28, 2008); United States v. Taylor, No. 13-CR-0003-
001-CVE, 2013 WL 2149644, at *4 (N.D. Okla. May 16, 2013) (describing the Street
Sweeper as a “12-gauge shotgun with a folding stock, double hand grips, and a 12-
shell drum magazine that rotates rapidly enough for 12 shots to be fired in less than
3 seconds”).4 At trial, Ronald Davis, an expert for the government explained that the
Street Sweeper was developed in South Africa for the purpose of “crowd control.”
The Street Sweeper is capable of firing a large number of rounds in rapid succession
4
The record shows that when the ATF discovered in 1984 that the Street
Sweeper was being imported, the weapon was banned from importation for lack of
a generally recognized sporting purpose. R. Doc. 89, at 101. When several years
later the weapon was manufactured domestically, id., the ATF issued a ruling that the
Street Sweeper did not qualify for the domestic sporting purpose exception. See 1994
WL 575785 (ATF Rul. 94-2). The agency concluded that the weight, size, bulk,
designed magazine capacity, and configuration of the Street Sweeper showed that the
firearm was not particularly suitable for sporting purposes. Id.-11-
and its appearance reveals this capability to any party who possesses and observes it.
We conclude that the Street Sweeper does not have the appearance of a traditionally
lawful weapon, and White had no legitimate expectation that it was not subject to
regulation. Thus, the Street Sweeper is quasi-suspect, so, according to Barr, the jury
need not have found that White knew of the characteristics that bring it under the
registration requirements of the National Firearms Act. The court did not abuse its
discretion in refusing Instruction C as proposed by White.
However, when the characteristics of a weapon render it quasi-suspect, the
government still must prove that defendant possessed the weapon and observed its
characteristics. Barr, 32 F.3d at 1324. After the district court rejected White’s
proposed Instruction C, counsel neither objected to the jury instruction given on the
basis that it did not require a finding that White observed the Street Sweeper nor
proposed alternative instructions requiring a finding of observation. Thus, the court
will only reverse for plain error. Fed. R. Crim. Pro. 30(d), 52(b); Fast Horse, 747
F.3d at 1042. This means that unless White shows that there was “(1) an error, (2)
that was plain, (3) affects substantial rights, and (4) the error seriously affects the
fairness, integrity or public reputation of judicial proceedings,” the court will not
reverse. See United States v. Rush-Richardson, 574 F.3d 906, 910 (citing United
States v. Olano, 507 U.S. 725, 735-36 (1993)) (internal quotations omitted). “The
district court has wide discretion in formulating appropriate jury instructions[,] . . .
[a]ccordingly, we will affirm the use of particular jury instructions if they fairly and
adequately submitted the issues to the jury.” Poitra, 648 F.3d at 887 (internal
quotations omitted). “A jury instruction is plainly erroneous if it misstates the law.”
Fast Horse, 747 F.3d at 1042.
Instruction No. 16—which required a finding that White “knowingly possessed
a firearm, a Street Sweeper, Model Street Sweeper, 12 gauge shotgun”—was
ambiguous about the knowledge required for a conviction. A plurality of the
-12-
Supreme Court in Rogers v. United States, 522 U.S. at 258 & n.7, and at least one
other circuit, United States v. Thompson, 82 F.3d 849, 854 (9th Cir. 1996), have
concluded that comparable instructions are sufficient to require a finding that the
defendant knew the characteristics of the weapon that brought it within the statutory
definition of “firearm.” On that view, Instruction No. 16 by itself satisfied the
knowledge requirement of Staples, and there was no need for an additional instruction
about whether White observed the characteristics of the firearm. Because the
adequacy of Instruction No. 16 was at least “subject to reasonable dispute,” Puckett
v. United States, 556 U.S. 129, 135 (2009), there was no obvious error in the
instruction.
IV.
Finally, White argues that the district court erred in permitting the government
to present evidence that law enforcement officers were investigating White with
respect to a series of violent criminal offenses. White submitted a motion in limine
seeking exclusion of evidence that White was a person of interest in a series of
homicides and a home invasion. The court denied the motion, subject to
reconsideration at trial, at which time White renewed the motion. Because White did
not object to the submission of the evidence in question at trial during the witnesses’
testimony, we review for plain error. See Poitra, 648 F.3d at 887.
We find that error did not occur. Evidence of a defendant’s other criminal
activity may be permitted for the purpose of providing context. United States v.
Moore, 735 F.2d 289, 292 (8th Cir. 1984). “A jury is entitled to know the
circumstances and background of a criminal charge.” Id. The jury cannot be
expected to make its decision without information regarding the time, place, and
circumstances of the acts forming the basis of the charge. Id. At trial, the
investigating detectives testified that they were members of the “career criminal” unit
-13-
and that they investigated “violent” and “repeat offenders.” One testified that an
officer who had been investigating “a series of violent crimes” had instructed him to
surveil White. This evidence provided the context for the investigators’ “trash pull,”
which permitted law enforcement to obtain the search warrant for the Kansas City
home. Although some of the evidence in question is arguably prejudicial, even if the
court had erred in admitting the evidence in question, such error would not rise to the
level of being “clear or obvious.” See Poitra, 648 F.3d at 887.
V.
For the foregoing reasons, we affirm White’s conviction for possession of an
unregistered firearm, but reverse White’s conviction and sentence for possession of
a stolen firearm, based on insufficiency of the evidence. We remand to the district
court for further proceedings consistent with this opinion.
______________________________
-14-