U.S. v. McKie

• Decision Date: 08 May 1997
• Docket Number: No. 96-7011,96-7014,J,Nos. 96-7010,No. 96-7010,96-7011,G,No. 96-7014,96-7010,s. 96-7010
• Citation: 112 F.3d 626
• Parties: UNITED STATES of America; Government of the Virgin Islands v. Michael McKIE, Appellant atermaine Hall, Appellant atuy M. Henry, Appellant at
• Court: U.S. Court of Appeals — Third Circuit

Page 626

112 F.3d 626

UNITED STATES of America; Government of the Virgin Islands v. Michael McKIE, Appellant at No. 96-7010 Jermaine Hall, Appellant at No. 96-7011 Guy M. Henry, Appellant at No. 96-7014.

Nos. 96-7010, 96-7011, 96-7014.

United States Court of Appeals Third Circuit.

Argued Dec. 9, 1996.

Filed May 8, 1997.

Michael A. Joseph (argued), Christiansted, St. Croix, VI, for Appellant Michael McKie.

Martial A. Webster, Kingshill, St. Croix, VI, for Appellant Jermaine Hall.

Jeffrey B.C. Moorhead (argued), Christiansted, St. Croix, VI, for Appellant Guy Henry.

Denise Hinds-Roch (argued), James R. Fitzner, Office of United States Attorney, Christiansted, St. Croix VI, for Appellees.

Before: SCIRICA, NYGAARD and McKEE, Circuit Judges.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

In this joint appeal, defendants Michael McKie, Guy Henry and Jermaine Hall challenge their convictions on weapons offenses. We will reverse defendants' convictions for unlawful firearm possession under Virgin Islands law, but we will affirm all other issues raised in this appeal.

I.

On April 14, 1995, at 12:30 a.m. in St. Croix, defendants' car was stopped for a traffic violation. Four police officers ordered the driver, McKie, out of the car. The passengers, Hall, Henry and a juvenile, were also ordered to leave the car after an officer observed them conversing and looking around inside the car. At that point, an officer spotted a .38 caliber revolver on the back seat of the car. Further inspection revealed two more firearms--a Tec-9 machine gun ¹ on the front passenger side floorboard, and a .45 caliber pistol on the rear driver's side floorboard. ²

At trial, Hall testified that he and the other defendants flew to St. Croix from St. Thomas on a chartered airplane. They arrived at 11 a.m. to attend a reggae concert later that evening. Although unemployed, Hall brought with him $700 in cash that he had accumulated by gambling and cockfighting. Upon arrival, they were met by a friend whose car they borrowed.

Hall testified that after arriving in St. Croix, he received a death threat from someone who previously had shot him. He did not report this to the police but instead decided to obtain a firearm. By chance, he ran into an acquaintance who sold him three firearms for $500. Hall testified he concealed the three weapons in the car without telling McKie and Henry about his purchase.

According to Hall, defendants left in the car to attend the concert around 10:30 p.m. McKie was driving. Hall initially sat in the front passenger seat and Henry in the back, but they switched positions when Henry complained about being cramped in the back of the subcompact car (an Isuzu I-Mark). As noted, defendants were stopped by the police around 12:30 a.m.

All three defendants were convicted under Count I of the indictment for possession of a firearm with an obliterated serial number in violation of federal law (18 U.S.C. §§ 922(k) and 2) and under Counts II and III for possession of firearms in violation of Virgin Islands law (V.I.Code Ann. tit. 14, §§ 2253(a), (b) and 11). McKie was also convicted under Count IV for possession of a firearm by a felon in violation of federal law (18 U.S.C. § 922(g)(1)). McKie was sentenced to 60 months imprisonment on Count I, 5 years each on Counts II and III, and 72 months on Count IV, all to run concurrently. Hall was sentenced to 36 months on Count I and 30 months each for Counts II and III, with the territorial sentences to run concurrently but consecutive to the federal sentence. Henry was sentenced to 37 months on Count I and 3 years each on Counts II and III, all to run concurrently.

As we have noted, all defendants appeal their firearm convictions under Virgin Islands law. Hall also appeals the district court's denial of his motion to compel performance of a plea agreement. Defendants do not appeal their federal firearm convictions.

II.

Before trial, the government offered a plea agreement to Hall. In exchange for his guilty plea, truthful testimony at trial and "complete debriefing" regarding the guns, the government would recommend a reduction in his offense level. But during debriefing, the government questioned Hall's credibility and withdrew the plea offer. Hall now claims the district court erred in denying his motion to compel performance of the plea agreement. We review for abuse of discretion. See United States v. Trott, 779 F.2d 912, 915-16 (3d Cir.1985); Government of Virgin Islands v. Berry, 631 F.2d 214, 219-20 (3d Cir.1980).

Hall contends the government breached the plea agreement by withdrawing the plea offer. But the plea agreement recites, "The defendant [Hall] recognizes that, in the event it is determined he has made any materially false statements pursuant to this agreement, the agreement will be voided." Hall also argues he did not get the benefit of his bargain with the government. But neither did the government. Hall neither pled guilty nor testified for the government at trial. In the plea agreement, the government retained discretion to withdraw its offer. The district court did not abuse its discretion. ³

III.

Defendants challenge their convictions for possession of firearms in violation of V.I.Code Ann. tit. 14, §§ 2253(a) and (b). ⁴ The statute provides in part: (a) Whoever, unless otherwise authorized by law, has, possesses, bears, transports or carries either openly or concealed on or about his person, or under his control in any vehicle of any description any firearm ... may be arrested without a warrant, and shall be sentenced to imprisonment....

(b) Whoever, unless otherwise authorized by law, has, possesses, bears, transports or carries either openly or concealed on or about his person, or under his control in any vehicle of any description any machine gun ... may be arrested without a warrant, and shall be sentenced to imprisonment....

V.I.Code Ann. tit. 14, § 2253 (emphasis added). McKie contends the weapons were not under his control. In addition, all three defendants contend the government failed to meet its burden to prove their possession was not "authorized by law."

A.

"A weapon is under one's control, within the meaning of § 2253, if it is in an area from which [one] might gain immediate possession." United States v. Xavier, 2 F.3d 1281, 1289 (3d Cir.1993). We believe there was sufficient evidence to sustain a verdict that the weapons in the vehicle were under McKie's control. Each of the three firearms was in plain view inside the car. The car was described as a subcompact, and Hall testified that two of the occupants changed places because of cramped seating. At trial, one of the officers testified that all the weapons were "in the open." Photographs of the guns' locations were displayed to the jury. Based on this evidence we believe the jury could have reasonably inferred that McKie knew of and had immediate access to the guns. See New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768 (1981) ("[A]rticles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within 'the area into which an arrestee might reach in order to grab a weapon....' ") (quoting Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969)). The weapons were therefore under McKie's control within the meaning of § 2253.

B.

It is the government's burden under V.I.Code Ann. tit. 14, § 2253 to prove defendants were unauthorized to carry or possess the guns. See Xavier, 2 F.3d at 1289. The district court held the government would satisfy this burden by proving, among other things, that defendants did not have a firearms license. But defendants contend that, under V.I.Code Ann. tit. 23, § 470 (1968) (amended Sept.1996), unlicensed firearm possession is not unauthorized by law until it lasts beyond a twenty-four hour period. Defendants maintain the government bears the burden to prove possession beyond twenty-four hours. The government disagrees, contending § 470 provides defendants an affirmative defense to a charged violation of V.I.Code Ann. tit. 14, § 2253, and falls within defendants' burden of production. See Patterson v. New York, 432 U.S. 197, 210, 97 S.Ct. 2319, 2327, 53 L.Ed.2d 281 (1977) (holding the government need not prove beyond a reasonable doubt the nonexistence of all affirmative defenses); Government of Virgin Islands v. Smith, 949 F.2d 677, 686 (3d Cir.1991) (defendant bears burden of production on affirmative defenses).

1.

At the time of the arrest, V.I.Code Ann. tit. 23, § 470 (1968), allowed gun owners twenty-four hours to register their firearms:

(a) Any person ... who purchases or otherwise obtains any firearms or ammunition from any source within or outside of the Virgin Islands shall report such fact in writing or in person to the Commissioner within 24 hours after receipt of the firearm or ammunition....

(c) ... If the person is not qualified for a license then the Commissioner shall retain the firearms or ammunition ..., but no prosecution shall lie against the person for unlawful possession of the firearm or ammunition. ^{5 5}

The twenty-four hour grace period was removed from § 470 in September 1996. Under the current statute, a person must obtain a license "immediately" upon possession of a firearm. V.I.Code Ann. tit. 23, § 470 (Sept.1996).

Defendants argue it was the government's burden to prove their firearm possession lasted beyond twenty-four hours. It is always the government's burden to prove "beyond a reasonable doubt ... every fact necessary to constitute the crime with which [a defendant] is charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970). The issue, then, is whether possession for more than twenty-four hours is a fact necessary to constitute the crime of unlawful possession in violation of § 2253. Our review of statutory construction is plenary. See Christopher v....