19 F.3d 1452 (D.C. Cir. 1994), 91-3246, United States v. Foster

Docket Nº:91-3246.
Citation:19 F.3d 1452
Party Name:UNITED STATES of America, v. John FOSTER, Jr., Appellant.
Case Date:April 05, 1994
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 1452

19 F.3d 1452 (D.C. Cir. 1994)

UNITED STATES of America,

v.

John FOSTER, Jr., Appellant.

No. 91-3246.

United States Court of Appeals, District of Columbia Circuit

April 5, 1994

Argued Nov. 8, 1993.

James T. Maloney, Washington, DC (appointed by the Court), argued the cause and filed the brief, for appellant.

Lori A. Green, Asst. U.S. Atty., Washington, DC, argued the cause, for appellee. With her on the brief were J. Ramsey Johnson, U.S. Atty. at the time the brief was filed, and John R. Fisher and Elizabeth Trosman, Asst. U.S. Attys., Washington, DC.

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Before WALD, GINSBURG, and SENTELLE, Circuit Judges.

Opinion for Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge:

John Foster was convicted in District Court of maintaining a premises in aid of trafficking a controlled substance in violation of 21 U.S.C. Sec. 856(a) (1988) and possession of an unregistered sawed-off rifle in violation of 26 U.S.C. Sec. 5861(i) (1988). The District Court sentenced him to forty-one months employing the sentencing guidelines grouping provisions to arrive at that total. On appeal he does not challenge the trafficking conviction, but contends that his sentence was improperly computed and that there was not sufficient evidence to support the Sec. 5861 conviction, as a reasonable jury could not have concluded that he knew the sawed-off rifle was operable. Finding no error in either the conviction or the sentencing, we affirm.

I

According to the evidence entered at trial, Metropolitan Police officers executed a search of appellant John Foster's home on February 7, 1991. In addition to currency, drug packaging materials, and crack cocaine, police retrieved from the premises a .38 caliber handgun and a sawed-off .22 caliber rifle without a serial number. The trial court denied Foster's motion for a judgment of acquittal at the close of the government's case, and the jury convicted Foster of maintaining a premises in aid of trafficking a controlled substance in violation of 21 U.S.C. Sec. 856(a) (1988) and of possession of an unregistered firearm in violation of 26 U.S.C. Sec. 5861(i) (1988).

Section 5861(i) provides that it is unlawful for any person "to receive or possess a firearm which is not identified by a serial number as required by this chapter." A firearm is defined in 26 U.S.C. Sec. 5845(a) (1988) as:

(1) a shotgun having a barrel or barrels of less than 18 inches in length; (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length; (3) a rifle having a barrel or barrels of less than 16 inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length; ....

According to the evidence against Foster, he possessed a .22 caliber rifle with a barrel length of less than 16 inches, specifically 13 inches. The rifle was cut off at both ends. While the rifle had been originally manufactured for semi-automatic fire, the alteration of its length rendered it unfit for semi-automatic use. However, ATF agents and Metropolitan Police testified that the rifle still functioned as a single-shot weapon, and that the rifle had been successfully test-fired the day after Mr. Foster's home was searched.

Foster argues that the only reasonable inference a jury could draw from the evidence of the rifle's modification is that he believed the rifle had been disabled to make it unfit for use as a weapon. In advancing this argument, he relies exclusively on United States v. Harris, 959 F.2d 246, 259 (D.C.Cir.1992). In Harris, two defendants were convicted for possession of a machine gun in violation of Sec. 5861(d), although the government failed to introduce evidence establishing that the defendants knew the firearm in question was a machine gun. See Harris, 959 F.2d at 261. We reversed, "reject[ing] the notion ... that appellants' mental state (mens rea ) was irrelevant" to determining culpability under Sec. 5861, and held that the government is required to demonstrate that defendant knew the weapon he possessed was a firearm within the meaning of the statute. Id. We left for another day the question of "what evidence would be sufficient to establish that a defendant did have knowledge that he possessed a 'firearm' " within the meaning of the statute. Id.

We note that the Harris defendants were accused of possessing a "firearm" in the nature of a machine gun, that is a fully automatic weapon. As we noted in Harris, Sec. 5861 renders unlawful the possession without proper registration (or serial numbers) "of only certain kinds of firearms that [Congress]

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thought were highly dangerous," not just guns of any sort. Id. at 260. The feature of the weapon in Harris that brought it within the Act was its fully automatic nature--a feature not necessarily apparent to an uninitiated possessor. The feature of Foster's rifle which brought it within the proscription of the Act was its length--a fact readily observed or ascertained. The mens rea required under Harris related to the knowledge of the feature of the weapon that made it an unlawful firearm, as opposed to one outside the definition set forth in Sec. 5845(a). Harris did not establish, indeed did not discuss, the creation or allocation of any burden of proof as to a defendant's subjective knowledge of the operability of the firearm. Indeed, under the expanded definition of "firearm," "machine gun," "rifle," "shotgun," and "any other weapon," the proscription of the statute includes weapons "which may be readily restored" to fire in accordance with their original method of operation. See 26 U.S.C. Sec. 5845(b)-(e) (1988).

In Harris, we suggested that the visibility of certain characteristics may be sufficient to establish knowledge of the proscribed nature of a firearm. See Harris, 959 F.2d at 261 (citing United States v. Herbert, 698 F.2d 981, 986 (9th Cir.), cert. denied, 464 U.S. 821, 104 S.Ct. 87, 78 L.Ed.2d 95 (1983))....

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