U.S. v. Moye

• Decision Date: 09 September 2005
• Docket Number: No. 04-4549.,04-4549.
• Citation: 422 F.3d 207
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William MOYE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

422 F.3d 207

UNITED STATES of America, Plaintiff-Appellee, v. William MOYE, Defendant-Appellant.

No. 04-4549.

United States Court of Appeals, Fourth Circuit.

Argued May 27, 2005.

Decided September 9, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

ARGUED: William Scott Little, Stark & Little, Baltimore, Maryland, for Appellant. George Levi Russell, III, Assistant United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: Thomas M. DiBiagio, United States Attorney, Baltimore, Maryland, for Appellee.

Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Reversed by published opinion. Judge GREGORY wrote the majority opinion, in which Judge DUNCAN concurred. Senior Judge HAMILTON wrote a separate dissenting opinion.

OPINION

GREGORY, Circuit Judge.

William Moye ("Moye") appeals his convictions for possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1), and aiding and abetting, in violation of 18 U.S.C. § 2 (Count I); and possession of stolen firearms, in violation of 18 U.S.C. § 922(j), and aiding and abetting, in violation of 18 U.S.C. § 2 (Count II). Specifically, Moye asserts that the district court erred in giving the jury an aiding and abetting instruction, in allowing the Government to argue that flight was evidence of guilt, and in denying his Rule 29 motion challenging the sufficiency of the evidence. Finding error on each of these grounds, we reverse.

I.

On August 14, 2003 at 5:30 a.m., an Anne Arundel County Police Officer responded to a burglar alarm at Bart's Sporting Goods Store ("Bart's") in Anne Arundel County, Maryland. When the officer arrived, he saw a man at the side door of the building trying to get into a vehicle. This person was later identified as Jackie Briggs ("Briggs"). The officer also saw a person in the vehicle, who was later identified as Courtney Cooper ("Cooper").

Cooper drove off after he saw the officer, leaving Briggs behind. The officer engaged Cooper in a high speed chase and apprehended him. Thirteen firearms were found inside the vehicle. Briggs was later apprehended with two firearms in his pocket. Moye was seen by another officer crawling out of the doorway at Bart's after Cooper took off. Moye ran but was caught a short time later. No weapons were found in Moye's possession and Moye's fingerprints were not on the weapons recovered from Briggs and Cooper.

At trial, a Government witness, who was qualified as an expert in interstate nexus, testified that 14 of the 15 weapons recovered in the burglary affected interstate commerce.¹ The manager of Bart's testified that all of the weapons recovered were owned by Bart's and functioned properly. An Alcohol, Tobacco and Firearms Special Agent testified that he tested five of the guns and that they each functioned properly.² The Government also introduced a Certified Record of Conviction Under Seal showing that Moye had previously been convicted of a felony handgun violation as well as a certificate of the non-restoration of Moye's civil rights. The defense objected to the introduction of the records without a person being present to testify, but the district court overruled its objection.

During the charge conference, the Government asked for a "flight as evidence of guilt" instruction but after objection by the defense, the district court declined to give it, stating that there was only evidence that Moye fled because of the burglary, not that he fled because of the federal crimes at issue. However, the district court did allow the Government to argue "flight as evidence of guilt" in its closing argument. In addition, the district court, also over the defense's objection, granted the Government's request for an aiding and abetting instruction.

The defense moved for a directed verdict under Fed.R.Crim.P. 29 after the Government's case. The district court reserved ruling on it until after the jury's verdict. After the jury returned a guilty verdict on both counts, the defense renewed its motion and after the submission of additional memoranda on several issues by both sides, the district court sustained Moye's convictions. This timely appeal followed.

II.

Moye challenges his convictions on three grounds. He asserts that the district court erred in giving the jury an aiding and abetting instruction, in allowing the prosecution to argue that flight was evidence of guilt, and in denying his Rule 29 motion based on the sufficiency of the evidence. Because Moye's first two claims overlap with his latter sufficiency claim, we address them as part of his sufficiency claim.

A.

In this case, the indictment charged Moye with being a felon in possession, Count I, and possessing stolen firearms, Count II, as well as aiding and abetting in relation to each count. We begin with a determination of whether sufficient evidence existed to convict Moye of himself being a felon in possession, or himself possessing stolen firearms. In reviewing the sufficiency of the evidence, this Court must determine whether, construing the evidence in the light most favorable to the government, any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir.1982). The Court must "allow the government the benefit of all reasonable inferences from the facts proven to those sought to be established" in making this determination. Id.

Count I charged Moye with a violation of 18 U.S.C. § 922(g)(1), which makes it unlawful for any person "who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year" to possess a firearm, which has been shipped or transported in interstate commerce. 18 U.S.C. § 922(g)(1) (2000). Moye does not challenge his status as a convicted felon.³ Rather, the question is whether sufficient evidence existed for the jury to find beyond a reasonable doubt that Moye possessed one of the weapons charged in the indictment. Possession may be actual or constructive, United States v. Rusher, 966 F.2d 868, 878 (4th Cir.1992), but because the Government did not allege that Moye ever actually possessed a weapon, we consider constructive possession only. Constructive possession is established if it is shown "that the defendant exercised, or had the power to exercise, dominion and control over the item." Id. The possession can be shared with others. United States v. Burgos, 94 F.3d 849, 873 (4th Cir.1996). However, mere presence at the location where contraband is found is insufficient to establish possession. United States v. Samad, 754 F.2d 1091, 1096 (4th Cir.1984). "There must be some action, some word, or some conduct that links the individual to the [contraband items] and indicates that he had some stake in them, some power over them. There must be something to prove that the individual was not merely an incidental bystander." United States v. Pardo, 636 F.2d 535, 549 (D.C.Cir.1980).

The evidence here, taken in the light most favorable to the Government, is insufficient to establish that Moye constructively possessed any of the weapons. The only evidence the Government presented to support constructive possession was that Moye was present in the same location from which the guns were stolen. However, as noted, mere presence is insufficient to establish possession. No fingerprints or other physical evidence link Moye to the guns. The Government did not present testimony that Moye had been seen with any of the guns. Because no evidence exists that Moye was ever in a position to exercise dominion and control over the weapons, we conclude that insufficient evidence existed for the jury to find beyond a reasonable doubt that Moye was a felon in possession.

Under Count II, to be convicted of possessing stolen firearms per 18 U.S.C. § 922(j), the Government must prove: (1) that the defendant possessed the firearm described in the indictment; (2) that at the time the defendant possessed it, the firearm was stolen; (3) that the defendant acted knowingly; and (4) that the firearm had at some time traveled in interstate commerce. 18 U.S.C. § 922(j) (2000). Given our finding on Count I, Moye could not be convicted of himself possessing stolen firearms because no evidence existed from which the jury could infer that Moye was in constructive possession of stolen firearms.

B.

Thus, we must consider whether the jury could have instead convicted Moye of aiding and abetting a felon in possession under Count I or aiding and abetting the possession of stolen firearms under Count II. Title 18 U.S.C. § 2(b) provides that "[w]hoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal." 18 U.S.C. § 2(b) (2000). A defendant is guilty of aiding and abetting if he has "knowingly associated himself with and participated in the criminal venture." United States v. Burgos, 94 F.3d 849, 873 (4th Cir.1996) (quoting United States v. Winstead, 708 F.2d 925, 927 (4th Cir.1983)). To prove association, the Government must establish that the defendant participated in the principal's criminal intent, which requires that a defendant be cognizant of the principal's criminal intent and the lawlessness of his activity. Id. "Participation at every stage of an illegal venture is not required, only participation at some stage accompanied by knowledge of the result and intent to bring about that result." Id. (quoting United States v. Arrington, 719 F.2d 701, 705 (4th Cir.1983)). It is implicit in a charge of aiding and abetting that the underlying crime was committed by someone other than the defendant. United States v. Samaria, 239 F.3d 228, 234-35 (2d Cir.2001). The district court instructed the jury on aiding and abetting after explaining the elements of Counts I and II.⁴ Specifically, the court stated:

. . . you may find Mr. Moye guilty of the...