454 F.3d 390 (4th Cir. 2006), 04-4549, United States v. Moye

Docket Nº:04-4549.
Citation:454 F.3d 390
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. William MOYE, Defendant-Appellant.
Case Date:July 24, 2006
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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454 F.3d 390 (4th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellee,


William MOYE, Defendant-Appellant.

No. 04-4549.

United States Court of Appeals, Fourth Circuit.

July 24, 2006

Argued: March 16, 2006.

Appeal from the United States District Court for the District of Maryland, at Baltimore, Marvin J. Garbis, Senior District Judge, CR-03-528.

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[Copyrighted Material Omitted]

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William Scott Little, STARK & LITTLE, Baltimore, Maryland, for Appellant.

Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,

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Baltimore, Maryland, for Appellee.


Thomas M. DiBiagio, United States Attorney, George L. Russell, III, Assistant United States Attorney, Baltimore, Maryland, for Appellee.


Affirmed by published opinion. Senior Judge HAMILTON wrote the opinion for the court, in which Chief Judge WILKINS and Judges WIDENER, WILKINSON, NIEMEYER, WILLIAMS, TRAXLER, KING, SHEDD, and DUNCAN joined, and in which Judges MICHAEL and MOTZ joined as to Parts I and IIA and B. Judge MOTZ wrote an opinion concurring in part and concurring in the judgment, in which Judge MICHAEL joined. Judge GREGORY wrote an opinion dissenting in part.


HAMILTON, Senior Circuit Judge:

William Moye appeals his convictions for being a felon in possession of firearms, 18 U.S.C. § 922(g)(1), and possession of stolen firearms, id. § 922(j). For the reasons stated below, we affirm.



At 5:30 a.m. on August 14, 2003, Anne Arundel County police officer Kurt Listman responded to a burglar alarm at Bart's Sporting Goods store at 6814 Richie Highway in Anne Arundel County, Maryland. When Officer Listman arrived, he saw a car parked next to a door on the side of the store. Officer Listman saw a person, who was later identified as Courtney Cooper, behind the wheel of the car, and another person, who was later identified as Jackie Briggs, trying to get into the car.

As Briggs tried to get into the car, Cooper sped off, leaving Briggs behind. Cooper eventually was apprehended after a high-speed chase. Briggs, who fled on foot, was also apprehended. The car was found to contain thirteen firearms taken from the store. Two more firearms taken from the store were recovered on Briggs' person. The fingerprints of Cooper, Briggs, and Moye were not found on any of the firearms.

As Officer Listman was "taking off" to chase Cooper, another Anne Arundel County police officer, Matthew Walters, spotted Moye crawling out of the store's side doorway. The side door to the store was no longer being used as an entrance because the side doorway leading into the store was framed with timber which created ten storage cubbyholes, each approximately eighteen inches by eighteen inches in size. (Government's Exhibits 2c, 2f). From the store's interior, an employee had easy access to the cubbyholes because the cubbyholes were located directly behind a set of hinged side-by-side doors used to hide, with the use of pegboard and merchandise, the cubbyholes from the store's retail space. Thus, in essence, the side-by-side doors created a small storage closet where equipment and merchandise were stored in the cubbyholes. The distance between the side-by-side doors and the store's gun display cabinets, which ran perpendicular to the doors, is approximately

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three feet. (Government's Exhibits 2g, 2h).

Officer Walters saw Moye crawling out of the store through the cubbyhole below the side door's knob. This cubbyhole was the only one that was not cluttered with boxes and/or store equipment/merchandise. (Government's Exhibits 2c, 2f). After Moye escaped through the cubbyhole, he fled on foot, but was later apprehended.2


On April 20, 2004, a federal grand jury sitting in the District of Maryland returned a two-count superseding indictment against Moye. In Count One, Moye was charged with being a felon in possession of firearms, 18 U.S.C. § 922(g)(1). In Count Two, Moye was charged with possessing stolen firearms, id. § 922(j). Each count also charged Moye as an aider and abettor under 18 U.S.C. § 2.

At trial, Thomas Love, an ATF agent who was qualified as an expert in interstate nexus, testified that the firearms set forth in the indictment affected interstate commerce because they were not manufactured in the State of Maryland. Alan Koch, the manager of the store, testified that all of the firearms stolen from the store's gun display cabinets functioned properly.

At the conclusion of the trial, a jury convicted Moye on both counts. On July 19, 2004, Moye was sentenced to thirty months' imprisonment. He filed a timely notice of appeal.

On September 9, 2005, a panel of this court reversed Moye's convictions. See United States v. Moye, 422 F.3d 207 (4th Cir. 2005). On October 18, 2005, the panel opinion was vacated, as a majority of active circuit judges voted to rehear this case en banc. See fourth Circuit Local Rule 35(c) ("Granting of rehearing en banc vacates the previous panel judgment and opinion.").



Moye contends there is insufficient evidence in the record to support his convictions. Moye's convictions must be upheld if "there is substantial evidence, taking the view most favorable to the Government," to support them. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). "[S]ubstantial evidence is evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc). Moreover, we can reverse a conviction on insufficiency grounds only when the "prosecution's failure is clear." United States v. Jones, 735 F.2d 785, 791 (4th Cir. 1984) (citation and internal quotation marks omitted). In evaluating the sufficiency of the evidence to support a criminal conviction, we view the evidence in the light most favorable to the government, drawing all reasonable inferences in its favor. United States v. Wilkinson, 137 F.3d 214, 220 (4th Cir. 1998). We also assume that the jury resolved all contradictions in the testimony in favor of the government. United States v. Sun, 278 F.3d 302, 313 (4th Cir. 2002). Finally, where the evidence supports differing reasonable interpretations, the jury will decide which interpretation to accept.

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United States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997).

Count One 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. Id. § 922(g)(1). We have previously explained that the elements required for conviction under § 922(g)(1) are:

(1) the defendant previously had been convicted of a crime punishable by a term of imprisonment exceeding one year; (2) the defendant knowingly possessed, transported, shipped, or received, the firearm; and (3) the possession was in or affecting commerce, because the firearm had travelled in interstate or foreign commerce at some point during its existence.

United States v. Langley, 62 F.3d 602, 606 (4th Cir. 1995) (en banc).3 Under Count Two, which charged Moye with possessing stolen firearms in violation of 18 U.S.C. § 922(j), the government had to prove (1) Moye possessed stolen firearms, (2) which moved or were shipped in interstate commerce before or after being stolen, and (3) Moye knew or had reasonable cause to believe the firearms were stolen. Cf. United States v. Hodges, 315 F.3d 794, 799 (7th Cir. 2003) (setting forth elements for receiving stolen firearms under § 922(j)).

Under our possession jurisprudence, possession can be actual or constructive. United States v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992). "Actual possession" is defined as "[p]hysical . . . control over property." Black's Law Dictionary 1201 (8th ed. 2004). Constructive possession is established if it is shown "that the defendant exercised, or had the power to exercise, dominion and control over the item." Rusher, 966 F.2d at 878. At its core, this case concerns Moye's actual possession of the firearms.

In this case, the jury unquestionably was at liberty to conclude that Moye possessed the firearms as they made their way from the store to Briggs' person and the getaway car. In fact, when the circumstantial evidence is viewed collectively and in the light most favorable to the government, Glasser, 315 U.S. at 80, 62 S.Ct. 457, the jury was entitled to conclude that Moye entered the store through the uncluttered cubbyhole of the side door opening, broke into the cabinets displaying the firearms, removed the firearms from such cabinets, and then passed them back through the same cubbyhole to the awaiting Briggs, who then put thirteen firearms in the car and kept two for himself.4

The circumstantial evidence begins with the manner in which the robbery was carried out. The getaway car's location next to the side door, the forced entry, and the

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fact that the store had an alarm all suggest that Cooper, Briggs, and Moye knew this was a race against time.

The next two pieces of circumstantial evidence are the size of the cubbyholes blocking the doorway and the fact that only one of the cubbyholes was uncluttered. (Government's Exhibits 2c, 2f). From these facts, the jury was entitled to draw the reasonable inference that only one person, Moye, as...

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