480 F.3d 597 (1st Cir. 2007), 06-1517, United States v. Nieves-Castano

Docket Nº:06-1517.
Citation:480 F.3d 597
Party Name:UNITED STATES of America, Appellee, v. Belen NIEVES-CASTA
Case Date:March 27, 2007
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 597

480 F.3d 597 (1st Cir. 2007)

UNITED STATES of America, Appellee,

v.

Belen NIEVES-CASTAÑO, Defendant, Appellant.

No. 06-1517.

United States Court of Appeals, First Circuit.

March 27, 2007

Heard Feb. 8, 2007.

Page 598

Francisco Valcárcel-Fuster, Assistant Federal Public Defender, with whom Hector L. Ramos-Vega, Assistant Federal Public Defender, and Joseph C. Laws, Jr., Federal Public Defender, were on brief, for appellant.

José Capó-Iriarte, Assistant United States Attorney, with whom Nelson Pérez-Sosa, Assistant United States Attorney, and Rosa Emilia Rodriguez-Velez, United States Attorney, were on brief, for appellee.

Before LYNCH, Circuit Judge, GIBSON, [*] Senior Circuit Judge, and HOWARD, Circuit Judge.

LYNCH, Circuit Judge.

Belen Nieves-Castaño was convicted of two weapons charges after a jury trial. One conviction was for unlawful possession of a machine gun, see 18 U.S.C. § 922(o), while the second was for the unlawful possession of a firearm in a school zone, see id. § 922(q)(2)(A). This court has not had any prior occasion to construe these statutory provisions in relation to the issues presented by this appeal.

Nieves-Castaño appeals both convictions. She presents a novel issue on appeal: whether the school-zone statute, 18 U.S.C. § 922(q)(2)(A), is unconstitutionally void for vagueness under the Fifth Amendment's Due Process Clause because it fails to specify how to measure the 1000 foot distance from a school that marks the boundary of a school zone. She also raises sufficiency of the evidence claims on both counts, along with a claim of instructional error on the machine-gun charge. The constitutional claim, and the sufficiency claims, were raised by Rule 29 motions at trial and after the verdict, and were properly preserved.

We reverse the conviction on the first count and direct entry of a verdict for the defendant. The prosecution's evidence was insufficient to establish the necessary mens rea requirement under Staples v. United States, 511 U.S. 600, 602, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994). We affirm the conviction on the second count, and reject the constitutional void-for-vagueness attack.

Nieves-Castaño was sentenced to twenty-seven months of imprisonment on the

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first count, and to a consecutive sentence of three months on the second count, for a total term of imprisonment of thirty months. She was also sentenced to three years of supervised release, concurrent as to each count. We remand the case to the district court for resentencing in light of our disposition of the first charge.

I.

Nieves-Castaño lived in a third-floor apartment in Building 9 of the Nemesio R. Canales Housing Project in Puerto Rico. She shared the apartment with her mother, her mother's school-age child, and her own two minor sons. On August 30, 2005, a joint FBI and Puerto Rico police operation was investigating drug activity at the housing project, and law enforcement officials obtained and executed a search warrant at Nieves-Castaño's apartment.

An officer with the Puerto Rico Police Tactical Operations Unit was posted outside the building while the warrant was being executed. He saw Nieves-Castaño slide an old black golf bag off the rear balcony of her apartment and onto the ground. Apparently she did this after the police knocked and announced their presence at her apartment door. The officer retrieved the golf bag, which contained an AK-47 rifle.

The police search of the apartment revealed no illegal drugs or drug paraphernalia. After the defendant's arrest, she and her mother were taken to a government building, where agents interviewed them. One of the agents testified that Nieves-Castaño said she was storing the weapon in the golf bag at the request of someone named Alexis, a friend and the owner of the gun, who had asked that she hide it for him. Nieves-Castaño told the agent she had once opened the bag, looked in, and observed that there was a rifle in it, and that she knew it was an AK-47. She did not testify at trial.

II.

A. Mens Rea That the Weapon Was a Machine Gun

On the machine-gun charge, the district court found that there was sufficient evidence to prove the elements of the offense beyond a reasonable doubt. We review this determination de novo, taking the evidence in the light most favorable to the government, and making all reasonable inferences in the government's favor. United States v. Carucci, 364 F.3d 339, 343 (1st Cir.2004).

The statute of conviction, 18 U.S.C. § 922(o), provides in relevant part that it shall be unlawful for any person to transfer or possess a machinegun. Although ownership of the weapon is not required for conviction, see United States v. Escobar-de Jesus, 187 F.3d 148, 176 (1st Cir.1999), mere possession of the weapon is insufficient. The government must also prove beyond a reasonable doubt that the defendant knew the weapon had the characteristics that brought it within the statutory definition of a machinegun. Staples, 511 U.S. at 602, 114 S.Ct. 1793 (discussing a prosecution under 26 U.S.C. § 5861(d) for possession of a machine gun). Pertinently, the government's burden is to prove that the defendant had knowledge of the characteristics that brought the gun within the statutory definition, and not that she had knowledge that the gun was in fact considered a machine gun under federal law. See id.

A machine gun is defined as any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.

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26 U.S.C. § 5845(b); see also 18 U.S.C. § 921(a)(23).

The government correctly accepts that Staples's scienter requirement also applies to prosecutions under 18 U.S.C. § 922(o). See Rogers v. United States, 522 U.S. 252, 254 n. 1, 118 S.Ct. 673, 139 L.Ed.2d 686 (1998). One of the rationales relied on in Staples for the mens rea requirement was the potentially harsh penalty for violations of 26 U.S.C. § 5861(d)--up to ten years' imprisonment. 511 U.S. at 616, 114 S.Ct. 1793. The penalty for violating 18 U.S.C. § 922(o) can also include a prison term of up to ten years. See 18 U.S.C. § 924(a)(2).

There is sufficient evidence, from the agent's testimony about the...

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