666 F.2d 341 (9th Cir. 1982), 80-1864, United States v. Alverson

Docket Nº:80-1864.
Citation:666 F.2d 341
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. James W. ALVERSON, Defendant-Appellant.
Case Date:January 04, 1982
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 341

666 F.2d 341 (9th Cir. 1982)

UNITED STATES of America, Plaintiff-Appellee,

v.

James W. ALVERSON, Defendant-Appellant.

No. 80-1864.

United States Court of Appeals, Ninth Circuit

January 4, 1982

Argued and Submitted June 9, 1981.

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[Copyrighted Material Omitted]

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Kenneth C. Cory, Gang, Berkley & Cory, Las Vegas, Nev., for defendant-appellant.

Brian L. Sullivan, Asst. U. S. Atty., Las Vegas, Nev., for plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada.

Before ADAMS, [*] SNEED and FLETCHER, Circuit Judges.

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FLETCHER, Circuit Judge:

Defendant Alverson appeals both his conviction on four counts of possession of unregistered machine guns in violation of 26 U.S.C. § 5861(d) (1976) and his sentence. Defendant contends that the evidence was insufficient to sustain his conviction. He also raises several challenges to his sentence. We note jurisdiction under 28 U.S.C. § 1291 (1976). We affirm his conviction but vacate his sentence and remand the case for resentencing before a different judge.

I

FACTS

Alverson was indicted on July 9, 1980, and tried on October 7-9, 1980. Testimony revealed that on June 29, 1980, James Alverson, accompanied by Nancy Alverson, entered the Accuracy Gun Store in Las Vegas. He requested to leave a Thompson .45 caliber machine gun for sale on consignment. Prior to leaving the store, defendant dismantled the machine gun and replaced one part with another. The part was identified as a "disconnect," which prevents a gun from firing more than one shot per function of the trigger. Nancy Alverson signed for the Thompson left on consignment at the store. Alverson took a store employee to his automobile to show him three other weapons that he had left in his car.

After the defendant left the store, the store manager contacted the Bureau of Alcohol, Tobacco, and Firearms. Federal agent James Deal responded to the call and seized the .45 caliber Thompson. The following day Alverson returned to the store and demanded return of the Thompson. Agent Deal was notified and promptly returned to the store with the weapon. A store employee returned the Thompson to Alverson, who was arrested after taking possession of the gun.

While en route to the Las Vegas Federal Building, defendant admitted that he had other firearms at his residence. Based on this information, Agent Deal secured a search warrant and searched a trailer home which the Government contends was defendant's residence. Nancy Alverson was present at the trailer during the search. At the conclusion of the search, Agent Deal seized several weapons, including three machine guns. An employee of the Accuracy Gun Store testified that these guns were of the same type as those Alverson had shown him the previous day. A jury found Alverson guilty on four counts of possession of unregistered machine guns, one count for each of the three weapons seized at the trailer home, and one count for the Thompson left at the gun store.

On December 8, 1980, the district court judge sentenced Alverson to five years on each of the four counts of possession. The judge then stated, "the sentence imposed as to Counts 2, 3 and 4 is to run consecutively with the sentence on Count 1." On December 11 the judge, purporting to correct an ambiguity in the original sentence, resentenced appellant to five years on each count, with each sentence to run consecutively. The defendant filed a timely appeal of his conviction and his sentence.

II

SUFFICIENCY OF THE EVIDENCE

Defendant Alverson's contention that there was insufficient evidence to sustain his conviction raises two factual questions. First, did the Government prove that the .45 caliber Thompson was a machine gun as defined in 26 U.S.C. § 5845(b) (1976)? Second, did the Government prove defendant's constructive possession of the other three weapons seized in a search of the trailer home alleged to be defendant's residence?

In reviewing the sufficiency of the evidence, an appellate court must determine

whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh evidence,

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and to draw reasonable inferences from basic facts to ultimate facts.

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original) (citation omitted). Accord, United States v. Buras, 633 F.2d 1356, 1359 (9th Cir. 1980); United States v. Kipp, 624 F.2d 84, 84 (9th Cir. 1980) (per curiam).

  1. The Thompson .45 Caliber Weapon

    Section 5845(b) of Title 26 defines a "machine gun" 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." Alverson argues that the Government offered insufficient proof that the Thompson .45 caliber weapon fit this definition. No one disputes that the Thompson, in the condition in which it was left at the gun store, did not fire "more than one shot ... by a single function of the trigger." The Government contends, however, that its evidence proves either that the gun could be "readily restored to shoot automatically" or that the gun did function automatically when Alverson brought it to the gun store and before he replaced the disconnect.

    The following evidence was adduced: (1) when defendant first brought the weapon to the store, he stated that he and his son had just been firing it and that "while his son was shooting it he held down the trigger too long." This statement makes sense only in reference to a weapon that fires more than one shot per function of the trigger. (2) In the presence of gun store employees, defendant removed the disconnect from the gun and replaced it because "you don't want (the Thompson) like this," or "it was fixed." The second disconnect differed from the first in that it "had a smaller hump on it." A Government firearms expert testified that the function of a disconnect was to prevent the weapon from firing fully automatically. He also testified that the Thompson "probably" would fire fully automatically if it had a disconnect on which the hump had been "filed down." Finally, the Government's expert testified that a "shaved off" disconnect, in conjunction with the polished interior surfaces he actually observed on the Thompson, "would convert it into fully automatic." (3) Defendant had the knowledge to convert semi-automatic weapons to fully automatic, and had done so on previous occasions. (4) A gun store employee testified that appellant gave, as a reason for having his wife sign for the Thompson, the fact that "he had spent 18 months in Lompoc for possession of a machine gun." From this evidence, a rational trier of fact could conclude, beyond a reasonable doubt, that the Thompson could be "readily restored to shoot automatically." 1

  2. Constructive Possession of the Other Weapons

    Possession of firearms in violation of section 5861(d) "need not be (proved by) exclusive actual possession, but may be (proved by) constructive or joint possession." United States v. Kalama, 549 F.2d 594, 596 (9th Cir.), cert. denied, 429 U.S. 1110, 97 S.Ct. 1147, 51 L.Ed.2d 564 (1977). " 'In order to establish constructive possession, the government must produce evidence showing ownership, dominion, or control over the contraband itself or the premises ... in which contraband is concealed.' ... (D)ominion and control over (defendant's) own residence, in which the guns were found, is a sufficient basis for the jury's inference of constructive possession." United States v. Smith, 591 F.2d 1105, 1107 (5th Cir. 1979) (quoting United States v. Ferg, 504 F.2d 914, 916-17 (5th Cir. 1974)). 2

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    The defendant argues that the Government's evidence fails to show that the residence in which the three additional weapons were seized was his.

    The Government's evidence shows that...

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