97 F.3d 561 (D.C. Cir. 1996), 95-3169, United States v. Moore

Docket Nº:95-3169.
Citation:97 F.3d 561
Party Name:UNITED STATES of America, Appellee, v. Corey A. MOORE, Appellant.
Case Date:October 11, 1996
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 561

97 F.3d 561 (D.C. Cir. 1996)

UNITED STATES of America, Appellee,

v.

Corey A. MOORE, Appellant.

No. 95-3169.

United States Court of Appeals, District of Columbia Circuit

October 11, 1996

        Argued Sept. 3, 1996.

Page 562

        [321 U.S.App.D.C. 105] Appeal from the United States District Court for the District of Columbia (No. 94cr00450-02).

        Michael X. Imbroscio, argued the cause, for appellant, with whom Lanny A. Breuer, Washington, DC, was on the briefs.

        John Moustakas, Assistant United States Attorney, argued the cause, for appellee, with whom Eric H. Holder, Jr., United States Attorney, John R. Fisher, Elizabeth Trosman, and Peter R. Zeidenberg, Assistant United States Attorneys, Washington, DC, were on the brief.

        Before: EDWARDS, Chief Judge, ROGERS and TATEL, Circuit Judges.

        HARRY T. EDWARDS, Chief Judge:

        Appellant Corey Moore was convicted of possession of an unregistered sawed-off rifle, in violation of the National Firearms Act ("Act"), 26 U.S.C. § 5861(d) (1994). 1 Appellant contends that there was insufficient evidence for a reasonable jury to conclude that he had the requisite mens rea under § 5861(d).

        We hold that there was sufficient evidence to support the conviction. Although there is some disagreement among the circuits over the mens rea requirement of § 5861(d) in cases involving sawed-off weapons--i.e., whether it requires that appellant knew that the weapon was shorter than the prescribed length or merely that he knew it was sawed off--there is sufficient evidence in this case to support a finding that appellant had the requisite mens rea under either interpretation. At oral argument, appellant's counsel was hard-pressed to deny that appellant maintained constructive possession of the weapon, a point that seems evident from the record. In addition, appellant testified at trial that he handled the rifle in October 1993. Finally, on the evidence before it, the jury could have concluded that appellant lived at his sister's home, where the sawed-off rifle was found. Thus, even if the weapon was sawed off after October 1993, the jury could have inferred that appellant knew of its modified condition, as he was in continuous control of the weapon. These facts are sufficient to satisfy the mens rea requirement of § 5861(d). See United States v. Foster, 19 F.3d 1452, 1454 (D.C.Cir.1994) ("The readily apparent barrel length and general appearance of the sawed-off rifle" are sufficient to allow a jury to conclude that appellant had the requisite mens rea.).

        We also reject appellant's contention that the District Court abused its discretion in declining to sever the sawed-off rifle count from unrelated semi-automatic counts. At trial, appellant testified that when he saw the rifle in October 1993, he believed it was a BB gun. The evidence regarding the semi-automatic counts would have been admissible at a trial on the sawed-off rifle count to negate appellant's purported mistake of fact. Thus, because the evidence was independently admissible, see Drew v. United States, 331 F.2d 85, 90 (D.C.Cir.1964), the District Court did not abuse its discretion by failing to sever the offenses under Rule 14 of the Federal Rules of Criminal Procedure.

       I. BACKGROUND

        On November 4, 1994, as part of an undercover operation at Ballou High School, a

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[321 U.S.App.D.C. 106] plainclothes police officer observed appellant with what appeared to be a concealed rifle in his jacket. Trial Tr. (Mar. 20, 1995, afternoon session) at 23, 25-26, reprinted in Appendix for the Appellant ("App.") 190, 192-93. Later, on the same date, another police officer saw appellant remove an object that looked like a rifle from his jacket and lay it on...

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