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

Docket Nº95-3169.
Citation97 F.3d 561
Party NameUNITED STATES of America, Appellee, v. Corey A. MOORE, Appellant.
Case DateOctober 11, 1996
CourtUnited States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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

Page 563

[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 the grass. Id. at 66, reprinted in App. 233. A third officer then recovered a semi-automatic assault rifle at that location. Trial Tr. (Mar. 21, 1995, morning session) at 27, reprinted in App. 282. Appellant was arrested and charged with three counts relating to the possession of the rifle.

On November 5, 1994, police executed a search warrant at appellant's sister's apartment. 2 During the course of the search, the police found a sawed-off rifle. Trial Tr. (Mar. 21, 1995, morning session) at 36, reprinted in App. 291. The rifle was located in a closet in appellant's sister's bedroom, wrapped in a blanket, which was inside a bag, which was inside another bag. Id. at 36-37, reprinted in App. 291-92. Appellant, already in custody, was charged with possession of the unregistered sawed-off rifle in violation of § 5861(d).

The semi-automatic counts and the sawed-off rifle count were joined for trial. At trial, appellant's attorney moved to sever the two charges under Rule 14 of the Federal Rules of Criminal Procedure. The judge indicated that the evidence relating to the semi-automatic counts would be admissible in a trial on the sawed-off rifle count and, therefore, denied the motion to sever. Trial Tr. (Mar. 20, 1995, afternoon session) at 4-5, reprinted in App. 171-72.

As part of the prosecution's case-in-chief on the sawed-off rifle count, an agent from the Bureau of Alcohol, Tobacco, and Firearms testified that the barrel of the rifle had been sawed off to 13 1/16 inches. Trial Tr. (Mar. 21, 1995, morning session) at 54-55, reprinted in App. 309-10. An FBI agent testified that appellant's fingerprints were found on a detachable scope that was attached to the rifle at the time when it was discovered by the police. Id. at 68, reprinted in App. 323. Two police officers testified that, when he was arrested, appellant had given his sister's address as his residence. Trial Tr. (Mar. 20, 1995, afternoon session) at 35, reprinted in App. 202; Trial Tr. (Mar. 21, 1995, morning session) at 28, reprinted in App. 283. During the trial, the prosecution also introduced testimony relating to the recovery of the semi-automatic rifle on November 4, 1994. E.g., Trial Tr. (Mar. 20, 1995, afternoon session) at 22-41, 62-70, reprinted in App. 189-208, 229-37.

As part of his defense, appellant took the stand. He...

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9 practice notes
  • 970 S.W.2d 868 (Mo.App. W.D. 1998), WD 54102, State v. Hill
    • United States
    • Missouri Court of Appeal of Missouri (US)
    • 16 Junio 1998
    ...of a sawed-off shotgun will usually be sufficient to establish that the defendant knew that its barrel length rendered the weapon illegal. 97 F.3d 561, 564 (D.C.Cir.1996). See also United States v. Edwards, 90 F.3d 199, 205 (7th Cir.1996), appeal after remand, 124 F.3d 205 (7th Cir. 1997), ......
  • 197 F.R.D. 498 (D.Utah 2000), 00-NCR-41 K, United States v. Olmedo-Cruz
    • United States
    • Federal Cases United States District Courts 10th Circuit United States District Court of Utah
    • 9 Noviembre 2000
    ...severance is not required absent special prejudice. United States v. Critton, 43 F.3d 1089 (6th Cir.1995); United States v. Moore, 97 F.3d 561 (D.C.Cir.1996); United States v. Janus Industries, 48 F.3d 1548 (10th The court cannot say that evidence of defendant's other drug offenses would no......
  • 446 F.3d 1122 (10th Cir. 2006), 04-2214, United States v. Michel
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (10th Circuit)
    • 10 Mayo 2006
    ...after its barrel length was altered was sufficient for jury to conclude defendant knew of gun's characteristics); United States v. Moore, 97 F.3d 561, 564 (D.C. Cir. 1996) (jury could conclude defendant was aware weapon was sawed-off shotgun where evidence included defendant's admission he ......
  • 670 F.3d 360 (1st Cir. 2012), 09-2669, United States v. Shaw
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (1st Circuit)
    • 29 Febrero 2012
    ...barrel was fifteen-and-one-half inches permitted jury to infer that defendant knew barrel was shorter than eighteen inches); Moore, 97 F.3d at 564 (the jury could have reasonably inferred defendant's knowledge that rifle was shorter than 16 inches by observing the weapon, which was thirteen......
  • Request a trial to view additional results
9 cases
  • 970 S.W.2d 868 (Mo.App. W.D. 1998), WD 54102, State v. Hill
    • United States
    • Missouri Court of Appeal of Missouri (US)
    • 16 Junio 1998
    ...of a sawed-off shotgun will usually be sufficient to establish that the defendant knew that its barrel length rendered the weapon illegal. 97 F.3d 561, 564 (D.C.Cir.1996). See also United States v. Edwards, 90 F.3d 199, 205 (7th Cir.1996), appeal after remand, 124 F.3d 205 (7th Cir. 1997), ......
  • 197 F.R.D. 498 (D.Utah 2000), 00-NCR-41 K, United States v. Olmedo-Cruz
    • United States
    • Federal Cases United States District Courts 10th Circuit United States District Court of Utah
    • 9 Noviembre 2000
    ...severance is not required absent special prejudice. United States v. Critton, 43 F.3d 1089 (6th Cir.1995); United States v. Moore, 97 F.3d 561 (D.C.Cir.1996); United States v. Janus Industries, 48 F.3d 1548 (10th The court cannot say that evidence of defendant's other drug offenses would no......
  • 446 F.3d 1122 (10th Cir. 2006), 04-2214, United States v. Michel
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (10th Circuit)
    • 10 Mayo 2006
    ...after its barrel length was altered was sufficient for jury to conclude defendant knew of gun's characteristics); United States v. Moore, 97 F.3d 561, 564 (D.C. Cir. 1996) (jury could conclude defendant was aware weapon was sawed-off shotgun where evidence included defendant's admission he ......
  • 670 F.3d 360 (1st Cir. 2012), 09-2669, United States v. Shaw
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (1st Circuit)
    • 29 Febrero 2012
    ...barrel was fifteen-and-one-half inches permitted jury to infer that defendant knew barrel was shorter than eighteen inches); Moore, 97 F.3d at 564 (the jury could have reasonably inferred defendant's knowledge that rifle was shorter than 16 inches by observing the weapon, which was thirteen......
  • Request a trial to view additional results