U.S. & People v. Tyson

• Decision Date: 12 August 2009
• Docket Number: Criminal No. 2008–49.
• Citation: 52 V.I. 724
• Parties: UNITED STATES of America and the People of the Virgin Islands, Plaintiffs, v. Shawn TYSON and Kelroy Morrell, Defendants.
• Court: U.S. District Court — Virgin Islands

52 V.I. 724

UNITED STATES of America and the People of the Virgin Islands, Plaintiffs,

v.Shawn TYSON and Kelroy Morrell, Defendants.

Criminal No. 2008–49.

District Court of the Virgin Islands, Division of St. Thomas and St. John.

Aug. 12, 2009.

West KeySummary

91 Conspiracy

91II Criminal Responsibility

91II(B) Prosecution

91k44 Evidence

91k47 Weight and Sufficiency

91k47(3) Particular Conspiracies

91k47(3.1) k. In general. Most Cited Cases

Insufficient evidence that an agreement between two or more persons existed to support a conviction for conspiracy to traffic firearms. Evidence indicated a firearm purchased by the defendant was in the possession of an individual who had wired money to the defendant, that the defendant traveled with another individual, that the defendant went to the shooting range with other individuals, and that the defendant made statements to an airline worker about selling a firearm. The unilateral conduct by the defendant was insufficient to establish the existence of an agreement with some other person to sell firearms. 18 U.S.C.A. § 371.

St. Claire Theodore, AUSA, Ishmael Meyers, Jr., AUSA, St. Thomas, U.S.V.I., for Plaintiffs.

Leonard B. Francis, Esq., St. Thomas, U.S.V.I., for Defendant Shawn Tyson.

Darren John–Baptiste, Esq., St. Thomas, U.S.V.I., for Defendant Kelroy Morrell.

MEMORANDUM OPINION

GÓMEZ, Chief Judge.

Before the Court is the motion of defendant Shawn Tyson for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29.

I. FACTUAL AND PROCEDURAL BACKGROUND

On July 31, 2008, Tyson, a private second class in the Tennessee National Guard, arrived at the Tri–Cities Regional Airport in northeastern Tennessee in preparation for a flight to St. Thomas, U.S. Virgin Islands. Before boarding his flight, Tyson declared several firearms to airline employees. On arrival in St. Thomas, Tyson was met by his co-defendant, Kelroy Morrell, who had come to the airport by car. An individual named Curtiss Thomas was also in Morrell's car.

Unbeknownst to Tyson, federal law enforcement agents had obtained a search warrant during his flight after being alerted by authorities in Tennessee to the presence of firearms in Tyson's luggage and determining that Tyson did not have a federal firearms license.

While law enforcement agents at the airport on St. Thomas watched from a distance, Tyson retrieved his luggage from a baggage carousel and left the baggage claim area. He placed his luggage in the trunk of Morrell's car and entered the car. The car then proceeded to the airport exit. Within moments of the car's departure from the airport, law enforcement agents stopped it and arrested Tyson and Morrell.¹

After Tyson and Morrell were taken into custody, the agents obtained Morrell's written consent to search his car and discovered several firearms and ammunition inside. Law enforcement agents later searched Tyson's computer, camera and cellular telephone, discovering various images of Tyson and other individuals discharging and posing with firearms.

In October 2008, Tyson and Morrell were indicted on a total of twenty-seven counts between them. Tyson was charged with one count of conspiracy to traffic firearms in violation of 18 U.S.C. § 371; twelve counts of trafficking firearms in interstate and foreign commerce in violation of 18 U.S.C. § 922(a)(1)(A); eleven counts of unauthorized possession of a firearm in violation of v.I.Code Ann . tit. 14, § 2253(a); one count of transferring a firearm to be used in a crime in violation of 18 U.S.C. § 924(b); and one count of transferring firearms to an out-of-state resident in violation of 18 U.S.C. § 922(a)(5) and 18 U.S.C. § 924(a)(1)(D).

A three-day trial was held in January 2009. At the close of the government's case-in-chief, Tyson moved for relief pursuant to Federal Rule of Criminal Procedure 29. The Court took the motion under advisement.² On the third day of trial, the jury found Tyson guilty on all charges save for one count of unauthorized possession of a firearm.³

Tyson now renews his motion for a judgment of acquittal on all charges on which he was found guilty pursuant to Rule 29.⁴ The government opposes the motion on the merits.⁵

II. DISCUSSION

In ruling on a motion for a judgment of acquittal made pursuant to Federal Rule of Criminal Procedure 29, a district court must “ ‘review the record in the light most favorable to the prosecution to determine whether any rational trier of fact could have found proof of guilt beyond a reasonable doubt based on the available evidence.” ‘ United States v. Smith, 294 F.3d 473, 476 (3d Cir .2002) (quoting United States v. Wolfe, 245 F.3d 257, 262 (3d Cir .2001)); see also United States v. Jannotti, 673 F.2d 578, 598 (3d Cir.1982) (en banc). An insufficiency finding should be “ ‘confined to cases where the prosecution's failure is clear.’ “ Smith, 294 F.3d at 477 (quoting United States v. Leon, 739 F.2d 885, 891 (3d Cir.1984)). “Courts must be ever vigilant in the context of [Rule] 29 not to usurp the role of the jury by weighing credibility and assigning weight to the evidence, or by substituting its judgment for that of the jury.” United States v. Brodie, 403 F.3d 123, 133 (3d Cir.2005) (citations omitted); see also United States v. Ashfield, 735 F.2d 101, 106 (3d Cir.1984) (“Our task is not to decide what we would conclude had we been the finders of fact; instead, we are limited to determining whether the conclusion chosen by the factfinders was permissible.”).

III. ANALYSIS

Tyson does not explicitly argue that the government failed to meet its burden of proof with respect to every element of each count on which he was convicted. He merely contends, in conclusory fashion, that “no rational juror could find him guilty of the offense[s] charge[d].” (Def. Tyson's Mem. Supp. Rule 29 at 1.)

A. Count One: Conspiracy to Traffic Firearms

Count One of the indictment charged Tyson with conspiracy to traffic firearms in violation of 18 U.S.C. § 371. To sustain Tyson's conviction on that count, the record must contain sufficient evidence that: (1) there was an agreement between two or more persons to traffic firearms; (2) Tyson knowingly joined the agreement; and (3) one of the conspirators committed an overt act in furtherance of the conspiracy. See United States v. Gebbie, 294 F.3d 540, 544 (3d Cir.2002) (citing United States v. Conley, 37 F.3d 970, 976–77 (3d Cir.1994)).

Although a court must pay “close scrutiny” to the government's evidence in conspiracy cases, United States v. Coleman, 811 F.2d 804, 807 (3d Cir.1987), each element of conspiracy may “be proven entirely by circumstantial evidence,” United States v. Brodie, 403 F.3d 123, 134 (3d Cir.2005) (citations omitted). Furthermore, while “slight evidence of a defendant's connection with a conspiracy is insufficient to support a guilty verdict,” Coleman, 811 F.2d at 807 (quoting United States v. Allard, 240 F.2d 840, 841 (3d Cir.1957)), the proper inquiry is whether “all the pieces of evidence, taken together, make a strong enough case to let a jury find the defendant guilty beyond a reasonable doubt.” Brodie, 403 F.3d at 134 (alteration, quotation marks and citations omitted). Proof that the objective of the conspiracy has been completed is unnecessary for conspiracy liability to attach. See United States v. Conley, 37 F.3d 970, 981 n. 15 (3d Cir.1994); United States v. Uzzolino, 651 F.2d 207, 214 n. 13 (3d Cir.1981) (stating that “jury could properly have found appellee guilty of conspiracy without finding that he had committed substantive violations in furtherance of that conspiracy”).

The government's evidence of conspiracy is as follows. Several Tennessee-based, federally licensed firearms dealers testified that Tyson purchased various firearms from them over a several-month period. (Trial Tr. vol. 1, 265–68, 275–77, Jan. 14, 2009; vol. 2, 9–11, 21–24, 34–35, 74–77, Jan. 15, 2009.) All told, Tyson purchased thirty-five firearms from December 2007 until July 2008. ( Id. at vol. 2, 310.) Of those thirty-five firearms, law enforcement officials recovered only twelve. ( Id.)

On February 14, 2008, Chesney Griffin, a Bristol Tennessee Police Department officer, responded to a 911 call about gunfire at a residence located at 348 Rosedale Lane in Bristol, Tennessee. ( Id . at vol. 1, 41–42.) Tyson, Morrell and an individual named Sherry Wagner were all found inside the residence. A search of the residence revealed the presence of several firearms, firearm boxes, receipts for firearm purchases and ammunition magazines. ( Id. at vol. 1, 59, 65–68.)

Bob De Lugo, a Delta Air Lines station manager for St. Thomas and St. Croix, U.S. Virgin Islands, testified that Tyson traveled on various occasions from Tennessee to the Virgin Islands. ( E.g., id . at vol. 1, 168–72.) On at least two of those occasions—on February 20, 2008 and July 31, 2008—Tyson traveled with firearms. ( Id. at vol. 1, 204–06, 210–16.) Tyson told airline personnel that he had buyers for his firearms in the Virgin Islands. ( Id. at vol. 1, 227–28.) On at least one occasion, Tyson traveled with Morrell, both of whom were found to be carrying luggage with firearms inside. ( Id. at vol. 1, 217–18, 221.)

Morrell testified that Tyson and he on one occasion went together in Sherry Wagner's car to a firearms store in Tennessee. Morrell testified about videotaping the area around the store and identified Tyson inside the store in an image taken from that videotape. ( Id . at vol. 2, 470–71.) When asked whether he had purchased firearms or whether there were firearms in the car that day, Morrell responded in the negative. ( Id. at vol. 2, 472.) When the government showed Morrell other images and asked whether they exhibited the presence of firearms in Wagner's car that day, Morrell responded in the affirmative. ( Id. at vol. 2, 472–73.)

The government also presented unrefuted testimony that Tyson traveled to the Virgin Islands on July 31, 2008 with luggage that was full of...