U.S. v. Burnette

• Decision Date: 24 November 1975
• Docket Number: No. 75-1115,75-1115
• Citation: 524 F.2d 29
• Parties: UNITED STATES of America, Petitioner-Appellant, v. Walter BURNETTE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 29

524 F.2d 29

UNITED STATES of America, Petitioner-Appellant, v. Walter BURNETTE, Defendant-Appellee.

No. 75-1115.

United States Court of Appeals Fifth Circuit.

Nov. 24, 1975.

Donald E. Walter, U. S. Atty., Paul Lynch, J. Ransdell Keene, David R. Lestage, Asst. U. S. Attys., Shreveport, La., for petitioner-appellant.

Charles N. Wooten, Lafayette, La. (Court-appointed), for defendant-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before COLEMAN and GEE, Circuit Judges, and COX, District Judge.

GEE, Circuit Judge:

The United States appeals the granting of a judgment of acquittal ¹ after a jury verdict of guilty. The charge was receiving a rifle and a pistol "in commerce" in violation of 18 U.S.C.App. § 1202(a)(1), it being undisputed that defendant Burnette was a previously-convicted felon.

The government's appeal is proper under United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975). There the Supreme Court said:

We therefore conclude that when a judge rules in favor of the defendant after a verdict of guilty has been entered by the trier of fact, the Government may appeal from that ruling without running afoul of the Double Jeopardy Clause.

420 U.S., at 352-3, 95 S.Ct. at 1011. And, in U. S. v. Jenkins, 420 U.S. 358, 365, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975), the Court stated, in words which might have been written of this case:

When a case has been tried to a jury, the Double Jeopardy Clause does not prohibit an appeal by the Government providing that a retrial would not be required in the event the Government is successful in its appeal. United States v. Wilson, 420 U.S. at 343, 351, 95 S.Ct. at 1022, 1026. When this principle is applied to the situation where the jury returns a verdict of guilt but the trial court thereafter enters a judgment of acquittal, an appeal is permitted. In that situation a conclusion by an appellate court that the judgment of acquittal was improper does not require a criminal defendant to submit to a second trial; the error can be corrected on remand by the entry of a judgment on the verdict.

Should the government prevail on the basis of evidence which was Admitted here, no second trial for this offense will be necessary: only a judgment on the verdict. ²

The case comes down to whether there is evidence, viewed in the light most favorable to the verdict as required by Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), to establish receipt of either gun by Burnette in the Western District of Louisiana. ³ Concluding there is, we reverse the judgment of acquittal and remand for entry of judgment on the verdict.

Under the Supreme Court's construction of 18 U.S.C.App. § 1202(a)(1), the enactment is intended to forbid, inter alia, receipt of any firearm by specified classes of especially risky people, if the firearm received has previously traveled in interstate commerce. United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). This being so, it is apparent that the offense denounced is committed each time a person of the disfavored class obtains possession and control of a firearm. It is undisputed that appellee Burnette was of the class a previously-convicted felon and that, prior to the occasion of his apprehension, the guns involved had moved in interstate commerce. Our inquiry is therefore limited to considering whether evidence was admitted sufficient to ground a belief by the jury that beyond a reasonable doubt Burnette received at least one of the weapons at the mobile home where he was apprehended.

The jury heard testimony by the officer who arrested defendant Burnette on other charges in the Western District of Louisiana, that as he approached the bedroom where Burnette was found he and another officer having rushed the front entrance of the mobile home involved, knocked, shouted, and taken two or three other people into custody along the way he saw a pistol shoulder-holster lying on the bed. As he reached the door-sill, he heard the sound of a heavy, metallic object striking the floor inside. Looking toward the sound, he saw a revolver on the bedroom floor. Burnette clad only in undershorts, stood inside with his hands raised. The pistol lay within three feet of Burnette, and there were no other objects on the floor in that area which could have made such a sound in falling. A rifle could be seen standing in a closet. Testimony was also received from Thornberg, Burnette's friend and companion who had been secured in the front room of the mobile home, that he had seen the two weapons for the first time at the mobile home and that he did not know who owned them. He refused to answer, on Fifth Amendment grounds, how they got there but admitted that he knew how they did and that Burnette did not bring them. He did testify, however, that Burnette had never had possession of either of them in his presence. He also testified that Burnette first came to the mobile home the afternoon or night of his arrest there and that the weapons were there before Burnette ever came there, the pistol being in a holster in the closet. There was also testimony from the officers that Burnette, on the scene of his arrest and while receiving a Miranda warning, observed one of them tinkering with the rifle and interrupted to exclaim, "Be careful, my rifle's loaded," and that at a later time he spontaneously claimed ownership of the pistol-holster. ⁴

The jury could reasonably have believed that such evidence established, beyond a reasonable doubt, that appellee Burnette possessed the weapons on the night of the arrest and had not possessed them before arriving at the place of his arrest, the mobile home in the Western District of Louisiana. It is a legitimate inference that, to have done so, he must have received them there. See ...