U.S. v. Gergen, 97-30324

• Decision Date: 16 April 1999
• Docket Number: No. 97-30324,97-30324
• Citation: 172 F.3d 719
• Parties: 99 Cal. Daily Op. Serv. 2773, 1999 Daily Journal D.A.R. 3595 UNITED STATES of America, Plaintiff-Appellee, v. Mika GERGEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 719

172 F.3d 719

99 Cal. Daily Op. Serv. 2773, 1999 Daily

Journal D.A.R. 3595

UNITED STATES of America, Plaintiff-Appellee, v. Mika GERGEN, Defendant-Appellant.

No. 97-30324.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 6, 1998.

Decided April 16, 1999.

Daniel Donovan, Assistant Federal Defender, Great Falls, Montana, for the defendant-appellant.

Kris A. McLean, Assistant United States Attorney, Missoula, Montana, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Montana Donald W. Molloy, District Judge, Presiding. D.C. No. CR 96-000-48-M-DWM.

Before: CANBY, and TASHIMA, Circuit Judges, and TAKASUGI, ^* Senior District Judge.

TAKASUGI, Senior District Judge:

Mika Gergen ("Gergen") appeals from a judgment of conviction and sentence for violating 26 U.S.C. § 5861(d), arguing that the Supreme Court's holding in Staples v. United States, 511 U.S. 600, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994), requires the government to prove that he knew of the particular characteristics of the shotgun which made the shotgun illegal under the National Firearms Act (the "Act"). Gergen maintains that the district court erroneously removed the mens rea element required under the Act, that the jury was not presented with sufficient evidence to convict him based on the proper mens rea requirement, and that the district court erred in applying U.S.S.G. § 2K2.1(b)(5), the sentencing guideline for firearms offenses, rather than U.S.S.G. § 2T1.1, the sentencing guideline for tax offenses, in determining his sentence.

We determine that Staples, supra, requires the government to prove that the defendant knew of the particular characteristics of his shotgun which made the shotgun subject to the Act. In its supplemental instruction to the jury, the district court eliminated that essential element of § 5861(d). We therefore reverse Gergen's conviction. Because we hold that the government presented mens rea evidence at the trial sufficient to support a conviction, we remand this matter to the district court for retrial.

BACKGROUND

On October 5, 1995, in Missoula, Montana, Mika Gergen, driving his mother's car, picked up a friend, Nate, who sat in the front passenger seat after placing a shotgun wrapped and covered by a jacket in the back seat. Nate also had in his possession a .22 caliber revolver. Gergen thereafter picked up three other friends, one of whom, Chenoa, took over as the driver. Gergen sat in the back seat of the car.

While they were driving around the city, Nate began to play with his .22 caliber revolver and accidentally shot Chenoa, who then stopped the car on the side of the road. Gergen exited and placed Chenoa in the back seat.

Gergen resumed driving the car and was driving towards a hospital when a tire blew out. Gergen flagged down a passing motorist, who agreed to take Chenoa to the hospital. Nate fled the scene.

Sometime after Chenoa had been shot, Gergen moved the jacket-wrapped shotgun to the floor of the car.

Two Missoula Police Department detectives observed this commotion and overheard one of the individuals state that the driver had been shot. Thereafter, the detectives took Gergen into custody for questioning.

Although it is unclear at what point Gergen became aware of the shotgun, he stated that a shotgun was on the floor of the car when later questioned by a sergeant of the Missoula County Sheriff's Office. The shotgun was retrieved and measured. The shotgun was a .12 gauge with a modified barrel. While the shotgun had an overall length of 25 3/8 inches, the barrel had been "sawed-off" to a length of 13 1/2 inches. An examination of the shotgun for fingerprints revealed an identifiable latent Gergen was indicted on August 26, 1996, and charged with possessing a sawed-off shotgun in violation of 26 U.S.C. § 5861(d) which makes it unlawful for any person "to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record." 26 U.S.C. § 5861(d). "The term 'firearm' means ... (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length ..." 26 U.S.C. § 5845(a). The district court instructed the jury that:

print made by the middle finger of Gergen's right hand.

[W]ith respect to the charge in the indictment that [Gergen] is charged with possessing the firearm, namely, a sawed-off shotgun, in violation of 26 U.S.C. § 5861, in order to find [Gergen] guilty the Government must prove each of the following elements beyond a reasonable doubt.

First, that [Gergen] at the time and place charged in the indictment possessed a firearm, namely, a sawed-off shotgun.

Second, that he did so knowingly.

Third, that [Gergen] was aware of the features of the sawed-off shotgun that brought it within the scope of the firearm definition.

And, fourth, that [Gergen] had not registered his possession of the firearm in the National Firearms Registration and Transfer Record.

During closing argument, Gergen's counsel argued to the jury that the government was required to prove that defendant knew the shotgun was illegal and that the government had failed to meet its burden. After closing argument, government counsel objected to defense counsel's argument and requested further instruction. The district court agreed with government counsel but refused to further instruct the jury finding that the prosecution had failed to make a timely objection.

During the course of deliberations, the jury requested further instruction from the district court. Specifically, the jury requested "clarification of the third part of the indictment." The district court determined that the jury request referred to the third element of the instruction and sought to clarify the element for the jury. After reading Staples, supra, and hearing further argument from counsel, the district court instructed the jury as follows:

SUPPLEMENTAL INSTRUCTION. The Government is not required to show that the defendant specifically knew: (1) the barrel length of the shotgun was less than 18 inches, or (2) the overall length of the shotgun was less than 26 inches.

The jury found Gergen guilty of possessing a sawed-off shotgun in violation of § 5861(d). At sentencing, Gergen requested that the trial court apply the tax offense sentencing guideline § 2T1.1 rather than the firearms offense conduct sentencing guideline § 2K2.1. The trial court denied Gergen's request and sentenced Gergen to 46 months incarceration based on the court's application of § 2K2.1.

DISCUSSION

Gergen claims that the Supreme Court's holding in Staples v. United States, 511 U.S. 600, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994), requires the government to prove that Gergen knew of the particular characteristics of the sawed-off shotgun in his possession to prove that Gergen violated 26 U.S.C. § 5861 and that, therefore, the district court's supplemental instruction caused reversible error. The government contends that the supplemental instruction was justified as a correction and clarification to the jury due to the confusion caused by the defense argument that the government was required to prove defendant knew the shotgun was illegal.

It is unlawful under 26 U.S.C. § 5861(d) for any person to receive or possess a "firearm," as defined by the Act, which is not registered under the National Firearms Registration and Transfer Record. Congress has specifically determined that a shotgun ¹ having "a barrel or barrels of less than 18 inches in length" or a modified shotgun with "an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length" are "firearms" under the Act. 26 U.S.C. §§ 5845(a)(1) and (2). It is noteworthy that "Congress did not ... extend this provision to all 'firearms' as that term is commonly understood, nor to all 'sawed-off shotguns.' " United States v. Reyna, 130 F.3d 104, 107 (5th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1328, 140 L.Ed.2d 489 (1998).

In the Ninth Circuit prior to the 1994 Staples decision, the government was not required to prove that a defendant knew of the specific characteristics of the firearm that made the firearm subject to registration. See United States v. O'Mara, 963 F.2d 1288, 1291 (9th Cir.1992) (determining that the defendant knowingly possessed a firearm where external modifications sufficiently showed that the firearm was subject to regulation). In fact, the O'Mara court identified two exceptions where the government was specifically required to prove a defendant's mens rea as to the specific characteristics of the firearm. See id. (i.e., where a weapon was subject to regulation due to internal modifications, see United States v. Evans, 978 F.2d 1112, 1114 (9th Cir.1992), cert. denied, 510 U.S. 821, 114 S.Ct. 78, 126 L.Ed.2d 46 (1993), or where a weapon did not appear to be dangerous, see United States v. Kindred, 931 F.2d 609, 612 (9th Cir.1991)).

The Supreme Court in Staples v. United States, considered the mens rea issue and held as follows:

In short, we conclude that the background rule of the common law favoring mens rea should govern interpretation of § 5861(d) in this case. Silence does not suggest that Congress dispensed with mens rea for the element of § 5861(d) at issue here. Thus, to obtain a conviction, the Government should have been required to prove that petitioner knew of the features of his [weapon] that brought it within the scope of the Act.

511 U.S. at 619, 114 S.Ct. 1793 (1994).

In Staples, the defendant was convicted by an Oklahoma trial court under § 5681(d) for possession of an unregistered machinegun. ² The machinegun had been a previously legal, semi-automatic weapon that had been internally modified to be capable of fully automatic fire. The trial court specifically instructed the jury that the government did not have to prove that the defendant knew...