U.S. v. Johnson, 03-60589.

• Citation: 381 F.3d 506
• Decision Date: 17 August 2004
• Docket Number: No. 03-60589.,03-60589.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Brian JOHNSON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

381 F.3d 506

UNITED STATES of America, Plaintiff-Appellee, v. Brian JOHNSON, Defendant-Appellant.

No. 03-60589.

United States Court of Appeals, Fifth Circuit.

August 17, 2004.

Appeal from the United States District Court for the Northern District of Mississippi.

John R. Hailman (argued) and Charles Wiley Spillers, Asst. U.S. Attys., Oxford, MS, for Plaintiff-Appellee.

Imhotep Alkebu-lan (argued), Jackson, MS, for Defendant-Appellant.

Before JOLLY, WIENER, and PICKERING, Circuit Judges.

PER CURIAM:

Defendant-Appellant Brian Johnson appeals his jury conviction for possession of a firearm with an obliterated serial number, in violation of 18 U.S.C. §§ 922(k) and 924(a)(1)(B). Concluding that the evidence was insufficient for a rational jury to find beyond a reasonable doubt that, at the time in question, Johnson knew that the serial number on the firearm had been obliterated, we reverse his conviction, vacate his sentence, and remand to the district court for entry of a judgment of acquittal.

I. FACTS & PROCEEDINGS

Shortly after midnight, Johnson was driving his car in Clarksdale, Mississippi accompanied by co-defendant William Harper who was occupying the front passenger seat. They were hailed by an acquaintance, Daniell Hampton, who asked for a ride to get something to eat.¹ Johnson acceded to Hampton's request on the condition that Hampton drive. Hampton agreed, so Johnson got out of his car and walked around to the passenger side while Hampton was getting into the driver's seat.

Meanwhile, Harper had gotten out of the car and retrieved his loaded handgun from under the front passenger seat where he had stowed it. He showed the gun to Hampton and asked if he wanted to buy it. At the time, Harper and Johnson were standing next to each other by the front passenger door, which was open. Hampton recognized the pistol—distinctive because of the black tape and duct tape that were wrapped around the handle to hold the magazine in place—as one he had seen on two prior occasions: once a few weeks earlier in the possession of Harper, and again four or five days prior to this incident, in the possession of Johnson's brother, Fredrick.

Hampton testified that after Harper handed him the gun, he noticed a "silvery scratched" area just above the trigger assembly on the side of the receiver of the otherwise all-black gun.² After examining the gun briefly, Hampton advised that he was not interested in purchasing it. He returned the gun to Harper who placed it back under the front passenger seat of Johnson's car, then got into the back seat. Johnson got into the front passenger seat, and Hampton drove away.

Shortly thereafter, police officers noticed Johnson's car obstructing traffic in a residential area. The occupants were yelling and arguing loudly with two women who were standing in front of a house. When Hampton drove Johnson's car away from that scene, the police followed and turned on their flashing lights. When this happened, Harper twice told Johnson to get the gun from under his seat and pass it to Harper in the back seat, presumably so that he could hide it. Johnson obeyed, reaching under the seat for Harper's gun and immediately passing it rearward to Harper, who then hid it under the back seat. The police found the pistol there after obtaining Johnson's consent to search his car. Noticing that the serial number had been scratched to the point of obliteration, the officers notified the Bureau of Alcohol, Tobacco & Firearm ("BATF") of the Department of the Treasury and took all three occupants of the car in for questioning.

After first claiming that it was Hampton who had passed the gun to Harper, Johnson admitted to his interrogator that he had recognized the gun by the black tape wrapped on it, and that he had been "playing" with the gun a few days earlier. Significant to this inquiry, the record is devoid of evidence or implication that the serial number had already been obliterated at that earlier occasion when Johnson had played with it or, for that matter, at any time prior to the incident in question.

Both Johnson and Harper were convicted on single charges of possessing a firearm with knowledge that the serial number had been obliterated. Harper did not appeal, but Johnson—who had filed a motion for a judgment of acquittal or, alternatively, a new trial—timely filed a notice of appeal.

II. ANALYSIS

A. Standard of Review

In a criminal appeal, we review a challenge to the sufficiency of the evidence to determine "whether any reasonable trier of fact could have found that the evidence established guilt beyond a reasonable doubt."³ All reasonable inferences from the evidence must be construed in favor of the jury verdict.⁴ Determining the weight and credibility of the evidence is within the exclusive province of the jury.⁵

B. Key Elements of the Crime of Conviction

Two scienter elements of the violation of § 922(k) are central to our disposition of this appeal: (1) knowing possession of a firearm and (2) knowledge that the serial number of the possessed firearm had been removed, obliterated, or altered.⁶ Although Johnson challenges both knowing possession and knowledge of the obliteration of the serial number, he does not contest two other elements: that in fact the serial number was obliterated at the time of this incident or that the firearm had traveled in interstate commerce.

C. Knowledge of Obliterated Serial Number

As we find the question of Johnson's knowledge of the obliteration of the serial number dispositive, we pretermit consideration of his knowing possession of the pistol and assume, without granting, that the evidence was sufficient to prove such possession. Mindful that the evidence before the jury and its reasonable inferences must support beyond a reasonable doubt the jury's finding that Johnson knew of the obliteration of the serial number at the time he is assumed to have knowingly possessed the firearm, we conclude that the verdict cannot stand.

Johnson did not testify; his statement regarding having played with the gun a few days earlier was made during his interrogation. Absent any evidence whatsoever that the serial number was obliterated when Johnson played with the gun, the fact of that previous possession contributes nothing, even by inference, to the jury's conclusion. The same must be said of any inference that the jury might draw from its awareness that Johnson was immersed in the gang or dope culture that pervaded those areas of Clarksdale where he lived and frequented, or that guns—especially "Saturday Night Specials" like the taped-up, off-brand handgun in question⁷—were familiar tools of the trade in that culture. In this particular instance, such generalized information and inferences from it have no probative value in determining whether Johnson had personal knowledge that the serial number of this specific firearm was obliterated at the specific time in the wee hours of the specific morning of his arrest.

The undisputed record evidence shows that (1) Harper (not Johnson) owned the gun; (2) he physically possessed it on the date and time in question except for the brief intervals (a) when he handed the gun directly to Hampton in an effort to sell it, and (b) when Johnson did Harper's bidding by reaching under the front passenger seat where Johnson was seated and quickly handing the gun to Harper in the back seat while the car was rolling to a stop as police lights were flashing behind it; and (3) during the course of that episode, none of the three occupants of the car—Johnson, Harper, or Hampton—ever mentioned the scratches on the gun (much less the missing serial number).⁸ Thus, based on evidence that was before the jury, the only times that Johnson could conceivably have gained knowledge that the pistol's serial number was obliterated were (1) while he was standing in the darkness outside the passenger side of the car as Harper (i...