U.S. v. Jones

• Decision Date: 09 February 1994
• Docket Number: D,No. 236,236
• Citation: 16 F.3d 487
• Parties: UNITED STATES of America, Appellee, v. Clarence JONES, Defendant-Appellant. ocket 93-1256.
• Court: U.S. Court of Appeals — Second Circuit

Page 487

16 F.3d 487

UNITED STATES of America, Appellee, v. Clarence JONES, Defendant-Appellant.

No. 236, Docket 93-1256.

United States Court of Appeals, Second Circuit.

Argued Sept. 29, 1993.

Decided Feb. 9, 1994.

Mark B. Gombiner, New York, NY (The Legal Aid Society, Federal Defender Services Unit, New York, NY, of counsel), for Defendant-Appellant.

Bridget M. Rohde, Ass't U.S. Attorney, Brooklyn, NY (Zachary W. Carter, U.S. Attorney, E.D.N.Y., Leslie R. Caldwell, Ass't U.S. Attorney, Brooklyn, NY, of counsel), for Appellee.

Before: CARDAMONE, McLAUGHLIN, and LAY, ^* Circuit Judges.

McLAUGHLIN, Circuit Judge:

Defendant Clarence Jones was convicted, following a jury trial, of bank robbery and armed bank robbery, in violation of 18 U.S.C. Secs. 2113(a) and (d) (1988); using a firearm during a crime of violence, in violation of 18 U.S.C. Sec. 924(c)(1) (1988 & Supp. IV 1992); and possessing a firearm as a convicted felon, in violation of 18 U.S.C. Sec. 922(g)(1) (1988). Jones was sentenced as a career offender to 300 months' imprisonment on his bank robbery, armed bank robbery and Sec. 922(g)(1) convictions, to be followed by 60 months on his Sec. 924(c) conviction and five years' supervised release. The judgment of conviction was entered in the United States District Court for the Eastern District of New York (Rosen, J., sitting by designation).

On appeal, Jones challenges his conviction and sentence on several grounds. First, he contends that the evidence was insufficient to support his firearms convictions, as the government failed to prove both that the weapon used in the robbery was a firearm and that it traveled in interstate commerce. Second, Jones argues that he was denied a fair trial because the district court failed to sever or, at least, bifurcate the felon in possession of a firearm count. Third, he asserts that because one of his prior convictions was unconstitutional, he was improperly sentenced as a career offender. Finally, Jones claims that his sentence must be vacated because the district court failed to explain why it chose a specific sentence within the applicable Guidelines range.

For the reasons set forth below, we conclude that the government failed to prove the interstate commerce element of the felon in possession of a firearm count. We therefore vacate the conviction on this count, and instruct the district court to dismiss it. We also agree that, in light of the government's failure to prove the felon in possession count, it would be unfair to allow the bank robbery convictions to stand. We therefore reverse the convictions on the other three counts, and order a new trial. There is no need to reach the sentencing issue.

BACKGROUND

On March 29, 1991, a man walked into the Hollis, Queens branch of the Reliance Savings Bank, displayed what looked like a handgun, and made off with $141. Five weeks later, Farmida Khan, a Reliance bank teller, spotted a man outside the bank who she believed was wearing the same clothes as the bank robber. She called the police and they arrested defendant Clarence Jones.

Jones went through two trials. He was initially tried for armed bank robbery, bank robbery involving an assault, and use of a firearm during a crime of violence. This trial resulted in a mistrial, with 10 jurors voting for acquittal. The government then filed a superseding indictment, repeating the same three counts and adding two new counts of being a felon in possession of a firearm, in violation of 18 U.S.C. Sec. 922(g). Count four charged that during the bank robbery, Jones, a convicted felon, possessed an "automatic pistol"; and count five alleged that when he was arrested, he possessed a "black gun."

Before the second trial, the defendant moved to sever counts four and five, arguing that if the two felon in possession counts were tried together with the bank robbery charges, the jury would learn that Jones was a convicted felon, precluding an impartial determination of the bank robbery counts. As an alternative to severance, counsel proposed a bifurcated trial.

The district court severed count five, but it denied the motion for severance or bifurcation of count four, finding that this felon in possession charge "arises out of the same operative set of facts as the first three [bank robbery] counts." To minimize potential prejudice, however, the district court forbade the government to elicit the underlying facts of the prior conviction; and the court also instructed the jury not to consider the prior felony conviction "for character or propensity."

At trial, the government's case consisted almost exclusively of eyewitness testimony from five bank employees. Although their descriptions of the man who robbed the bank varied, the employees were in essential At the close of the government's case, the defendant moved for a judgment of acquittal under Fed.R.Crim.P. 29, claiming that the government had failed to prove the interstate commerce element of count four, the felon in possession of a firearm charge. In response, the government pointed out that FBI Special Agent Thomas Moore had testified that no handguns "are manufactured" in New York state. Citing this testimony, the district court denied defendant's motion.

agreement as to the facts of the robbery itself. Moreover, three of the employees picked Jones's picture from a photographic array, and four made courtroom identifications of him as the bank robber. Finally, bank surveillance photographs showed that the robber wore clothes matching the eyewitness descriptions and those seized from Jones following his arrest. Although the gun used in the robbery was never recovered, three of the bank employees saw it at various times, and each described it as silver with a white handle.

The trial judge's charge cautioned the jurors not to consider Jones's felony conviction for any purpose other than to determine whether the government had met its burden of proof on the felon in possession count. In the course of giving these limiting instructions, however, the judge repeated seven times that Jones had a prior felony conviction. The jury convicted Jones on counts 1-4.

The district court then sentenced Jones as a career offender, imposing a 300-month sentence on the bank robbery, armed bank robbery and felon in possession of a gun counts, to be followed by a mandatory consecutive 60-month term on count three (use of a firearm during a crime of violence).

DISCUSSION

I. Legal Sufficiency

Jones contends that the evidence was not sufficient to sustain the convictions on count three (using a firearm during a crime of violence, in violation of Sec. 924(c)(1)) and count four (possessing a firearm as a convicted felon, in violation of Sec. 922(g)(1)). Specifically, he argues that the government failed to prove, beyond a reasonable doubt, that (1) the weapon used in the bank robbery was a "firearm" within the meaning of 18 U.S.C. Sec. 921(a)(3) (1988), and (2) the firearm was "in or affecting commerce." Sec. 922(g)(1).

The standard applicable to sufficiency challenges has been oft repeated: viewing the evidence in the light most favorable to the government, the defendant must demonstrate that no "rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); see United States v. Lindsay, 985 F.2d 666, 672 (2d Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 103, 126 L.Ed.2d 70 (1993). Measured against this standard, the evidence was sufficient to support the count three Sec. 924(c)(1) conviction, but insufficient as to the count four Sec. 922(g)(1) conviction.

1. "Firearm" Within the Meaning of Sec. 921(a)(3)

Both counts three and four required proof that the weapon Jones used in the bank robbery was a "firearm" within the meaning of Sec. 921(a)(3) (defining a "firearm" as "any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive"). Because none of the eyewitnesses knew anything about firearms, Jones contends that their descriptions were insufficient to establish that the weapon was a real gun, rather than a toy or other replica. We disagree.

Even though a gun is not recovered, eyewitness testimony may be sufficient for the government to meet its burden of proof under Sec. 921(a)(3), so long as it provides a rational basis for the jury to find that the object observed by eyewitnesses "was, in fact, a firearm." United States v. Castillo, 924 F.2d 1227, 1230 (2d Cir.1991) (evidence sufficient to prove that unrecovered gun was "firearm" where witness was a police officer who had "extensive training and familiarity in the identification and use of firearms"). No specific type of testimony is required. See Parker v. United States, 801 F.2d 1382 Admittedly, the eyewitnesses in the bank were not familiar with weapons. And they did not observe the gun at close range. Nevertheless, they agreed on its description and testified that they observed the robber push the gun into a bank employee's back and point it at another. Jones faults the government for not offering evidence that the gun was a working firearm rather than a toy gun or replica weapon. Nothing in the statute requires such negative evidence. The mere possibility that the object seen by witnesses may have been a sophisticated toy or other facsimile does not necessarily create a reasonable doubt, nor is the government required to disprove that theoretical possibility. Castillo, 924 F.2d at 1230 & n. 6 (citing United States v. Fiore, 821 F.2d 127, 128 (2d Cir.1987)). That other bank robbers have used toy guns as weapons is no basis to overturn the convictions on counts three and four.

1384 (D.C.Cir.1986) (eyewitness testimony need not come from firearms expert to sustain Sec. 924(c) charge), cert. denied, 479 U.S. 1070, 107 S.Ct. 964, 93 L.Ed.2d 1011 (1987).

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