U.S. v. Morgan
| Decision Date | 14 September 1999 |
| Docket Number | No. 98-6183,98-6183 |
| Citation | 216 F.3d 557 |
| Parties | (6th Cir. 2000) United States of America, Plaintiff-Appellee, v. John "J.R." Morgan, Defendant-Appellant. Argued: |
| Court | U.S. Court of Appeals — Sixth Circuit |
Appeal from the United States District Court for the Western District of Tennessee at Jackson; No. 98-10008--James D. Todd, District Judge.
Richard Leigh Grinalds, ASSISTANT UNITED STATES ATTORNEY, Jackson, Tennessee, for Appellee.
Stephen B. Shankman, OFFICE OF THE FEDERAL PUBLIC DEFENDER
FOR THE WESTERN DISTRICT OF TENNESSEE, Memphis, Tennessee, for Appellant.
Before: BATCHELDER and GILMAN, Circuit Judges; HOOD, District Judge.*
Defendant John "J.R." Morgan appeals his jury conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), possession of an unregistered machine gun in violation of 26 U.S.C. § 5861(d), and possession of a machine gun in violation of 18 U.S.C. §922(o). Morgan claims the district court should have allowed him to introduce evidence that his rights to possess firearms were restored and should have given a jury instruction on "entrapment by estoppel" because he claims a police officer led him to believe it was legal for him to possess a firearm. Morgan also claims there was insufficient evidence to convict him of possession of a machine gun because he did not know the firearm was a machine gun. For the reasons set forth below, we AFFIRM the district court on all three issues.
Morgan was arrested on October 9, 1997. On February 23, 1998, a federal grand jury in the Western District of Tennessee indicted Morgan on four counts: 1) convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g); 2) possession of an unregistered chrome silencer in violation of 26 U.S.C. § 5845(a); 3) possession of an unregistered firearm in violation of 26 U.S.C. § 5861(d); and 4) possession of a machine gun in violation of 18 U.S.C. § 922(o). The case was tried to a jury that found Morgan guilty on Counts 1, 3, and 4, but not guilty on Count 2. The court sentenced Morgan to forty-six months' imprisonment followed by two years of supervised release. This timely appeal followed.
During the summer of 1997, Special Agent Joey Hall of the Treasury Department's Bureau of Alcohol, Tobacco, and Firearms (ATF) located in Oxford, Mississippi, along with Special Agent Robbie Robinson, interviewed Morgan. The agents became aware of Morgan after they traced a weapon to him during an investigation conducted in Huntsville, Alabama. When asked, Morgan claimed that he had no prior convictions. Morgan stated that he was arrested in the late 1960s, but the "judge took care of it." The officers later found that Morgan had previously been convicted of third degree burglary on March 27, 1968, and sentenced to three years' imprisonment.
On July 16, 1997, Agent Hall, in conjunction with the Alcorn County Sheriff's Department in Mississippi, telephoned Morgan and asked that he come in for an interview. Agent Hall advised Morgan of his Miranda rights and took his statement. At some point during the statement Morgan said, "I figured that one day I would get caught up with, and I knew this was a violation of the law." Morgan admitted that he owned about sixty-one firearms. Agent Hall told Morgan that it was illegal for him to possess the guns, suggested that he give the firearms to either a relative or his attorney, and said that it would be illegal for him to sell the firearms. Morgan stated that he intended to give the firearms to his parents.
On October 9, 1997, Special Agent Jack Barnett of the ATF advised the McNairy County Sheriff's Department that he was assigned to investigate Morgan. While Agent Barnett was at the Sheriff's Department, Morgan telephoned the office and requested to speak to him. Agent Barnett told Morgan that he was under investigation for firearms dealing, and Morgan asked if he could come down and talk to the agent. When Morgan arrived, he and Agent Barnett went into a conference room to talk. Morgan admitted that he had a prior conviction and that he currently possessed firearms in his home. Morgan stated that he had previously spoken with Agent Joey Hall. Morgan admitted that Agent Hall told him to get rid of the weapons, but explained that he enjoyed going to gun shows, going to flea markets, and buying, selling and trading guns. Morgan indicated that he had recently sold and purchased a number of guns, even after talking to Agent Hall. When Morgan asked Agent Barnett how he could get rid of the guns, Agent Barnett replied that he could give them to a relative, but he could not have access to them. Morgan consented to a search of his home, where Agent Barnett found fifty-eight firearms located throughout his residence.
Just before the search was concluded, the agent asked Morgan if he had a silencer, and he replied that he had a "suppressor." The agent later recovered a silencer which was lying under a hat on top of a chest of drawers. Agent Barnett also asked whether Morgan had any machine guns because he had received information that Morgan had a MAK-10 machine gun. Morgan insisted that he did not.
During the search, Agent Barnett found a rifle that he suspected to be an illegal firearm. The agent testified that he was not certain if the firearm was a machine gun since he was not a firearms expert, and the weapon was in two parts when he found it. ATF Special Agent Thomas Lesnak sent the pieces of the firearm to a laboratory in Washington, D.C., for inspection. Agent Lesnak testified at trial that he and other agents had no definitive opinion as to whether the firearm was automatic. At trial, Michael Cooney, a firearms enforcement officer with the ATF, identified the firearm as a MAK-90 Sporter. Officer Cooney testified that he received the firearm in four parts, and that the firearm was made in China as a semi-automatic weapon, but had been converted to automatic by installing, among other things, an automatic sear and a third selector position. Officer Cooney test-fired the firearm and determined that it was an automatic weapon. After the lab report on the firearm was received, Morgan was indicted for possession of a machine gun.
Cynthia Ervin, who had been engaged to marry Morgan prior to his arrest in October 1997, testified at trial that he had several firearms in his house. Ms. Ervin stated that Morgan told her that an ATF agent had told him that it was illegal for him to have firearms because he was a convicted felon, and that he could not sell the firearms, but could give them to his parents. After the conversation with the ATF agent, Morgan bought at least one firearm. Morgan told Ms. Ervin that he needed to get rid of a "Mag-70 or a MAK-70 or something like that" because he was not supposed to have it, but she did not know if Morgan disposed of it.
Morgan also testified at trial. Morgan stated that he was convicted for a 1967 burglary and paroled around 1970. He began purchasing weapons in 1980 and had bought eighty firearms by July 1997. Morgan kept a ledger listing the serial numbers, the purchase price, and the blue book value of his purchases. When Morgan first spoke with Agent Hall, he told the agent that he had firearms, and the agent told him to get rid of them and not to buy anymore. Morgan claims that in July 1997 Agent Hall again told him not to possess the firearms, and stated that "he [Agent Hall] could come out and take them then, but he wasn't going to be no horse's butt about it and for me [Morgan] to just get rid of them." Morgan began selling the guns to other collectors and kept a record of the transactions in his ledger. Morgan testified that he had no contact with law enforcement again until October 9, 1997, when he gave consent for Agent Barnett to search his home. By this time, Morgan had sixty firearms which he had not disposed of because he "had too much money invested in them," and because he had relied on the statement of Agent Hall. Morgan claims that after the search the agents left two of the firearms, so he took them to his father's house. Morgan maintains that he thought he could possess firearms seven years after he served his sentence.
Morgan testified that he bought the MAK-90 Norinco Chinese rifle at a flea market, and that it was dismantled when he bought it, and did not have the inner workings. As part of a package deal, Morgan received other parts, ammunition, and scopes. Morgan paid a total price of $750, but admitted that no Norincos had that blue book value. He planned to sell the firearm for $1100. Morgan insisted that he did not fully inspect the weapon, did not know it was fully automatic, had not adjusted it to be automatic, and never assembled the firearm. Morgan stated he only had average knowledge of firearms, but submitted that he knew the difference between a semi-automatic and an automatic weapon. Specifically, he testified that a semi-automatic had two selector switches while an automatic had three. Morgan knew that an M-16 had a third selector switch and that some of them were fully automatic.
On the day of trial, the Government made an oral motion in limine1 to preclude Morgan from introducing evidence that, after his indictment, Circuit Court Judge Kerry Blackwood2 restored his civil rights. The Government argued that because Morgan possessed the weapons in October 1997 before he had his rights restored in February 1998, the restoration had no bearing on the case. Morgan cited two federal cases that indicated the evidence should not be presented, but argued that these cases were decided before the effective date of the statute under which he was indicted. Morgan then argued that the statute was clear and unambiguous, and that nothing in the statute precluded him from introducing the post-arrest...
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