U.S. v. Moses

• Decision Date: 22 January 2008
• Docket Number: No. 07-1123.,07-1123.
• Citation: 513 F.3d 727
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Christopher M. MOSES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

513 F.3d 727

UNITED STATES of America, Plaintiff-Appellee, v. Christopher M. MOSES, Defendant-Appellant.

No. 07-1123.

United States Court of Appeals, Seventh Circuit.

Argued October 25, 2007.

Decided January 22, 2008.

Steven M. Biskupic (argued), Michelle L. Jacobs, Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

Bridget E. Boyle (argued), Milwaukee, WI, for Defendant-Appellant.

Before EASTERBROOK, Chief Judge, and RIPPLE and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Christopher Moses challenges his five convictions for possessing destructive devices that were not registered to him in the National Firearms Registration and Transfer Record. See 26 U.S.C. § 5861(d); see also id. § 5845(a)(8), (f)(1)(B). Specifically, he argues that (1) the indictment underlying his convictions was multiplicitous, and thus violated the Fifth Amendment's guarantee against double jeopardy; and (2) the government failed to prove at trial that he possessed the destructive devices. We affirm.

I. HISTORY

In August 2005, a federal grand jury indicted Moses with one count of violating 18 U.S.C. § 922(g)(1) for possessing firearms after having been previously convicted of a felony, and five counts of violating 26 U.S.C. § 5861(d). Section 5861(d), a provision in the Internal Revenue Code, makes it illegal for an individual "to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record," and thus evade the excise tax that would have been due had the firearm been properly registered. See 26 U.S.C. § 5861(d); see also id. §§ 5811, 5841; United States v. Lim, 444 F.3d 910, 912 (7th Cir.2006). The "firearms" to which the excise tax applies are not the handguns or rifles familiar to most people; in this statutory context, "firearms" means sawed-off shotguns, modified rifles, machine guns, silencers, and, as pertinent here, "destructive devices," meaning "any explosive . . . grenade." See 26 U.S.C. §§ 5811, 5841, 5845(a)-(e), (f)(1)(B). Moses was charged with knowingly possessing five such destructive devices, which, the indictment stated, are "more fully described as . . . gold top 40mm cartridge[s] marked `HEDP.'"

Moses moved to dismiss the indictment on the ground that the multiple counts of possessing non-registered destructive devices violated his Fifth Amendment right against double jeopardy by allowing for more than one prosecution of the simultaneous possession of the devices. When the district court denied that motion, Moses exercised his right to a jury trial. After the parties stipulated that Moses had been previously convicted of a felony, the government presented its case against him. That evidence, which we recount in a light most favorable to the government, see United States v. Morris, 498 F.3d 634, 637 (7th Cir.2007), was as follows:

In April 2005, several police officers in Fond du Lac, Wisconsin, received an anonymous tip that Moses's girlfriend, Christine Stoffel, was dealing crack cocaine and other drugs. The officers investigated the tip by visiting Stoffel at home. At that time, Stoffel resided with Moses in the duplex that he owned; they lived in the duplex's downstairs apartment while Moses rented the apartment upstairs to a mutual acquaintance. The officers met with Stoffel on the duplex's front porch when Moses was away, and she eventually consented to a search of her belongings; incident to that search, the officers recovered marijuana and nearly 50 pills of Vicodin from Stoffel's purse. Based on that discovery, the officers obtained a warrant to search the entire apartment. Moses had returned home by the time the officers executed the warrant, and was present for the ensuing search.

During the search of Moses's residence, the officers noted that the apartment appeared "cluttered," as if someone was moving in or out; among the clutter the officers found a letter addressed to reach Moses at the apartment. The officers also recovered a fanny-pack, in which they later discovered a picture of Moses dressed in military fatigues, standing next to very large guns, and on top of what appeared to be a military vehicle of some sort. The officers then searched Moses's bedroom, where they found three rifles, three handguns, and approximately 2,100 rounds of ammunition of various kind and caliber; some of the rounds were stored in a military-style, metal ammunition box. After they located the weapons, the officers ran a criminal-background check on Moses, confirmed that he had a felony conviction and arrested him. The officers then continued the search by moving to the duplex's basement, which was accessed by a stairway shared by both apartments. There they located a closed, metal ammunition box similar to the one recovered from the bedroom, except that this box contained six blue-tipped and five gold-tipped 40mm rounds. Because the officers did not recognize the rounds, they carefully placed them on the duplex's front porch and called the bomb squad to remove them.

Once the 40mm rounds were safely removed from Moses's duplex, the police officers contacted federal law enforcement agents who could help identify the rounds. The federal agents explained that the gold-tipped rounds are actually military-grade, 40mm high-explosive, dual-purpose (HEDP) grenades, and the blue-tipped rounds are nonexplosive practice rounds. The grenades and practice rounds are available to the military only, which uses them as ammunition for its Mark-19 automatic grenade launcher. Because the grenades contain "antipersonnel" shrapnel and can "penetrate armored vehicles," they constitute "destructive devices," meaning that any individual possessing them must, under federal law, register in the National Firearms Registration and Transfer Record. See 26 U.S.C. §§ 5841, 5845(a)(8), (f)(a)(B), 5861(d). Moses, as it turned out, was not listed in the registry.

Further investigative work by the federal law enforcement agents revealed that Moses served in the military, where he had substantial experience with HEDP grenades and the other types of ammunition recovered from his apartment. Specifically, from 1990 to 1994, Moses served in the Marine Corps as an Amphibian Assault Vehicle Crewman in the 2nd Amphibian Assault Battalion, 2nd Marine Division, in Camp Lejuene, North Carolina. In that position he was trained to operate the Marine Corps's amphibious assault vehicle's weapons system, which primarily utilized the Mark-19 and HEDP grenades. Accordingly, Moses had ready access to the grenades for training purposes; in fact, the agents found out, the photograph recovered from Moses's apartment depicted him standing next to a Mark-19 mounted on top of an amphibious assault vehicle. Furthermore, while inventorying the ammunition recovered from Moses's bedroom, the agents discovered numerous .223 caliber tracer rounds. The tracer rounds are manufactured to be fired from the Marine Corps's M249 automatic rifle, which Moses was trained to use as well. While serving in the Marine Corps, Moses had regular access to the tracer rounds for training purposes, much like he had with the grenades; the tracer rounds also are available only to the military.

The government rested its case after it presented the evidence regarding Moses's arrest, his military experience, and the HEDP grenades. Moses elected to present no evidence or testimony in his defense. But at the close of evidence, he moved for a judgment of acquittal on the basis that the government failed to prove that he possessed the weapons, including the grenades. See Fed.R.Crim.P. 29(a). Specifically, Moses asserted that the government merely had proved that he "owned a house where these things were found, and had some connection 11 years prior to items similar to the destructive devices that were found in the basement." The court reserved a decision on the motion and submitted the case to the jury, which, in turn, found Moses guilty on all six counts. In response, Moses renewed his motion for a judgment of acquittal, see Fed.R.Crim.P. 29(c), which the court denied op the basis that the government introduced sufficient evidence from which the jury could conclude that he knowingly possessed the grenades. The court then sentenced Moses to six concurrent terms of 84 months' imprisonment—one term for his felon-in-possession conviction under 18 U.S.C. § 922(g)(1), and five terms for his § 5861(d) convictions.

II. ANALYSIS

On appeal, Moses challenges only his five § 5861(d) convictions for possessing the non-registered HEDP grenades; he does not appeal his felon-in-possession conviction under 18 U.S.C. § 922(g)(1). In so doing, he renews his arguments that the indictment underlying his convictions was multiplicitous, and that the government failed to prove at trial that he possessed the grenades. We address those arguments in turn.

A. Moses's Multiplicity Challenge

Moses argues that the government violated his Fifth Amendment right against double jeopardy by indicting him on five counts for what he asserts was a single offense: the simultaneous possession of the five HEDP grenades. Moses accordingly contends that the district court erred by allowing the government to prosecute him separately for "each and every" grenade he possessed, when he should have been prosecuted only once for the sole act of possessing the grenades. Our review is de novo. United States v. Starks, 472 F.3d 466, 468 (7th Cir.2006).

Although the government may prosecute an individual for every separate criminal act he commits, see Fed.R.Crim.P. 8(a); United States v. Berardi, 675 F.2d 894, 898 (7th Cir.1982), the Double Jeopardy Clause prohibits the government from prosecuting an individual more than once for the same criminal act, see Schiro v. Farley, 510 U.S. 222, 229, 114 S.Ct. 783, 127 L.Ed.2d 47 (1994); Starks, 472 F.3d at 469. The pertinent issue here is not whether the government prosecuted Moses more than once; the five-count...