U.S. v. Mullins

• Decision Date: 01 May 2006
• Docket Number: No. 05-2420.,05-2420.
• Citation: 446 F.3d 750
• Parties: UNITED STATES of America, Appellee, v. Ben J. MULLINS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 750

446 F.3d 750

UNITED STATES of America, Appellee, v. Ben J. MULLINS, Appellant.

No. 05-2420.

United States Court of Appeals, Eighth Circuit.

Submitted: December 13, 2005.

Filed: May 1, 2006.

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Nancy R. Price, argued, Assistant FPD, Springfield, MO, for appellant.

James J. Kelleher, argued, Special AUSA, Springfield, MO, for appellee.

Before MELLOY, COLLOTON, and BENTON, Circuit Judges.

COLLOTON, Circuit Judge.

Following a jury trial, Ben Mullins was convicted of unlawful possession of a firearm as a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). The district court¹ also found that he was an armed career criminal under 18 U.S.C. § 924(e)(2)(B), and sentenced him to 240 months' imprisonment. Mullins appeals his conviction and his sentence, and we affirm.

I.

On October 14, 2002, Jonathan Drackett, a student minister at the Calvary Temple Church in Springfield, Missouri, returned to his residence at the church. As he entered the church's fellowship hall, he overheard Ben Mullins using the telephone in the kitchen of the church. Not recognizing the voice, Drackett went to his apartment and called the church pastor. He asked the pastor to call the police, then armed himself with a golf club and went back downstairs to the fellowship hall. As Drackett entered the hall, the kitchen door opened, and Mullins walked out. Mullins asked Drackett not to call the police, and then began to run out of the hall, but stopped when the pastor arrived and called Mullins's name. Mullins pleaded with the two men not to call the police, and eventually sat down at a table in the hall. The police arrived a few moments later, and Drackett and the pastor saw Mullins take a gun from behind his back and place it on a chair, which he then slid under the table. The police recovered the gun, which was a Mondial Brevettata Model 1938 .22 caliber starter gun.

There was no dispute at trial that Mullins was a convicted felon, and the jury found that his possession of the starter gun was possession of a "firearm." Mullins argues that the starter gun is not a firearm within the meaning of 18 U.S.C. § 921(a)(3), so he was not prohibited from possessing it. He also contends that the district court erred in not granting a mistrial based on improper remarks made by the prosecutor during closing argument, in refusing to deliver a jury instruction requested by Mullins, and in allowing the testimony of the government's expert witness.

II.

Mullins first contends that the evidence was insufficient to show that the starter gun met the statutory definition of a firearm. Under 18 U.S.C. § 922(g)(1), it is illegal for a convicted felon to possess in or affecting commerce any firearm. "Firearm" is defined 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." 18 U.S.C. § 921(a)(3). Mullins argues that the government did not prove that the starter gun would expel a projectile, or that it could readily be converted to do so.

At trial, the government's expert witness, Richard Vasquez, a firearms enforcement officer of the Bureau of Alcohol, Tobacco, and Firearms ("ATF") testified that he had examined the starter gun and found that it could readily be converted to expel a projectile. He testified that the gun could be converted by cutting off the barrel with a hack saw and opening up the cylinder holes with a Dremel tool. (T. Tr. at 43-44). According to Vasquez, it would take "easily less than an hour" to perform the conversion without any specialized knowledge, and that he personally could do it in "a matter of minutes if Murphy's law doesn't occur and everything goes right." (Id. at 62, 141).

Vasquez also testified that the firearms technology branch of the ATF had examined the same make and model of gun in 1968, and determined that the gun in question met the federal definition of firearm. (Id. at 42, 47). On cross-examination, however, Vasquez conceded that the evaluation in 1968 was based on a Mondial-Brevettata 1938 (999) "starter and tear gas gun," whereas Mullins's gun was described as a Mondial-Brevettata 1938 model .22 caliber "starter gun." (Id. at 56-57; see also id. at 102-03). Mullins contends that the evidence of the evaluation in 1968 is not probative, because the gun examined was not available for inspection, and because there was no evidence that the specimen gun was identical to Mullins's gun. He asserts that a "tear gas gun" likely had a barrel that was unobstructed, while the gun he possessed had a hardened pin obstructing the barrel. When questioned on this point, Vasquez said that the gun evaluated in 1968 was the "same model" as the gun seized from Mullins, and that it was "the frame of that starter pistol" that was "determined to be a firearm, not what is at the end of the barrel." (Id. at 56).

We conclude that Vasquez's expert testimony was sufficient to sustain the conviction. Vasquez is qualified as an expert in firearms. His experience included five years working at the firearms technology branch of the ATF, during which time he examined three starter guns, converted two starter guns to firearms, and instructed the conversion of two others. He spent three years as a firearms instructor and gunsmith at Dettmeyer Security Service, served more than a decade in the Marine Corps working as a small arms expert, and received specialized training at several gunsmith schools. (Id. at 38-39, 42, 45).

Vasquez visually inspected the specific gun possessed by Mullins. (T. Tr. at 43, 48, 61-62). Based on his examination, Vasquez "visually made a determination" that the gun could be converted to expel a projectile, without any specialized knowledge, in less than an hour, and in minutes by an expert. (Id. at 43, 62). He further rendered an opinion that the starter gun was a firearm as defined by federal law. (Id. at 44). A gun that can be modified in the amount of time described by Vasquez may be considered "readily convertible." See United States v. Reed, 114 F.3d 1053, 1056-57 (10th Cir.1997) (upholding firearms conviction where the defense expert testified that the gun was workable after fifteen to twenty minutes of manipulation); United States v. 16,179 Molso Italian .22 Caliber Winlee Derringer Convertible Starter Guns, 443 F.2d 463, 465 (2d Cir. 1971) (holding that starter guns that could be converted to fire live ammunition in twelve minutes or less are "readily convertible" under 18 U.S.C. § 921(a)); see also United States v. Smith, 477 F.2d 399, 400 (8th Cir.1973) (per curiam) (holding that a machine gun could be "readily restored to shoot" automatically as provided in 26 U.S.C. § 5845(b) when it would take an eight-hour day in a properly equipped machine shop).

We are not persuaded by Mullins's contention that the district court abused its discretion by allowing the government's expert testimony. Expert testimony is admissible "if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." Fed.R.Evid. 702. Mullins's own expert agreed that visual examination was a proper method by which to determine whether a starter gun can readily be converted to a firearm, (T. Tr. at 87, 89), and we see no basis to conclude that the method used by Vasquez is unreliable. Although Vasquez did testify about the 1968 evaluation of a starter and tear gas gun by the ATF, his opinion about the Mullins starter gun was based on his independent visual examination of that particular gun. We find no abuse of discretion in admitting the expert testimony of Agent Vasquez, and the testimony was sufficient to support the conviction.

Mullins also argues that the jury may have convicted him based on a theory that the starter gun could function as a firearm "as is," because the residue expelled from the gun could be considered a projectile. This notion, which was advanced briefly by the prosecutor in closing argument, was based on testimony by Mullins's own expert that "people have been killed with starter pistols," and that "a famous actor a few years ago was killed with a starter pistol from the residue from the blank because it was so close to his head, went into a vital area and I believe perforated the rear and killed him." (T. Tr. at 125). Mullins contends that this evidence concerning the deadly expulsion of residue is insufficient as a matter of law to qualify his starter gun as a "firearm."

Even assuming the evidence was insufficient to show that the starter gun could expel a projectile without modification, that conclusion would not undermine the verdict. "When the district court submits to the jury two or more grounds for conviction, for one of which there was insufficient evidence, and it is impossible to tell on what grounds the jury decided the defendant's guilt, we cannot reverse the jury's general verdict of guilty." United States v. Dreamer, 88 F.3d 655, 658 (8th Cir.1996); see Griffin v. United States, 502 U.S. 46, 49-50, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991). Because there was sufficient evidence to support at least the conclusion that Mullins's starter gun could readily be converted to expel a projectile, the jury's general verdict may stand.

The Supreme Court's decision in Griffin also forecloses Mullins's challenge to the district court's refusal to give a requested jury instruction concerning sufficiency of the evidence. Mullins asked the court to instruct the jury that the starter gun was not a firearm in its existing condition, and that a finding of guilt could be based only on proof beyond a reasonable doubt that the gun could readily be converted to expel a projectile. The court instead read Jury Instruction Number 15, which set forth the essential elements of the...