U.S. v. Nieves-Castano

• Decision Date: 27 March 2007
• Docket Number: No. 06-1517.,06-1517.
• Citation: 480 F.3d 597
• Parties: UNITED STATES of America, Appellee, v. Belen NIEVES-CASTAÑO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

480 F.3d 597

UNITED STATES of America, Appellee, v. Belen NIEVES-CASTAÑO, Defendant, Appellant.

No. 06-1517.

United States Court of Appeals, First Circuit.

Heard February 8, 2007.

Decided March 27, 2007.

Francisco Valcárcel-Fuster, Assistant Federal Public Defender, with whom Hector L. Ramos-Vega, Assistant Federal Public Defender, and Joseph C. Laws, Jr., Federal Public Defender, were on brief, for appellant.

José Capó-Iriarte, Assistant United States Attorney, with whom Nelson Pérez-Sosa, Assistant United States Attorney, and Rosa Emilia Rodriguez-Velez, United States Attorney, were on brief, for appellee.

Before LYNCH, Circuit Judge, GIBSON,^* Senior Circuit Judge, and HOWARD, Circuit Judge.

LYNCH, Circuit Judge.

Belen Nieves-Castaño was convicted of two weapons charges after a jury trial. One conviction was for unlawful possession of a machine gun, see 18 U.S.C. § 922(o), while the second was for the unlawful possession of a firearm in a school zone, see id. § 922(q)(2)(A). This court has not had any prior occasion to construe these statutory provisions in relation to the issues presented by this appeal.

Nieves-Castaño appeals both convictions. She presents a novel issue on appeal: whether the school-zone statute, 18 U.S.C. § 922(q)(2)(A), is unconstitutionally void for vagueness under the Fifth Amendment's Due Process Clause because it fails to specify how to measure the 1000 foot distance from a school that marks the boundary of a school zone. She also raises sufficiency of the evidence claims on both counts, along with a claim of instructional error on the machine-gun charge. The constitutional claim, and the sufficiency claims, were raised by Rule 29 motions at trial and after the verdict, and were properly preserved.

We reverse the conviction on the first count and direct entry of a verdict for the defendant. The prosecution's evidence was insufficient to establish the necessary mens rea requirement under Staples v. United States, 511 U.S. 600, 602, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994). We affirm the conviction on the second count, and reject the constitutional void-for-vagueness attack.

Nieves-Castaño was sentenced to twenty-seven months of imprisonment on the first count, and to a consecutive sentence of three months on the second count, for a total term of imprisonment of thirty months. She was also sentenced to three years of supervised release, concurrent as to each count. We remand the case to the district court for resentencing in light of our disposition of the first charge.

I.

Nieves-Castaño lived in a third-floor apartment in Building 9 of the Nemesio R. Canales Housing Project in Puerto Rico. She shared the apartment with her mother, her mother's school-age child, and her own two minor sons. On August 30, 2005, a joint FBI and Puerto Rico police operation was investigating drug activity at the housing project, and law enforcement officials obtained and executed a search warrant at Nieves-Castaño's apartment.

An officer with the Puerto Rico Police Tactical Operations Unit was posted outside the building while the warrant was being executed. He saw Nieves-Castaño slide an old black golf bag off the rear balcony of her apartment and onto the ground. Apparently she did this after the police knocked and announced their presence at her apartment door. The officer retrieved the golf bag, which contained an AK-47 rifle.

The police search of the apartment revealed no illegal drugs or drug paraphernalia. After the defendant's arrest, she and her mother were taken to a government building, where agents interviewed them. One of the agents testified that Nieves-Castaño said she was storing the weapon in the golf bag at the request of someone named Alexis, a friend and the owner of the gun, who had asked that she hide it for him. Nieves-Castaño told the agent she had once opened the bag, looked in, and observed that there was a rifle in it, and that she knew it was an AK-47. She did not testify at trial.

II.

A. Mens Rea That the Weapon Was a Machine Gun

On the machine-gun charge, the district court found that there was sufficient evidence to prove the elements of the offense beyond a reasonable doubt. We review this determination de novo, taking the evidence in the light most favorable to the government, and making all reasonable inferences in the government's favor. United States v. Carucci, 364 F.3d 339, 343 (1st Cir.2004).

The statute of conviction, 18 U.S.C. § 922(o), provides in relevant part that "it shall be unlawful for any person to transfer or possess a machinegun." Although ownership of the weapon is not required for conviction, see United States v. Escobar-de Jesus, 187 F.3d 148, 176 (1st Cir. 1999), mere possession of the weapon is insufficient. The government must also prove beyond a reasonable doubt that the defendant knew the weapon "had the characteristics that brought it within the statutory definition of a machinegun." Staples, 511 U.S. at 602, 114 S.Ct. 1793 (discussing a prosecution under 26 U.S.C. § 5861(d) for possession of a machine gun). Pertinently, the government's burden is to prove that the defendant had knowledge of the characteristics that brought the gun within the statutory definition, and not that she had knowledge that the gun was in fact considered a machine gun under federal law. See id.

A machine gun is defined as "any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger." 26 U.S.C. § 5845(b); see also 18 U.S.C. § 921(a)(23).

The government correctly accepts that Staples's scienter requirement also applies to prosecutions under 18 U.S.C. § 922(o). See Rogers v. United States, 522 U.S. 252, 254 n. 1, 118 S.Ct. 673, 139 L.Ed.2d 686 (1998). One of the rationales relied on in Staples for the mens rea requirement was the potentially harsh penalty for violations of 26 U.S.C. § 5861(d) — up to ten years' imprisonment. 511 U.S. at 616, 114 S.Ct. 1793. The penalty for violating 18 U.S.C. § 922(o) can also include a prison term of up to ten years. See 18 U.S.C. § 924(a)(2).

There is sufficient evidence, from the agent's testimony about the defendant's statements, that Nieves-Castaño both possessed and knew there was a rifle in the golf bag, and that she looked into the golf bag once and saw a rifle there. There is also evidence that she knew the rifle was an AK-47. The question is whether the government proved, beyond a reasonable doubt, that she knew this particular AK-47 had the characteristics of an automatic weapon.

The rifle involved here was the commercial version of the AK-47 military weapon. The term "AK" comes from "Automat Kalashnikov," as the weapon was named after its Russian inventor, Mikhail Kalashnikov, who designed it in 1947. The commercial version comes only as a semi-automatic weapon.

While an automatic weapon meets the definition of a machine gun, a semi-automatic weapon does not. Staples, 511 U.S. at 602, 114 S.Ct. 1793 & n. 1. The commercial semi-automatic AK-47 cannot be made into an automatic weapon without some modification or alteration to give it automatic firing capability. Here the evidence established that a modification had occurred through the alteration of internal parts. The only external evidence on the weapon of this alteration was a small mark or hole.

The government's proof concentrated on expert testimony to the effect that this particular weapon had been modified in order to make it capable of fully automatic fire. This evidence established that the weapon was an automatic weapon, but it did not establish the defendant's mens rea.

An FBI agent determined that the rifle was operable and that it had fully automatic firing capabilities. However, his testimony was that while members of law enforcement suspected the gun had been altered, they had to fire the weapon in order to determine that it was automatic. This was done at a firing range. There was no evidence that the defendant had ever fired the weapon.

The AK-47 was also examined by Minelly Hernandez-Suerta, an expert firearms examiner, who testified that the firearm had been tampered with in its internal mechanisms to make it capable of automatic fire. Hernandez-Suerta suspected that this AK-47 was an automatic weapon because there was a hole or mark between the fire and safety settings of the weapon. But she could not be certain until she had fired it on the range, or examined its internal mechanisms. And she further testified that nothing in her tests permitted her to conclude that Nieves-Castaño had ever held, touched, or fired the AK-47. Additionally, while the small hole suggested to Hernandez-Suerta that the weapon had been altered, she testified that she drew this inference because, as an expert, she knew that this hole was identical to what one would see on the military version of the AK-47. Finally, the expert testified that if she had merely looked at the weapon, and had not noticed the small hole, she would have been unable to determine whether the weapon had been altered to fire automatically.

The requisite mens rea may be established by circumstantial evidence, see Staples, 511 U.S. at 615, 114 S.Ct. 1793 n. 11, as the government attempted here. As an officer recounted at trial, the defendant said in her interview that the gun was an AK-47 and that she knew it was a rifle because on one occasion she had opened the golf bag and saw the weapon inside. The government sought to infer knowledge that the weapon was automatic from this fact.

Circumstantial evidence includes "external indications signaling the nature of the weapon." Id. But there was no evidence that one would see, simply by looking into the golf bag, a small mark on the weapon between the fire and safety settings.¹ And although that mark informed an expert that perhaps the weapon had been altered to make it fully automatic, there was no evidence that this...