U.S. v. Piwowar

• Citation: 492 F.3d 953
• Decision Date: 05 July 2007
• Docket Number: No. 06-3396.,06-3396.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Walter PIWOWAR, also known as Walter Piwowar, Jr., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

492 F.3d 953

UNITED STATES of America, Plaintiff-Appellee, v. Walter PIWOWAR, also known as Walter Piwowar, Jr., Defendant-Appellant.

No. 06-3396.

United States Court of Appeals, Eighth Circuit.

Submitted: May 15, 2007.

Filed: July 5, 2007.

Counsel who presented argument on behalf of the appellant was Scott F. Tilsen of Minneapolis, MN. Appearing on the brief was Katherine M. Menendez.

Counsel who presented argument on behalf of the appellee was Richard Newberry, AUSA of Minneapolis, MN.

Before BYE and SMITH, Circuit Judges, and NANGLE,¹ District Judge.

BYE, Circuit Judge.

A jury convicted Walter Piwowar of three counts of being a felon in possession of firearms and ammunition under 18 U.S.C. § 922(g)(1), after law enforcement officers seized fifteen firearms and a large amount of ammunition from his home and business properties. The district court² sentenced him to 37 months imprisonment. He appeals only his conviction for the firearms and ammunition seized from his business property, arguing he was no longer in possession of them when they were seized, and thus the evidence was insufficient to sustain his convictions. We affirm.

I

On November 17, 2004, law enforcement officers executed a search warrant at a business property owned by Piwowar, resulting in the seizure of fourteen firearms and several containers of ammunition from a building located there. The first floor of the building, at one time a truck stop and garage, is divided into two discrete areas. The firearms and ammunition were located in one area, on the north side of the building, which he leased to Christina Lenczuk, a childhood friend and sometime girlfriend. Lenczuk leased the area for storage, with the goal of eventually opening an antique shop on the property. The second half of the floor was used exclusively by Piwowar for storage and vehicle repairs.

The firearms and ammunition were seized from a padlocked walk-in refrigerator located in the portion of the building leased by Lenczuk. While Piwowar claimed not to have a key to Lenczuk's area, he did have a key to the walk-in refrigerator and Lenczuk did not. In addition, officers testified they were able to enter Lenczuk's area without a key via access from the rear during the course of their search. They were also able to access the walk-in refrigerator without utilizing a key by taking the door off its hinges. A key to the refrigerator was later found on a key ring in Piwowar's briefcase, located in his van.

When police called Lenczuk the day of the search, she denied any knowledge of the firearms, but later said she did so because she was frightened. At trial, she testified she had written Piwowar a check for $4,000 in exchange for the firearms located in the walk-in refrigerator and stated she never moved the firearms after taking possession of them, instead leaving them in the walk-in refrigerator. She also testified as to a plan to sell them at an auction with Piwowar's guidance. In addition, she testified about a key she possessed to the leased area of the property and acknowledged not having a key to the walk-in refrigerator.

On December 2, 2005, the jury found Piwowar guilty of possessing the firearms and ammunition in violation of 18 U.S.C. § 922(g)(1). He appeals, contending the evidence was insufficient to support the conviction, as he had sold the firearms and ammunition previously and thus was no longer in possession of them on the date of the seizure by law enforcement officers.

II

"We review the sufficiency of the evidence de novo, viewing evidence in the light most favorable to the government, resolving conflicts in the government's favor, and accepting all reasonable inferences that support the verdict." United States v. Guenther, 470 F.3d 745, 747 (8th Cir.2006) (quoting United States v. Washington, 318 F.3d 845, 852 (8th Cir.2003)). This is a strict standard of review, as "[w]e may reverse only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt." Id.

To convict Piwowar of being a felon in possession of firearms and ammunition, the government was required to prove beyond a reasonable doubt the following: (1) He previously had been convicted of a crime punishable by a term of imprisonment exceeding one year, (2) had knowingly possessed a firearm and ammunition, and (3) the firearm and ammunition had been in or had affected interstate commerce. United States v. Johnson, 474 F.3d 1044, 1048 (8th Cir.2007). Knowing possession can be actual or constructive, as well as sole or joint. Guenther, 470 F.3d at 747. Constructive possession of a firearm is established if the possessor had control over the place where the firearm was located, or control, ownership, or dominion over the firearm itself. Id. Constructive possession "requires knowledge of an object, the ability to control it, and the intent to do so." United States v. Cuevas-Arrendondo, 469 F.3d 712, 715 (8th Cir.2006).

It is Piwowar's contention the evidence was insufficient to prove his intent to control the firearms and ammunition found...