U.S. v. Xavier

• Citation: 2 F.3d 1281
• Decision Date: 16 August 1993
• Docket Number: No. 92-7575,92-7575
• Parties: UNITED STATES of America; Government of the Virgin Islands v. Clement XAVIER, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 1281

2 F.3d 1281

UNITED STATES of America; Government of the Virgin Islands v. Clement XAVIER, Appellant.

No. 92-7575.

United States Court of Appeals Third Circuit.

Argued April 27, 1993.

Decided Aug. 16, 1993.

Joel H. Holt (argued), Law Offices of Joel H. Holt, Christiansted, St. Croix, U.S. VI, for appellant.

Alphonso G. Andrews, Jr. (argued), Office of U.S. Atty., Christiansted, St. Croix, U.S. VI, for appellee, the U.S.

Before: GREENBERG, SCIRICA and GARTH, Circuit Judges.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

Defendant Clement Xavier challenges his convictions and sentences for assault and weapons offenses. We will affirm in part, reverse in part, and remand for resentencing.

I.

On May 20, 1992, Clement Xavier and his brother, Franklin, were inside a grocery store in St. Croix when Craig Brodhurst drove into the parking lot. Brodhurst's wife, his two children, and two other adults, Alton Pennyfeather and Mario Edwards, were also in his car. When Edwards and Ms. Brodhurst went into the store, Franklin Xavier approached them, asking if Pennyfeather was in the car. Edwards said "[d]on't get me into that," but Franklin Xavier threatened "[w]ell, that's Pennyfeather out there. If those guys want war, they will get war tonight."

Franklin Xavier then told Clement Xavier that Pennyfeather was in Brodhurst's car, and Clement Xavier said "wait inside here[, d]on't go nowhere." Clement Xavier got in his truck, drove off, and returned after a few minutes with an unidentified man. This man got out of the truck and handed a .38 caliber, long-nosed pistol to Franklin Xavier, who shot at Brodhurst's car several times. Clement Xavier yelled "Let's go, Franky," and the three men left the scene. No one was injured in the incident.

The government indicted both brothers. Clement Xavier was charged with five of the seven counts in the indictment: attempted murder (14 V.I.C. Secs. 11(a), 331(1), 922(a)(1) (count I)); aiding and abetting third degree assault (14 V.I.C. Secs. 11(a), 297(2) (count II)); aiding and abetting possession of a firearm during a violent crime (14 V.I.C. Secs. 11(a) 2253(a) (count III)); possession of a firearm, (14 V.I.C. Secs. 11(a), 2253(a) (count IV)); and aiding and abetting an ex-felon's possession of a firearm (18 U.S.C. Secs. 2(a), 922(g)(1) (count VI)). ¹

At trial, three eyewitnesses--Brodhurst, Edwards, and Pennyfeather--testified for the prosecution. Edwards recounted his conversation with Clement Xavier and the subsequent exchange between the brothers. Each witness testified that Clement Xavier left the grocery store parking lot in his truck shortly after Brodhurst's car arrived and returned several minutes later with an unidentified man. That man, according to the witnesses, handed a gun to Franklin Xavier, who shot at Brodhurst's car. The witnesses heard Clement Xavier yell to his brother and saw the brother jump into defendant's truck, in which they sped off together. ² In his defense, Clement Xavier offered the testimony of three friends, who placed him at a basketball game at the time of the incident.

The jury acquitted Clement Xavier of attempted murder but convicted him of aiding and abetting third degree assault (count II), aiding and abetting possession of a firearm during a violent crime (count III), possession of a firearm (count IV), and aiding and abetting an ex-felon's possession of a firearm (count VI). He received a 2 year sentence on count II, 5 years on count III, 2 years on count IV, and 30 months (to run concurrently with the sentences on counts II-IV) on count VI. Clement Xavier now appeals his convictions and the imposition of consecutive sentences on counts III and IV. ³

II.

Clement Xavier claims the district court should have granted a mistrial because of prejudicial remarks by a prosecution witness.

At trial, government witness Brodhurst was emotional and made strong remarks about the defendants. Most comments were directed at Franklin, not Clement Xavier ("he is a coward," "them man wicked," "he ain't civilize," "them man is trouble makers"). Defense counsel did not contemporaneously object or ask the district judge to strike the remarks. Instead, after Brodhurst made five or six such comments and after direct examination, defense counsel asked for a mistrial. The judge denied the request but instructed the jury to ignore Brodhurst's "outbursts" and consider only the "responsive portions" of his testimony.

Defendant claims Brodhurst's "highly inflammatory and prejudicial" comments were grounds for a mistrial. The district court disagreed, and we review for abuse of discretion. United States v. Wright-Barker, 784 F.2d 161, 175 (3d Cir.1986). Our inquiry focuses on whether any conduct at trial was so prejudicial that defendant was deprived of a fundamental right. See, e.g., United States v. DeRosa, 548 F.2d 464, 473 (3d Cir.1977). Three factors guide this inquiry: (1) whether Brodhurst's remarks were pronounced and persistent, creating a likelihood they would mislead and prejudice the jury, (2) the strength of the other evidence, and (3) curative action taken by the district court. See United States v. Brockington, 849 F.2d 872, 875 (4th Cir.1988).

We find the jury was not misled by Brodhurst's comments; his statements pertaining to defendant were oblique and neither pronounced nor persistent. Brodhurst, the target of the shots, was a victim of the crime, and his remarks should be viewed in that context. See United States v. Somers, 496 F.2d 723, 739 (3d Cir.) (prejudice assessed based on the nature of improper remarks and circumstances in which they were made), cert. denied, 419 U.S. 832, 95 S.Ct. 56, 42 L.Ed.2d 58 (1974). The evidence against defendant was strong, and both the prosecutor and the trial judge admonished Brodhurst to refrain from making these statements. Moreover, the district judge instructed the jury to ignore Brodhurst's outbursts and consider only the responsive elements of his testimony. We find no abuse of discretion here.

III.

Defendant contends he was wrongfully convicted for aiding an abetting possession of a firearm by a convicted felon. 18 U.S.C. Secs. 2(a), 922(g)(1). He claims the government never proved his knowledge of Franklin Xavier's conviction, which, he asserts, is an essential element of the crime. The government concedes "proof of knowledge (or reasonable cause to believe) of an ex-felon's status is a required element for conviction, as an aider and abettor, under Section 922(g)(1)." We agree.

A.

Section 922(g) proscribes possession of a firearm by anyone

(1) who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year;

(2) who is a fugitive from justice;

(3) who is an unlawful user of or addicted to any controlled substance ...;

(4) who has been adjudicated as a mental defective or who has been committed to a mental institution;

(5) who, being an alien, is illegally or unlawfully in the United States; or,

(6) who has been discharged from the Armed Forces under dishonorable conditions; or

(7) who, having been a citizen of the United States, has renounced his citizenship

18 U.S.C. Sec. 922(g) (emphasis added). We have recognized Sec. 922(g) is not a specific intent statute. See United States v. Weiler, 458 F.2d 474, 477 (3d Cir.1972); see also United States v. Schmitt, 748 F.2d 249, 251-52 (5th Cir.1984).

But criminal liability for aiding and abetting a Sec. 922(g) violation stands on a different footing because it depends on the status of the person possessing the firearm. ⁴ Congress addressed this exact situation in Sec. 922(d). That statute provides:

It shall be unlawful for any person to sell or otherwise dispose of any firearm to any person knowing or having cause to believe that such person--

(1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

(2) is a fugitive from justice;

(3) is an unlawful user of or addicted to any controlled substance ...;

(4) has been adjudicated as a mental defective or who has been committed to a mental institution;

(5) who, being an alien, is illegally or unlawfully in the United States; or,

(6) who has been discharged from the Armed Forces under dishonorable conditions; or

(7) who, having been a citizen of the United States, has renounced his citizenship.

18 U.S.C. Sec. 922(d) (emphasis added). As the text of statute indicates, one cannot be criminally liable under Sec. 922(d) without knowledge or reason to know of the transferee's status. See United States v. Murray, 988 F.2d 518, 522 (5th Cir.1993) ("[I]t is the purchaser's status as a felon which makes the activity criminal. If the aider and abettor does not know this fact, it is difficult to say he shared in the criminal intent of the principal.").

Defendant was convicted as an aider and abettor under Sec. 922(g) for precisely the activity proscribed in Sec. 922(d)--providing a firearm to a convicted felon. Allowing aider and abettor liability under Sec. 922(g)(1), without requiring proof of knowledge or reason to know of the possessor's status, would effectively circumvent the knowledge element in Sec. 922(d)(1) and, as the government concedes in its brief, "would abrogate congressional intent." Therefore, we hold there can be no criminal liability for aiding and abetting a violation of Sec. 922(g)(1) without knowledge or having cause to believe the possessor's status as a felon. Unless there is evidence a defendant knew or had cause to believe he was aiding and abetting possession by a convicted felon, it has not shown a "guilty mind" under 18 U.S.C. Sec. 2(a). See United States v. Tarr, 589 F.2d 55, 60 (1st Cir.1978) (conviction for aiding and abetting illegal dealing of firearms reversed where defendant did not know principal offenders were illegal gun dealers).

B.

Defendant did not object to the district court's jury instructions on count VI (aiding and abetting an...