United States v. Breast
| Decision Date | 11 August 2021 |
| Docket Number | No. 20-1450,20-1450 |
| Parties | UNITED STATES of America, Plaintiff - Appellee v. Luke Joseph BURNING BREAST, Defendant - Appellant |
| Court | U.S. Court of Appeals — Eighth Circuit |
Counsel who presented argument on behalf of the appellant and appeared on the brief was Rachael Steenholdt, AFPD, of Fargo, ND.
Counsel who presented argument on behalf of the appellee and appeared on the brief was Michael J. Elmore, AUSA, of Pierre, SD.
Before GRUENDER, ERICKSON, and KOBES, Circuit Judges.
Luke Joseph Burning Breast appeals his conviction for being a felon in possession of a firearm, arguing the government failed to show he (1) possessed a "firearm" that traveled in interstate commerce, and (2) knew of his status as a prohibited person. Burning Breast also argues the district court1 failed to properly instruct the jury on both issues. We affirm.
In 2007, Burning Breast pled guilty in federal court to being a drug user in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2). He received a three-year probationary sentence. Twelve years later, on July 28, 2018, Burning Breast purchased an AR-15 style rifle from his mother, Georgia Hackett ("Hackett"). Hackett, on April 9, 2019, reported a domestic incident between Burning Breast and his girlfriend that occurred at Hackett's residence in Rosebud, South Dakota. As Burning Breast was being arrested, the officers asked him where to find his car keys so Hackett could move his vehicle. Burning Breast stated the keys were outside next to his rifle. Aware of Burning Breast's prior criminal record, when one of the officers questioned Burning Breast, Burning Breast admitted he was a felon but believed his conviction had been expunged since it was more than ten years old. The officer told Burning Breast that under federal law he continued to be a felon unless he received a pardon. Burning Breast responded, "Well, that's what must have happened."
The officers seized the rifle, a loaded magazine found near the rifle, and another magazine located inside the residence.
Burning Breast's rifle was distinctive, as portions had been spray-painted blue. After Burning Breast was released on the domestic assault charge, he filed a motion in tribal court to recover the rifle. He produced the bill of sale from July 2018, and the tribal court ordered the rifle be returned to Burning Breast.
On August 14, 2019, Burning Breast was indicted for being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The indictment alleged that Burning Breast knowingly possessed a Smith & Wesson, model M&P 15 semi-automatic rifle, which had been shipped and transported in interstate and foreign commerce. Before trial, the government filed a motion in limine to exclude evidence regarding Burning Breast's "mistake of law" as to his status as a prohibited person and Burning Breast's possible belief that the prior conviction had been expunged. After a hearing, the district court granted the motion and, relying on Rehaif v. United States, 588 U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019), determined the government did not have to prove Burning Breast knew he was prohibited from possessing a firearm, but only that he knew he belonged to the relevant category of persons barred from possessing a firearm.
At trial, the court received into evidence a certified copy of the judgment from Burning Breast's prior felony conviction along with the plea agreement and transcript from the plea hearing. The transcript and plea agreement each outlined the maximum penalty for the offense as exceeding one year. Special Agent Brent Fair of the Bureau of Alcohol, Tobacco, Firearms and Explosives testified that the rifle found in Burning Breast's possession was an AR-15 style rifle with an upper and lower receiver, and, consistent with federal regulations, only the lower receiver was marked with a serial number. Special Agent Fair further testified that he traced the lower receiver, which was manufactured in Illinois and thereafter shipped to Massachusetts, "where it was assembled as a finished rifle by Smith & Wesson." From Massachusetts the firearm was shipped to Louisiana before being shipped to a gun dealer in Nebraska. The firearm was sold in 2014 to an individual in South Dakota. Several years later, the firearm was recovered in Burning Breast's possession. Special Agent Fair opined the firearm in Burning Breast's possession was a complete firearm manufactured by Smith & Wesson and the parts that had been subsequently painted, or swapped out, or added (the evidence before the jury was that the only known changes to the rifle were a scope and a light2 ) did not change the fact that it was a firearm that had been shipped and transported in interstate commerce.
Burning Breast moved for judgment of acquittal, asserting the government failed to meet its burden because it did not prove the entire firearm traveled in interstate commerce, only the lower receiver. The district court denied the motion, finding the jury could infer that the fully assembled firearm crossed state lines. Burning Breast requested a theory of defense instruction, which highlighted the definition of a receiver. While the district court did not instruct the jury exactly as Burning Breast requested, it added a definition of receiver to the instructions. The district court declined to give Burning Breast's other requested instruction, which stated that Burning Breast had to know his prior conviction was not expunged. After deliberating for 46 minutes, the jury found Burning Breast guilty. The district court sentenced him to a 16-month term of imprisonment. Burning Breast timely appealed.
We review de novo the denial of a motion for judgment of acquittal "viewing the evidence in a light most favorable to the verdict and accepting all reasonable inferences supporting the verdict." United States v. Colton, 742 F.3d 345, 348 (8th Cir. 2014). We reverse "only if no reasonable jury could have found guilt beyond a reasonable doubt." United States v. Mabery, 686 F.3d 591, 598 (8th Cir. 2012).
In order to be convicted of being a felon in possession of a firearm, the government must prove beyond a reasonable doubt that (1) Burning Breast had been previously convicted of a crime punishable by a term of imprisonment exceeding one year; (2) Burning Breast knowingly possessed a firearm; (3) the firearm was in or affecting interstate commerce; and (4) Burning Breast "knew he belonged to the relevant category of persons barred from possessing a firearm." United States v. Coleman, 961 F.3d 1024, 1027 (8th Cir. 2020) (cleaned up); see 18 U.S.C. § 922(g). Burning Breast challenges the third and fourth elements, arguing that the evidence was insufficient to sustain a conviction under § 922(g).
With regard to the interstate nexus requirement, we have explained that "[t]he government need not produce the firearm in question to satisfy this element; proof that the firearm was manufactured outside the state of possession will suffice." United States v. Cox, 942 F.2d 1282, 1286 (8th Cir. 1991) (citation omitted). As relevant in this case, 18 U.S.C. § 921(a)(3) defines a "firearm" as "(A) any weapon ... which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; [or] (B) the frame or receiver of any such weapon." The frame or receiver is defined by regulation as the "part of a firearm which provides housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel." 27 C.F.R. § 478.11. Burning Breast argues that, because the government did not prove the upper receiver traveled in interstate commerce, the evidence was insufficient to convict him of being a felon in possession of a firearm.
The dissent, and Burning Breast, focus exclusively on whether the lower receiver is a receiver within the regulatory definition of receiver and whether the government had to prove the upper receiver also traveled in interstate commerce. Those issues are simply red herrings under the circumstances of this case. The dissent mistakenly asserts that if the lower receiver is not a "receiver" under the regulation, it cannot be a firearm. Consistent with 18 U.S.C. § 921(a)(3), the jury was instructed, in relevant part, that a firearm includes:
Special Agent Fair explained to the jury that "[t]here's more than one definition under federal law for a rifle or a firearm." A frame or receiver is simply one way to meet the definition. Another way is if the weapon will, is designed to, or may readily be converted to expel a projectile by the action of an explosive. Notwithstanding the lack of evidence establishing the upper receiver had, in fact, been swapped out, there was no evidence that at any point the firearm was anything but a weapon that could, or was designed to, or may readily be converted to expel a projectile by the action of an explosive. Here, it is immaterial whether there was proof that the upper receiver traveled in interstate commerce when the evidence established a completed rifle capable of being shot traveled in interstate commerce prior to Burning Breast's possession of it.
As the government argued during closing arguments, the uncontroverted evidence established this AR-15 style rifle was a firearm under the first part of the statutory definition because it was capable of being shot and no evidence was presented to dispute this testimony. The government could meet its burden in a manner broader than the limitation imposed by the dissent, which requires proof that the upper and lower halves of the...
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