United States v. Duroseau

• Decision Date: 24 February 2022
• Docket Number: No. 21-4104,21-4104
• Citation: 26 F.4th 674
• Parties: UNITED STATES of America, Plaintiff – Appellee, v. Jacques Yves Sebastien DUROSEAU, Defendant – Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

26 F.4th 674

UNITED STATES of America, Plaintiff – Appellee,

v.Jacques Yves Sebastien DUROSEAU, Defendant – Appellant.

No. 21-4104

United States Court of Appeals, Fourth Circuit.

Argued: December 7, 2021

Decided: February 24, 2022

ARGUED: Edward D. Gray, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Vijay Shanker, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: G. Alan DuBois, Federal Public Defender, Jennifer C. Leisten, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Kenneth A. Polite, Jr., Assistant Attorney General, Lisa H. Miller, Acting Deputy Assistant Attorney General, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; G. Norman Acker, III, Acting United States Attorney, David A. Bragdon, Assistant United States Attorney, Chief, Appellate Division, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Before DIAZ and QUATTLEBAUM, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Vacated and remanded by published opinion. Senior Judge Traxler wrote the opinion in which Judge Diaz and Judge Quattlebaum joined.

TRAXLER, Senior Circuit Judge:

Jacques Yves Sebastien Duroseau, a naturalized United States citizen, was convicted of five offenses springing from his plan to take weapons to his native Haiti in an attempt to help the Haitian government quell gang violence overtaking the country. On appeal, Duroseau challenges the conviction on Count Five of the indictment, which charged him with transporting firearms to the Haitian Army, in violation of 18 U.S.C. § 922(a)(5). We agree with Duroseau that the government failed to prove a violation of § 922(a)(5) and that the district court erred by denying his Rule 29 motion for judgment of acquittal on that count. Accordingly, we vacate Duroseau's conviction on Count Five and remand for the district court to enter a judgment of acquittal on Count Five and resentence Duroseau on the remaining convictions.

I.

Duroseau was born in Haiti in 1986. During his childhood, Haiti suffered multiple natural disasters and repeated cycles of political upheaval. Duroseau was inspired by the United States Marines he saw working in Haiti to help rebuild the country, and he hoped to join their ranks one day.

Duroseau became a permanent resident of the United States in 2010 and joined the Marines in 2011. He became a naturalized citizen in 2013 and took the oath of citizenship on a battlefield in Afghanistan. Upon his return from Afghanistan, Duroseau was diagnosed with post-traumatic stress disorder and possible traumatic brain injury.

Duroseau subsequently was stationed in North Carolina. While in North Carolina, Duroseau became increasingly concerned about the worsening political and humanitarian conditions in Haiti. Duroseau, a seasoned firearms instructor, decided that he should return to Haiti to "train the Haitian military in marksmanship to defeat the armed gangs wreaking havoc in the country." Brief of Appellant at 5.

In furtherance of his plan to help Haiti, Duroseau in the fall of 2019 asked his Marine-Reservist girlfriend Taylor Hickey to create fraudulent military orders purporting to send him to Haiti on official business. Hickey created the requested orders (which described Duroseau as a colonel rather than his actual rank of sergeant) and bought Duroseau airline tickets to travel to Haiti. On November 11, 2019, Duroseau packed up eight firearms and ammunition,¹ and Hickey drove him to the airport in New Bern, North Carolina. Hickey (in uniform) accompanied Duroseau to the airport and played the role of his subordinate by jotting down directions from Duroseau in a notebook. Duroseau properly declared the firearms and ammunition, and the airline checked him in and processed the firearms and ammunition for the flight to Haiti.

Duroseau was detained by the Haitian National Police at the airport upon landing in Port-au-Prince, and the police seized the firearms. Duroseau spent several weeks in custody in Haiti before he was turned over to the Naval Criminal Investigative Service.

Duroseau was charged in a superseding indictment with six counts, including four counts relating to unlawful exportation (Counts One through Four) and one count of impersonating an officer or employee acting under the authority of the United States (Count Six). This appeal involves Count Five, which alleged that Duroseau violated 18 U.S.C. § 922(a)(5) by willfully transporting firearms "to the Haitian army," an entity that is not a licensed firearms importer or dealer and does not maintain a place of business in North Carolina, Duroseau's state of residence. J.A. 49.

The jury convicted Duroseau on all charges except Count Six. The district court sentenced Duroseau to 63 months' imprisonment. Duroseau appeals, challenging only his conviction on Count Five for violating 18 U.S.C. § 922(a)(5).

II.

Section 922(a)(5) is part of the Gun Control Act of 1968, which was enacted in order to "strictly control the illegal transfer of firearms." United States v. Colicchio , 470 F.2d 977, 979 (4th Cir. 1972). To that end, the statute provides that, subject to two exceptions not applicable in this case, it is unlawful

for any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) to transfer, sell, trade, give, transport, or deliver any firearm to any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) who the transferor knows or has reasonable cause to believe does not reside in (or if the person is a corporation or other business entity, does not maintain a place of business in) the State in which the transferor resides ....

18 U.S.C. § 922(a)(5). The statute thus creates a "single offense of transferring (by any one of several means) a firearm by an unlicensed person to any other unlicensed person who resides in a different state than the state in which the defendant resides." United States v. James , 172 F.3d 588, 593 (8th Cir. 1999).

Duroseau raises three challenges to his conviction under § 922(a)(5). He argues that the district court erred by denying his motion for judgment of acquittal as to Count Five because the government failed to prove that he actually transferred the firearms to another person, as required by the statute. See Fed. R. Crim. P. 29(a) ("After the government closes its evidence or after the close of all the evidence, the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction."). Duroseau also contends he was entitled to a judgment of acquittal because § 922(a)(5) is concerned only with interstate firearm transfers and therefore does not apply to his intended international transfer. Finally, Duroseau contends that the district court gave an erroneous instruction when responding to a jury question about the requirements to convict under § 922(a)(5). As we will explain, we agree with Duroseau's first argument, which makes it unnecessary to address the others.

A.

Before turning to the merits, we pause to address the government's assertion that Duroseau's "to another person" argument is not properly before this court.

Under Rule 29 of the Federal Rules of Criminal Procedure, the defendant may move for a judgment of acquittal at the close of the government's case, after the close of all evidence, or after the jury returns a guilty verdict. See Fed. R. Crim. P. 29(a), (c). If the motion is made during trial, the district court "may reserve decision on the motion, proceed with the trial ..., submit the case to the jury, and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict." Fed. R. Crim. P. 29(b).

"When a defendant raises specific grounds in a Rule 29 motion, grounds that are not specifically raised are waived on appeal" unless "a manifest miscarriage of justice has occurred." United States v. Chong Lam , 677 F.3d 190, 200 & n.10 (4th Cir. 2012) (internal quotation marks omitted); see United States v. Fall , 955 F.3d 363, 374 (4th Cir. 2020) ; United States v. Goode , 483 F.3d 676, 681 (10th Cir. 2007) ; United States v. Quintana–Torres , 235 F.3d 1197, 1199 (9th Cir. 2000).² At the close of the government's case, Duroseau moved for a judgment of acquittal on Count Five only, arguing that § 922(a)(5) does not apply to the transfer of firearms in foreign commerce. The district court took the motion under advisement and denied it after the jury returned its verdict. Because Duroseau did not initially argue that the evidence did not show a transfer to an unlicensed person, the government contends Duroseau waived the claim and cannot pursue it on appeal. We disagree.

The point of error-preservation rules, including the requirement that a Rule 29 motion include all grounds supporting acquittal, is to give the district court the first opportunity to consider an issue and correct any errors. See Chong Lam , 677 F.3d at 200 ("Appellants failed to raise this argument in their Rule 29(c) motion, however, precluding the district court from having the first opportunity to opine on it. " (emphasis added)); accord United States v. Ramos , 852 F.3d 747, 752 (8th Cir. 2017) ("A basic reason for requiring litigants to preserve issues for appeal is to give the district court an opportunity to prevent or correct mistakes in the first instance."). Although Duroseau did not initially question whether the evidence showed a transfer to another person, the issue was considered and addressed in depth by the district court during the trial. See J.A. 615-19; 624-25.

The court raised the issue in response to a question from the jury during deliberations about Count Five. The jury's question noted that the indictment "states items were delivered to the Haitian Army. If the defendant was...