United States v. Fontaine

• Decision Date: 28 August 2012
• Docket Number: No. 11–2602.,11–2602.
• Parties: UNITED STATES of America v. Richie FONTAINE, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

697 F.3d 221

UNITED STATES of America

v.Richie FONTAINE, Appellant.

No. 11–2602.

United States Court of Appeals, Third Circuit.

Argued May 7, 2012.

Filed: Aug. 28, 2012.

James Bernier, Jr., Michael Fitzsimmons [Argued], Duensing, Casner, Dollison & Fitzsimmons, St. Thomas, VI, for Appellant.

Nelson L. Jones [Argued], Office of United States Attorney, Charlotte Amalie, St. Thomas, VI, for Appellee.

Before: CHAGARES, JORDAN, and COWEN, Circuit Judges.

OPINION OF THE COURT

JORDAN, Circuit Judge.

Richie Fontaine appeals his conviction in the District Court of the Virgin Islands of the United States for unauthorized possession of a firearm or “imitation thereof” during the commission of a crime of violence, in violation of 14 V.I.Code Ann. tit. 14, § 2253(a). Fontaine argues that § 2253(a) is void for vagueness and that the government failed to prove he was not authorized to possess an “imitation” firearm, which, under his interpretation of § 2253(a), it was required to do. For the following reasons, we will affirm the judgment of conviction.

I. BackgroundA. Facts

On the night of August 14, 2009, Yully Geron and Julio Martinez were driving in St. Thomas, when Fontaine and an unidentified companion ¹ forced them to stop and get out of their car. Fontaine was brandishing what appeared to be a black handgun, while his companion had what appeared to be a silver handgun. After Geron and Martinez got out of the car, Fontaine and his accomplice ordered them to lie on the ground. Fontaine's accomplice proceeded to search Martinez and took his wallet, jewelry, and cell phone, while Fontaine searched Geron and took his wallet and a steel bracelet. Fontaine then held his gun—or what appeared to be a gun—to Martinez's head, and asked him “[w]here is the money.” (Joint App. at 180.) Making the threat explicit, Fontaine said, “I am going to count until three. And if you don't give me your money, I'm going to kill you.” ( Id.) At some point, Fontaine pulled the trigger, but the gun did not fire. Fontaine also demanded money from Geron. Martinez told Fontaine that Fontaine's accomplice, who had by then walked across the street, had the money. Fontaine then departed. Martinez and Geron immediately drove to a police station and reported the incident. Fontaine was arrested nine days later. Law enforcement authorities never recovered the gun (real or imitation) that was in Fontaine's possession when he robbed Martinez and Geron.

B. Procedural History

On October 1, 2009, the government charged Fontaine with, among other things, six counts of unauthorized possession of a firearm or “imitation thereof” during the commission of a crime of violence, in violation of 14 V.I.Code Ann. tit. 14, § 2253(a).² Because law enforcement authorities did not recover a gun when they apprehended Fontaine and so could not prove that he had possessed an operable firearm, the government's theory of the case was that Fontaine possessed an “imitation” firearm when he committed the crimes for which he was being prosecuted.

Trial commenced on November 16, 2009. At the close of the government's case-in-chief, Fontaine filed a motion for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29.³ The District Court initially denied the motion but then became “concerned that the counts that charge the possession of a firearm during a crime of violence may have an elemental proof issue.” (Joint App. at 311.) The Court was apparently concerned that § 2253(a), as written, required the government to prove that the defendant did not have authorization to possess an imitation firearm. ( See id. at 320 (“And the way the statute is written, or the way it's been determined to be ... you have to show that there was no license to possess [an imitation firearm].”); id. (“If you can't get a license to possess a toy gun, say one you got at Kmart that looks like a real gun, can you really establish that [element of the offense]?”).) The Court thus instructed the parties to submit additional briefing on the issue.

Before definitively resolving that issue, the District Court instructed the jury that, for the government to sustain its burden of proving that Fontaine was guilty of unauthorized possession of a firearm or imitation thereof during a crime of violence,

the government must prove the following essential elements beyond a reasonable doubt: [f]irst, that the defendant committed a crime of violence; [s]econd, that during the commission of that crime the defendant knowingly possessed or carried a firearm, or imitation thereof; [and] [t]hird, that the defendant was not authorized to possess or carry the firearm or imitation thereof.

( Id. at 345.) Based on that instruction, the jury found Fontaine guilty on five of the six counts charging a violation of § 2253(a).⁴

Thereafter, the Court denied Fontaine's Rule 29 motion. In denying the motion, it held “that the language [of § 2253] is clear enough to put those in the community on notice [as to] which crimes are penalized, [and] what type of conduct is prohibited.” ( Id. at 474.) The Court also held that, except to the extent of showing a defendant was a convicted felon, § 2253(a) did not require the government to show that Fontaine was not authorized to possess a firearm or “imitation thereof” in order to prove that he was guilty of “possessing ... an imitation firearm during the commission of a crime of violence.” ⁵V.I.Code Ann. tit. 14, § 2253(a). Fontaine was subsequentlysentenced to sixty months' imprisonment on Count One; fifteen years' imprisonment on Counts Three, Five, Nine, Eleven, and Thirteen; and fifteen years' imprisonment on Counts Eight, Ten, and Twelve. All counts were to be served concurrently. This timely appeal followed.

II. Discussion⁶

Fontaine appeals his conviction on two grounds: first, he argues that his conviction under § 2253(a) is unconstitutional because the statute is unconstitutionally vague; second, he argues that the government failed to satisfy its burden of proving that he is guilty of violating § 2253(a) because it did not offer any evidence that he is not authorized to possess an imitation firearm. We will uphold the conviction because § 2253(a) clearly proscribes Fontaine's conduct in this case, and because, sensibly read, it requires only that the government prove that an accused is not authorized to possess a firearm, not that it prove a lack of authorization to carry an imitation firearm.

A. The Void–For–Vagueness Challenge⁷

As previously noted, supra note 2, Section 2253(a) provides:

Whoever, unless otherwise authorized by law, has, possesses, bears, transports or carries either, actually or constructively, openly or concealed any firearm, as defined in Title 23, section 451(d) of this code,⁸ loaded or unloaded, may be arrested without a warrant, and shall be sentenced to imprisonment of not less than one year nor more than five years and shall be fined not less than $5,000 nor more than $15,000 or both the fine and imprisonment, except that if such person shall have been convicted of a felony in any state, territory, or federal court of the United States, or if such firearm or an imitation thereof was had, possessed, borne, transported or carried by or under the proximate control of such person during the commission or attempted commission of a crime of violence, as defined in subsection (d) hereof, then such person shall be fined $25,000 and imprisoned not less than fifteen (15) years nor more than twenty (20) years. The foregoing applicable penalties provided for violation of this section shall be in addition to the penalty provided for the commission of, or attempt to commit, the felony or crime of violence.

(emphasis added). And again, as noted, the jury found Fontaine guilty of possessing a firearm or imitation firearm “during the commission or attempted commission of a crime of violence....” V.I.Code Ann. tit. 14, § 2253(a). Fontaine contends that § 2253(a) is void for vagueness because, by penalizing those who possess an imitation firearm during a crime of violence, it “fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits and authorizes,” and “encourages arbitrary and discriminatory enforcement.” (Appellant's Br. at 7, 8.) We disagree.

The void-for-vagueness doctrine reflects the fundamental principle that, in order to comply with the requirements of due process, a statute must give fair warning of the conduct that it prohibits. See Bouie v. City of Columbia, 378 U.S. 347, 351, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964) (“We have recognized ... that a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law....” (internal quotation marks and citation omitted)). A statute is unconstitutionally vague under the Due Process Clause if it “(1) ‘fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits'; or (2) ‘authorizes or even encourages arbitrary and discriminatory enforcement.’ ” United States v. Stevens, 533 F.3d 218, 249 (3d Cir.2008) (quoting Hill v. Colorado, 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000)). “In criminal cases, because vagueness attacks are based on lack of notice, they may be overcome in any specific case where reasonable persons would know their conduct puts [them] at risk of punishment under the statute.” United States v. Moyer, 674 F.3d 192, 211 (3d Cir.2012) (internal quotation marks and citation omitted). Where, as here, a statute does not involve rights guaranteed by the First Amendment,⁹ we examine whether it is vague “as-applied to the affected party.” United States v. Fullmer, 584 F.3d 132, 152 (3d Cir.2009); see also United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975) (“It is well established that...