United States v. Frett

• Decision Date: 02 October 2020
• Docket Number: Case No. 3:18-cr-0037
• Citation: 492 F.Supp.3d 446
• Parties: UNITED STATES of America, Plaintiff, v. Aubrey FRETT, Defendant.
• Court: U.S. District Court — Virgin Islands

492 F.Supp.3d 446

UNITED STATES of America, Plaintiff,

v.Aubrey FRETT, Defendant.

Case No. 3:18-cr-0037

District Court of the Virgin Islands, Division of St. Thomas and St. John.

Signed October 2, 2020

Gretchen C.F. Shappert, United States Attorney, Everard E. Potter, AUSA, Nathan Brooks, AUSA, United States Attorney's Office, St. Thomas, U.S.V.I., For the United States of America.

Richard Coughlin, Federal Public Defender, Kia Danielle Sears, AFPD, Office of the Federal Public Defender, St. Thomas, U.S.V.I., For Aubrey Frett.

MEMORANDUM OPINION

MOLLOY, J.

BEFORE THE COURT is Aubrey Frett's motion for a judgment of acquittal. Frett contends that there was insufficient evidence wherein a reasonable jury could find him guilty beyond a reasonable doubt on Count One of the Indictment charging him with possession of a firearm with an obliterated serial number. Because the Court concludes that there was insufficient evidence for a reasonable jury to find that Frett knew that a metal plate containing the serial number had been removed from the firearm, the Court will grant the motion.

I. FACTUAL AND PROCEDURAL BACKGROUND

On September 3, 2018, officers with the Virgin Islands Police Department ("VIPD") attempted to arrest Frett on a warrant at a location in St. Thomas, U.S. Virgin Islands. Frett fled, and the officers observed him throw away a black object. Frett was eventually apprehended. A search of Frett's person revealed that he was carrying marijuana and cocaine. After searching the area where officers observed Frett throw the object, officers discovered a handgun and magazine.

On March 21, 2019, the Grand Jury returned a four-count indictment (the "Indictment") charging Frett with the following offenses: (1) possession of a firearm with an obliterated serial number in violation of 18 U.S.C. § 922(k) ; (2) possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1) ; (3) possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) ; and (4) possession of a firearm during drug trafficking in violation of 18 U.S.C. § 924(c).

On January 23-24, 2020, this matter was tried before a jury. With respect to the handgun recovered by the VIPD, officers testified that it was a 9mm Glock. The particular make and model of that firearm normally has a serial number displayed in three locations: First, a "metal plate" bearing the firearm's serial number is affixed to the lower receiver. See Det. Velazquez Trial Test. , ECF No. 95 at 81:22-23, 82:3. Second, the serial number is stamped into the upper receiver. Third, the serial number is stamped into the barrel. On the Glock recovered by the VIPD, the stamp on the lower receiver had been entirely removed. The serial numbers on the upper receiver and barrel, however, were both unmarred and entirely legible. See Det. Velazquez Trial Test. , ECF No. 95 at 91:23-25, 106:2-8.

At the close of the Government's case, Frett moved for a judgment of acquittal on all counts. The Court denied Frett's motion with respect to Counts Two through Four and took Frett's motion under advisement with respect to Count One, possession of a firearm with an obliterated serial number. Thereafter, Frett rested without presenting any further witnesses or evidence.

On January 24, 2020, the jury returned a verdict of guilty on Counts Two and Three—the two drug charges. The jury was unable to reach a decision on Counts One and Four—the two firearms charges. The Court, thereafter, declared a mistrial with respect to Counts One and Four.

On March 13, 2020, Frett filed a motion requesting that the Court issue a decision on his motion for a judgment of acquittal on Count One, which the Court took under advisement at the close of the Government's case. (ECF No. 97.) Frett argues that, because the firearm in this matter still bore two unmarred serial numbers, it did not have a "removed, obliterated, or altered" serial number within the meaning of 18 U.S.C. § 922(k). Alternatively, Frett argues that there was insufficient evidence to establish that he knew the firearm's serial number was removed, obliterated, or altered.¹

II. LEGAL STANDARD

A judgment of acquittal is appropriate under Federal Rule of Criminal Procedure 29 (" Rule 29") if, after reviewing the record in a light most favorable to the prosecution, the Court determines that no rational jury could find proof of guilt beyond a reasonable doubt. United States v. Bobb , 471 F.3d 491, 494 (3d Cir. 2006) ; see also United States v. Smith , 294 F.3d 473, 476 (3d Cir. 2002) (explaining that district court must " ‘review the record in the light most favorable to the prosecution to determine whether any rational trier of fact could have found proof of guilt beyond a reasonable doubt based on the available evidence’ " (quoting United States v. Wolfe , 245 F.3d 257, 262 (3d Cir. 2001) )).

A finding that there is insufficient evidence to support a conviction should be " ‘confined to cases where the prosecution's failure is clear.’ " Smith , 294 F.3d at 477 (quoting United States v. Leon , 739 F.2d 885, 891 (3d Cir. 1984) ). "Courts must be ever vigilant in the context of [ Rule] 29 not to usurp the role of the jury by weighing credibility and assigning weight to the evidence, or by substituting its judgment for that of the jury." United States v. Brodie , 403 F.3d 123, 133 (3d Cir. 2005) (citations omitted); see also United States v. Ashfield , 735 F.2d 101, 106 (3d Cir. 1984) ("Our task is not to decide what we would conclude had we been the finders of fact; instead, we are limited to determining whether the conclusion chosen by the fact finders was permissible.").

The government may sustain its burden entirely through circumstantial evidence. Bobb , 471 F.3d at 494 ; see also United States v. Wexler , 838 F.2d 88, 90 (3d Cir. 1988). A motion for a judgment of acquittal should be granted when there is a "total absence of evidence that [the] defendant had any connection" with the crimes alleged and proved. United States v. Darrell , 629 F.2d 1089, 1091 (5th Cir. 1980) (conviction reversed with directions to enter judgment of acquittal in mail fraud case, noting there was little Fifth Circuit precedent saying what evidence would permit an inference of the defendant's identity).

III. DISCUSSION

A. Section 922(k) Applies to Firearms Bearing Multiple Serial Numbers

Section 922(k), title 18, of the U.S. Code (" Section 922(k)") provides:

It shall be unlawful for any person knowingly to transport, ship, or receive, in interstate or foreign commerce, any firearm which has had the importer's or manufacturer's serial number removed, obliterated, or altered or to possess or receive any firearm which has had the importer's or manufacturer's serial number removed, obliterated, or altered and has, at any time, been shipped or transported in interstate or foreign commerce.

18 U.S.C. § 922(k). There is no dispute that one of the serial numbers on firearm in this matter was removed. The question before the Court is whether the removal of one serial number is sufficient to sustain a conviction under Section 922(k) when the firearm in question normally bears multiple serial numbers.

"It is the cardinal canon of statutory interpretation that a court must begin with the statutory language." In re Philadelphia Newspapers, LLC , 599 F.3d 298, 304 (3d Cir. 2010). "[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then this first canon is also the last: judicial inquiry is complete." Conn. Nat'l Bank v. Germain , 503 U.S. 249, 253–54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) (citations and quotation marks omitted). When the statutory language is ambiguous, however, Courts may attempt to resolve the ambiguity by reference to the legislature's overall intent and purpose in enacting the statute. See United States v. Introcaso , 506 F.3d 260, 267 (3d Cir. 2007) (explaining that, when the plain language of a statute is ambiguous, "[w]e next look to statutory purpose to the extent we can discern it."); see also In re Nickelodeon Consumer Privacy Litig. , 827 F.3d 262, 284 (3d Cir. 2016) (" ‘[W]hen technological change has rendered its literal terms ambiguous, a law must be construed in light of its basic purpose.’ " (original alterations and internal quotation marks omitted)).

The Court is unaware of any precedential appellate authority addressing the operation of Section 922(k) with respect to firearms with multiple serial numbers. A similar provision in the sentencing guidelines, Section 2K2.1(b)(4), provides for a sentencing enhancement when a defendant is convicted of a crime involving a firearm that "had an altered or obliterated serial number." See U.S.S.G. 2K2.1(b)(4). Several courts have held that this enhancement applies when a firearm has multiple serial numbers, only one of which is altered or obliterated. Those courts placed heavy weight on Section 2K2.1(b)(4) ’s use of "an."² As the Sixth Circuit explained,

"in common terms, when ‘a’ or ‘an’ is followed by a restrictive clause or modifier, this typically signals that the article is being used as a synonym for either ‘any’ or ‘one.’ " United States v. Alabama , 778 F.3d 926, 932 (11th Cir. 2015). For example, if a speaker says, "Give me an apple," most reasonable listeners would interpret that as, "Give me any apple," or, "Give me just one apple." Read in that fashion, the § 2K2.1(b)(4)(B) enhancement applies either when any serial number on a gun has been altered or obliterated or when just one serial number has been altered or obliterated.

United States v. Warren , 820 F.3d 406, 408 (11th Cir. 2016) (alterations omitted).

Unlike Section 2K2.1(b)(4), Section 922(k) addresses the obliteration or alteration of "the importer's or manufacturer's serial number." See 18 U.S.C. § 922(k) (emphasis added). This language seems to contemplate a situation in which a firearm has only one serial...