United States v. Fries

• Decision Date: 06 August 2013
• Docket Number: No. 11–15724.,11–15724.
• Citation: 725 F.3d 1286
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Theodore Stewart FRIES, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

725 F.3d 1286

UNITED STATES of America, Plaintiff–Appellee,

v.Theodore Stewart FRIES, Defendant–Appellant.

No. 11–15724.

United States Court of Appeals, Eleventh Circuit.

Aug. 6, 2013.

Jason R. Coody, Terry Flynn, Pamela C. Marsh, U.S. Attorney's Office, Tallahassee, FL, Robert G. Davies, U.S. Attorney's Office, Pensacola, FL, for Plaintiff–Appellee.

Chet Kaufman, Randolph Patterson Murrell, Federal Public Defender's Office, Tallahassee, FL, for Defendant–Appellant.

Theodore Stewart Fries, Ocala, FL, pro se.

Appeal from the United States District Court for the Northern District of Florida. D.C. Docket No. 4:11–cr–00022–RH–WCS–1.

Before CARNES, Chief Judge, WILSON and EBEL,^* Circuit Judges.

WILSON, Circuit Judge:

Theodore Stewart Fries appeals his conviction for transferring a firearm to an out-of-state resident when neither he nor the buyer was a licensed firearms dealer, in violation of 18 U.S.C. § 922(a)(5). He argues (1) that his conviction should be reversed because the evidence presented at trial was insufficient to prove that he sold a weapon to a person who was not a licensed firearms dealer, which is an essential element of the crime, and (2) that in the alternative, he should be granted a new trial because the jury instructions issued by the district court shifted the burden of proof away from the government as to the licensure status of the buyer. Because we agree that the record is devoid of evidence as to an essential element of the crime for which Fries was convicted, we reverse.

I.

In December 2009, Special Agents Donald Williams and William Lee Visnovske of the Bureau of Alcohol, Tobacco, and Firearms (ATF) went to the Tallahassee Gun and Knife Show in Florida for the purpose of conducting an undercover investigation of illegal gun sales. At the show, Williams asked Visnovske to purchase a firearm from Fries. Visnovske was a Georgia resident, and the sale was to take place in Florida, so it would therefore be illegal for Fries to knowingly sell a weapon to Visnovske, a nonresident of Florida, if neither the buyer nor the seller was a licensed dealer at the time of the transaction. 18 U.S.C. § 922(a)(5).

Posing as a character named “Peebo,” Visnovske approached Fries and identified himself as a “Georgia boy.” Visnovske further related that his younger brother was a student at the University of Florida and that he came from Georgia, where he lived, to visit his younger brother in Gainesville about once per month. Upon learning that Visnovske was from Georgia, Fries balked at the sale, explaining “[t]hat he couldn't sell to an out-of-state resident; that [Visnovske] needed to be from Florida.” Agent Williams, who was standing next to Visnovske, then volunteered that he was a Florida resident, to which Fries responded that he could sell the gun to Williams, and “what you do with it, I don't care.” Neither Visnovske nor Williams made any mention of whether they possessed a federal firearms license (FFL).

Because Fries had refused to sell a gun to the nonresident Visnovske the first time around, the agents tried again in April 2010. Visnovske (still posing as Peebo) and Williams again showed up at a Tallahassee gun show, and Visnovske again attempted to purchase a firearm. This time Fries took the bait. Fries told Visnovske that he had just received a Kimber handgun as a trade-in, but that he was willing to sell it to Visnovske for $1,200. Visnovske agreed to buy the gun, counted out $1,200 in cash in front of Fries, and took possession of the weapon. At no time did Fries ask Visnovske for identification, nor was there any discussion regarding Visnovske's licensure status.

On April 6, 2011, a federal grand jury returned a two-count indictment charging Fries with: (1) engaging in the business of dealing firearms without a license, in violation of 18 U.S.C. §§ 922(a)(1)(A), 923(a), and 924(a)(1)(D) (Count I); and (2) selling, while not being a licensed dealer, a Kimber pistol to a nonresident of the State of Florida who was also not a licensed firearms dealer, in violation of 18 U.S.C. §§ 922(a)(5) and 924(a)(1)(D) (Count II).¹

The case was tried to a jury, which returned a verdict of not guilty as to Count I and of guilty as to Count II on July 27, 2011.² The district court accepted the verdict, adjudged Fries guilty of Count II, and sentenced him to two years' probation. Section 922(a)(5), under which Fries was charged and convicted in Count II of the indictment, provides that it shall be 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; except that this paragraph shall not apply to (A) the transfer, transportation, or delivery of a firearm made to carry out a bequest of a firearm to, or an acquisition by intestate succession of a firearm by, a person who is permitted to acquire or possess a firearm under the laws of the State of his residence, and (B) the loan or rental of a firearm to any person for temporary use for lawful sporting purposes.

Prior to trial, Fries had asked the district court to modify the applicable Eleventh Circuit Pattern Jury Instruction to include the defense that a person “may be a resident of more than one state if he maintains a home in more than one state.” Apparently, Fries wished to present evidence that at the time he sold the gun, he believed Visnovske to be a resident of Georgia and Florida because of Visnovske's story about visiting his younger brother once per month at the University of Florida. During argument on this issue, the district judge commented, “I take it in this case the only claim is that Mr. Fries knew he was unlicensed and knew he was selling to somebody that was a nonresident. There is no claim about speeding or anything like that.” Fries's counsel later responded, “That's all I'm asking the court to do, is to instruct the jury accurately about this dual citizenship law, and I think that's what I propose.” No mention was ever made—by the government, by Fries, or by the court—of the fact that § 922(a)(5) might include as an element that the buyer of the weapon be unlicensed.

After discussing the jury instructions with the parties at a charge conference, the district court ultimately issued the following jury instruction as to the Count II:

[A] sale or transfer by an unlicensed person can only be made to a person who resides in the same state. Thus, a Florida resident who does not have a federal license cannot legally sell or transfer a firearm to a person who does not reside in Florida. There are exceptions—for a transfer to a licensed dealer, for a firearm that [is] passing through inheritance, and for a firearm that is being loaned or rented for sporting purposes—but the exceptions are not involved in this case. The defendant can be found guilty on Count Two if, and only if, all the following facts have been proved beyond a reasonable doubt:

First, the defendant did not have a Federal Firearms License[;]

Second, the defendant sold or transferred the firearm described in the indictment in Florida;

Third, the defendant knew or had reasonable cause to believe that the person who was acquiring the firearm through the sale or transfer did not reside in Florida; and,

Fourth, the defendant acted willfully.

Fries did not object to the proposed jury instruction, either at the charge conference or at trial, on the ground that it did not require the government to prove that the buyer of the firearm did not possess an FFL. Nor did Fries file a motion for judgment of acquittal at the close of the government's case, at the close of all the evidence, or in a post-trial motion.

Fries filed a notice of appeal, but soon thereafter his attorney filed a motion to withdraw as counsel and an Anders³ brief, contending that a review of the record revealed no arguable issue of merit upon which he could proceed in good faith. A member of this Court subsequently denied the motion to withdraw and ordered further briefing on the following two issues:

(1) whether the district court effectively removed the burden of proof regarding an element of the 18 U.S.C. § 922(a)(5) offense by instructing the jury that the sale of a firearm to a licensed dealer was an exception to the prohibition on sales to non-residents that did not apply in the case; and (2) whether the evidence was insufficient to convict when no evidence was presented as to whether the buyer of the firearm was a licensed dealer.

In keeping with that directive, Fries now argues that because there is insufficient evidence to support a finding that Visnovske did not have an FFL when Fries sold him the firearm at issue in Count II, his conviction should be reversed. He also argues in the alternative that because the trial judge instructed the jury that transferee's licensure status was an exception to criminal liability under § 922(a)(5) rather than an essential element of the crime, the jury instructions erroneously relieved the government of its burden to prove beyond a reasonable doubt that the person to whom Fries allegedly sold the Kimber firearm charged in Count II of the indictment (Visnovske) did not possess an FFL.

II.

We begin with Fries's argument that insufficient evidence supports his conviction for violating 18 U.S.C. § 922(a)(5). ⁴Ordinarily, we review de novo whether sufficient evidence supports a conviction, viewing the evidence and taking all reasonable inferences in favor of the jury's verdict. United States v. Farley, 607 F.3d 1294, 1333 (11th Cir.2010). But where a defendant does not move for acquittal or otherwise preserve...