United States v. White
| Decision Date | 02 June 2016 |
| Docket Number | No. 15-2027,15-2027 |
| Citation | 824 F.3d 783 |
| Parties | United States of America, Plaintiff–Appellee v. Ronald F. White, Jr., Defendant–Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Rebecca L. Kurz, Research and Writing Specialist, Office of the Fed. Public Defender, Kansas City, MO, argued (Laine Cardarella, Fed. Public Defender, Anita L. Burns, Asst. Fed. Public Defender, on the brief), for appellant.
Ronald F. White, Jr., Leavenworth, KS, pro se.
Jeffrey Q. McCarther, Asst. U.S. Atty., Kansas City, MO, argued (Tammy Dickinson, U.S. Atty., on the brief), for appellee.
Before COLLOTON, GRUENDER, and SHEPHERD, Circuit Judges.
A jury convicted Ronald F. White of one count of possession of an unregistered firearm in violation of 26 U.S.C. §§ 5841, 5861(d), 5871, and one count of possession of a stolen firearm in violation of 18 U.S.C. §§ 922(j), 924(a)(2). White argues that: (1) the government did not present sufficient evidence that White knew the firearm in his possession had been stolen; (2) the court improperly instructed the jury on possession of an unregistered firearm by not requiring the jury to find that White knew of the characteristics of the firearm or had observed the firearm; and (3) the court abused its discretion when it admitted evidence that White was under investigation for a series of violent criminal offenses. Finding that the government did not provide sufficient evidence of possession of a stolen firearm, we reverse this conviction. We affirm the conviction for possession of an unregistered firearm.1
In October of 2013, White was a person of interest in Kansas City law enforcement's investigation of a series of felonies. As a part of the investigation, law enforcement conducted surveillance of White's parents' house in Lee's Summit, Missouri, where White sometimes stayed when visiting. The police searched trash left outside of the residence and found marijuana and rolling papers. Based on this contraband, law enforcement obtained a search warrant for the residence and conducted a search. In searching the top shelf of a closet in a guest bedroom, law enforcement found a black duffel bag containing five guns, magazines for the firearms, an Amtrak ticket in White's name dated January or February of 2013, and a credit card receipt. One gun was a Romarm Draco, a 7.62x39 handgun, and another was a Street Sweeper, a 12 gauge shotgun. In other rooms, law enforcement found mail bearing the names “Ronald F. White” and “Ronald F. White, Jr.,” and lyrics with “Ron Ron” written at the top.
A Bureau of Alcohol, Tobacco, and Firearms (“ATF”) agent examined the guns and determined that because each gun had been manufactured outside of the state of Missouri, all had traveled in interstate commerce. No latent fingerprints were found on the guns. White's DNA was discovered on the trigger of one of the five guns, but not on the Romarm Draco or Street Sweeper. The Romarm Draco had been legally owned by Richard Cushingberry and reported stolen in Kansas City, Missouri, on July 3, 2011. At trial, Cushingberry testified that he fell asleep in his bedroom while holding the gun, woke up to find the gun missing, looked out the window, and saw a man called Rashaad walking away from him. Cushingberry further testified that Rashaad had a friend named “Ron Ron.”
White was charged by indictment with one count of possession of an unregistered firearm under 26 U.S.C. §§ 5841, 5861(d), 5871, for the Street Sweeper, and one count of possession of a stolen firearm in violation of 18 U.S.C. §§ 922(j), 924(a)(2), for the Romarm Draco. The case proceeded to jury trial on July 21 and 22, 2014. White submitted a motion in limine seeking to prohibit evidence that White was a person of interest in a series of homicides and a home invasion in the Kansas City area, asserting that such evidence was irrelevant, unduly prejudicial, and constituted improper evidence of other bad acts under Federal Rules of Evidence 401, 402, 403, and 404(b). The government argued that the evidence was admissible to explain the context of the police investigation of White. The district court denied the motion, determining that such evidence was “admissible to show context and the circumstances of the crimes charged in this case.” White renewed the motion at trial and the district court instructed the government that it should limit any reference to the fact that White was under investigation for other felonies or other criminal activity.
At trial, Loran Freeman, a Kansas City Police Department Detective who secured the search warrant and conducted the search, testified. He explained that he was assigned to the career criminal unit which investigated “violent crimes, whether it be weapons-related offenses, violent assaults, serious crime in the way of robbery, whether it be armed or not, and other violent offenses.” Freeman further testified that he was told by an officer investigating “a series of violent criminal offenses” to start surveillance of White. The court admitted the signed application for the search warrant, which referred to homicides, but prohibited the government from displaying it to the jury. A second detective testified that he investigated those offenders who “are [of] career criminal status[,] repeat offenders, [or the] more violent type of offenders.” (sic).
The court instructed the jury as to possession of an unregistered firearm as follows:
White objected to Instruction No. 16, stating that it failed to require that the jury find that White “knew of the characteristics of the firearm, that the defendant knew the barrel had a bore of more than one-half inch, and the defendant knew that the firearm was not generally recognized for sporting purposes,” which brought it under the coverage of the National Firearms Act. Registration would be required if the Street Sweeper was a weapon “which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel ... of which ha[s] a bore of more than one-half inch in diameter, except a shotgun or shotgun shell which the Secretary finds is generally recognized as particularly suitable for sporting purposes.” 26 U.S.C. § 5845(f)(2). White offered an alternate instruction, Instruction C, which modified the third element to state, “Three , the defendant knew of the characteristics of the firearm, that is it had a barrel which has a bore of more than one-half inch in diameter,” which the district court refused. White asserted that the court erred when it overruled the objection and failed to give his proposed instruction. White moved for a judgment of acquittal at the close of all evidence, and the motion was denied. The jury convicted White of both counts in the indictment, and the district court sentenced White to concurrent 57-month terms of imprisonment. The district court denied White's post-trial motion for a new trial.
First, White contends that there was insufficient evidence for the jury to convict him of being in possession of a stolen firearm in violation of 18 U.S.C. § 922(j). The elements of this crime are “(1) the defendant knowingly possessed the firearm, (2) the firearm was stolen, (3) the defendant knew or had reasonable cause to believe the firearm was stolen, and (4) the firearm was shipped or transported in interstate commerce either before or after it was stolen.” United States v. Provost , 237 F.3d 934, 938 (8th Cir. 2001) (citing 18 U.S.C. § 922(j) ). Specifically, White asserts that there was insufficient evidence to support element three, “the defendant knew or had reasonable cause to believe the firearm was stolen.”
This court reviews the sufficiency of evidence de novo. United States v. Johnson , 745 F.3d 866, 868-869 (8th Cir. 2014). We view the evidence in the light most favorable to the verdict and give the government the benefit of all reasonable inferences which could be drawn from the evidence. Provost , 237 F.3d at 937. This means that if there is any construction of the evidence that could have permitted the jury to find beyond a reasonable doubt that White knew or had reason to believe the firearm was stolen, we must affirm. See id. ; United States v. Beltz , 385 F.3d 1158, 1163 (8th Cir. 2004). “We do not weigh the evidence or assess the credibility of witnesses;” all credibility issues are resolved in favor of the verdict. United States v. Johnson , 688 F.3d 494, 502 (8th Cir. 2012).
At trial, no direct evidence was presented that White knew that the Romarm Draco had been stolen. But circumstantial evidence alone can constitute sufficient evidence. See United States v. Arteaga , 436 Fed.Appx. 343, 349 (5th Cir. 2011) (unpublished per curiam) (...
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