United States v. White

• Decision Date: 11 July 2017
• Docket Number: No. 15-2027,15-2027
• Citation: 863 F.3d 784
• Parties: UNITED STATES of America Plaintiff-Appellee v. Ronald F. WHITE, Jr. Defendant-Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

863 F.3d 784

UNITED STATES of America Plaintiff-Appellee

v.Ronald F. WHITE, Jr. Defendant-Appellant

No. 15-2027

United States Court of Appeals, Eighth Circuit.

Submitted: October 18, 2016

Filed: July 11, 2017

Counsel who presented argument on behalf of the appellant was Rebecca L. Kurz, AFPD, of Kansas City, MO. In addition to Ms. Kurz, the following attorney(s) appeared on the appellant brief; Anita L. Burns, AFPD, of Kansas City, MO.

Counsel who presented argument on behalf of the appellee was Jeffrey Q. McCarther, AUSA, of Kansas City, MO. The following attorney(s) appeared on the appellee brief; Jeffrey Q. McCarther, AUSA, of Kansas City, MO.

Before RILEY, Chief Judge,¹ WOLLMAN, LOKEN, MURPHY, SMITH, COLLOTON, GRUENDER, BENTON, SHEPHERD, and KELLY, Circuit Judges, En Banc.

SHEPHERD, Circuit Judge.

Ronald White appeals his conviction of possession of an unregistered firearm, 26 U.S.C. §§ 5841, 5861(d), 5871, and possession of a stolen firearm, 18 U.S.C. §§ 922(j), 924(a)(2). A panel of this court unanimously affirmed the unregistered firearm conviction but reversed the stolen firearm conviction due to insufficient evidence regarding White's knowledge that the firearm had been stolen. United States v. White , 824 F.3d 783, 792 (8th Cir. 2016). Additionally, the panel rejected White's challenge to an evidentiary ruling by the district court which allowed the jury to hear evidence that White was under investigation for a series of violent crimes. Id.

We granted rehearing en banc and vacated the panel opinion. With jurisdiction under 28 U.S.C. § 1291, we now reverse the unregistered firearm conviction and remand for further proceedings.² Part II of the panel opinion reversing the stolen firearm conviction is reinstated.

I. Background

Ronald White was a person of interest in Kansas City law enforcement's investigation of a series of violent crimes. While executing a valid search warrant in the home of White's parents, officers recovered a black duffel bag from the top shelf of a closet in the bedroom that White occupied during his occasional visits. Inside the bag were five guns, several gun magazines, and an Amtrak ticket and credit card receipt in White's name. Among the guns were an unregistered "Street Sweeper" shotgun and a stolen 7.62 x 39 Romarm Draco handgun.

White was charged with possession of a stolen firearm for the Romarm Draco. 18 U.S.C. §§ 922(j), 924(a)(2). Possession of a stolen firearm requires the government to establish the defendant's knowledge or "reasonable cause to believe the firearm was stolen." United States v. Provost , 237 F.3d 934, 938 (8th Cir. 2001) (citing 18 U.S.C. § 922(j) ). At trial, no direct evidence was presented that White knew that the Romarm Draco had been stolen. The circumstantial evidence, which can be enough to prove the required mens rea, amounted to the fact that the Romarm Draco was hidden inside a duffel bag and stowed in White's closet, as well as testimony from the gunowner, Richard Cushingberry. See United States v. Arteaga , 436 Fed.Appx. 343, 349 (5th Cir. 2011) (per curiam) (finding circumstantial evidence sufficient to prove that defendant knew the firearm was stolen). Cushingberry testified that on the evening of July 3, 2011, he fell asleep in his bedroom with the Romarm Draco lying next to him, woke up to find the gun missing, looked out the window, and saw a man named Rashaad walking away from the house. Rashaad lived in the neighborhood and, according to Cushingberry, was a friend of White's.

Additionally, because White's Street Sweeper was unregistered, White was charged with possession of an unregistered firearm under § 5861(d) of the National Firearms Act. 26 U.S.C. § 5861(d). Section 5861(d) criminalizes possession of an unregistered "firearm," a term the Act defines to include a "destructive device," the barrel of which has a bore of more than one-half inch in diameter. 26 U.S.C. § 5845(a), (f). The Street Sweeper, a 12-gauge shotgun, is subject to the Act's registration mandate because it has a bore diameter of .729 inches.

The district court gave the jury the following instruction on the elements of possession of an unregistered firearm:

INSTRUCTION NO. 16

The crime of possession of an unregistered firearm, a Street Sweeper, Model Street Sweeper, 12 gauge shotgun, serial number SH12277 as charged in Count One of the Superseding Indictment[,] has five elements, which are:

One , on or about October 31, 2013, the defendant knowingly possessed a firearm, a Street Sweeper, Model Street Sweeper, 12 gauge shotgun, serial number SH12277;

Two , the firearm was a shotgun having a barrel which has a bore of more than one-half inch in diameter;

Three , the firearm is not generally recognized as suitable for sporting purposes;

Four , the firearm was capable of operating as designed; and

Five , the firearm was not registered to the defendant in the National Firearms Registration and Transfer Record.

For you to find the defendant guilty of possession of an unregistered firearm, the Government must prove all of these elements beyond a reasonable doubt; otherwise, you must find the defendant not guilty.

White objected to Instruction No. 16 on the ground that the second element—the firearm's bore diameter—had no mens rea requirement. Citing Staples v. United States , 511 U.S. 600, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994), White argued that the government must prove that he knew the Street Sweeper had a bore diameter of more than a half-inch because that diameter is what makes the Street Sweeper subject to the National Firearms Act. White offered an alternative instruction 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." The district court rejected White's alternative instruction.

The jury convicted White of both counts in the indictment, and the district court sentenced him to concurrent 57-month terms of imprisonment.

II. Discussion

In Staples , the Supreme Court held that a district court must instruct the jury that knowledge of the characteristics bringing a firearm under the coverage of the National Firearms Act is a necessary element of the offense of possession of an unregistered firearm in violation of 26 U.S.C. § 5861(d). 511 U.S. at 619, 114 S.Ct. 1793. A panel of this court created a caveat to Staples in United States v. Barr , 32 F.3d 1320 (8th Cir. 1994). Under Barr , where "the characteristics of the weapon itself render it ‘quasi-suspect,’ Staples does not require proof that the defendant knew of the specific characteristics which make the weapon subject to the Act." 32 F.3d at 1324. In such cases, "[t]he government need only prove that the defendant possessed the ‘quasi-suspect’ weapon and observed its characteristics." Id.

We granted rehearing en banc in order to determine whether Barr , an outlier among federal courts, should remain good law. The parties submitted supplemental briefing on this issue³ as well as the issue of whether, if Barr is overruled, the jury instructions adequately addressed the knowledge element as set forth in Staples . For the reasons discussed below, we hold that Barr is inconsistent with the Supreme Court's mens rea requirement in Staples and, accordingly, Barr is overruled.⁴ We further hold that, under Staples , the jury was not properly instructed on the mens rea required to secure a conviction for possession of an unregistered firearm. We reverse that conviction and remand for a new trial.

A. Barr is Overruled

"The existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence." Dennis v. United States , 341 U.S. 494, 500, 71 S.Ct. 857, 95 L.Ed. 1137 (1951) (emphasis omitted). Congress need not expressly announce a mens rea in a criminal statute in order for the Supreme Court to predicate conviction under that statute on proof of knowledge or intent. This dynamic is evident in Staples , where the Court held that a conviction for possession of an unregistered firearm under the National Firearms Act, a law that is silent as to mens rea, nonetheless requires the defendant's knowledge of the characteristics of the firearm bringing it under the Act's registration mandate. 511 U.S. at 619, 114 S.Ct. 1793.

In reaching its holding, Staples acknowledged the competing interests—both proclaimed in the name of "public welfare"—of federal regulators and private individuals who own guns. On one hand, Congress seeks to protect the public from certain dangerous items through strict criminal liability for their possession. Id. at 606-07, 114 S.Ct. 1793. On the other, "despite their potential for harm, guns generally can be owned in perfect innocence," and gun laws must co-exist with the firmly embedded custom of lawful gun ownership in this nation. Id. at 610-11, 114 S.Ct. 1793.

Though Staples rejected imposing strict liability on owners of unregistered firearms, Barr disposed of the Staples mens rea requirement in cases where a defendant is charged with unlawful possession of a "quasi-suspect" firearm. 32 F.3d at 1324. Barr relied in part on a reference in Staples to earlier Supreme Court precedent, United States v. Freed , 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971). The defendants in Freed were charged under the National Firearms Act with possession of unregistered hand grenades. Id. at 603, 91 S.Ct. 1112. The Court determined that the government need not prove the defendants' knowledge that the grenades were unregistered, because "one would hardly be surprised to learn that possession of hand grenades is not an innocent act." Id. at 609, 91 S.Ct. 1112. Recounting Freed 's description of hand grenades, the Staples Court remarked:

Of course, we might surely classify certain categories of guns—no doubt including the machineguns, sawed-off shotguns, and artillery pieces that Congress has subjected to regulation—as items the ownership of which would

...