United States v. Wyatt

• Decision Date: 10 July 2020
• Docket Number: No. 18-1135,18-1135
• Citation: 964 F.3d 947
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Richard WYATT, Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

964 F.3d 947

UNITED STATES of America, Plaintiff - Appellee,

v.Richard WYATT, Defendant - Appellant.

No. 18-1135

United States Court of Appeals, Tenth Circuit.

FILED July 10, 2020

Submitted on the briefs:^*

William D. Lunn, Tulsa, Oklahoma, for Defendant-Appellant.

James C. Murphy, Assistant United States Attorney and Jason R. Dunn, United States Attorney, Denver, Colorado, for Plaintiff-Appellee.

Before PHILLIPS, EBEL, and O'BRIEN, Circuit Judges.

EBEL, Circuit Judge.

In this direct criminal appeal, Defendant Richard Wyatt challenges his two convictions for conspiring with others to deal in firearms without a federal firearms license. The Government concedes that the district court erred in failing to instruct the jury that, in order to convict Wyatt of these conspiracy offenses, the jury had to find that Wyatt and his alleged co-conspirators acted willfully; that is, that they knew they were agreeing to do something unlawful. The Government further concedes that this error warrants vacating Wyatt's conspiracy convictions and remanding for a new trial. But Wyatt contends that there was insufficient evidence presented at trial for a reasonable jury to find that he and his co-conspirators acted willfully and, therefore, this court should, instead, dismiss the conspiracy counts charged against him with prejudice. We disagree with Wyatt and conclude there was sufficient evidence presented at trial that, if believed, would have supported a reasonable jury finding beyond a reasonable doubt that Wyatt and his co-conspirators knew they were agreeing to violate the law. Therefore, having jurisdiction under 28 U.S.C. § 1291, we VACATE Wyatt's two conspiracy convictions and REMAND this case to the district court for further proceedings.

I. BACKGROUND

A grand jury indicted Wyatt on thirteen counts stemming primarily from the operation of his gun store, Gunsmoke. Those thirteen charges generally fell into one of two categories: 1) failing to file individual or corporate tax returns or filing a false return, and 2) dealing in firearms without a federal firearms license ("FFL"). The jury convicted Wyatt on all of the tax counts, and he does not challenge those convictions on appeal. It is, instead, the second category, the unlicensed gun-dealing charges, that is at issue here. Those charges included three substantive counts of willfully dealing in firearms without an FFL, in violation of 18 U.S.C. §§ 922(a)(1)(A) and 924(a)(1)(D) (Counts 2, 3, and 4),¹ and the two counts at issue in this appeal, charging Wyatt under 18 U.S.C. § 371 with conspiring with others to deal in firearms without an FFL (Counts 1 and 5).² Wyatt's defense at trial to these unlicensed gun-dealing charges was that he did not know that what he was doing—using acquaintances’ FFLs to continue to deal in firearms through Gunsmoke after Gunsmoke surrendered its own FFL—was unlawful. At the conclusion of the trial, the district court instructed the jury that, as to the three substantive counts, the Government had to prove beyond a reasonable doubt that Wyatt acted "willfully"; that is, that he knew his conduct was unlawful, even if he did not know the exact law it violated.³ See Bryan v. United States, 524 U.S. 184, 187-88, 191-96, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998) (addressing what the Government must prove to establish that the defendant willfully violated 18 U.S.C. §§ 922(a)(1)(A) and 924(a)(1)(D) ). After deliberating for six days, the jury deadlocked on those three substantive charges, the district court declared a mistrial on those counts and later granted the Government's motion to dismiss those counts without prejudice.

As for the two counts charging Wyatt with conspiring to deal in firearms without a license, the district court instructed jurors, among other things, that the Government had to prove beyond a reasonable doubt, as to each charged conspiracy, that "Wyatt entered into an agreement with at least one other person," the objective of that agreement was for "Wyatt to act as a dealer in firearms without having a license to do so," "Wyatt knew the goal of the agreement" and "knowingly and voluntarily participated in the agreement," either Wyatt or another person who had entered into the agreement committed an overt act in furtherance of the agreement, and "there was interdependence among the persons entering into the agreement such that they intended to carry out the objective for their own mutual, shared benefit." (III R. 1330-31.) But the district court did not instruct the jury that the Government had to prove that Wyatt's conduct was willful; that is, that he and his co-conspirators knew that what they had agreed to do was unlawful. The jury convicted Wyatt of those two conspiracy counts.

The Government now concedes that the district court erred in failing to instruct jurors that, in order to convict Wyatt of the conspiracy counts, they had to find beyond a reasonable doubt that Wyatt and his co-conspirators had acted willfully. The Government acknowledges that, "in order to sustain a judgment of conviction on a charge of conspiracy to violate a federal statute [under 18 U.S.C. § 371 ], the Government must prove at least the degree of criminal intent necessary for the substantive offense itself," United States v. Feola, 420 U.S. 671, 686, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975) ; see also United States v. Weeks, 653 F.3d 1188, 1202 (10th Cir. 2011).⁴ Though this court is not required to accept the Government's concession, see United States v. Dowell, 430 F.3d 1100, 1110 (10th Cir. 2005), we do so in this case because we agree with the parties that the district court erred in instructing the jury on the two conspiracy counts. We, therefore, VACATE both of Wyatt's conspiracy convictions.

The parties disagree on what should happen next. The Government asks the Court to remand this case for further proceedings on the two conspiracy charges, which may include a new trial. Wyatt contends instead that, because there was insufficient evidence presented at trial from which a reasonable jury could have found beyond a reasonable doubt that Wyatt and his co-conspirators agreed to do something they knew was illegal, we should order the district court to dismiss those charges with prejudice. See United States v. Burks, 437 U.S. 1, 18, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) (holding "that the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient"). See generally United States v. Wheeler, 776 F.3d 736, 741 (10th Cir. 2015) (considering sufficiency of evidence to support finding subjective intent, on which trial court erroneously failed to instruct jury).

II. STANDARD OF REVIEW

Here, then, we must decide whether there was sufficient evidence presented at trial for a reasonable jury, properly instructed, to have found beyond a reasonable doubt that Wyatt and his co-conspirators knew what they agreed to do was unlawful.⁵ See Musacchio v. United States, ––– U.S. ––––, 136 S. Ct. 709, 715, 193 L.Ed.2d 639 (2016) (holding that, where trial court's unobjected-to instructions erroneously required jury to find an additional element in order to convict the defendant, the legal question of the sufficiency of the evidence to support the conviction is assessed on appeal using the correct elements of offense, rather than the heightened instruction the trial court erroneously gave the jury)⁶ ; United States v. DeChristopher, 695 F.3d 1082, 1091 n.4 (10th Cir. 2012) (noting that Tenth Circuit has indicated, in dicta, that even where the instructional error did not improperly add an element, sufficiency of the evidence is assessed by considering whether a properly instructed jury could have convicted the defendant).

Further, we would ordinarily

review the sufficiency of the evidence to support a conviction or the denial of a defendant's motion for judgment of acquittal de novo. We take the evidence—both direct and circumstantial, and reasonable inferences drawn from that evidence—in the light most favorable to the government and ask only whether a reasonable jury could find the defendant guilty beyond a reasonable doubt. We may not weigh evidence or consider credibility of witnesses. The evidence, together with the reasonable inferences to be drawn therefrom, must be substantial, but it need not conclusively exclude every other reasonable hypothesis and it need not negate all possibilities except guilt.

United States v. Rufai, 732 F.3d 1175, 1188 (10th Cir. 2013) (citations, internal quotation marks, alterations omitted).

In this case, however, because Wyatt did not raise his current challenge to the sufficiency of the evidence in his Fed. R. Crim. P. 29 motion for acquittal, our review is not de novo, but instead is for plain error. See Fed. R. Crim. P. 52(b) ; see also Rufai, 732 F.3d at 1189.

To establish plain error, the appellant must demonstrate the district court (1) committed error, (2) the error was plain, and (3) the plain error affected her substantial rights. If these factors are met, we may exercise discretion to correct the error if (4) it seriously affects the fairness, integrity, or public reputation of judicial proceedings.

Id. (quotation, alteration omitted).

A conviction in the absence of sufficient evidence of guilt, however, almost always meets the first three factors of plain error review. Moreover, it is only in a rare case when the absence of sufficient evidence will not meet the fourth factor of plain error review. Thus, review under the plain error standard in this case and a review of sufficiency of the evidence usually amount to largely the same exercise.

Id. (citations, internal quotation marks, alterations omitted).

III. DISCUSSION

We consider, then, the evidence presented at trial, viewing it in the light most favorable to the Government and drawing all reasonable inferences from that evidence in the Government's favor. See Rufai, 732 F.3d at 1188. Doing so, we conclude that there was...