UNITED STATES OF AMERICA, Plаintiff-Appellee, v. ARNOLD JACKSON, Defendant-Appellant.
No. 96-4126
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Decided: September 3, 1997
PUBLISHED. Argued: June 5, 1997. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Herbert N. Maletz, Senior Judge, sitting by designation. (CR-95-349-DKC). Before WILKINSON, Chief Judge, and LUTTIG and WILLIAMS, Circuit Judges.
Affirmed by published opinion. Judge Williams wrote the opinion, in which Chief Judge Wilkinson and Judge Luttig joined.
COUNSEL
OPINION
WILLIAMS, Circuit Judge:
A jury found Arnold Jackson guilty of possessing an unregistered firearm (a sawed-off shotgun) in violation of
I.
On July 31, 1992, police officers were summoned to the home of Genavy Jackson, Jackson‘s mother, in
While Jackson gathered his belongings, Ms. Jackson informed the оfficers that Jackson had a gun, but that she had secured it upstairs. Minutes later, standing outside the home, Jackson asked the officers if he could get his gun for protection while he was “on the street.” (J.A. at 23.) The officers refused his request, and Jackson left the premises. Because they were afraid that Jackson would return to the home, get his gun, and carry out his threats to harm his family, the officers asked Ms. Jackson to retrieve the gun from upstairs and give it to them for safekeeping. Ms. Jackson complied and brought the officers a red and gray plastic bag that was tied at the end. Upon returning to the police station, Officer D‘Ovidio opened the plastic bag and discovered a sawed-off shotgun approximately 18 inches in total length, and several shotgun shells. Realizing that the weapon had bеen illegally altered, Officer D‘Ovidio returned to Ms. Jackson‘s home to locate Jackson. Unable to find Jackson that night, he transferred the case to the Bureau of Alcohol, Tobacco, & Firearms (ATF). Approximately three years later, in August 1995, Jackson was arrested.
II.
Jackson first makes a sufficiency-of-the-evidence challenge to his conviction for possession of an unregistered firearm, see
When reviewing a sufficiency-of-the-evidence claim, we will sustain the jury‘s verdict “if there is substantial evidence, taking the view most favorable to the Government, to support it.” Glasser v. United States, 315 U.S. 60, 80 (1942). “[S]ubstantial evidence is evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant‘s guilt beyond a reasonable doubt.” United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc), cert. denied, 117 S. Ct. 1087 (1997). Viewing the record in the light most favorable to the Government, we conclude that there is substantial evidence from which a reasonable juror could find that Jackson possessed the firearm, that the firearm had the characteristics that brought it within the scope of the Act, and that Jaсkson had knowledge of these characteristics. Moreover, we conclude that the district court‘s failure to properly instruct the jury that the Government had the burden of proving that he knew the firearm had the statutory characteristics was not reversible error. Accordingly, we affirm the conviction.
A.
Jackson claims that the Government failed to present evidence from which a reasonable finder of fact could conclude that Jackson possessed the sawed-off shotgun while living in his mother‘s home. Because the Government does not contend that Jackson actually possessed the firearm, we must determine whether there is substantial evidence to support the jury‘s finding that Jackson constructively possessed the sawed-off shotgun. See Burgos, 94 F.3d at 873 (holding that possession of cоntraband may be actual or constructive). “Constructive possession may be proved by demonstrating ‘that the defendant exercised, or had the power to exercise, dominion and control over the item.‘” Id. (quoting United States v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992)). Constructive possession may be proved by circumstantial as well as direct evidence. See Burgos, 94 F.3d at 873.
The Government presented the following evidence to show that Jackson had constructive possession of the firearm. First, Jackson‘s
B.
Jackson next argues that the Government failed to present evidence that the sawed-off shotgun he possessed met the statutory definition of “firearm.”2 The National Firearms Act, see
(1) a shotgun having a barrel or barrels of less than 18 inches in length; (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length; (3) a rifle having a barrel or barrels of less than 16 inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length; (5) any other weapon, as defined in subsection (e); (6) a machinegun; (7) any silencer (as defined in subsection 921 of Title 18, United States Code); and (8) a destructive device.
While conceding that the Government needed to prove, in addition to the weapon‘s length, only that the sawed-off shotgun was “made from a shotgun,” Jackson inexplicably argues that his conviction must be reversed because the Government failed to present sufficient evidence “to establish that the weapon possessed the physical characteristics bringing it within the definition of a ‘shotgun’ under the Act.” (Appellant‘s Br. at 24.) The term “shotgun” is defined by the statute as
Jackson‘s argument is wholly without merit. A defendant may be convicted under
At trial, the Government presented evidence through Officer
D‘Ovidio; Jackson‘s ex-wife, Callie Jackson; and Agent Trainor of the Bureau of Alcohol, Tobacco & Firearms (ATF), that the firearm recovered in the Jackson home was of the type required to be registered. Officer D‘Ovidio described the weapon as “a sawed-off shotgun.” (J.A. at 26.) He testified that the “gun had been cut off at the barrel, the metal part, and also at thе wooden part, the stock end. So it was smaller, probably . . . 18 inches in length total.” (J.A. at 26.) He concluded that the firearm had been “illegally altered.” (J.A. at 29.) Callie Jackson testified that while she and Jackson were living together, he brought a full-size shotgun into their home. (J.A. at 70-71.) She further testified, however, that after a time the shotgun, while still in Jackson‘s possession, became “sawed off” at both ends. (J.A. at 72.) ATF Agent Trainor testified that the firearm had originally been manufactured as “a Stevens shotgun, Model 9478[,] a 12-gauge single shot shotgun with a pop-up mechanism.” (J.A. at 108.) Agent Trainor agreed that the weapon was now an operable “sawed-off shotgun.” (J.A. at 108, 110.) Also, the firearm was admitted into evidence and available for the jury to view. (J.A. at 110.)
Jackson did not challenge at trial, and does not contest on appeаl, Agent Trainor‘s conclusion that the firearm had originally been manufactured as a Stevens 12-gauge shotgun, or the testimony of Officer D‘Ovidio, Callie Jackson, or Agent Trainor that the firearm was a “sawed-off shotgun.” In fact, Jackson did not object to the district court‘s instructions to the jury that “[f]or purposes of this case, a firearm is defined as a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length.” (J.A. at 148.) Moreover, Jackson did not request an instruction requiring the jury to find that the sawed-off shotgun met the statutory definition of “shotgun” either before or after it was altered. In sum, Jackson has not, at trial or on appeal, disputed that the weapon at issue, before it was altered, was a “shotgun.”
C.
Jackson also challenges the Government‘s failure to present evidence from which the jury could adduce that Jackson knew that the
firearm had the characteristics to bring it within the Act. A year prior to Jackson‘s trial, the Supreme Court held that to obtain a
When reviewing а sufficiency-of-the-evidence claim, circumstantial as well as direct evidence may be considered, and the Government is given “the benefit of all reasonable inferences from the facts proven to those sought to be established.” United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). Viewing the evidence in the light most favorable to the Government, we hold that there was substantial evidence from which a reasonable jury could infer Jackson‘s knowledge of the characteristics of the firearm. See United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc), cert. denied, 117 S. Ct. 1087 (1997). As previously noted, Jackson‘s ex-wife, Callie Jackson, testified that Jackson brought a full-size shotgun into their home in early 1992 and that it was later “sawed off” at both ends. She stated that the firearm was in Jackson‘s possession both
D.
Finally, we address Jackson‘s claim that the district court committed plain error when it failed to instruct the jury that the Government had the burden of proving that Jackson knew of the characteristics of his weapon that made it a “firearm” under the Act.5 Following the presentation of evidence, the district court instructed the jury as follows:
The second element which the Government must prove beyond a reasonable doubt with respect to Count 2 is that the defendant had knowledge that what he was possessing was a firearm.
An act is done knowingly if it was done voluntarily and purposely and not because of mistake, accident, mere negligence or other innocent reason. I instruct you that the requirement of proving that the defendant acted knowingly, does not make it necessary for the [G]overnment to show that the defendant knew about the registration provisions of the law, or that he knew the firearm had physical characteristics that might make it subject to registration . In other words, the Government need not prove that the defendant knew he was breaking the law.
(J.A. at 149-50 (emphasis added).) Jackson neither requested that the district court instruct the jury that the Government was required to prove his knowledge of the weapon‘s features nor did Jackson contemporaneously object to the district court‘s instructions. Accordingly, we review his claim for plain error. See United States v. Cedelle, 89 F.3d 181, 184 (4th Cir. 1996) (“When a criminal appellant
asserts an error that occurred during proceedings before the distriсt court, but that was forfeited through a failure to timely object, we may notice such error only if it is a ‘[p]lain error[ ] or defect[ ] affecting substantial rights.‘” (quoting
Jackson satisfies the three-prong test of Olano. First, Jackson has demonstrated that the district court committed error. In Staples, the Supreme Court held that to obtain a conviction under
Although plain error occurred, we may decline to exercise our discretion to notice the error. See Johnson, 117 S. Ct. at 1550; Cedelle, 89 F.3d at 186 (declining to notice error committed by the district court in failing to instruct the jury on an essential element of a crime). Before we may notice a forfeited error, we must “determine whether the forfeited error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Johnson, 117 S. Ct. at 1550 (internal quotations omitted); see id. (holding that the appellate court should decline to correct error unless failure to notice the error results in a “miscarriage of justicе“). In Cedelle, we reasoned that “[c]entral to this inquiry is a determination of whether, based on the record in its entirety, the proceedings against the accused resulted in a fair and reliable determination of guilt.” Cedelle, 89 F.3d at 186. In this case, declining to correct the error will not result in a miscarriage of justice, nor will declining to notice the error seriously affect the fairness, integrity, or public reputation of the judicial proceedings, because, as discussed in Part II.C., the proceedings resulted in a fair and reliable determination of Jackson‘s guilt. See Johnson, 117 S. Ct. at 1550 (declining to reverse where trial court failed to instruct jury on essential element of the crime because evidence of guilt was “overwhelming“); Cedelle, 89 F.3d at 186 (declining to reverse where trial court failed to instruct jury on essential element of the crime becаuse evidence presented at trial “permit[ted] no other conclusion” but that defendant was guilty). The features of Jackson‘s weapon that brought it within the scope of the Act were obvious qualities, easily observable by even a layperson unfamiliar with firearms. It is simply unfathomable that Jackson could have possessed this firearm and not have known that it met the statutory requisites. Accordingly, we decline to exercise our discretion to notice the district court‘s error and affirm Jackson‘s conviction.
III.
Next, we address Jackson‘s argument that the evidence presented at trial was insufficient to support his conviction under
Jackson contends that his conviction for being a felon in possession of a firearm, in violation of
At the beginning of the trial, Jackson‘s counsel represented to the district court that Jackson agreed to stipulate that he was “a convicted felon.” (J.A. at 11.) Jackson subsequently submitted proposed jury instructions to the district court which indicated that the parties stipulated to his status as a felon at the time of his possession of the firearm on July 31, 1992. At the close of the Government‘s case, however, the Assistant United States Attorney read the following stipulation to the jury:
That Arnold Jackson, before his arrest for the offense for which he is on trial, had been convicted of a crime punishable by imprisonment for a term exceeding one year, and that defendant Arnold Jackson has not been pardoned for the above referenced conviction, nor has the conviction been expunged, nor ha[ve] his civil rights to possess a firearm been restored.
(J.A. at 112-13.) This statement erroneously recited the parties’ stipulation because it showed only that Jackson was a felon at the time of his arrest, rather than that Jackson was a felon at the time of his possession of the firearm, which was almost three years earlier than his arrest.6 Jackson, however, did not object to the inaccuracy of the stip-ulation as conveyed to the jury. In his Motion for Judgment of Acquittal at the close of the Government‘s case, Jackson again failed to chаllenge the apparent failure of proof. Moreover, Jackson failed to object when the district court, adopting verbatim his proposed instructions, charged the jury
that the parties have stipulated that the defendant was convicted of a crime in state court and that this crime is punishable by imprisonment for a term exceeding one year. It has also been stipulated by the parties that this felony conviction occurred prior to the time that the defendant is alleged to have possessed the weapons charged in the indictment.
I instruct you, in this connection, that the prior conviction that is an element of the charges here, and is not disputed, is only to be considered by you for the fact that it exists and for nothing else. You are not to consider it for any оther purpose. You are not to speculate what it was for. You may not consider the prior conviction in deciding whether the defendant was in knowing possession of the gun that is charged.
(J.A. at 144-45 (emphasis added).) Not until the jury returned a guilty verdict did Jackson, for the first time, specifically challenge the Government‘s alleged failure of proof on the issue of whether he was a felon at the time he possessed the firearm.7
The district court denied Jackson‘s motion, concluding that its instruction regarding Jackson‘s felon status, as submitted by Jackson himself, provided the jury with evidence from which it could have found the essential elements of the crime. Jackson argues that a jury instruction does not relieve the Government of its burden of proof on an essential element of the crime, even if the defendant stipulated to the existence of the element. See United States v. Muse, 83 F.3d 672, 679 (4th Cir.) (holding that “[w]hile a valid stipulation relieves the prosecution of the burden of producing any other evidence in order to establish the fact stipulated, it does not relieve the prosecution from the burden of proving every element of the crime beyond a reasonable doubt.“), cert. denied, 117 S. Ct. 261 (1996) (internal quotation marks omitted); see also id. (“In other words, the district court may not remove the element from the jury‘s consideration, even though the defendant has stipulated to that element.“). We conclude that the Government‘s error in proof, if any, was invited by Jackson. Accordingly, we affirm his conviction under
The “invited error” doctrine recognizes that “‘a court cannot be asked by counsel to take a step in a case and later be convicted of error, because it has complied with such request.‘” United States v. Herrera, 23 F.3d 74, 75 (4th Cir. 1994) (quoting Shields v. United States, 273 U.S. 583, 586 (1927)). Jackson invited any error when (1) Jackson‘s trial counsel affirmatively represented to the district court prior to trial that Jackson had agreed to a stipulation that he was a felon at the time of the alleged possession; (2) Jackson failed to object to the inaccuracy of the stipulation as presented by the Government at the close of its case; (3) Jackson never made any argument that the Government failed in its burden of proof in his subsequent Motion for Judgment of Acquittal at the close of the Government‘s case; (4) Jackson submitted the proper stipulation concerning his felon status to the district court as a requested jury instruction; and (5) Jackson failed to object to the district court‘s instruction to the jury that the parties had stipulated to Jackson‘s felon status at the time of the offense. By stipulating to his felon status, Jackson effectively prevented the Government from presenting any additional evidence of his prior convictions, thereby clearly benefitting from the stipulation. Cf. Old Chief, 117 S. Ct. 644 (reversing defendant‘s conviction and holding that the district court abused its discretion in allowing the Government to reject the defendant‘s stipulation as to his felon status and admitting evidence of the defendant‘s prior convictions). Although the Government presented the stipulation to the jury, the stipulation was a consensual agreement between the parties. Therefore, Jackson was obligated to correct any inaccuracies and place the proper stipulation before the jury. We will not reward his fаilure to do so. We find especially disturbing the admission by Jackson‘s appellate counsel at oral argument that Jackson‘s trial counsel was aware of the error prior to the district court‘s charge to the jury. We refuse to countenance such “trial tactics.” Based on the foregoing, we
conclude that any error was invited by Jackson when he knowingly failed to object to the Government‘s inaccurate portrayal of the stipulation between Jackson and the Government.
In his final attack on his convictions, Jackson appeals the district court‘s admission of two hearsay statements made by his mother to Officer D‘Ovidio when he arrived at her home on the night of July 31. At trial, Officer D‘Ovidio testified that Ms. Jackson stated that Jackson “had been threatening members of the family [and] had threatened to shoot members of the family” (J.A. at 19), and “that Arnold Jackson had a gun in the house but she had it secured upstairs” (J.A. at 21). We give substantial deference to a district court‘s evidentiary rulings and will not disturb them absent a clear abuse of discretion. See United States v. ReBrook, 58 F.3d 961, 967 (4th Cir.), cert. denied, 116 S. Ct. 451 (1995). Finding no abuse of discretion, we affirm.
The district court allowed the first hearsay statement, that Jackson was threatening to shoot family members, into evidence under the present sense impression exception, see Fed. R. Evid. 803(1), and the excited utterance exception, see Fed. R. Evid. 803(2). A present sense impression is “[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.” Fed. R. Evid. 803(1). An excited utterance is “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Fed. R. Evid. 803(2); see Morgan v. Foretich, 846 F.2d 941, 947 (4th Cir. 1988) (the Government must prove that the declarant had experienced a startling event and that the utterance was made while the declarant was still under the stress or the excitement of the event). The district court reasoned that Ms. Jackson, the declarant, was describing an event that was both ongoing and startling. We agree. Ms. Jackson blurted out to Officer D‘Ovidio that Jackson was threatening to kill members of her family immediately upon the officer‘s arrival to the home. At that same time, Officer D‘Ovidio observed Jackson engaged in a heated argument with his sister. Moreover, considering the seriousness of Jackson‘s threats, as evidenced by his mother‘s decision to seek police аssistance, we cannot say that the district court abused its discretion in concluding that Ms. Jackson‘s statement at that time was admissible either as a description of ongoing events or as an excited utterance made while under stress.
As to the second hearsay statement, that Jackson “had a gun,” viewing all facts in the light most favorable to the Government, we can assume that her statement was made immediately after the officers separated her and Jackson after he assaulted her. Officer D‘Ovidio reported that Jackson “became engaged in an argument with his mother. It was the same yelling. He was very aggressive in his actions and his manners and his words. Cursing. We separated he [sic] and his mother. . . . to de-escalate the situation.” (J.A. at 20-21.) It was immediately after this altercation that Ms. Jacksоn spoke of the gun. We agree with the district court that “the event itself is an adequate foundation” for admission of the statement as an excited utterance. (J.A. at 22.)
V.
Finally, Jackson challenges his sentence. He argues that the Government‘s concession that it failed to present evidence that the firearm Jackson possessed violated
AFFIRMED