United States v. Joe Alvin Anderson

REVERSED, indict- district court essential element.... mails an as REINSTATED, and the case RE- act with ment an one does Where will con- mails follow MANDED further consideration the use of the business, where ordinary opinion. of course with sistent foreseen, reasonably be use can such AFFIRMED, 87-6305 NO. NO. 87-2675— intended, then though actually even and REMANDED. —REVERSED to be used. mails he “causes” the Pereira, 74 S.Ct. at 362-63. at U.S. engaged a scheme admittedly

Paul It is an company. an insurance

defraud uniformly accepted fact

undeniable large of companies, volumes with

that such their settle, with conduct business

claims to of for the convenience mail

customers may not use of mails parties. The

both business, and in each instance

occur required have been arguably may not America, UNITED STATES scheme, in the but completion of Paul’s Plaintiff-Appellee, method that another of evidence absence intended, rea- ordinary person could that the mails would sonably foresee ANDERSON, Joe Alvin process- application, somewhеre used Defendant-Appellant. made the claim to be ing, payment of the scheme. by Bullard No. 87-2905. Furthermore, presented this issue was Appeals, United States Court judge gave detailed jury to whom the Fifth Circuit. conspiracy, element of instructions each abetting and of fraud. aiding and mail Aug. jury these instructions The carried Obviously, the to their them deliberations. mailing was reason-

jury believed that previ-

ably foreseeable. As this circuit has

ously stated: necessary is not that the evidence

It every hypothesis reasonable

exclude wholly

innocence or be inconsistent except pro-

every guilt, conclusion find a reasonable trier of fact could

vided guilt establishes be- evidence jury doubt. A is free

yond reasonable among

to choose reasonable construc-

tions of evidence.

Bell, 678 F.2d at 549. has weighed evidence and government’s

chosen to believe the version interpret it. We hold that

of how cannot error to do so.

it was

IV reasons, these hold in case

For the district AF-

number 87-2675 court is

FIRMED. In case number 87-6305 the Moran,

Thomas D. Stanley Schneider, G. Houston, Tex., defendant-appellant. for Offenhauser, Paula C. Stacy, Frances H. Don Degabrielle, Attys., Asst. U.S. Hous- ton, Tex., plaintiff-appellee. for GOLDBERG, GARWOOD, Before JOLLY, Judges. Circuit GARWOOD, Judge: Circuit Defendant-appellant Joe Alvin Anderson (Anderson) appeals his conviction of three firearm 5861(d). offenses under ‍​‌​‌‌‌‌​​‌​‌​​‌​‌‌​‌‌‌​‌‌‌​​‌​‌​​​​‌​‌​​‌‌​​‌​‌​‍26 U.S.C. § complaints Anderson raises three on his appeal, namely, that suppress his motion to the fruits of the search of his residence granted, should have been that the district court erred in its instructions on knowledge, and that the evidence is insuffi- support cient to his convictionon reject three counts. We these contentions and accordingly affirm. Proceedings

Facts and Below 27,1986, On October several law enforce- ment agencies оfficers from various en- tered Anderson’s residence at Crosby- Dayton County, Texas, Road in pur- Harris suant to a search During warrant.1 Yard,” 1. A second search warrant had been issued for which was located next to Anderson’s business, place Anderson’s Salvage Crosby-Dayton "Joe’s residence at 1902 Road. search, agent May a .38 “ma- On an indictment was found caliber filed When in pistol” underneath bed. States District chine Court pistol, owned the he asked whether Southern charging District Texas he Subse- Anderson admitted that did. Anderson with four each counts—one agents learned there was quently, the pistol, .45 pistol, the caliber the .38 caliber house. vault in Anderson’s Confronted а silencer, “booby trap” the and the un-—of information, disclosed this Anderson with reg- lawful of firearms not of a hidden vault behind a the existence Registra- istered in the Firearms National hinged over a false wall the bookcase contrary tion and Transfer Record to 26 loading he used for ammunition. room that 5861(d). pleaded U.S.C. Anderson weapons. This contained numerous vault guilty. He also a motion to suppress filed weapons .45 caliber Among were a these ground evidence on the that the search of silencer, booby pistol, a and a “homemade his was pursuant residence conducted to a Also in were two trap device.” this vault probаble search warrant issued without casings spent of ammunition and boxes pretrial cause. The district court held a step-by-step instructions giving manuals hearing hearing on this After motion. pistols of semiautomatic for conversion testimony of a detective with the Harris describing ones and into automatic County, Department, Texas Sheriff’s who of silencers. the fabrication was the affiant on the affidavit that accom- was, design pistol warrant, and by panied request The caliber .45 search manufacture, semiautomatic and “blow- district court determined operated operated,” probable support or recoil back was to the issuanсe cause single by fire a one round that would of search warrant and denied trigger and fed- a depression suppress. of was motion to Anderson’s cartridge round ca magazine multiple was tried before a Anderson thereafter modified, after pistol had been pacity. The objected jury. unsuccessfully Anderson to manufacture, by cutting its “disconnecter” jury charge portions those of the court’s multiple shots a permit firing of concerning knowledge on his trigger. As a re single depression of the required to was establish modification, pistol was of this sult him. The found order convict cyclic at a fully automatic and could fire involving guilty counts Anderson approximately of one thousand rounds rate silencer, guilty pistols and but not two layman’s terms, pistol In per minute. Anderson was “booby trap” count. of pistol an “M-10.” The .38 caliber was was ten-year to three concurrent sentenced of the .45 cali essentially a smaller version terms, sentence sus- execution of the pistol pistol. Although the .38 caliber ber period five-year super- of during a pended pistol by design a semiautomatic was also The district court also probation. vised manufacture, had modified it too been of special $50 assessment imposed a The modification after manufacture. This appeal a of $150. total each count grinding, cutting, this instance consisted followed. magazine to convert polishing “strip” a weapon from semiautomatic Discussion as so operation. pistol, This automatic fire modified, cyclic rate of also Search warrant per thousand rounds approximately one the dis first is whether issue portion rear The silencer was the minute. determining there was trict erred in court designed siotic-type silencer of a the search war support probable cause to M-10, pistol. Also fit .45 caliber 1902 Cros residence at Anderson’s rant for components used recovered were the dis review of by-Dayton Road. Our None portion оf such silencer. front the correct trict determination court’s these magistrate’s decision ness of the National name in the Anderson’s probable established adequately affidavit Registration and Transfer Record. pieces that there salvage cause is made without deference to the were numerous ruling. residence, premises district court’s See United States on the of Anderson’s (5th Phillips, F.2d 394-95 v. Cir. strongly suggesting that in fact the sal- 1984); Freeman, 685 F.2d United States vage yard solely was not confined to the Cir.1982). However, deter premises Crosby-Dayton business at magistrate correctly mining whether Road, but also included the residence at issue, we refrain from sort decided this 1902 Crosby-Dayton Additionally, Road. and instead accord de novo review there are other statements the affidavit magistrate's “great to the deci deference” that directly tie the residence to the crimi- Jackson, States v. sion. See United activity nal for which warrant was Cir.1987); 345, (5th Phillips, 727 F.2d 348 instance, sought. For the affiant stated 395; Freeman, 685 F.2d at F.2d at personally person he had observed a result, simply As a our task determine who was as a “methamphet- known to him substantial in “whether there is evidence amine driveway cook” drive into the near- magistrate’s the supporting the record de est the residence and walk to the rear of warrant.” cision to issuе the Massachu Further, the residence. the affidavit set 727, 2085, Upton, U.S. 104 S.Ct. setts v. 466 forth showing facts that Anderson’s resi- 2085, (1984) (per curiam); 721 80 L.Ed.2d dence and business establishment were im- Gates, 213, 462 see Illinois v. U.S. 103 mediately adjacent properties, they 2317, 2332, (1983). 76 S.Ct. L.Ed.2d 527 were under person the control of the same challenged in We review the warrant here persons, and that there was no distinct light principles. of these separation or functional between In challenging probable the existence of Considering them. all of these matters support cause to the search warrant for his together, we conclude the affidavit residence, question does not Anderson the established a sufficient nexus between knowledge” any of of “basis informant Anderson’s residence and the evidence information, supplying hearsay nor does he sought support the issuance of a search “veracity” the of such infor- warrant, and the totality that under of the Gates, mant. See 103 S.Ct. at 2332. Rath- by circumstances reflected the affidavit the er, his is that sole contention the affidavit magistrate properly could determine that failed to establish sufficient nexus be- there probability was a fair that evidence tween his- residence and the evidence of activity of the mentioned criminal would be agents crime that the law enforcement found the residence. sought. disagree. We In presenting a case facts compel less Although the affidavit discussed ling here, than those involved we found place Anderson’s business at 1900 Cros- that there sup was substantial evidence to by-Dayton Road well as his residence at port magistrate’s the determination that Road, 1902 Crosby-Dayton adja- which was probable support cause existed the is business, place cent to the there is noth- suance of a search warrant. See United ing in the affidavit supports 1036, States v. 758 F.2d McKinney, 1043- argument Anderson’s the affidavit (5th 1985) (holding Cir. that there was a likely tended to confine the described crimi- sufficient the sought nexus items between nal aсtivity to the business establishment paraphernalia place —bomb implicate and did not the residence in or —and searched—a Colorado mine in that was activity. otherwise tie it to criminal by satisfy owned Although defendant —to test of some of the statements probable cause where the affidavit affidavit the site estab alleged referred to (here, lished that criminal defendant involved activity manufacture of plot, methamphetamine) salvage as a extortion that this scheme was cen yard, there Colorado, nothing components tered in some suggests in the affidavit that plot salvage yard pur did not also bombs used in the had been include Colorado, contrary, residence. chased in defendant supplied On at least passage one explosive affidavit makes it clear used to devices manufacture bombs, general meaning the mine contained firearms within the and that storage ex- for the term. at 732. structures suitable See id. devices).

plosive If impression this were a case first Circuit, court might therefore hold that district We well be inclined to magis- determining that the adopt position not err in did taken the Ninth Cir- properly conclude trate could cuit are Herbert. Our reasons several. support probable First, cause to the issuance principal case rеlied on respecting search warrant Vasquez Freed, panel, United States v. residence. Anderson’s U.S. S.Ct. L.Ed.2d 356 (1971), really does not resolve the issues Jury instructions presented like Vasquez in cases and the issue Anderson raises is The second present. Freed, objects In that defend- erroneously court in the district whether charged possessing ants were in viola- on the mental state re structed the gre- tion of 26 U.S.C. were hand quired support a conviction under 26 nades, specifically which are defined as 5861(d). argues, citing Anderson U.S.C. § “firearms” the National under Herbert, 698 F.2d 981 (the Act). 5845(a)(8), Act 26 See U.S.C. §§ denied, 821, Cir.), S.Ct. 464 U.S. ‍​‌​‌‌‌‌​​‌​‌​​‌​‌‌​‌‌‌​‌‌‌​​‌​‌​​​​‌​‌​​‌‌​​‌​‌​‍104 cert. 5845(f)(1)(B). holding govern- In that the (1983), 87, that at least 78 L.Ed.2d 95 required prove specific mеnt was not to present such as the where situation knowledge part intent or on the possessed guns defendant did not that the grenades that were defendants the hand markings any patent or other external unregistered, part Court reasoned indicating they were automatic rather sign surprised hardly that to “one would semiautomatic, they appeared as to than possession grenades learn that of hand is required be, government should be to Freed, an 91 at not innocent act.” S.Ct. knowledge of prove the defendant had that (“An agreement 1118. at n. 2 See also id. characteristics, spe weapon’s physical acquire grenades hardly hand is an to cifically they automatic rather that were itself.”). However, agreement innocent semiautomatic, them which rendered than possessed where the items are to cases the statute. id. at 986- firearms under See appearances items are all outward that argument goes, the Accordingly, the (without regis- possessed legally generally only required it court erred when district Act), guns such as the tration under government to establish that Anderson case, Vasquez present involved in knowingly possessed items that he knew generally logic apply: not one this does general meaning within the were firearms surprised to learn that would be (with pistols of thе term. Semiautomatic legal is apparently is device not of what bores) are, course, clearly rifled firearms of a conven- Possession an innocent act. term, general meaning within the of that pistol generally is “an tional semiautomatic and, just clearly, they as are not a “fire innocent act.” 5861(d).2 The purposes arm” of section Moreover, concur- Justice Brennan’s and, disputes argument government plain, the Court there rence in Freed makes citing opinion in this Court’s United States government need not hold that the did not Cir.), cert. Vasquez, 476 F.2d 730 what knew that 836, 181, prove that the defendant denied, 38 L.Ed. 414 U.S. S.Ct. grenade; it as- possessed was a hand he (1973), аrgues only that knowl 2d prove did have to government sumed edge government needed to estab that, government did not and the knowledge on the lish was All held was that the burden. Freed possessed the items he were Anderson that 5845, (with pistols Under section provides shall be U.S.C. 5845. “[i]t 2. Section (d) any person— bores) to or made from ... receive have not been unlawful rifled which possess they not to him a firearm which is shotguns firearms unless are not or rifles Registration in the National the definition so as to meet are automatic Record; (e)....” Transfer The definition “machinegun.” (in 5845(b)) of a purposes is in 26 "firearm” for these contained prove need not the de- of Fifth Amendment. In Lambеrt v. particular grenade fendant knew hand California, 355 U.S. S.Ct. unregistered.3 only significance, (1957), L.Ed.2d 228 Supreme Court ad- Act, under being item a hand dressed the issue of Angeles whether a Los grenade simply that this requiring constitutes ordinance convicted felons who So, registered. “firearm” must be remain there days for more than five to require to implicitly register Freed does—that police with the pro- violated due —as know that what possesses defendant he applied person cess when to a who had no merely grenade require is a hand actual duty register possesses defendant know what he and was not properly charge- shown to be which, has the characteristics knowledge. un- able with such See id. 78 S.Ct. (whether der the law or not the Noting defendant at 242. nothing there was provides), knows that the law so being present mandate about Angeles Los registration. its reasoning ap- The same would of person itself alert a inquire into plied pistol to a leads to the conclusion that the necessity of registering police, with the the defendant must know that it is fully the Court held that under the circumstanc- (but automatic he need not know ei- present es in that case the defendant could requires ther registration that the law “not be convicted consistently pro- with due pistols particu- automatic or that the cess.” Id. аt Although 243-44. Lambert pistol registered). lar is in fact not That an questions raises more answers, than it item is a par- “firearm” within common are not convinced that reasoning its would lance is wholly irrelevant under the apply terms not to a case in which an innocent purport of the Act. The Act does person happens, wholly under unsuspicious presumption create character of reg- circumstances, or purchase gun a that to all ulation about items which are generally appearances outward and so far as he rea- Rather, known as “firearms.” it sonably legal, defines knows is but in fact has been very specific “firearm” in a sеcretly and limited modified so as to be automat- manner—so as to exclude the overwhelm- illegal ic and hence if not to him ing guns majority of sold at retail in the National Registration and 5845). United And, States 26 U.S.C. {see Transfer Record. § it only deals with firearms defined,4 as so Finally, we believe that as matter of stat-

Second, we have some concern utory construction, that al- requiring degree some lowing person a to be convicted very of a knowledge of that make a facts here,5 serious offense like the one involved weapon a “firearm” within of requiring knowledge without of such preferable facts the Act is to not requiring such as would alert а person reasonable knowledge. to the The recent Liparota case of v. regulation, likelihood of in this case States, 419,105 knowl- 2084, United 471 U.S. S.Ct. edge pistols that the two could fire or (1985), 85 L.Ed.2d 434 is instructive on this been fire automatically, might modified to point. In Liparota, Supreme Court be process inconsistent with the due clause addressed the issue of prose- whether in a Freed, (Brennan, J., 3.See S.Ct. at knowledge 91 1120 con- proved must still be as to nades— curring): Consequently, the other two elements. appellees possession National Firearms Act unregis- "To convict does not create a of of crime liability (Em- of strict grenades, as to all its tered hand elements.” Government must added.) (1) phasis prove appel- three material elements: items; possessed (2) lees certain generally 4. Other statutes do deal more possessed grenades; (3) items were hand and conventionally which are known as grenades registered. that the hand were not See, e.g., firearms. 18 U.S.C. §§ 921-928. agree The Government and the Court that the prosecutor knowing prove must of knowledge provides per- items and also 5. Section of 26 that the items 5871 U.S.C. that a Thus, "shall, possessed grenades. upon were hand son who violates conviction, while section $10,000, the Court does hold that no intent at all need be fined not more than or proved regard imprisoned years, be to one element of the not more than ten or unregistered gre- offense—the status of the both.” acquisition pos- applied interpreting or should be for unauthorized cution 5861(d), here, stamps 7 U.S.C. example, finding of under session food so 2024(b)(1) prove must Government “the pistols that the defendant knew the were acting that he was defendant knew that the necessary.8 automatic would be Or at regu- statute in manner unauthorized very least, us, seems it “should 2086. In Liparota, 105 S.Ct. at lations.” ought have known” standard re determining ques- to this answer quired. See Delahous affirmative, rea- the Court tion was Cir.1978). saye, 573 F.2d interpret the other- that “to statutе soned Surely, year every of thousands law-abid- range criminalize a wise would be to broad purchase reputable re- ing Americans from Id. The innocent conduct.” apparently tailers, wholly innocent transactions in “requiring rea also mens Court noted required paperwork all proper- which is long-standing recog- keeping our completed, guns ly new semiautomatic ‘ambiguity con- principle nition known, have been manufactured criminal statutes cerning the ambit of ” Congress reputable concerns. Can lenity.’ in favor of Id. should be resolved States, purchasers that such (quoting may v. United intended be sub- at 2089 Rewis 1056, 1059, 28 imprisonment if, L.Ed. jected years’ 91 S.Ct. to ten U.S. (1971)). 2d example, disgruntled employee in- secretly manufacturer has altered the necessarily dis- reasoning If is not workings gun purchased thus ternal re- positive of issue of fully automatic, that it is in a situation so 5861(d), certainly quired under section does purchaser where the not could not Although failing to to that issue. relevant reasonably acquires know this when he prove require 5861(d) prosecution purchaser gun? defendant a section if the Even “innocent” particular knowledge of the day gun, had sufficient he acquires finds out the after of a firearm to characteristics proper promptly notifies the authori- regulation him to alert the likelihood it, chаrge ties take he is nevertheless might range criminalize as broad a guilty government’s theory. under the We might as have criminalized conduct been Congress it that find difficult to believe holding plain it is contrary Liparota, a in a result. intended such failing require knowledge that to such might prefer much we a differ However any in easily person a without could result rule, panel a the fact remains that ent being “guilty knowledge” con- whatever already issue Court has considered this merely very crime victed of this ‍​‌​‌‌‌‌​​‌​‌​​‌​‌‌​‌‌‌​‌‌‌​​‌​‌​​​​‌​‌​​‌‌​​‌​‌​‍serious knowledge re only the has held that and he the that he because knows that item 5861(d) to in a section quired be established general, is firearm within the possesses a part knowledge on the prosecution is In popular meaning of the term.7 the ab- was possessed that the item he a defendant congression- express implied or sence of general meaning of the firearm within subject innocent purpose al to otherwise Vasquez, 476 F.2d at 732. Ac term. See very possessors to seri- purchasers or Shilling, v. 826 F.2d cord United 5871, in penalties ous contained section — Cir.1987), denied, 1365, (4th 1368 cert. interpretive “time-honored believe that the 777, -, 98 L.Ed.2d 863 lenity 108 S.Ct. guideline” in the rule of U.S. found expressly re- government does not to 8.That 6. that had All conceded weigh heavily knowledge knowingly acquired quire does not prove such that defendant interpretation. Liparota contrary only As stamps. The involved was favor of a the food simple acquisi- "‘[C]ertainly than the to know that far more whether the defendant had states: phrase stamps appropriate from the was an unauthorized tion of these food omission of necessary justify to dis- statutory act. definition ” requirement.’ Id. 105 pensing an intent (quoting v. United States at 2088 from analysis S.Ct. in this re- 7. We further note that our 422, 2864, Co., 98 S.Ct. Gypsum 438 U.S. spect United views is also consistent (1978)). 2874, L.Ed.2d 854 expressed Liparota dissent. 57 in Justice White’s 320 States, (1988); Morgan v. “Second, 564 F.2d any the firearm or other

803, (8th Cir.1977).9 weapon or 805 Absent an silencer was reg- inter not then to the istered defendant vening Supreme the National or en banc Court decision Register and Transfer Record. law, change statutory or a we are necessary “It not govern- prior panel’s bound follow the decision. prove ment Connick, the defendant knew Umphlet See 1061, F.2d 815 the item described the indictment (5th Cir.1987); Washington v. Wat 1063 was a firearm which the requires law Cir.1981), kins, 655 1346, (5th 10 F.2d 1354 n. registered. be must proved What be- denied, rt. 949, 456 U.S. 102 S.Ct. ce yond a reasonable doubt is that the de- 2021, (1982). 72 474 L.Ed.2d We must knowingly possessed fendant item as therefore evaluate the district court’s in charged, firearm, that such item was a regarding knowledge light structions before, as defined and that it not Vasquez. holding then to the defendant Register National Firearms and Transfer charge jury, In its to the the district Record.” pertinent part court stated in follows: instructions, Under only these knowl- pro order to the offenses establish “[I]n edge jury needed to find that statutes, are hibited these two knowledge pos- Anderson had was he government which essential elements “firearm,” “silencer,” sessed “any or prove beyond must a reasonable doubt: did not have to weapon.” jury other The “First, at the the defendant time find that Anderson knew that items these place charged and in the indictment had the which characteristics firearm, knowingly possessed a it can be made within them “firearms” silencer, 5845(a).10 other and weapon charge of sectiоn Because the Gonzalez, 1516, giving “[B]y 9. United States v. 719 F.2d not nec- instruction that it’s denied, Cir.1983), essary government prove U.S. cert. for the (1984), may S.Ct. L.Ed.2d 710 also knew defendant that the item described in the similarly Morgan hold. is a instruction indictment was a firearm— case, directly Vasquez it relies on and focuses on Required registered. "The Court: to be "must whether defendant actual Required registered, "Mr. Arnold: possessed weapon that he go in fact that should further to contain basi- Morgan, automatically.” statement, F.2d at fires Shilling cally knowingly the same sufficiency does, and are of the evi Gonzalez because mistake or accident. holding Shilling, though dence cases. "there is Okay. Court: "The Overruled.” Shilling substantial circumstantial evidence that objection repeated later: knew the were converted au [to object- "Mr. Arnold: This is we are tomatic],” goes reject on to Herbert follow to, necessary ing is not for the Morgan. Shilling, F.2d at 1368. is Gonzalez prove to that the defendant knew item the unclear, stating point somewhat at one that it described in the indictment was a firearm “knowingly be must shown that the defendant requires registered. law to be which the possessed weapon” an at automatic but another Okay. Court: Overruled.” “The that it need not he that be shown that "knew the objection not a of clari- While the was model weapon meаning the ... was a ‘firearm’ within ty, we it was district believe understood the F.2d at the statute.” 719 1522. Whether the minimally adequate. was We court and also knowledge of the last statement refers to law or note in connection defense that counsel weapon characteristics of the is (which requested as an instruction follows was unclear. also states is no "[t]here Gonzalez given): required." Id. scienter requires spe- Act no “The National Firearms knowledge cific that the firearm intent objected to the paragraph Anderson last charged possessing which the accused is with text, quoted stating However, the instructions unregistered. the was Government part as follows: beyond required prove is to a reasonable knowledge doubt that the defendant had that Your "Mr. Arnold Hon- [defense counsel]: or, possessing object concerning the firearm which he is accused of paragraph I to the type prohibited necessary was of a is statement it’s not for Code, prove 26 United States 5845.” that the defendant knew Section to Title Finally, it seems evident that this was a mat- item described in the indictment was reg- jury, requires the law ter concerned the in that it in a firearm which sent stating: “May copy istered. ... note we have a of Title 26 though pistols, convict even be convential semiautomatic jury to allowed pistols only by expert find that Anderson knew examination after tak- did not automatic, them) ing (or by firing fully apart Anderson contends them could it were However, as our they fully it was erroneous. be ascertained that were auto- plain, above, an However, makes such previous discussion matic. as noted under Circuit, perfectly consistent Vas- instruction law of this whether Anderson actu- hold that the district quez. ally We therefore knew—or should have known—that jury with its did not err in connection pistols court these two were automatic is charge knowledge. long as knew that irrelevant. So Anderson pistols possessed he these two and that evidence Sufficiency they genеral were firearms within the raises third and final issue Anderson term, meaning of that both of which facts to sufficient evidence is whether there was properly have found based could The standard that support his convictions. evidence, on the he had sufficient knowl- evaluating such a claim wheth- we use edge violating to convicted of section be of fact could a reasonable trier er 5861(d).11 Because there is no guilt established found that the evidence weapons these were firearms as defined pur- doubt. For this beyond a reasonable 5845(a)(6) they and that had not light pose, we consider evidence Anderson, registered to we hold that beеn government, resolv- to the most favorable support there sufficient evidence to his was credibility inferences and ing all reasonable for possessing machine two convictions the verdict. choices in favor of 5861(d). guns violation of section Punch, 722 F.2d Cir.1983). determine that We convic respect With to Anderson’s convic- support sufficient evidence unregistered an silenc possessing tion for each of the three counts. tion on er, dispute that Anderson does not both the search of his residence uncovered respect to convictions

With siotic-type silencer and portion of a unregistered machine rear the two possessing por parts of the front component dispute that he certain does not guns, Anderson argues simply He pistols tion of such silencer. possessed the that he knew he two parts could not all of these does he that because charged possessing, nor siotic-type complete to make they were assembled that he did not know claim (certain front components silencer general firearms within missing), there is insufficient portion However, that he did were he does assert term. pos support his conviction evidence to pistols were not know that these two silencer. We dis sessing unregistered automatic, rather than semiautomatic light agree. Viewing the evidence substan they appeared be. There was prosecution, we be to the appeared most favorable weapons tial evidence Herbert and free to follow knowing?” point 11. Even if were the court at which definition of particular jury: character advised the hold way respond subject to that that the best to the “I think these made istics that Act, i.e., again you so automatically, what I did before is to read they be fired could that closely you in mind. can have it more nevertheless, considering that proved, knowingly, as term has word that '“The residence uncovered search of Anderson’s I havе instructions which been used particu describing of these conversion manuals given done you, that the act was means automatic, weapons semiautomatic lar from intentionally voluntarily not because and and (except one fact that the also the and or accident.’ of mistake bed) kept a were pistol, was under the that, you to let connection with "And in secret, spent and vault with manuals hidden given again I have hear instruction clearly casings, suffi believe that there ‍​‌​‌‌‌‌​​‌​‌​​‌​‌‌​‌‌‌​‌‌‌​​‌​‌​​​​‌​‌​​‌‌​​‌​‌​‍before." violating to convict Anderson evidence cient jury objected to reread to the The court then 5861(d) with these items in connection section quoted in the paragraph of the instructions last Herbert standard. under the even text, necessary_” beginning That “It is not response. The above-not- concluded the court’s jury. only question was the one asked ed consideration, jury properly lieve that could have it will continue to serve as knowingly possessed precedent. found that most unfortunate I Anderson would silencer, urge portion the rear since was therefore en banc consideration of residence, and may found in the his this case so that Vasquez vault be reconsid- that this item at the Anderson knew ered. silencer,

very portion of a since in least components of silencer

additiоn to the recovered from that vault a was also describing of that

document fabrication

type of When these facts are silencer. undisputed together

considered portion

testimony at the rear trial produced alone a reduction sound from LOUISIANA, STATE OF ex rel. decibels, properly 157 to 148 could Jr., GUSTE, al., William J. et concluded this device fit the defi- Plaintiffs-Appellants, nition of silencer contained in the court’s charge, i.e., “any silencing, device for muf- and fling diminishing porta- report or of a Louisiana, Shrimpers Concerned firearm, including any ble combination Intervenor-Appellant, parts designed redesigned or and intended assembling fabricating use in or fire- v. arm silencer firearm muffler and or VERITY, Jr., Secretary, C. William Unit only assembly intended for use in such Department Commerce, ed States fabrication,” and firearm thus was a al., Defendants-Appellees, et 5845(a)(7). within the of section Given that there is no this device was not to Anderson in Fund, The Environmental Defense Registration National Firearms Intervenor-Appellee. Record, Transfer we hold that there was No. 88-3185. sufficient evidence to convict him under unreg- of an Appeals, United States Court of istered silencer. Fifth Circuit. Aug.

Conclusion stated, For the reasons we conclude that

none complaints appeal of Anderson’s

presents any reversible error. there- We

fore judgment. affirm the district court’s

AFFIRMED. JOLLY,

E. GRADY Judge, Circuit

specially concurring:

I fully in everything Judge concur

Garwood I specially has said. concur in opinion only emphasize I fully

agree Judge Garwood’s conclusion Vasquez, our decision case, wrongly controls this de-

cided, and until it is en overruled banc (as

12. This definition drawn from 18 U.S.C. defined in section 921 Title _” 921(a)(24). ‍​‌​‌‌‌‌​​‌​‌​​‌​‌‌​‌‌‌​‌‌‌​​‌​‌​​​​‌​‌​​‌‌​​‌​‌​‍5845(a) provides Code); Section ...; (7) any term “[t]he ‘firearm’ means silencer

Case Details

Case Name: United States v. Joe Alvin Anderson

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Aug 15, 1988

Citation: 853 F.2d 313

Docket Number: 87-2905

Court Abbreviation: 5th Cir.