*2 PORFILIO, EBEL, Before LOGAN and Judges. Circuit LOGAN, Judge. Circuit appeals Leland Reed his convic- by jury being tion a felon knowing- who ly possessed in violation of 18 §§ 922(g)(1) U.S.C. In his attorney then told the statement instructor, welding that Lonnie “knowingly” possess a that defendant testify that defendant discussed pro- would thought he was not firearm because using plans him to make a stand inoperable shot- hibited *3 shotgun, agreed and that defendant to sell district court gun. asserts the Sandoval, shotgun the to Robert under- by rejecting this de- him a fair trial denied agent, gun cover because the was worthless excluding supporting evi- theory and fense except part welding pro- as a of defendant’s to this de- defendant committed dence after ject. jury The was told the defense would be strategy during trial. Because the fense broken, thought shotgun that “he the was he require proof defen- crime does thought that it did not function as a fire- law, violating the a mistak- dant knew he was arm____ result, knowingly a he did not [A]s shotgun a a broken is not en belief that possess regard And in that he’s firearm. defense, not a and statutory firearm is viable guilty.” government Id. at 83-84. The reject defendant’s asser- we affirm. We also object presentation to this of defen- refusing give tion that the court erred theory opening in his statement. departure for ac- him a two-level downward ceptance government The then called Sandoval as
its first witness. Sandoval testified he went acquaintance to defendant’s home with an I buy pulled a firearm. There defendant the jury in- proposed a Before trial defendant gun and told him that it from under bed good faith belief that he struction that his repair, but needed demonstrated Sandoval prohibited from broken was not repair gun worked. that even without the negat- complete because it gun was a bargaining price they agreed After over the possessed” element of “knowingly ed the $30, paid. which Sandoval §§ He also 922(g)(1) and government presented then gun that evidence Alexander,1 the detective who re- Glenn relevant to whether defendant broken was gun logged from and it ceived the Sandoval object possessed was a that he knew He stated the shot- into the evidence room. ruling made no firearm. The district court gun repair at that time and that he needed government’s objection point, at that on the adjusted Although the had the slide bar. noting have to hear the evidence that “we’ll rail, was able to breech bolt was off the he impor- things become before some of these couple it a of times and chamber tant.” R. 18. IV firing pin fell. On cross- worked and the examination, however, admitted jury Alexander In heard de- statements hearing he had preliminary at a posses- into that state fendant’s version of how he came shotgun it did not of the and theory tried the action shotgun sion and his of defense. then sustained the jury they The district court attorney told the objection to defense counsel’s that defendant first saw would hear evidence gun whether the boys questioning further about he noticed that two when argued that if he from worked. Defense fighting park in the across the street functioning away not allowed to ask about the gun, he took it his house had the and pres- them; shotgun he would not be able defendant determined knowing his defense. He asserted pump ent was broken: sleeve required proof the chambering possession of a firearm protruded, mechanism was was a fire- knew the instrument firing pin damaged, and there was not arm, proof it was a breech; although simply he decided believed the might a firearm at one evidence have functioned as “junk” nonfunctioning longer a firearm so he was broken point, it no worked as knowingly possess a garage. demonstrate he did stored it in his took it home and speaks and he explained name is Glenn government that al- the detective's 1. In its brief the Alexander, Appellee at 4. "Lynn” an accent. See Brief indicates the record lengthy proffered testimony by discussion of case Defendant then firearm. After open- law and evidence the district ruled two witnesses had mentioned ing. belief that could not Lonnie Smith that defendant testified planned operate was not a defense. had to use the old Kling, investigator, stand. Tim the defense then called Manuel Ol- that he testified had examined the Alcohol, mos, Tobacco and Fire- a Bureau of found it was workable after about fifteen agent, who testified that he test fired arms twenty manipulating minutes of it. reinserting shotgun by prong and ad- requested Defense counsel that the court justing charging it. the slide before When why instruct he did not follow stand, however, he was on the Olmos could *4 through theory presented in on the defense not demonstrate how firearm statement; opening his the district court re- fused but allowed defense counsel to address At the close of the case in closing argument. in The district court chief, mistrial, the defense moved for a as- “good denied defendant’s faith” instruction serting irretrievably preju- defendant was theory of the case instruction as well as diced the court’s refusal to allow evidence his renewed motion for a mistrial. knowledge of defendant’s about whether the gun worked. Defense counsel asserted he II had in his committed statement to a § 922(g)(1) “It U.S.C. states: shall theory necessary that defendant lacked the any person (1) be unlawful for who has — rea, had then mens cross-examined of, any pun been convicted in a crime agent theory. Sandoval on this Counsel con- by imprisonment ishable for a term exceed tended that he had no realistic alternative ing year; ... ship transport one to or strategy ruling and the court’s was therefore commerce, foreign possess interstate or or prejudicial. The district court denied the commerce, affecting any or firearm or ammu motion for a mistrial. nition; any or to receive firearm or ammuni presented Defendant then shipped transported tion which has been or in a defendant’s counsel related state court foreign or interstate commerce.” Al case, inop- who testified that the firearm was 922(g)(1) § does not contain a knowl preliminary at hearing. erable the state De- edge requirement, penalty provi the relevant Wrighter, fendant also called Willie Gene sion, 924(a)(2), provides § 18 U.S.C. who testified that someone other than defen- “[wjhoever knowingly violates subsection ... dant sold the to Sandoval. (g) provid ... of section 922 shall be fined as title,
Defendant took the stand
imprisoned
and testified he
ed in this
not more than ten
years,
concluded that
was not a
firearm
or both.” The
element of
broken,
§
it
922(g)
requires
§
because was
and he stored it as
proof that a
junk.
repeated
After he
that he
particular
did
view defendant “knew the
characteris
it
[gun]
statutory
the district court sustained
tics that made his
firearm.”
government’s objection.
Mains,
Defendant then United
v.
States
33 F.3d
(10th
explained
Cir.1994);
planned
incorporate
States,
that he had
Staples v. United
cf.
600, 618-19, 114
1793, 1803-04,
the broken
into a
table.2 On 511 U.S.
S.Ct.
cross-examination,
(1994)
(although
admitted
statute did
“get-go”
element,
from the
explicitly
“knowingly”
he “knew it was a shot-
include
gun.” V R. 253. On
possession
unregistered
redirect defendant
conviction for
of an
5861(d),
testified that he did not
it
believe was a
firearm under 26 U.S.C.
based on
thought
firearm because he
a firearm
possession
gun,
had “to
of a machine
re
bodily
person.”
quired
able
do
harm to a
Id.
at 259-60.
brought
knew of the features of
design
shotgun.
2. The district court did not allow defense counsel
table with the
drawings concerning
to introduce defendant’s
act).3
scope
it
of that
-within
18 U.S.C.
projectile
and whether it
921(a)(3)
purposes
defines “firearm” for
repaired.4
could be
argues
next
(A)
§ 922(g):
any
“The term ‘firearm’ means
thought
that he
was so altered that it
(including
gun)
a starter
which will
longer designed
was no
as weapon.
Cf.
designed
or is
or
be converted
Yannott,
States v.
42 F.3d
(6th
Cir.1994)
of an
(gun inoperable due to broken
(B)
explosive;
any
the frame or receiver of
firing pin
designed
still
converted
(C)
weapon;
any
such
firearm muffler or
expel projectile
so still firearm under
(D)
silencer;
—
firearm
destructive de-
922),
denied,
U.S.-,
cert.
115 S.Ct.
vice.”
1172, 130
(1995);
L.Ed.2d 1125
Ruiz,
(5th Cir.),
986 F.2d
cert.
At trial defendant
that he
denied,
114 S.Ct.
present
“good
was entitled to
faith” defense
proposed
Yet his
in
prohibited
he did not know the statute
structions did not raise the lack
inoperable
him from
shotgun.
defense on the “is
to”
“may
But
interpreted
922(g)(1)
we have
to re
readily be
statutory alternatives,
converted”
quire only that defendant knew of the char
Requested
see Defendant’s
Jury Instructions,
acteristics that
made the
*5
“L,”
I R. tab 68 at
“Q.”
tab 77 at
firearm;
government
the
does
have to
prove
violating
defendant knew he was
charged
the
indictment
defendant with vi-
Mains,
(§ 922(g)(1)
law. See
conclusion that law, the defendant is unaware of the but Ill establish, I do believe the must argues that he should States, 600, Staples v. 511 U.S. depar downward given a two-level have been (1994), that S.Ct. responsibility under acceptance of ture for physical the defendant had A defendant has burden 3E1.1. USSG that the law uses characteristics reduction, to this an entitlement to establish statutory fire- to define what constitutes a district court’s not disturb and we will Thus, arm. if the defendant knew that the to award it absent clear determination firing projectiles, capable he Gassaway, See United States error. adequate have mens rea to be convict- Cir.1996). (10th F.3d if he not know that the law ed even did requires gov capable A who firearm as one defined proof by going to trial firing projectiles to make its and even he believed ernment violating de generally good will not be allowed two-level faith that he was not However, acceptance could not convicted if parture law. Portillo-Valenzuela, 20 F.3d that his either “will or is United States v. he did know (10th denied, Cir.), cert. to or be converted to ( 1994). explo- the action of S.Ct. *6 out, however, majority “a points opinion defen I do read the as As defendant sive.” Thus, may clearly acceptance disagreeing my demonstrate an dant with this standard. responsibility majority really for his criminal conduct even in difference with the is right to application he exercises his constitutional of that standard to the facts of occur, may example, for a trial. This where this case. pre trial to and goes assert defendant I the district court ruled that Here believe guilt to factual serve issues that do not relate lack of of the charac- {e.g. challenge a constitutional to a to make material, I of the was not teristics applicability challenge or a of a statute important think the court excluded evidence conduct).” to his USSG 3E1.1 statute lack that tended to establish the defendant’s comment, (n.2). challenge Defendant did not knowledge. example, of such For defendant constitutionality good of the statute. His sought that the to elaborate his view
faith defense demonstrated he did weapon could not function and could as for accept responsibility his conduct. We weapon, be to function as a made error in the district court’s find no reversible lamp. and that it was useful De- give refusal to two-level reduc sought to have Lonnie fendant further acceptance tion for welding community instructor at the local AFFIRMED. college, testimony. corroborate this Addi- testimony tionally, proffered EBEL, dissenting. Judge, Circuit Kling, police Tim a former officer familiar firearms, majority regarding respectfully I dissent from the the state defen- gun. Kling opinion in case because I believe the would have testified that this working gun by refusing possessed to allow de- such as that de- district court erred for adequately argue lack of fendant would sell between $150 fendant $250, gun possessed physi- that the whereas defendant sold This evidence would have cal which constitute a statuto- Sandoval $22. characteristics Although majority opinion provided important support for defendant’s ry “firearm.” possessed attempted contention that he did not know he characterizes defendant’s statute, sessed, a “firearm” as defined under the I believe his conviction must RE- be Yet, court excluded this VERSED and REMANDED evidence. for a new trial.
I do not believe this excluded evidence can
properly as be characterized “cumulative.”
Although admittedly put on defendant did knowledge,
some of his lack of evidence
proffered Kling Smith only independent evidence that could
have corroborated defendant’s contention gun possessed he did know
physical statutoiy characteristics “fire-
arm.” America, UNITED STATES uncertainty I admit to some Appellee, Plaintiff - upheld
defendant’s conviction be “design” prong definition 921(a)(3), of a firearm 18 U.S.C. which “any weapon a firearm ... which defines as Anthony ANDERSON, E. Defendant— will is Appellant. expel projectile by
converted to No. 96-3221. added.) explosive.” (Emphasis of an There is no case doubt evidence Appeals, United States Court of weapon pos- sufficient to establish that the Tenth Circuit. “designed sessed defendant was to ... explo- action of an May Further, proffer sive.” defendant did not dispute evidence to the fact that designed. was so He did planned, date, at some future to “rede- sign” weapon by converting it into a
lamp, longer at time it would no which However, projectile. redesign never occurred.
However, just like defendant did not focus “design” definition of a government.
neither Although did the “design” prong
indictment included
the definition of firearm submitted to the
jury, large- case was based
ly prongs statutoiy on the other two
definition. (opening See IV R.O.A. at 77
statement); (testimony Id. at 93 of Robert
Sandoval); (closing VI R.O.A. at ar-
gument). essentially Because this case was on weap-
tried definition that capable expelling projec- was either capable readily being
tile or converted to projectile, and because defendant deprived opportunity of a fair par- his lack of of those
ticular pos- characteristics of the