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
863 F.3d 784
The district court‘s Amended Order and Judgment dated July 19, 2016 is affirmed.
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.
We granted rehearing en banc and vacated the panel opinion. With jurisdiction under
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
White was charged with possession of a stolen firearm for the Romarm Draco.
Additionally, because White‘s Street Sweeper was unregistered, White was charged with possession of an unregistered firearm under
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
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
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.
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
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. 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. 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 have the same quasi-suspect character we attributed to owning hand grenades in Freed.
Barr concluded from this passage that Staples did not intend its holding to apply to quasi-suspect weapons because, under Freed, there is no legitimate expectation that quasi-suspect weapons are unregulated. 32 F.3d at 1324. But Freed did not concern the issue of mens rea as to the physical characteristics of a firearm that require its registration. Rather, Freed held only that the government need not prove knowledge that a firearm is unregistered. 401 U.S. at 607. Staples itself acknowledged the distinction. 511 U.S. at 609 (“In Freed, we decided only that [the National Firearms Act] does not require proof of knowledge that a firearm is unregistered. ... [That] determination ... suggests no conclusion concerning whether [the Act] requires the defendant to know of the features that make his weapon a statutory ‘firearm’ ....“). Thus, to the extent Freed applies in this case, it means only that the government does not have to show that White knew his Street Sweeper was unregistered. See United States v. Reyna, 130 F.3d 104, 108 (5th Cir. 1997) (“[I]f sawed-off shotguns are ‘quasi-suspect’ weapons under Freed, it simply means that a defendant does not have to have knowledge that the shotgun is unregistered; it says nothing about whether a defendant has to know that his shotgun has the characteristics that bring it within the statute.“).5
But it is not unlawful to own a gun, registered or otherwise, solely because of its formidable presence. See Staples, 511 U.S. at 611 (rejecting the view that “dangerousness alone should alert an individual to probable regulation“). Rather, as Staples clearly articulates, in a
In departing from Barr, we note that the decision is an outlier among every other circuit to address the issue. Those circuits have unequivocally concluded that the Staples mens rea requirement applies irrespective of whether a weapon may be considered “quasi-suspect” for other purposes. See Greenlee v. United States, 205 F.3d 1340 (6th Cir. 2000) (unpublished table decision) (sawed-off shotgun); United States v. Gergen, 172 F.3d 719, 724 (9th Cir. 1999) (sawed-off shotgun); Reyna, 130 F.3d at 108-09 (sawed-off shotgun); United States v. Owens, 103 F.3d 953, 956 (11th Cir. 1997) (rifle with a seven-inch barrel); Edwards, 90 F.3d at 203-04 (sawed-off shotgun); United States v. Starkes, 32 F.3d 100, 101 (4th Cir. 1994) (sawed-off shotgun); United States v. Mains, 33 F.3d 1222, 1229 (10th Cir. 1994) (sawed-off shotgun); see also United States v. Shaw, 670 F.3d 360, 363 & n.1 (1st Cir. 2012) (assuming Staples applies in a case involving a sawed-off shotgun); United States v. Dewalt, 92 F.3d 1209, 1212 (D.C. Cir. 1996) (govern-
In sum, Barr‘s holding as to the mens rea required for a conviction under the National Firearms Act is wholly inconsistent with Staples and is therefore overruled. By imposing strict criminal liability on owners of “quasi-suspect” guns—an undefined category that invites arbitrary application—Barr contravenes the Supreme Court‘s view that Congress did not intend “to make outlaws of gun owners who were wholly ignorant of the offending characteristics of their weapons.” Staples, 511 U.S. at 620. We therefore join our sister circuits in holding that, in all cases in which a defendant is prosecuted under the National Firearms Act for unlawful possession of an unregistered firearm, the government must prove beyond a reasonable doubt that the defendant knew of the physical characteristics of the weapon bringing the weapon within the ambit of the Act.
B. The Jury Instructions Were Insufficient
We next consider whether the jury instructions adequately conveyed the government‘s burden under Staples on the unregistered firearm charge. White timely objected on the basis that Instruction No. 16 did not include the required Staples mens rea as an element of the offense. Accordingly, we review for abuse of discretion. United States v. Poitra, 648 F.3d 884, 887 (8th Cir. 2011). We will reverse if the instructions contained errors that “misled the jury or had a probable effect on the jury‘s verdict.” United States v. Thompson, 686 F.3d 575, 579 (8th Cir. 2012) (internal quotation marks omitted). The verdict will stand, however, if the instructions “taken as a whole adequately advise the jury of the essential elements of the offenses charged and the burden of proof required of the government.” United States v. Pereyra-Gabino, 563 F.3d 322, 328 (8th Cir. 2009) (internal quotation marks omitted).
Instruction No. 16 does not expressly recite the Staples mens rea requirement. Whether such an instruction nonetheless complies with Staples is a question that has divided judges. A plurality of the Supreme Court and a unanimous Ninth Circuit panel upheld comparable instructions under Staples, finding the instructions to adequately convey the requirement that the defendant knew the firearm‘s incriminating characteristics. Rogers v. United States, 522 U.S. 252, 258-59 & 259 n.7, 118 S.Ct. 673, 139 L.Ed.2d 686 (1998) (plurality opinion); United States v. Thompson, 82 F.3d 849, 854 (9th Cir. 1996). But this view drew a sharp dissent in Rogers, 522 U.S. at 260-61 (Kennedy, J., dissenting), and the plurality itself expressed doubt that the instruction would be sufficient had the case not been submitted to the jury before Staples was decided, id. at 258 (plurality opinion) (“We assume that the trial judge would have been more explicit in explaining the mens rea element of these offenses if Staples had been decided prior to submitting the case to the jury.“) (emphasis omitted). In fact, the plurality warned trial courts not to rely on the instruction, stating, “It would be wise for trial courts to explain the Staples requirement more carefully than the instruction used in this case to foreclose any possibility that jurors might interpret the instruction as Justice Kennedy does in his dissent.” Id. at 259 n.7.
Even assuming Rogers and Thompson support the proposition that Instruction No. 16, on its own, satisfies Staples, “a single instruction to a jury may not be judged in artificial isolation.” United States v. Park, 421 U.S. 658, 674, 95 S.Ct. 1903, 44 L.Ed.2d 489 (1975) (internal quotation marks omitted). Rather, “jury instructions are considered within the context of the whole trial, and in light of other instructions.” United States v. Sutera, 933 F.2d 641, 646 (8th Cir. 1991). Here, the jury received two additional instructions that, when viewed alongside Instruction No. 16, establish that the entire charge to the jury did not adequately convey the essential elements of the unregistered firearm offense.
Before opening arguments, the jury received Instruction No. 1, which introduced the charges against White. With respect to the unregistered firearm charge, the instruction stated that White “is charged with knowingly received [sic] and possessed [sic] a firearm, to wit: a Street Sweeper, Model Street Sweeper, 12 gauge shotgun, not registered to him in the National Firearms Registration and Transfer Record, on or about October 31, 2013.” As to the stolen firearm charge, the next paragraph in Instruction No. 1 stated that White “is charged with knowingly possessed [sic], a stolen firearm, to wit: a Romarm/Cugir, Model Draco-C, 7.62x39 caliber semiautomatic handgun, which had been shipped and transported in interstate commerce, knowing and having reasonable cause to believe the firearm was stolen.” (emphasis added).
The description of the charges in Instruction No. 1 shows that, from the outset, the jury was informed that the government‘s burden to prove mens rea for an unregistered firearm conviction is less exacting than its burden to prove mens rea for a stolen firearm conviction. Indeed, the knowledge element appeared twice in the paragraph explaining the stolen firearm charge—first to modify “possessed” and next to modify “the firearm was stolen“—but just once in the paragraph explaining the unregistered firearm charge—to modify only “received and possessed.” This reasonably suggested to the jury that, while the stolen firearm charge requires that White knew that he possessed a stolen firearm and that the firearm was stolen, the mens rea for the unregistered firearm charge is limited to White‘s knowledge that he possessed a firearm.8
At trial, the district court reinforced this implication when it provided Instructions No. 16 and 17, which set forth the specific elements of each offense. As in Instruction No. 1, Instruction No. 16 again identified only a single, narrow mens rea for the unregistered firearm offense: knowing possession. Instruction No. 16 stated:
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[.]
As to the mens rea for the stolen firearm offense, Instruction No. 17 stated:
One, on or about October 31, 2013, the defendant knowingly possessed a stolen firearm; ...
Three, the defendant knew or had reasonable cause to believe that the firearm had been stolen.
(emphasis added).
Once more, the instructions together inform the jury that, unlike the mens rea for the stolen firearm charge, the mens rea for the unregistered firearm charge is limited to knowledge of possession and does not require knowledge of any specific facts related to the firearm‘s physical traits. To read the instructions any other way would require the jury to interpret Instruction No. 16 such that the word “knowingly” in element one also applies to element two, which appears in a separate paragraph. We find that no reasonable jury would employ such a strained interpretation, particularly given that it would require the jury to either ignore the obvious difference between the instructions or to attribute no meaning to the repeated mens rea in Instruction No. 17. The more natural reading of Instructions No. 1, 16, and 17, is that White could be convicted of possessing the unregistered Street Sweeper without knowing that the Street Sweeper had the bore diameter identified in element two. Because knowledge of the bore diameter is a necessary element of the offense, we hold that the jury instructions failed to sufficiently apprise the jury of the government‘s burden. See Pereyra-Gabino, 563 F.3d at 328. Accordingly, White‘s conviction for possession of an unregistered firearm is reversed.
III. Conclusion
In addition to affirming the unregistered firearm conviction, the panel (1) reversed White‘s conviction for possession of a stolen firearm due to insufficient evidence proving White knew or had reasonable cause to believe the Romarm Draco was stolen, and (2) upheld the submission of evidence at trial that White was a subject of law enforcement‘s investigation of a series of violent crimes. White, 824 F.3d at 789, 792. We agree with the panel‘s sound reasoning supporting its reversal of the stolen firearm conviction, and we therefore reinstate Part II of the panel opinion. Because both convictions are reversed and remanded, we decline to address White‘s challenge to the evidentiary ruling in his earlier trial. Thus, Part IV of the panel opinion—which affirmed the evidentiary ruling—remains vacated.
In sum, White‘s convictions for possession of an unregistered firearm and for possession of a stolen firearm are reversed. We remand for further proceedings consistent with this opinion.