Lead Opinion
A jury convicted the defendant, Hazen Shaw, on one count of possessing an unregistered short-barreled shotgun in violation of the National Firearms Act. 26 U.S.C. §§ 5861(d), 5871. At trial, he moved for a judgment of acquittal, Fed. R.Crim.P. 29, contending that the Government failed to present sufficient evidence that he knew the shotgun’s barrel was shorter than 18 inches, the statutory characteristic subjecting the weapon to the Act. See 26 U.S.C. § 5845(a). The trial court denied the motion, and Shaw now appeals his conviction.
I. BACKGROUND
The question on appeal is one of sufficing of the evidence, so we recite the relevant factual background in the light most favorable to the verdict. See United States v. Gonzalez-Ramirez,
Shaw was arrested for eluding a police officer and for reckless conduct. A subsequent search of the automobile revealed variоus items, including two knives and a hatchet, as well as a 20 gauge shotgun with a sawed-off stock in the trunk. A single expelled or spent 12 gauge shotgun round was found between the driver and passenger seats. Shaw himself was carrying, in a pack and on his hunting belt, different types of ammunition, some boxed and some loose. Additional evidence suggested that Shaw had been engaging in some type of hunting activity while seated in his car, by shooting at game from his open car window.
State Trooper Michael Johnston, an evidence technician, arrived at the scene and quickly noticed that the 12 gauge shotgun appeared to be too short for federal guidelines. He further observed that the stock of the weapon had been cut off and covered with duct tape, the gun’s barrel “look[ed] like it also had been cut,” and “a homemade sling” was attached “in the form of a yellow-like nylon rope.” The outside of the gun barrel still bore printing indicating that the original barrel length had been 28 inches. While the weapon’s overall length was about 29 inches, the barrel itself, measured internally, was sixteen-and-a-quarter inches in length. Because the length of the shortened barrel of the 12 gauge was less than 18 inches, the weapon was subject to federal registration requirements. See 26 U.S.C. §§ 5845(a), 5861(d). Shaw was subsequently charged with possession of an unregistered firearm. See 26 U.S.C. §§ 5861(d), 5871. As noted, the trial court rejected Shaw’s Rule 29 motion for judgment of acquittal on that charge, and the jury rendered a guilty verdict. This timely appeal followed.
II. STANDARD OF REVIEW
We review de novo the denial of a Rule 29 motion to determine whether the body of proof as a whole, including direct and circumstantial evidence, was sufficient for a rational jury to conclude beyond a reasonable doubt that the government established each element of the crime. United States v. Pérez-Meléndez,
In this case, the question is whether there was enough evidence to permit a rational jury to conclude beyond a reasonable doubt that the defendant knew that the length of the barrel of the shotgun was
III. GOVERNING LAW AND ANALYSIS
The National Firearms Act, 26 U.S.C. §§ 5801-5872, imposes strict regulations on certain statutorily defined “firearms.” Pertinent here, Congress has deemed it unlawful for any person “[t]o receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.” 26 U.S.C. § 5861(d). A “firearm” generally constitutes certain shotguns and rifles, machine-guns, silencers and destructive devices; firearm feature terminology is further defined by statute. See 26 U.S.C. § 5845. In the context of this appeal, a “firearm” means “a weapon made from a shotgun if such weapon as modified has ... a barrel ... of less than 18 inches in length.” 26 U.S.C. § 5845(a)(2). Failure to comply with the registration requirement is punishable by a fine of $10,000 and up to ten years of imprisonment. 26 U.S.C. § 5871.
While the defendant’s knowledge is at the heart of this appeal, the statute itself does not expressly contain a mens rea requirement. The United States Supreme Court addressed this statutory silence in Staples v. United States,
The government assumes that Staples ’ scienter requirement applies in this case involving a sawed-off weapon. For purposes of our analysis, so will we.
After carefully examining the record, we conclude that it contains sufficient evidence to support the jury’s finding beyond a reasonable doubt that Shaw knew that the barrel of the 12 gauge sawed-off shotgun was shorter than 18 inches. His acquaintance with the particular weapon, his familiarity with firearms generally, and the external and readily observable shortened feature of the gun’s sawed-off barrel permitted the jury to infer Shaw’s knowledge relative to barrel length. We explain below.
First, the evidence allowed the jury to rationally infer that Shaw was well acquainted with this particular shоtgun, which had a shortened stock covered with duct tape and ,an immediately apparent sawed-off barrel. See United States v. Giambro,
Maneuvering the shotgun inside the close confines of his car during his sport and during the highly charged circumstances of his apprehension provides ample factual foundation for the jury to rationally conclude that he was quite familiar with this particular weаpon and appreciated its smaller stature — including the short barrel feature. See Staples,
Second, the evidence allowed the jury to rationally infer that Shaw was familiar with firearms, more so than an average layman, and thus able to meaningfully distinguish between the physical characteristics and capabilities of different guns, including the Mossberg. See Giambro,
Third, the shortened nature of the shotgun’s barrel is an external characteristic, and the evidence permitted the jury to infer that the barrel length of less than 18 inches was readily observable to the defendant. See Giambro,
Evidence relating to how the gun barrel was measured also is telling. Special Agent Kenneth Stengel of the Bureau of Alcohol, Tobacco, Firearms and Explosives testified that he followed standard procedure when measuring the barrel’s length, which involved closing the bolt of the shotgun, inserting a wooden dowel, and measuring the dowel mark to the bolt face. Stengel testified that this process, which is perfоrmed on the inside of the barrel, resulted in “measuring] to the furthest point on the barrel” as a “way of giving the benefit of the doubt to the defendant.”
Other evidentiary details provided the jury with indicia that, from looking at the weapon, the defendant would have known that the barrel was shorter than 18 inches. Photographs of the scene were displayed to the jury, including one depicting the interior of the front seat of the vehicle where the 12-gauge was resting pointed toward the floorboard. Another photograph displayed the shotgun on the vehicle’s hood beside a tape measure showing the overall gun length. These pictures gave the jury the opportunity to see the weapon — and its barrel — in proportion to other real life objects, and even juxtaposed with a tape measure. Moreover, the gun was admitted into evidence, allowing jurors to see the weapon for themselves. Thus, the jury had ample opportunity to reach its own determination as to whether the statutorily prescribed short barrel length was clear from simply looking at the shotgun. See Giambro,
Despite this record panoply on scienter, Shaw contends that his case fails to reach the quantum of sufficient evidence set forth in Giambro. Seeking to negate аny inference that he is knowledgeable about guns and their distinguishing characteristics, Shaw asserts that the evidence against him cannot compare to Giambro’s extensive gun collection (more than 200 weapons) and ready discernment that two had been seized — the evidentiary display
Shaw also relies on the fact that the discrepancy between the actual barrel length and the required eighteen inches amounts to only one-and-three-quarters inches. We disagree that evidence of a special ability to calculate length based purely on visual inspection was necessary for the jury to reasonably conclude that the defendant knew that the Mossberg’s barrel was shorter than 18 inches. As we observed earlier, the evidence permitted the jury to conclude that the barrel’s length visually appeared to be some stretch shorter than the actual internal measurement of sixteen-and-a-quarter inches. In any event, the totality of the evidence permitted the jury to conclude for itself that the barrel appeared shorter than 18 inches.
Finally, Shaw urges us to discount the flight evidence. He contends that his motivation for giving chase could have been premised on sundry culpable reasons independent of his knowledge on gun barrel length, ranging from unlawful hunting on a Sunday to unlawful possession of a loaded firearm in the passenger compartment of a car. Rather than parsing Shaw’s motivations for his conduct, the jury rationally could have concluded that he was a knowledgeable hunter who flagrantly disregarded the law, including knowingly possessing a shotgun with a barrel of less than 18 inches in length. Likewise, we are unmoved by the lack of evidence showing that he attempted to conceal the weapon; another plausible read by the jury was simply that Shaw lacked the time, opportunity or aforethought to try to hide the weapon. See United States v. Rodríguez-Durán,
One brief matter remains. When charging the jury, the district court instructed on the meaning of “knowingly” and also informed the jury that it “may infer” knowledge in the event that it found the necessary predicate components of willful blindness. See Pérez-Meléndez,
That a different jury could have rendered a different verdict does not undermine the legal sufficiency of Shaw’s conviction. See Hatch,
The judgment is affirmed.
Notes
. Prior to Staples, we had hеld, in assessing a conviction for aiding the transfer of a “firearm” under the National Firearms Act, that proof of knowledge that a sawed-off shotgun barrel measured less than 18 inches was not required. United States v. DeBartolo,
Several courts have read Staples to require proof that a defendant knew that an unregistered sawed-off weapon or its barrel was shorter than the statutorily prescribed length. See United States v. Michel,
. The record suggests that when measured externally, the length of the shotgun barrel was fifteen-and-a-half inches, further supporting that the jury could have rationally con-eluded the barrel’s visual appearance alerted the defendant to the fact that it was shorter than 18 inches.
Concurrence Opinion
concurring.
We can assume that under Staples v. United States,
Nevertheless, relevant to what Shaw knew about the length of his shotgun is the likelihood that Shaw gave any attention to the length of the weapon. One might be handed a fork and use it to eat pie without being aware whether the fork had three tines or four. By contrast, Shaw had to know that he possessed a short-barreled sawed-off shotgun that was significantly shorter than an ordinary shotgun used for hunting. See Laycock, The Shotgunnner’s Bible 48 (rev. ed. 1987) (“The modern shotgun barrels offered across the counters commоnly come in three sizes — twenty-six, twenty-eight, or thirty inches.”).
The jurors were from Maine, a largely rural state with many forests and fields, where hunting is a common pastime. Whatever the average Boston resident may know about hunting, Maine hunters— or at least those who use shotguns — are quite likely to know that shotguns used in hunting are long-barreled weapons.
Sawed-off shotguns are notoriously asso
Thus, Shaw almost certainly knew that the barrel was considerably less than its оrdinary length — here, the original barrel length was marked as 28 inches — and that it was not an ordinary hunting weapon. In fact, the visible length was only 15.5 inches. And once his awareness of its peculiar shortness is posited, the remaining inference as to what he knew about its length involves a far shorter jump. All the jury needed to conclude was that Shaw, conscious of its shortened length, would realize that the barrel was less than a foot and a half long.
An ordinary 12-inch ruler is a familiar item at school and at home. Shaw’s shotgun had a visible barrel length only 3.5 inches more than a ruler. A jury, looking at the shotgun and reasonably believing that Shaw would himself appreciate its aberrant shortness, could conclude that the barrel looked somewhat longer than a ruler but not as long as a foot and a half, and that Shaw therefore knew that it was less than 18 inches. Shaw did not have to know that its precise visible length was 15.5 inches.
We cannot be certain how much jurors who sat on this jury knew about hunting and typical shotgun lengths, for the background facts that juriеs use in drawing inferences are not commonly “proved” but assumed to be within their ken. United States v. Amado-Núñez,
The question on appeal is not whether the particular appeals court panel would vote to convict on this evidence; it is whether a reasonable jury, entitled to considerable deference in weighing this evidence, could find that Shaw was aware that his shotgun barrel was less than a foot and a half long. As in most cases of inference, the issue turns on real-world probabilities and the jury’s estimation of them in light of general knowledge and experience. In this, as with credibility determinations, the jury enjoys considerable latitude.
A great judge warned about the danger of “appellate judges ... whetting their appetite for dealing with facts” rather than leaving them to the jury or judge who saw the witnesses and heard the evidence. Chem. Transporter Inc. v. Reading Co.,
. There is now a circuit split as to whether under Staples the knowledge of length requirement applies to short-barreled shotguns, compare, e.g., United States v. Erhart,
. District of Columbia v. Heller,
. E.g., 10 The New Encyclopaedia Britannica 765 (15th ed. 1994) (“The sawed-off shotgun, with truncated barrels, is easily concealed and is notorious as a criminal weapon.''); Conf. Rep. No. 90-1956 (1968), reprinted in 1968 U.S.C.C.A.N. 4426, 4434 (“The present National Firearms Act covers gangster-type weapons such as ... sawed-off shotguns....”).
Dissenting Opinion
dissenting.
The majority concludes that the government’s evidence was sufficient to allow a jury to determine beyond a reasonable doubt that Shaw had knowledge of the specific fact that the barrel of his shotgun was less than 18 inches in length. I disagree. The jury’s verdict required impermissible speculation.
I.
The government bears a difficult burden of proof in this case because of the specific mens rea requirement imposed by the Supreme Court in Staples v. United States,
The majority finds that Shaw’s “acquaintance with the particular weapon, his familiarity with firearms generally, and the external and readily observable shortened feature of the gun’s sawed-off barrel permitted the jury to infer Shaw’s knowledge relative to barrel length.” These factors reflect the majority’s reliance on our decision in United States v. Giambro,
[i]t has two barrels — a rifle barrel which is on top of a shotgun barrel. Each barrel is between twelve and eighteen inches long. The gun has a folding stock that allows the user to fire the gun like a pistol. It also has a lock on the loading end of the barrels that allows the user to fire a shot from either the top or bottom barrel without reloading.
Id. at 28. The Act requires that owners register “weapons with combination shotgun and rifle barrels 12 inches or more, less than 18 inches in length, from which only a single discharge can be made from either barrel without manual reloading.” 26 U.S.C. § 5845(e); id. § 5841. The defendant in Giambro argued that the evidence was insufficient to establish his knowledge of the characteristics of the firearm that placed it within the Act’s registration requirement. We held that the evidence was sufficient because the defendant 1) was familiar with the specific firearm at issue, 2) was unusually knowledgeable about firearms in general, and 3) the relevant characteristics of the fireаrm were externally visible. Giambro,
A. Familiarity with the Shotgun
In Giambro, officers seized 204 firearms from the defendant. When the defendant
In contrast, the government presented no evidence of Shaw’s history or familiarity with the shotgun at issue here, aside from the fact that he was arrested with it. Nothing about the exercise of preparing a gun for hunting requires awareness of the precise length of the barrel of the gun. If the government had presented evidence that Shaw himself had modified the shotgun, the argument that he was aware that the barrel measured less than 18 inches would make more sense. See United States v. Sanders,
B. Knowledge of Firearms Generally
In Giambro, we also relied on the fact that the defendant owned such a large number of guns — more than two hundred — that the jury could infer that “he was a gun collector or had at least a specialized knowledge and interest in firearms.”
There is no similar evidence of expertise in this case. Shaw was found with two guns in his possession, not two hundred, some ammunition, and other items useful for hunting. Although the evidence might support an inference that Shaw was an experienced hunter, there was no evidence that an experienced hunter, unlike an ordinary person, would be aware of the specific fact required by the mens rea in this case — that the barrel of the shotgun being used for hunting was less than 18 inches in length. While it is true that one wishing to hunt illegally from within a vehicle may be sensitive to the need for a weapon with a shorter barrel, this need does not require an awareness of the precise length of a weapon’s barrel. In fact, for such an exercise, the overall length of the weapon is its more relevant characteristic, not the length of its barrel.
C. The Visibility of the Shotgun’s Relevant Characteristic
Perhaps most significantly, the majority relies on the conclusion that “the evidence permitted the jury to infer that the barrel length of less than 18 inches was readily observable to the defendant.” It is true that it may be reasonable in some circumstances to infer that merely observing a weapon or handling it on one occasion is sufficient to provide an awareness of its relevant characteristics. See Staples,
The Model Penal Code defines “knowledge” of an attendant circumstance as an “aware[ness] that ... such circumstances exist.”
Emphasizing that the gun itself was introduced into evidence, along with photographs of the gun at the scene of the arrest, the majority asserts that the jury, relying on “common sense” and the “dictates of mature experience,” could deter
The majority also notes that there was testimony that one of the arresting officers “quickly noted that the gun ... appeared to be too short for federal guidelines.” The observational capacity of a seven-year veteran of the Maine State Police whose job requires him to make visual judgments about the barrel length of guns is an odd proxy for the “mature experience” of jurors whose roles in life, so far as we know, do not require them to make precise judgments about the length of objects.
In trying to build its circumstаntial case against Shaw, the issue for the government was Shaw’s particular capacity to calculate the length of the gun barrel through observation. See Giambro,
D. Consciousness of Guilt
The majority also relies on Shaw’s flight as evidence of his consciousness of guilt regarding the barrel length of his unregistered shotgun. However, Shaw was flaunting several laws on the day of his arrest. As he outlines in his brief, “[h]unting on Sunday is illegal. Shooting a gun from a car is illegal, as is shooting a gun within 100 yards of a residence, and hunting without a license. It is also illegal to have a loaded firearm in the passenger compartment of a car.” Indeed, Shaw’s conduct upon being arrested — ejecting ammunition from the shotgun, rather than endeavoring to conceal it — is inconsistent with the government’s theory that he fled because he knеw the barrel of the shotgun was less than 18 inches long.
Given the range of Shaw’s illegal conduct on that day, Shaw’s flight says nothing about his awareness of the length of his shotgun barrel. As we stated in Nieves-Castaño, “knowledge that one is guilty of some crime is not the same as knowledge that one is guilty of the crime charged.”
II.
Because it finds that there was sufficient evidence to permit the jury to find that Shaw had actual knowledge of the length of his shotgun’s barrel, the majority does not address the issue of willful blindness. Since I do not find the evidence to be sufficient to prove actual knowledge, I now do so.
As we have previously explained, “[w]illful blindness serves as an alternate theory on which the government may prove knowledge.” United States v. Pérez-Meléndez,
Although willful blindness is not the same as actual knowledge, it is not a lesser standard. United States v. Cunan,
Ultimately, a willful blindness instruction “ ‘allows the jury to impute knowledge to [a defendant] of what should be obvious to him, if it fluids], beyond a reasonable doubt, a conscious purpose to avoid enlightenment.’” Pérez-Meléndez,
As explained, “[t]he focus of the willful blindness instruction must be on the particular defendant and not on the hypothetical reasonable person.” Griffin,
To meet the second prong of the analysis, the government must prove that Shaw “consciously and deliberately avoided learning” of the barrel’s length. Lizardo,
III.
The burden imposed by Staples in a case such as this is heavy. It can be difficult to prove beyond a reasonable doubt knowledge of a fact as specific as the length of a gun barrel.
The majority’s decision endorses just such conjecture. It impermissibly dilutes the beyond a reasonable doubt standard. As the Seventh Circuit observed in Edwards,
although the government may face a tougher burden in the close cases, we believe this is exactly what the Supreme Court held Congress intended — because the close case is exactly when you run the highest risk of convicting someone “whose conduct would not even alert them to the probability of strict regulations.”
Therefore, I respectfully dissent.
. The concurrence begins by referring to United States v. Erhart,
. This nearly tautological definition leaves unanswered the question of whether a defendant must consciously consider the fact in question to be deemed to have knowledge of the fact. Alternatively stated, this is the problem of whether latent knowledge — an ability to provide the requisite information if prompted— would suffice to satisfy a mens rea requirement. While I have found no decision addressing the issue, most commentators appear to assume that latent knowledge is knowledge for the purpose of establishing criminal liability. See, e.g., Kenneth W. Simons, Should the Model Penal Code’s Mens Rea Provisions Be Amended?, 1 Oh. St. J.Crim. L. 179, 194-95 (2003); Joanne Klineberg, Anger and Intent for Murder: The Supreme Court Decision in R. v. Parent, 41 Osgoode Hall L.J. 37, 57-58 (2003). However, even if we accept this proposition, a defendant must at least have the capacity to be aware of a given fact before being charged with knowledge, actual or latent.
. I am aware that other circuits dealing with these gun registration cases have shown a more relaxed approach to similar sufficiency of the evidence challenges. See, e.g., United States v. Michel,
. Apparently, no objection to this evidence was lodged at trial. That was a mistake.
. Offering a romanticized view of Maine as a rural state of forest and field, where everyone knows their guns, the concurrence assumes that the "background facts” available to Maine jurors give them a special capacity to draw inferences about Shaw’s awareness of his shotgun’s length. In fact, as of 2006, only 14% of Maine’s population self-identified as hunters. United States Fish and Wildlife Service, 2006 National Survey of Fishing, Hunting, and Wildlife-Associated Recreation 102 (2006), available at http://wsfrprograms.fws. gov/Subpages/NationalSurvey/na1_survey 2006_final.pdf. This disparity between fact and assumption illustrates the dangers of relying on stereotypes to defend a jury’s work. That reliance also highlights the conjecture at the core of the majority’s decision.
. The government points out that the shotgun’s barrel carried a notation indicating that it was originally 28 inches long. This faсt simply confirms that Shaw was aware that the barrel had been shortened' — a point that he does not dispute. It is not probative of his knowledge of the extent to which the barrel was shortened.
. For instance, in Sanders, the Seventh Circuit found that the fact that the defendant handled the gun and had it in his possession when he was arrested was sufficient to allow inference of the requisite knowledge.
. For this reason, we limit the circumstances in which willful blindness instructions are given, and we are often faced with the issue of whether the instruction was appropriate given the facts of a particular case. We have held that '[a] willful blindness instruction is appropriate if (1) a defendant claims a lack of knowledgе, (2) the facts suggest a conscious course of deliberate ignorance, and (3) the instruction, taken as a whole, cannot be misunderstood as mandating an inference of knowledge.' " United States v. Mitrano,
. This burden is neither inevitable nor unintended. As the Court noted in Staples, "if Congress ... intended to make outlaws of gun owners who were wholly ignorant of the offending characteristics of their weapons, ... it would have spoken more clearly to that effect.”