*4 DUNCAN, Before GREGORY and HAMILTON, Judges, Circuit Senior Judge. Circuit by published opinion. Judge Reversed majority opinion, in GREGORY wrote Judge DUNCAN concurred. Senior Judge separate HAMILTON wrote dissenting opinion.
OPINION GREGORY, Judge. Circuit Moye (“Moye”) appeals his con- William possession by victions of a firearm felon, § 922(g)(1), in violation of 18 U.S.C. of 18 aiding abetting, violation (Count I); trial, witness, § 2 At Government who was U.S.C. firearms, nexus, qualified expert in violation of 18 U.S.C. as an stolen interstate abetting, § viola- 922(j), 15 weapons testified that recov- II). (Count Specifi- tion of U.S.C. burglary ered in the affected interstate court cally, asserts the district manager commerce.1 The of Bart’s testi- giving an erred fied that all the weapons recovered were instruction, in allowing Gov- owned Bart’s and functioned properly. flight argue ernment to was evidence Alcohol, An Special Tobacco and Firearms denying and in his 29 motion guilt, Rule Agent testified that he tested five challenging sufficiency of the evidence. guns they and that each functioned proper- Finding grounds, error on of these each ly.2 The Government also introduced a we reverse. Certified Record of Conviction Under Seal showing previously had been
I. felony handgun convicted of violation as a.m., August 2003 at 5:30 On well as a certificate of non-restoration *5 County Officer Anne Arundel Police re- Moye’s rights. object- The civil defense burglar to a alarm at sponded Bart’s ed to the introduction of the records with- (“Bart’s”) in Sporting Goods Store Anne testify, out person being present a but County, Maryland. Arundel When the of- objection. the district court overruled its arrived, a ficer he saw man at the side conference, During charge the the Gov- building get trying door of the into a “flight ernment for a asked person vehicle. This was later identified guilt” objection by instruction but the after Briggs (“Briggs”). as Jackie officer defense, give the district court declined vehicle, a person also saw in the who was it, stating was there (“Coo- Courtney Cooper later identified as Moye burglary, fled of the because per”). not that he fled because of federal Cooper drove off after he saw the offi- However, crimes at issue. the district cer, leaving Briggs behind. The officer argue court did allow the Government to in a engaged Cooper high speed chase and in “flight guilt” closing as evidence of its apprehended him. Thirteen firearms were addition, court, argument. the district Briggs found inside the vehicle. was later objection, granted also over the defense’s in apprehended with two firearms his request the Government’s for an pocket. Moye by was seen officer another abetting instruction. crawling doorway out of at Bart’s after took but for a ver- Cooper off. ran was defense moved directed a dict caught weapons short time later. No under Fed.R.Crim.P. after the Gov- Moye’s in case. district re- were found ernment’s court ruling jury’s Moye’s fingerprints weap- were not on the served on it until after the Cooper. jury guilty verdict. After the ons recovered from returned firearms, Beretta, arguably 1. were One not available as evidence. The Maryland court, defense, request manufactured in upon by split charged in the indictment. containing into I-A verdict form Count guns five evidence and Count I-B contain- in reason, weap- some For unknown all of However, ing guns the other not in evidence. days ons were to Bart's after returned eleven objection does not an defense raise burglary, by the time trial all but split appeal. verdict form on weapons five of the had been sold and thus counts, making to be in sought the defense re- established” both verdict on after the submission motion and determination. Id. newed its memoranda several issues of additional sides, charged Moye I district court sustained
by both timely appeal This Moye’s 922(g)(1), convictions. violation 18 U.S.C. any person followed. it “who has makes unlawful of, in been convicted court crime II. punishable imprisonment for a term firearm, exceeding possess one year” challenges convictions on three his shipped transported been in which has or He the district grounds. asserts interstate commerce. 18 U.S.C. giving court erred (2000). Moye § 922(g)(1) does not chal instruction, allowing his as a convicted felon.3 lenge status flight was evi- prosecution argue Rather, question is whether sufficient denying his Rule 29 guilt, dence of evidence existed for find be sufficiency of on the motion based yond Moye pos a reasonable doubt that Moye’s two claims Because first evidence. weapons charged sessed one claim, sufficiency his we overlap with latter may indictment. Possession be actual sufficiency of his part address them as constructive, Rusher, United States v. claim. Cir.1992), but because allege did not Government A. *6 actually weapon, ever possessed a we con case, In this the indictment only. possession sider constructive Con posses in charged Moye being felon structive is if it is possession established sion, I, fire possessing and stolen Count exercised, “that or shown the defendant arms, II, Count as well as and exercise, power had the to dominion and count. abetting in relation each We possession control over the item.” Id. The begin of whether suf with determination can be shared with others. United States Moye to convict ficient evidence existed 849, (4th Cir.1996). Burgos, 94 F.3d 873 in or being possession, himself a felon However, at the presence mere location In re possessing himself stolen firearms. where contraband is found is insufficient evidence, sufficiency of this viewing possession. United States v. establish Sa whether, construing Court must determine (4th 1091, Cir.1984). mad, 754 F.2d 1096 light in favorable to most action, word, must “There be some some government, any reasonable trier of or conduct that some links individual guilty fact could have found the defendant and [contraband indicates items] beyond a reasonable doubt. United States (4th them, Tresvant, that he had some in stake some 1018, 677 F.2d 1021 Cir. 1982). power over them. There must be some govern Court must “allow thing prove ment all individual was not the benefit of reasonable infer proven bystander.” merely ences from the facts those an incidental United authenticity hearsay. Moye challenge apparently and does the district court’s ad- based on self-authenticating mission of the record his Because each record is a certified court 902(4), prior public report under fingerprint conviction and a com- document Fed.R.Evid. hearsay paring Moye's exceptions fingerprints at the time within the of Fed. taken 803(8) 803(22), argument fingerprints is his arrest to taken at the R.Evid. his prior argument time of his conviction. His is meritless.
213 Pardo, Moye abetting States v. 549 felon in (D.C.Cir.1980). possession under I or aiding Count abetting possession of stolen firearms here, The evidence taken 2(b) § under Count II. Title 18 U.S.C. Government, light to the most favorable is provides willfully that “[w]hoever causes Moye insufficient to establish that con an act to directly be done which if per structively any weapons. of the possessed by formed him or pre evidence the Government another would be an sented to constructive States, against offense pun United present was that Moye the same 2(b) principal.” § ishable as a 18 U.S.C. location guns from which the were stolen. (2000). A guilty defendant is of aiding and However, noted, presence mere is insuf if “knowingly he has associated possession. finger ficient to establish No himself with participated the crimi prints physical link other nal v. Burgos, venture.” 94 guns. The Government did Cir.1996) F.3d (quoting 873 Unit present testimony had been Winstead, ed States v. guns. seen with Because no (4th Cir.1983)). prove association, To that Moye evidence exists was ever in a Government must establish that the defen position to exercise dominion control participated dant principal’s criminal weapons, over the we that insuffi conclude intent, requires that a defendant be cient evidence existed for the to find cognizant principal’s criminal intent beyond a reasonable doubt that activity. the lawlessness of his Id. possession. a felon in every at “Participation stage illegal of an II, Under pos- be convicted of required, venture is not only participation sessing per stolen firearms 18 U.S.C. stage accompanied some knowledge 922(j), prove: the Government must bring of the result and intent to about that possessed that the defendant the firearm indictment; result.” (quoting described in Id. United States v. Ar at the it, (4th Cir.1983)). possessed time the defendant rington, fire- *7 stolen; arm was that the defendant It is in a implicit charge aiding of and acted and the knowingly; that firearm abetting underlying crime was had at in some time traveled interstate than by committed someone other the de (2000). 922(j) commerce. 18 U.S.C. Samaria, fendant. United States v. finding I, Moye our on Given Count could (2d Cir.2001). 234-35 The dis not be of possessing convicted himself sto- trict jury aiding court instructed the on len firearms because no evidence existed and abetting explaining after the elements jury from which that Moye could infer of II.4 Specifically, Counts I and the court in constructive of stolen stated: firearms. you
... find may Moye guilty Mr. of the B. charged you beyond if offenses find Thus, doubt reasonable the Government we must consider wheth jury er the could have prove[n] person instead convicted has another actual- trial, During presence you outside the stated aid "I don’t know how and abet jury, Moye’s attorney thought stated he yourself.” J.A. 129. The district court re- request aiding the Government’s for an and that, "Well, sponded problem I don’t have abetting improper instruction was because with that.” Id. was the on trial defendant and he review the decision the offense with which We ly committed particular jury aided court to deliver a that the defendant charged and is charge for abuse of discretion. United person the commis- or abetted Russell, 1098, 1107 v. 971 F.2d crime. of the sion Cir.1992). abetting and aiding An instruc closing During arguments, J.A. 226. tion, instructions, jury proper like all aiding heavily an relied Government only “if a foundation in evidence to there is theory, stating that abetting and Schnabel, it.” in the the store at 5:30 go inside “didn’t (4th Cir.1991). 203-04 mistake,” argu- id. and by morning “he inside this the fact that ing that argument, oral During AUSA police arrived is the time when store at an giving aiding conceded that convincing absolutely clear evidence I abetting instruction on Count was certainly part of or that he was evidence error. It is clear that no foundation this burglary in this aided and abetted aiding abetting supported store,” at 252. id. instruction as to this count because the introduced evidence that Government no a verdict After the returned were Cooper felons. dis counts, the moved on both defense guilty trict court as matter of law in erred discussing for a directed verdict. count as giving instruction it in supplemental to be addressed issues logical impossibility was a instruc for a ver- briefing on the motion directed I, posses apply tion to Count felon dict, “Aiding noted: the district court sion. joint posses- Abetting doesn’t work. your convict client.... sion could work to discretion, Finding an abuse of requires somebody Aiding abetting [ ] engage we must still further harmless the crime. No- to have committed else per error review Fed.R.Crim.P. 52. Un Id. at
body committed crime.” else review, der such an error will be found 263.5 “ conclude, if harmless we are able ‘with assurance, addressing sufficiency pondering fair after all that Before abetting happened under stripping without the erroneous whole, I, preliminary judgment we decide the action from that the Count must substantially it question proper swayed was even was not whether er ” Weaver, jury on the district court to instruct ror.’ United States (4th Cir.2002) as to I. (quoting *8 Brooks, (4th 365, in- aiding abetting that and 111 371 argues Cir.1997)). conclude, I supra was as to be- Because we improper struction Count 212, presented no evi- that cause Government was insufficient to Moye guilty that he and other find a felon in being dence aided abetted himself erroneously jury possession possession, giving convicted felons their of fire- (the responds aiding abetting and by argu- only arms. The Government instruction remaining guilt is ing abetting theory that because Government on I) implicit in all court not be error. indictments could harmless Be properly jury charge. cause itself was inl- giving instructed on instruction jury The district also instructed to exercise control over fire court intention joint joint possession stating possible possession.” This that "it's that arm. is called J.A. may person power more 223-24. than one have the
215 Instead, not evidence did exist as proper, sufficient the basis the Government’s against Moye case rests entirely in Count I. his presence at Bart’s Sporting Goods that sufficient Finally, we turn to whether night flight as well as his from the scene. jury for the that evidence existed find evidence, As flight for the Moye contends Moye Briggs aided and abetted and Coo- that the argument Government’s in closing possession in their per stolen firearms flight that his was evidence guilt of his was abet, under Moye Count II. To aid and improper because the could have used cognizant Briggs must have been and/or the evidence of his flight burglary from the Cooper’s criminal intent and the lawless- convict him on the of stolen activity ness of their well have partic- as as firearms charge. The Government stated ipated in their possess criminal venture to in closing: addition, stolen firearms. the evidence finally gentlemen, And ladies and I ask must supported finding Briggs have that you to consider what is it Moye that Mr. Cooper possessed stolen firearms and/or did up when Officer Walters drove (as one cannot aid and abet that something door, him coming saw out of that saw crime). not right him there at the opening getting
down there at the entrance to the door? Moye does dispute not that the What is it that he did when he saw evidence was sufficient to support a find Officer stop.... Walters? Didn’t He ing Briggs Cooper ran. possessed you, sto And I submit to ladies and gentlemen, that you len firearms. But to can use guilty, be found that as Moye’s consciousness of Mr. guilt. would have had to find He also ran, gentleman. ladies and Briggs Cooper’s knew of specific crim possess inal intent to stolen firearms and J.A. 242. way
that he in participated some in this possesses A trial court broad criminal venture.6 The the Government’s argument, discretion to control closing ory is was either helping its discretion is not to be overturned ab and Cooper guns steal the or that he showing sent a of clear abuse. United However, serving aas lookout. the Gov Grabiec, (7th States v. argument ernment’s lookout is contradict Cir.1977); Davis, United States v. closing argument ed its own Cir.1977). 1244-45 If a acting lookout. See J.A. 236 trial court abuses its discretion address (“He standing wasn’t outside the store objection ing closing argument, such look-out.”); looking guard as a or a id. at justify abuse will reversal of conviction (“He standing wasn’t door outside the only if it prejudicial constitutes error. See that night.”). The “help” Government’s Young, 470 U.S. 13 n. argument from the suffers same flaw as 10, 105 S.Ct. L.Ed.2d 1 possession argument constructive (explaining reviewing may court re —ab solutely no evidence exists to demonstrate verse proper otherwise conviction af *9 position that was in a ever to exer ter concluding that error not harm was less). hand, cise dominion and guns. control over the On the other we review for Thus, Moye knowing only Briggs possess that cific intent to the stolen In- firearms. deed, Cooper had the intent during to steal some- as the AUSA and/or conceded oral ar- thing sporting goods gument, in be store would other items besides firearms were insufficient, spe- he must have known of their stolen from Bart's. 216 (or flee) and concerning closing attempted supports ar-
plain an issue error timely objection flight no was that the defendant’s gument to which inferences Adam, guilt, v. 70 product of of made. See consciousness Cir.1995) (4th (observing guilt was in his consciousness of concerning argument are that contentions to the crime with which he was relation plain for error when defense did ultimately charged reviewed and which evidence object). timely not is offered.7 Id. dispute which stan parties Here, presented the evidence of applies here. properly of review dard Moye fleeing burglarized building from a object during Moye’s counsel did night certainly sup in the middle of the argument. Howev closing Government’s ports flight an inference that the was the er, closing argument, Govern prior product guilt. of Howev of consciousness of “flight a as evidence requested ment er, supports no the inference that evidence and the district guilt” jury instruction of guilt product his consciousness was the give allowing it instead court declined ultimately charged offenses federal Moye’s comment the Government (rather Indeed, burglary). than the closing. Moye’s counsel did ob flight in recognized seemingly court this that
ject at time and thus we find he this request it when declined Government’s appeal. preserved this issue for “flight guilt” jury as of evidence that, have noted “It cannot We instruction, evidence, stating no I “there’s in circum appropriate be that doubted be can’t conceive there’d ever evidence stances, guilt may of a consciousness be fleeing he that not because he was flight from evidence of and that deduced in burglary, involved but because of may jury’s finding guilt supported of be just it these federal crimes. So would guilt.” United consciousness of States Thus, jury.” mislead the J.A. 150. Cir.2001). (4th Obi, Yet its district court abused discretion al of evidence of jury’s “the consideration lowing present the Government this able, it be from the flight requires closing.8 argument same evidence, flight to to link such conscious Moye’s presence at guilt ness of of crime which the As to crime, charged.” at presence Id. Evidence is scene of the mere defendant crime, supporting repeatedly recognized, all of the inferences in scene of a as required flight guilt. is insufficient to a conviction for the causal chain between chain, See, e.g., To this causal and abetting. Id. establish Spoone, presented must be that the defendant fled present 7. While we established this test in the context inside the store in the middle of the evaluating assisting night whether a district court erred in if he was not and Coo- giving "flight guilt” jury flight argument per. buttressed ar- instruction, gument by contending it is also instructive the context would not closing argument. innocently present have run if he had been find, the store. As we infra Moye's presence in the store alone was insuf- applies to 8. Harmless error review also convictions, improp- ficient to sustain his argu- district court's decision allow this flight argument closing. majority er could not have been harm- ment in the Govern- closing Moye's because we presence ment's less cannot conclude focused burglarized night. flight argument substantially sway inside the store that It did not finding argued jury's guilt. would not be
217 Paige, v. Cir.1984); United States jury a 324 that reasonable could not have (4th Cir.1963); v. United States F.2d 31 Moye guilty found of II beyond a (7th Cir.2004); Bonty, 383 F.3d reasonable doubt.9 Delgado-Uribe, United States (10th Cir.2004); III. Sorrells, Cir. sum, In per- review of the evidence 1998). correctly The district court in suades us that the Government has jury that presence structed alone was carried its proving Moye’s guilt burden of insufficient, stating: on I beyond Counts and II a reasonable presence mere a of defendant where Accordingly, doubt. we reverse his convic- being a crime is committed even coupled tions on both counts. knowledge by that a with defendant being
crime is committed or the mere REVERSED. by a
acquiescence defendant in the crim- of guilty inal conduct others even with HAMILTON, Senior Judge, Circuit knowledge not sufficient is to establish dissenting. aiding abetting.... Because there is sufficient evidence in
J.A. 227. the record to Moye’s William con- a presence
While the scene of victions on both Counts One and of Two partic crime combined with evidence of indictment, I respectfully dissent from ipation in the criminal could venture be the court’s decision to reverse the convic- circumstantial from which a tions.
might infer abetting, such is not the case here because no evidence was I Moye’s introduced participation August 14, At 5:30 a.m. on Anne Briggs’ Cooper’s criminal venture and/or County police Arundel officer Kurt List- to possess stolen firearms. The Govern responded burglar man alarm at ment no introduced evidence that Sporting Bart’s Goods store at 6814 Richie had previously been seen Briggs Highway in County, Mary- Anne Arundel Cooper that he knew even them. and/or arrived, land. When Officer Listman he participation Because in criminal venture saw car next to parked the side door alone, presence cannot be inferred from leading into the store. Officer Listman had no evidence link him to the person, saw a who was later identified as criminal venture. any Without circum Courtney Cooper, behind the wheel stantial evidence demonstrating car, person, and another who was later venture, participated in the criminal aside Briggs, get identified as trying Jackie scene, from his presence at the the evi into the car. dence was not to support sufficient a con viction for and abetting. car, get As tried into off, light lack Cooper sped leaving Briggs other evidence behind. supporting Cooper eventually apprehended inference that after aided possession high-speed Briggs, abetted stolen fire- chase. who fled arms, we foot, find the conclusion inescapable apprehended. was also The car was findWe the evidence was not arms. Whether sufficient evidence existed being sufficient the federal crimes of under law not convict him state the issue possessing felon in stolen fire- before us.
218
if
Moye’s
upheld
convictions must be
and two
thirteen firearms
to contain
found
evidence,
Briggs’ person.1
taking
on
the
recovered
“there is substantial
were
more
Cooper, Briggs,
Government,”
to
fingerprints
most favorable
the
view
any
on
of the fire-
not found
United
Moye were
them. Glasser v.
support
States,
arms.
80,
457,
62
86
315 U.S.
S.Ct.
“[Sjubstantial
(1942).
evidence
L.Ed. 680
“taking
off’ to
Listman
As Officer
of fact
is
that a reasonable finder
evidence
Anne
another
Arundel
Cooper,
chase
Walters,
adequate
and sufficient to
officer,
accept
could
County police
Matthew
guilt
crawling
of the store’s
a
of a defendant’s
support
out
conclusion
spotted
being
doubt.” longer
was no
doorway, which
beyond
side
reasonable
fact,
doorway
In
the
as an entrance.
Burgos,
v.
used
94 F.3d
862
shelving divid-
Cir.1996) (en banc).
by permanent
was blocked
Moreover, we can
approximate-
that were
cubbyholes
ed into
insufficiency
on
reverse
a conviction
by eighteen inches
ly eighteen inches
grounds only
“prosecution’s
the
fail-
when
2f).
(Government’s
2c,
Di-
Exhibits
size.
Jones,
v.
ure is clear.” United States
735
cubbyholes
side of
rectly
the other
(4th Cir.1984) (citation
785, 791
side-by-side
used to
doors
set
omitted).
In
quotation
internal
marks
hide,
and mer-
pegboard
with the
use
sufficiency
of the evidence
evaluating
chandise,
cubbyholes from the store’s
conviction,
criminal
we as-
support a
2h).
(Government’s Exhibit
space.
retail
all
sume that the
resolved
contradic-
side-by-side
distance between
testimony
gov-
tions
in favor of
cabinets,
gun display
and the store’s
doors
Sun,
ernment. United States
doors,
perpendicular
which ran
(4th Cir.2002).
Finally,
where the
(Government’s
three feet.
approximately
differing
in-
supports
evidence
reasonable
2h).
2g,
Exhibits
terpretations,
jury will decide which
crawling
out
Officer Walters saw
interpretation
accept.
cubbyhole below
through
of the store
Wilson,
(4th Cir.1997).
cubbyhole was
door’s knob. This
the side
charged Moye with
viola-
Count One
cluttered with
one that was not
922(g)(1),
tion of U.S.C.
which makes
equipment/merchan-
boxes
store
and/or
it
has
any person
unlawful for
“who
been
2f).
(Government’s
2c,
Af-
dise.
Exhibits
of,
punisha-
a crime
convicted
court
cubbyhole,
Moye escaped through ter
by imprisonment
exceeding
a term
ble
foot,
appre-
he fled
but was later
firearm,
year”
possess
one
which has
hended.2
shipped
transported
in interstate
been
II
§ 922(g)(1).
commerce. 18 U.S.C.
Under
Two,
charged Moye
pos-
that there is in-
majority concludes
sessing stolen
in violation of 18
firearms
sufficient
in the record to
§ 922(j),
government had
U.S.C.
Moye’s
under both Counts One
convictions
prove
Moye possessed
that:
a firearm
view,
my
strongly disagree.
and Two. I
indictment;
described in the
evidence in
record is more than
it,
sufficient
Moye’s
possessed
convictions.
time he
the firearm was sto-
to sustain
door,
government
The car was later determined to be stolen.
ered next
presented
the screwdriver could
it,
piy
2. The side door had
marks on
indicat-
entry.
used
have been
to make
forced
ing
entry.
A
was recov-
forced
screw-driver
*12
Glasser,
len;
Moye
knowingly;
government,
acted
the
315 U.S. at
at some
62 S.Ct.
the jury unquestionably
firearm had
time traveled
inter-
was
entitled to
Moye
conclude that
922(j).
state commerce. 18
entered the
U.S.C.
through
store
cubbyhole,
uncluttered
possession jurisprudence,
Under our
broke into the
displaying
cabinets
the fire-
possession can be actual or constructive.
arms, removed the firearms from such
Rusher,
878 cabinets,
passed'
and then
them back
(4th Cir.1992).
Constructive
through
cubbyhole
the same
to the await-
it
established if
is shown “that the defen-
ing Briggs, who then put thirteen firearms
exercised,
dant
or
power
had the
to exer-
kept
the car
two
himself.3
cise, dominion and control
over
item.”
The circumstantial
begins
evidence
with
Id.
the manner in which
robbery
was car-
out.
getaway
ried
car’s location next
According
majority,
to the
the record
door,
to the side
entry,
the forced
and the
sufficiency
evidence
short
falls
mark
that
fact
the store
all
had
alarm suggest
Moye
because there is no
that
evidence
Cooper,
that
Briggs, and Moye knew this
constructively possessed any
weap-
of the
awas
race against time.
conclusion,
support
ons recovered. To
this
The next two pieces of circumstantial
majority posits
“only
that the
evidence
cubbyholes
are
size
presented
the Government
to
con-
blocking the doorway and the fact that
structive possession
Moye
was that
only
cubbyholes
one of the
was unclut-
present
in the same location from which
(Government’s
2f).
2c,
tered.
Exhibits
guns
were stolen.” Ante at 213. The
facts,
From
these
to
was entitled
majority
fingerprints
adds
no
or other
draw the
reasonable inference that
physical
guns.
linked
to the
person, Moye,
opposed
one
as
to all three
majority
further posits that the “Gov-
individuals, entered the
to
store
retrieve
present
ernment
not
testimony
did
Indeed,
then
remove the firearms.
had
seen
guns.”
been
given the exceedingly small size of the
Ante
213.
Finding
there is no evi-
entry space,
it would have made little
possession,
dence of constructive
the ma-
sense, in terms of efficiency,
Cooper,
jority concludes that the evidence is insuf-
Briggs,
to
enter
store.
ficient to convict on Counts One and Two.
Clearly, having
person
one
in the store
all
respect
With
due
to
no
majority,
quick
easy
every-
allowed for
to
access
necessary
of faith is
leap
conclude
thing in the store and allowed the
items
Moye possessed
weapons
they
these
as
quickly passed through
be
the uncluttered
way
made their
from the
Briggs’
store to
cubbyhole.
obviously was enti-
fact,
person
getaway
and the
car.
when
tled
use its common sense and conclude
the circumstantial evidence is viewed col-
that this
eminently
tactic made
more sense
lectively
two,
a light
three,
most
having
favorable
than
or perhaps
people
During
closing argument
jury,
guns
miraculously
its
jump
those
didn't
into
government
precise
argument
made this
jump
Briggs'
the back
car
into
jury:
pockets....
Someone
had to take those
n
out,
[Cjircumstantial
things
push
through
them
that hole and
evidence would indicate
put
off
it
hand them
them in that car
must have been him that
took the
guns
pocket
out
It
for Jackie
store.
had to have
to have them in his
been
nobody
only person
him. There was
else in the
and the
store.
that store was Wil-
indicates,
clearly,
And
Moye.
common sense
liam
in-
awaiting Briggs.5 With two reasonable
through
cubby-
the small
the store
enter
it
jury,
terpretations available to
hole.4
court,
to decide which
jury,
for the
*13
circumstantial evi
pieces of
The final
Wilson,
more credible.
version was
entry
of the forced
are the time
dence
at 234.
hour of the
the
Moye’s flight. Given
sure,
(5:30 a.m.),
judges,
jury
appellate
To be
as
we en-
entry
the
was enti
forced
vantage
appeal
Moye
joy
greater
point
no
present
was not
to conclude that
tled
jury
have
than did the
at trial and we
no
purpose.
innocent
at the scene
jury’s
to And facts.
addition,
right
usurp
enti
the
role
jury unquestionably was
the
Glasser,
457.
If
that
According to the aiding and suggests, in this case concerns the district court’s presented jury most, abetting majority con- Moye merely “present at was instruction. guns permissible the from which cedes that instruction [the] the same location course, regard to Count at Of the under Count Two. With were stolen.” Ante 213. One, the court’s and abet- liberty to reach this same jury was at was, most, conclusion, ting do instruction at harmless required was not so. but instructions, above, Through reasonable error. the court’s As discussed second Moye jury not have of Moye of is that the could convicted interpretation the evidence One, charged him with a fel- the hit-and-run rob- Count inside man violation, time, on-in-possession the under an bery. against In the race fire- theory was no way had their from and because there quickly arms make through single Cooper the unclut- evidence that either inside store and/or Thus, jury could not have eighteen by eighteen tered inch inch cub- were felons. Moye byhole getaway concluded that aided and abetted Briggs’ person or interpretation Cooper Briggs A either in the commission car. reasonable felon-in-possession Moye crawled into violation. The record evidence is firearms, store, only way have convicted and then could removed cubbyhole to passed through them under Count One was to conclude witness, vein, expert Along government's 4. more often similar was entitled to than prime as a to be not, view candidate fingerprints are not from fire- recovered robbery man in of the firearms. inside Indeed, government’s expert arms. noted Walters as a man with Officer described prevent are that firearms manufactured frame, a "small small build.” fingerprints. accumulation Given tes- timony, surprising finger- that the it is not majority makes much the fact that prints Cooper, Briggs, Moye were any Moye's fingerprints were not found on However, explained by of the firearms. the firearms. as found Moye actually constructively pos- As sessed firearms issue. noted
above, amply supports the evidence Moye possessed
conclusion that the fire- they from way
arms made their person to Briggs’ getaway
store and the
car. reasons, affirm
For these I would
Moye’s convictions.
Bradley GUILE, Individually rep and as
resentative the Estate of Emiko wrongful her
Guile all death ben
eficiaries, Plaintiff-Appellant, America,
UNITED STATES of
Defendant-Appellee.
Bradley Guile, Individually rep and as
resentative the Estate of Emiko beneficiaries, wrongful
Guile and all her death f-Appellant-Cross-Ap
Plaintif
pellee, America,
United al., Defendants,
et America,
Defendant-Appellee, Cruz, MD,
Cristina Defendant-
Appellee-Cross-Appellant.
No. 04-50691. of Appeals, States Court
Fifth Circuit.
Aug.