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United States v. White

United States Court of Appeals, Eighth Circuit

July 11, 2017

United States of America Plaintiff- Appellee
v.
Ronald F. White, Jr. Defendant-Appellant

          Submitted: October 18, 2016

         Appeal from United States District Court for the Western District of Missouri - Kansas City

          Before RILEY, Chief Judge, [1] WOLLMAN, LOKEN, MURPHY, SMITH, COLLOTON, GRUENDER, BENTON, SHEPHERD, and KELLY, Circuit Judges, En Banc.

          SHEPHERD, Circuit Judge.

         Ronald White appeals his conviction of possession of an unregistered firearm, 26 U.S.C. §§ 5841, 5861(d), 5871, and possession of a stolen firearm, 18 U.S.C. §§ 922(j), 924(a)(2). A panel of this court unanimously affirmed the unregistered firearm conviction but reversed the stolen firearm conviction due to insufficient evidence regarding White's knowledge that the firearm had been stolen. United States v. White, 824 F.3d 783, 792 (8th Cir. 2016). Additionally, the panel rejected White's challenge to an evidentiary ruling by the district court which allowed the jury to hear evidence that White was under investigation for a series of violent crimes. Id.

         We granted rehearing en banc and vacated the panel opinion. With jurisdiction under 28 U.S.C. § 1291, we now reverse the unregistered firearm conviction and remand for further proceedings.[2] Part II of the panel opinion reversing the stolen firearm conviction is reinstated.

         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 guns were an unregistered "Street Sweeper" shotgun and a stolen 7.62 x 39 Romarm Draco handgun.

         White was charged with possession of a stolen firearm for the Romarm Draco. 18 U.S.C. §§ 922(j), 924(a)(2). Possession of a stolen firearm requires the government to establish the defendant's knowledge or "reasonable cause to believe the firearm was stolen." United States v. Provost, 237 F.3d 934, 938 (8th Cir. 2001) (citing 18 U.S.C. § 922(j)). At trial, no direct evidence was presented that White knew that the Romarm Draco had been stolen. The circumstantial evidence, which can be enough to prove the required mens rea, amounted to the fact that the Romarm Draco was hidden inside a duffel bag and stowed in White's closet, as well as testimony from the gunowner, Richard Cushingberry. See United States v. Arteaga, 436 Fed.App'x 343, 349 (5th Cir. 2011) (per curiam) (finding circumstantial evidence sufficient to prove that defendant knew the firearm was stolen). Cushingberry testified that on the evening of July 3, 2011, he fell asleep in his bedroom with the Romarm Draco lying next to him, woke up to find the gun missing, looked out the window, and saw a man named Rashaad walking away from the house. Rashaad lived in the neighborhood and, according to Cushingberry, was a friend of White's.

         Additionally, because White's Street Sweeper was unregistered, White was charged with possession of an unregistered firearm under § 5861(d) of the National Firearms Act. 26 U.S.C. § 5861(d). Section 5861(d) criminalizes possession of an unregistered "firearm, " a term the Act defines to include a "destructive device, " the barrel of which has a bore of more than one-half inch in diameter. 26 U.S.C. § 5845(a), (f). The Street Sweeper, a 12-gauge shotgun, is subject to the Act's registration mandate because it has a bore diameter of .729 inches.

         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 ...

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