Submitted: October 18, 2016
from United States District Court for the Western District of
Missouri - Kansas City
RILEY, Chief Judge,  WOLLMAN, LOKEN, MURPHY, SMITH,
COLLOTON, GRUENDER, BENTON, SHEPHERD, and KELLY, Circuit
Judges, En Banc.
SHEPHERD, Circuit Judge.
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.
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. Part II of the panel opinion reversing the
stolen firearm conviction is reinstated.
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.
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.
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.
district court gave the jury the following instruction on the
elements of possession of an unregistered firearm:
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;
Five, the firearm was not registered to the defendant in
the National Firearms Registration and ...