United States v. Nieves-Castano

United States Court of Appeals
For the First Circuit

No. 06-1517

UNITED STATES OF AMERICA,

Appellee,

v.

BELEN NIEVES-CASTAÑO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Lynch, Circuit Judge,
Gibson,* Senior Circuit Judge,
and Howard, Circuit Judge.

Francisco Valcárcel-Fuster, Assistant Federal Public
Defender, with whom Hector L. Ramos-Vega, Assistant Federal
Public Defender, and Joseph C. Laws, Jr., Federal Public
Defender, were on brief, for appellant.
José Capó-Iriarte, Assistant United States Attorney, with
whom Nelson Pérez-Sosa, Assistant United States Attorney, and
Rosa Emilia Rodriguez-Velez, United States Attorney, were on
brief, for appellee.

March 27, 2007

*
Of the Eighth Circuit, sitting by designation.
 LYNCH, Circuit Judge. Belen Nieves-Castaño was convicted

of two weapons charges after a jury trial. One conviction was for

unlawful possession of a machine gun, see 18 U.S.C. § 922(o), while

the second was for the unlawful possession a firearm in a school

zone, see id. § 922(q)(2)(A). This court has not had any prior

occasion to construe these statutory provisions in relation to the

issues presented by this appeal.

Nieves-Castaño appeals both convictions. She presents a

novel issue on appeal: whether the school-zone statute, 18 U.S.C.

§ 922(q)(2)(A), is unconstitutionally void for vagueness under the

Fifth Amendment's Due Process Clause because it fails to specify

how to measure the 1000 foot distance from a school that marks the

boundary of a school zone. She also raises sufficiency of the

evidence claims on both counts, along with a claim of instructional

error on the machine-gun charge. The constitutional claim, and the

sufficiency claims, were raised by Rule 29 motions at trial and

after the verdict, and were properly preserved.

We reverse the conviction on the first count and direct

entry of a verdict for the defendant. The prosecution's evidence

was insufficient to establish the necessary mens era requirement

under Staples v. United States, 511 U.S. 600, 602 (1994). We

affirm the conviction on the second count, and reject the

constitutional void-for-vagueness attack.

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 Nieves-Castaño was sentenced to twenty-seven months of

imprisonment on the first count, and to a consecutive sentence of

three months on the second count, for a total term of imprisonment

of thirty months. She was also sentenced to three years of

supervised release, concurrent as to each count. We remand the

case to the district court for resentencing in light of our

disposition of the first charge.

I.

Nieves-Castaño lived in a third-floor apartment in

Building 9 of the Nemesio R. Canales Housing Project in Puerto

Rico. She shared the apartment with her mother, her mother's

school-age child, and her own two minor sons. On August 30, 2005,

a joint FBI and Puerto Rico police operation was investigating drug

activity at the housing project, and law enforcement officials

obtained and executed a search warrant at Nieves-Castaño's

apartment.

An officer with the Puerto Rico Police Tactical

Operations Unit was posted outside the building while the warrant

was being executed. He saw Nieves-Castaño slide an old black golf

bag off the rear balcony of her apartment and onto the ground.

Apparently she did this after the police knocked and announced

their presence at her apartment door. The officer retrieved the

golf bag, which contained an AK-47 rifle.

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 The police search of the apartment revealed no illegal

drugs or drug paraphernalia. After the defendant's arrest, she and

her mother were taken to a government building, where agents

interviewed them. One of the agents testified that Nieves-Castaño

said she was storing the weapon in the golf bag at the request of

someone named Alexis, a friend and the owner of the gun, who had

asked that she hide it for him. Nieves-Castaño told the agent she

had once opened the bag, looked in, and observed that there was a

rifle in it, and that she knew it was an AK-47. She did not

testify at trial.

II.

A. Mens Rea That the Weapon Was a Machine Gun

On the machine-gun charge, the district court found that

there was sufficient evidence to prove the elements of the offense

beyond a reasonable doubt. We review this determination de novo,

taking the evidence in the light most favorable to the government,

and making all reasonable inferences in the government's favor.

United States v. Carucci, 364 F.3d 339, 343 (1st Cir. 2004).

The statute of conviction, 18 U.S.C. § 922(o), provides

in relevant part that "it shall be unlawful for any person to

transfer or possess a machinegun." Although ownership of the

weapon is not required for conviction, see United States v.

Escobar-De Jesus, 187 F.3d 148, 176 (1st Cir. 1999), mere

possession of the weapon is insufficient. The government must also

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prove beyond a reasonable doubt that the defendant knew the weapon

"had the characteristics that brought it within the statutory

definition of a machinegun." Staples, 511 U.S. at 602 (discussing

a prosecution under 18 U.S.C. § 5861(d) for possession of a machine

gun). Pertinently, the government's burden is to prove that the

defendant had knowledge of the characteristics that brought the gun

within the statutory definition, and not that she had knowledge

that the gun was in fact considered a machine gun under federal

law. See id.

A machine gun is defined as "any weapon which shoots, is

designed to shoot, or can be readily restored to shoot,

automatically more than one shot, without manual reloading, by a

single function of the trigger." 26 U.S.C. § 5845(b); see also 18

U.S.C. § 921(a)(23).

The government correctly accepts that Staples's scienter

requirement also applies to prosecutions under 18 U.S.C. § 922(o).

See Rogers v. United States, 522 U.S. 252, 254 n.1 (1998). One of

the rationales relied on in Staples for the mens rea requirement

was the potentially harsh penalty for violations of 18 U.S.C.

§ 5861(d) -- up to ten years' imprisonment. 511 U.S. at 616. The

penalty for violating 18 U.S.C. § 922(o) can also include a prison

term of up to ten years. See 18 U.S.C. § 924(a)(2).

There is sufficient evidence, from the agent's testimony

about the defendant's statements, that Nieves-Castaño both

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possessed and knew there was a rifle in the golf bag, and that she

looked into the golf bag once and saw a rifle there. There is also

evidence that she knew the rifle was an AK-47. The question is

whether the government proved, beyond a reasonable doubt, that she

knew this particular AK-47 had the characteristics of an automatic

weapon.

The rifle involved here was the commercial version of the

AK-47 military weapon. The term "AK" comes from "Automat

Kalashnikov," as the weapon was named after its Russian inventor,

Mikhail Kalashnikov, who designed it in 1947. The commercial

version comes only as a semi-automatic weapon.

While an automatic weapon meets the definition of a

machine gun, a semi-automatic weapon does not. Staples, 511 U.S.

at 602 & n.1. The commercial semi-automatic AK-47 cannot be made

into an automatic weapon without some modification or alteration to

give it automatic firing capability. Here the evidence established

that a modification had occurred through the alteration of internal

parts. The only external evidence on the weapon of this alteration

was a small mark or hole.

The government's proof concentrated on expert testimony

to the effect that this particular weapon had been modified in order

to make it capable of fully automatic fire. This evidence

established that the weapon was an automatic weapon, but it did not

establish the defendant's mens rea.

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 An FBI agent determined that the rifle was operable and

that it had fully automatic firing capabilities. However, his

testimony was that while members of law enforcement suspected the

gun had been altered, they had to fire the weapon in order to

determine that it was automatic. This was done at a firing range.

There was no evidence that the defendant had ever fired the weapon.

The AK-47 was also examined by Minelly Hernandez-Suerta,

an expert firearms examiner, who testified that the firearm had been

tampered with in its internal mechanisms to make it capable of

automatic fire. Hernandez-Suerta suspected that this AK-47 was an

automatic weapon because there was a hole or mark between the fire

and safety settings of the weapon. But she could not be certain

until she had fired it on the range, or examined its internal

mechanisms. And she further testified that nothing in her tests

permitted her to conclude that Nieves-Castaño had ever held,

touched, or fired the AK-47. Additionally, while the small hole

suggested to Hernandez-Suerta that the weapon had been altered, she

testified that she drew this inference because, as an expert, she

knew that this hole was identical to what one would see on the

military version of the AK-47. Finally, the expert testified that

if she had merely looked at the weapon, and had not noticed the

small hole, she would have been unable to determine whether the

weapon had been altered to fire automatically.

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 The requisite mens rea may be established by

circumstantial evidence, see Staples, 511 U.S. at 615 n.11, as the

government attempted here. As an officer recounted at trial, the

defendant said in her interview that the gun was an AK-47 and that

she knew it was a rifle because on one occasion she had opened the

golf bag and saw the weapon inside. The government sought to infer

knowledge that the weapon was automatic from this fact.

Circumstantial evidence includes "external indications

signaling the nature of the weapon." Id. But there was no evidence

that one would see, simply by looking into the golf bag, a small

mark on the weapon between the fire and safety settings.1 And

although that mark informed an expert that perhaps the weapon had

been altered to make it fully automatic, there was no evidence that

this hole would have similarly tipped off a lay person about the

weapon's capabilities -- if anything, the evidence was to the

contrary. Importantly, there was no evidence that Nieves-Castaño

had any expertise in firearms. Cf. United States v. Backer, 362

F.3d 504, 507 (8th Cir. 2004) (sustaining conviction where the

defendant was a firearms collector); United States v. Morgan, 216

F.3d 557, 567-68 (6th Cir. 2000) (sustaining conviction where the

1
The agent who first recovered the golf bag, and testified
that the bag was open, stated only that he could see there was a
rifle in it. He made no mention of seeing the small hole on the
weapon, or anything else in the bag.

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defendant was a "gun enthusiast" and had admitted knowing that

automatic weapons have three selector switches).

This was also not a case where the defendant was shown to

have fired the weapon, a circumstance which "would make the

regulated characteristics of the weapon immediately apparent."

Staples, 511 U.S. at 615 n.11.

It is true that because Nieves-Castaño slid the bag off

her terrace to avoid its discovery, the jury could infer that she

had guilty knowledge. Yet knowledge that one is guilty of some

crime is not the same as knowledge that one is guilty of the crime

charged. See, e.g., United States v. Hernandez-Bermudez, 857 F.2d

50, 53 (1st Cir. 1988). And while mere possession of a non-

automatic gun by a non-felon is not itself a federal crime, the

circumstances of this case suggest reasons for the defendant's

disposal efforts other than that she knew the gun was an automatic

weapon. She had, after all, been asked to hide the weapon.

Further, there was testimony that if the gun had turned out not to

be automatic, the defendant likely would have been charged with a

firearms offense under Puerto Rico law, which provides another

explanation for her actions.

Nor is this a case in which the defendant testified, so

no question is raised about what inferences a jury may rationally

draw from its observation of testimony. See United States v.

Sanders, 240 F.3d 1279, 1284 (10th Cir. 2001) (holding that "mere

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disbelief of the defendant's testimony is insufficient to carry the

government's burden as to knowledge," and reversing a jury verdict

for insufficiency of the government's mens rea evidence under 26

U.S.C. § 5861(d)).

The government points out that the golf bag contained

other items besides the weapon, specifically a drum magazine and two

additional clip-type magazines. The government contends that an

inference of mens rea could be drawn from these contents. But there

was no evidence linking the clip-type magazines to machine guns

specifically. And while the government seems to argue that a drum

magazine would only or primarily be of use for an automatic weapon,

the record evidence was merely that such a drum magazine can be used

with a machine gun.2 Moreover, the evidence was ambiguous as to

whether a person would have seen the drum magazine in the golf bag,

once the bag was opened. In any event, and most importantly, there

was no evidence that if a lay person had seen the drum magazine in

the bag, she would have identified it as such and known that it was

meant for automatic weapons, and then drawn the further conclusion

that the AK-47 must have been modified to be fully automatic.

It is true the weapon was found in the defendant's

apartment. But there were no drugs or other drug paraphernalia to

2
The agent who discussed the drum magazine and clips was
later asked why he had a suspicion that this rifle had been
altered. Tellingly, he did not mention the drum magazine or the
clips as motivating his suspicion.

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indicate that its presence there was anything more than what the

defendant had said: that she had been asked to hold or hide it for

someone else.

In our view, this evidence is simply insufficient to

establish, beyond a reasonable doubt, the defendant's knowledge that

the rifle possessed the characteristics of an automatic weapon. No

reasonable finder of fact could have reached a guilty verdict on the

machine-gun charge. We reverse the verdict on Count One and direct

entry of a verdict of acquittal.3

B. Constitutionality of the School-Zone Statute

We turn to the defendant's appeal from her second

conviction. The statute at issue, 18 U.S.C. § 922(q), was

originally enacted as part of the Gun-Free School Zones Act of 1990.

See Pub. L. No. 101-647, § 1702, 104 Stat. 4789, 4844-45. In its

current form, and subject to certain exceptions not pertinent here,

the statute applies to any individual who "knowingly . . .

possess[es] a firearm that has moved in or that otherwise affects

interstate or foreign commerce at a place that the individual knows,

or has reasonable cause to believe, is a school zone." 18 U.S.C.

§ 922(q)(2)(A). The current form of the statute contains amendments

enacted in the aftermath of United States v. Lopez, 514 U.S. 549

3
Because we conclude that the evidence was insufficient, we
do not reach the claim of instructional error.

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(1995), to provide necessary connections to interstate commerce.

See Pub. L. No. 104-208, § 657, 110 Stat. 3009, 3379 (1996).

The school-zone prohibition is based on explicit

congressional findings that firearms had increasingly been found in

and around schools, that concern about these firearms could deter

parents from sending their children to school, that the occurrence

of violent crimes in school zones had resulted in a decline in the

quality of education (an effect having an adverse impact on

commerce), and that states and localities had found it very

difficult to handle such gun-related crimes themselves. See 18

U.S.C. § 922(q)(1). For example, one news report counted that as

of the early 1990s guns were used in and around schools in crimes

of violence eight-hundred times a year. See C. Scanlan, Gun-Control

Fight Comes to Schools, Phila. Inquirer, May 30, 1993, at C2. The

original 1990 statute encouraged state and local authorities to post

signs warning that the possession of firearms in a school zone was

prohibited. See Gun-Free School Zones Act of 1990, § 1702(b)(5),

104 Stat. at 4845 (codified at 18 U.S.C. § 922 note).

A "school zone" is defined by 18 U.S.C. § 921(a)(25) as

(A) "the grounds of . . . a public, parochial[,] or private school;"

and (B) the area "within a distance of 1,000 feet from the grounds

of a public, parochial[,] or private school." This definition was

also part of the original Gun-Free School Zones Act of 1990. See

§ 1702(b)(2), 104 Stat. at 4845.

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 Nieves-Castaño's argument is that the statute is

unconstitutional on its face because it provides no objective

criteria for the measurement of the 1000 foot distance specified in

§ 921(a)(25)(B). Courts, including our own, have consistently

rejected due process vagueness challenges to other firearms

provisions in 18 U.S.C. § 922. See, e.g., United States v. Pfeifer,

371 F.3d 430, 437-38 (8th Cir. 2004) (rejecting a challenge to the

provision criminalizing weapons possession after a conviction for

a misdemeanor crime of domestic violence); White v. Dep't of

Justice, 328 F.3d 1361, 1368-69 (Fed. Cir. 2003) (same); United

States v. Kavoukian, 315 F.3d 139, 145 (2d Cir. 2002) (same); United

States v. Meade, 175 F.3d 215, 222 (1st Cir. 1999) (same); United

States v. Purdy, 264 F.3d 809, 811-13 (9th Cir. 2001) (rejecting a

challenge to the provision criminalizing possession of a weapon

while being an unlawful user of controlled substances). We have

found no cases mounting this particular challenge.

Our review of the constitutional challenge is de novo.

United States v. Caro-Muñiz, 406 F.3d 22, 26 (1st Cir. 2005). "[A]

statute is unconstitutionally vague only if it 'prohibits . . . an

act in terms so uncertain that persons of average intelligence would

have no choice but to guess at its meaning and modes of

application.'" United States v. Councilman, 418 F.3d 67, 84 (1st

Cir. 2005) (en banc) (quoting United States v. Hussein, 351 F.3d 9,

14 (1st Cir. 2003)) (ellipsis in original); see also Bouie v. City

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of Columbia, 378 U.S. 347, 351 (1964). Nieves-Castaño's

constitutional challenge fails because the statute itself adequately

put her on notice that her possession of a firearm was unlawful.

By the clear terms of the statute, she could only have been

convicted if she knew or reasonably should have known that her

possession of the firearm was within a school zone, and this

scienter requirement ameliorates any vagueness concerns. See Hill

v. Colorado, 530 U.S. 703, 732 (2000) (rejecting a vagueness

challenge to a statute that prevented individuals from "knowingly"

coming within eight feet of another person to engage in certain

actions); see also Hussein, 351 F.3d at 14.

Further, the evaluation of the constitutionality of the

statute is also made in light of judicial constructions of the

statute. See Wainwright v. Stone, 414 U.S. 21, 22-23 (1973). There

is ample relevant judicial construction, here and elsewhere, that

removes any vagueness concerns. One example suffices. In United

States v. Soler, 275 F.3d 146 (1st Cir. 2002), this court provided

such a construction. We held that "the government must prove beyond

a reasonable doubt that the distance from a school to the actual

site of the [prohibited] transaction, not merely to the curtilage

or exterior wall of the structure in which the transaction takes

place, is 1,000 feet or less." Id. at 154. Soler also endorsed a

straight-line method of measurement, rather than pedestrian-route

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measurements. Id. at 155 n.6; accord United States v. Henderson,

320 F.3d 92, 103 (1st Cir. 2003).

The Soler holding was under 21 U.S.C. § 860(a), which

deals with drug offenses that occur "within one thousand feet of []

the real property comprising" a school. Nonetheless, it provides

notice pertinent to the construction of the statute at issue here,

which defines a school zone very similarly. See 18 U.S.C.

§ 921(a)(25) (defining a school zone as comprising the area "within

a distance of 1,000 feet from [school] grounds").

Thus, the statute both gives fair notice to people

potentially subject to it and adequately guards against arbitrary

and discriminatory enforcement. Cf. Papachristou v. City of

Jacksonville, 405 U.S. 156, 170-71 (1972) (municipal vagrancy law

held void for vagueness because it permitted arbitrary enforcement);

1 W. LaFave, Substantive Criminal Law § 2.3(b),(c), at 146, 150 (2d

ed. 2003). No First Amendment interests are involved in the case.

Cf. 1 LaFave, supra, § 2.3(d), at 152-53. Nor is there any risk

that a trial court could not properly instruct a jury. Cf. id.

§ 2.3(c), at 150-51. Nor does it raise any concerns about

undercutting the Fourth Amendment's reasonableness requirement. Cf.

Kolender v. Lawson, 461 U.S. 352, 361 & n.10 (1983) (holding that

a modified stop and identify statute was void on vagueness grounds,

and declining to reach Fourth Amendment arguments against the

statute's validity).

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 In the end, the defendant's argument devolves into a claim

that the government's evidence was insufficient to show that the

defendant possessed a firearm within 1000 feet of a school's

grounds. That claim fails. As Soler held, "[p]recise measurements

may be unnecessary in some cases where the spatial leeway is

relatively great and the gap in the claim of proof is relatively

small." 275 F.3d at 154. Here, three minor children lived with the

defendant, and it would be easy for a jury to conclude that she knew

there were two schools nearby, within or just outside her housing

project and less than 1000 feet away, and that she regularly passed

by those schools. One school was, in fact, located next to the

south entrance of the housing project. The prosecution's evidence

was that the distance from the main fence of that school to the

corner of Building 9 was 636 feet, and that the distance from the

entrance of the school to that same corner was 670 feet. The record

shows that the other school was even closer. The distance from the

corner of Building 9 to that school's fence was 473 feet, and the

distance to its entrance was 550 feet. The measurements were made

using a small wheel-like device commonly used to measure forensic

crime scenes.4 The government also introduced an aerial photograph

4
It appears from the record that the government measured the
distance using a pedestrian route. Under a straight-line
measurement, the defendant's apartment would actually be closer to
the schools than what the government's measurements indicated.

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showing the location of the schools and the defendant's apartment,

which was entirely consistent with the measurements.

Whatever the fine points about measurement, there was

leeway -- before reaching the 1000 foot mark -- of at least 330 feet

between one of the schools and Building 9. This was more than

sufficient to cover any refinements in the horizontal and vertical

measurement needed to account for the distance between the corner

of Building 9 and Nieves-Castaño's apartment. The conviction on

Count Two is affirmed.

III.

We vacate the conviction on Count One and direct entry of

judgment of acquittal on that count. We affirm the conviction on

Count Two and reject the claim that the school-zone firearms

statute, 18 U.S.C. § 922(q)(2)(A), is unconstitutionally void for

vagueness. We also reject the claim that the government's evidence

was insufficient to convict the defendant of this second charge.

We remand to the district court for re-sentencing.

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