PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4126
ARNOLD JACKSON,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Herbert N. Maletz, Senior Judge, sitting by designation.
(CR-95-349-DKC)
Argued: June 5, 1997
Decided: September 3, 1997
Before WILKINSON, Chief Judge, and LUTTIG and
WILLIAMS, Circuit Judges.
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Affirmed by published opinion. Judge Williams wrote the opinion, in
which Chief Judge Wilkinson and Judge Luttig joined.
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COUNSEL
ARGUED: Denise Charlotte Barrett, Assistant Federal Public
Defender, Baltimore, Maryland, for Appellant. Odessa Palmer Jack-
son, Assistant United States Attorney, Greenbelt, Maryland, for
Appellee. ON BRIEF: James K. Bredar, Federal Public Defender,
Baltimore, Maryland, for Appellant. Lynne A. Battaglia, United
States Attorney, Greenbelt, Maryland, for Appellee.
_________________________________________________________________
OPINION
WILLIAMS, Circuit Judge:
A jury found Arnold Jackson guilty of possessing an unregistered
firearm (a sawed-off shotgun) in violation of 26 U.S.C.A. § 5861(d)
(West 1989), and of possessing the firearm despite a previous felony
conviction in violation of 18 U.S.C.A. § 922(g)(1) (West Supp. 1997).
The district court sentenced Jackson under the United States Sentenc-
ing Guidelines to 262 months imprisonment, to be followed by three
years supervised release, and a $100 special assessment. Jackson
appeals both of his convictions and his sentence. He argues that the
district court erroneously admitted two hearsay statements into evi-
dence, erroneously denied his Motion for Judgment of Acquittal on
both counts due to the insufficiency of the Government's evidence,
erroneously found that he stipulated to his prior felon status, see 18
U.S.C.A. § 922(g)(1), and failed to charge the jury on an essential ele-
ment of possessing an unregistered firearm, see 26 U.S.C.A.
§ 5861(d). Finding no reversible error, we affirm Jackson's convic-
tions and his sentence.
I.
On July 31, 1992, police officers were summoned to the home of
Genavy Jackson, Jackson's mother, in response to a domestic distur-
bance call. When Ms. Jackson answered the door, she immediately
informed Officer Michael D'Ovidio that Jackson had been threatening
to shoot family members and that she wanted him removed from the
premises. Once inside the home, Officer D'Ovidio observed Jackson
and his sister engaged in a heated argument in the hallway of the first
floor of the home. Officer D'Ovidio described Jackson as "very
aggressive in his actions and his manners and his words." (J.A. at 20.)
When the officers separated Jackson and his sister, Jackson began
arguing with his mother. After breaking up that argument, the officers
instructed Jackson to gather his personal belongings and leave the
premises.
While Jackson gathered his belongings, Ms. Jackson informed the
officers that Jackson had a gun, but that she had secured it upstairs.
Minutes later, standing outside the home, Jackson asked the officers
2
if he could get his gun for protection while he was"on the street."
(J.A. at 23.) The officers refused his request, and Jackson left the
premises. Because they were afraid that Jackson would return to the
home, get his gun, and carry out his threats to harm his family, the
officers asked Ms. Jackson to retrieve the gun from upstairs and give
it to them for safekeeping. Ms. Jackson complied and brought the
officers a red and gray plastic bag that was tied at the end. Upon
returning to the police station, Officer D'Ovidio opened the plastic
bag and discovered a sawed-off shotgun approximately 18 inches in
total length, and several shotgun shells. Realizing that the weapon had
been illegally altered, Officer D'Ovidio returned to Ms. Jackson's
home to locate Jackson. Unable to find Jackson that night, he trans-
ferred the case to the Bureau of Alcohol, Tobacco, & Firearms (ATF).
Approximately three years later, in August 1995, Jackson was
arrested.
Jackson proceeded to trial on an indictment charging him with pos-
session of an unregistered weapon in violation of 26 U.S.C.A.
§ 5861(d), and with being a felon in possession of a firearm in viola-
tion of 18 U.S.C.A. § 922(g)(1).1 A jury found Jackson guilty of both
charges and the district court sentenced him to 262 months imprison-
ment, three years supervised release, and a $100 special assessment.
II.
Jackson first makes a sufficiency-of-the-evidence challenge to his
conviction for possession of an unregistered firearm, see 26 U.S.C.A.
§ 5861(d), arguing that the Government failed to prove (1) that Jack-
son possessed the weapon; (2) that the weapon fit the statutory defini-
tion of "firearm," see 26 U.S.C.A.§ 5845(a) (West 1989); and (3) that
Jackson knew that the weapon he possessed had characteristics trig-
gering the statutory duty to register it in the National Firearms Regis-
tration and Transfer Record, see Staples v. United States, 511 U.S.
600, 619 (1994) (holding that § 5861(d) requires proof that the defen-
dant knew that his weapon had the characteristics of a "firearm" under
the Act); see also United States v. Starkes, 32 F.3d 100 (4th Cir.
1994) (per curiam). Also, Jackson claims that the district court com-
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1 Another count of the indictment, an additional felon-in-possession
charge, was severed and ultimately dismissed.
3
mitted plain error in failing to instruct the jury that the Government
had the burden of proving the third element of the offense, i.e., that
Jackson knew that the firearm had the pertinent characteristics. See
United States v. David, 83 F.3d 638, 648 (4th Cir. 1996) (noticing the
district court's plain error in failing to instruct on an essential element
of the crime because a jury conceivably could have determined that
the Government had not proven that element).
When reviewing a sufficiency-of-the-evidence claim, we will sus-
tain the jury's verdict "if there is substantial evidence, taking the view
most favorable to the Government, to support it." Glasser v. United
States, 315 U.S. 60, 80 (1942). "[S]ubstantial evidence is evidence
that a reasonable finder of fact could accept as adequate and sufficient
to support a conclusion of a defendant's guilt beyond a reasonable
doubt." United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en
banc), cert. denied, 117 S. Ct. 1087 (1997). Viewing the record in the
light most favorable to the Government, we conclude that there is
substantial evidence from which a reasonable juror could find that
Jackson possessed the firearm, that the firearm had the characteristics
that brought it within the scope of the Act, and that Jackson had
knowledge of these characteristics. Moreover, we conclude that the
district court's failure to properly instruct the jury that the Govern-
ment had the burden of proving that he knew the firearm had the stat-
utory characteristics was not reversible error. Accordingly, we affirm
the conviction.
A.
Jackson claims that the Government failed to present evidence
from which a reasonable finder of fact could conclude that Jackson
possessed the sawed-off shotgun while living in his mother's home.
Because the Government does not contend that Jackson actually pos-
sessed the firearm, we must determine whether there is substantial
evidence to support the jury's finding that Jackson constructively pos-
sessed the sawed-off shotgun. See United States v. Burgos, 94 F.3d
849, 873 (1996) (holding that possession of contraband may be actual
or constructive). "Constructive possession may be proved by demon-
strating `that the defendant exercised, or had the power to exercise,
dominion and control over the item.'" Id. (quoting United States v.
Rusher, 966 F.2d 868, 878 (4th Cir. 1992)). Constructive possession
4
may be proved by circumstantial as well as direct evidence. See
Burgos, 94 F.3d at 873.
The Government presented the following evidence to show that
Jackson had constructive possession of the firearm. First, Jackson's
ex-wife, Callie Jackson, testified that Jackson owned a sawed-off
shotgun in early 1992 and that he took it with him on May 19, 1992,
when he left the marital home. Second, when the officers arrived at
Jackson's mother's home on the night of July 31, Jackson's mother
told Officer D'Ovidio that Jackson was threatening to shoot family
members. Third, Ms. Jackson indicated that Jackson owned a firearm
and that she had temporarily secured it upstairs. Fourth, Jackson
admitted his ownership of the gun when he asked the officers if he
could take it with him as he left the house on the night of July 31.
And finally, the officers on the scene, believing that Jackson had con-
trol over the firearm, returned to the home and took possession of the
shotgun because they feared that Jackson might return, obtain the
shotgun, and carry out his threats. This evidence amply supports the
jury's finding that Jackson constructively possessed the firearm on the
night of July 31, 1992.
B.
Jackson next argues that the Government failed to present evidence
that the sawed-off shotgun he possessed met the statutory definition
of "firearm."2 The National Firearms Act, see 26 U.S.C.A. §§ 5801-
5872 (West 1989 & Supp. 1997), makes it "unlawful for any person
. . . to receive or possess a firearm which is not registered to him in
the National Firearms Registration and Transfer Record." 26 U.S.C.A.
§ 5861(d) (West 1989). The statute defines a"firearm" to include
_________________________________________________________________
2 At both the close of the Government's case and prior to the district
court's instructions to the jury, Jackson made a Rule 29 Motion for Judg-
ment of Acquittal on both counts. (J.A. at 114, 126.) Jackson did not
specify the grounds upon which his motions, both denied by the district
court, were based. Therefore, while we acknowledge that Jackson's
sufficiency-of-the-evidence claims are preserved, see Fed. R. Crim. P.
29, we note that Jackson did not direct the district court's attention to this
specific complaint at any time during his trial.
5
(1) a shotgun having a barrel or barrels of less than 18
inches in length; (2) a weapon made from a shotgun if such
weapon as modified has an overall length of less than 26
inches or a barrel or barrels of less than 18 inches in length;
(3) a rifle having a barrel or barrels of less than 16 inches
in length; (4) a weapon made from a rifle if such weapon as
modified has an overall length of less than 26 inches or a
barrel or barrels of less than 16 inches in length; (5) any
other weapon, as defined in subsection (e); (6) a machine-
gun; (7) any silencer (as defined in subsection 921 of Title
18, United States Code); and (8) a destructive device.
26 U.S.C.A. § 5845(a) (West 1989). In his indictment, Jackson was
charged with possessing "a Stevens 12-gauge, Model 9478, sawed-off
shotgun, barrel length 12 5/16 inches, a firearm which was not regis-
tered to him in the National Firearms Registration and Transfer
Record" in violation of 26 U.S.C.A. § 5861(d). (J.A. at 10 (emphasis
added).) Accordingly, Jackson correctly states on appeal that "[t]o
sustain a conviction. . ., the government had to prove that [he] pos-
sessed a `shotgun having a barrel or barrels of less than 18 inches in
length[, see 26 U.S.C.A. § 5845(a)(1),]' or `a weapon made from a
shotgun if such weapon as modified has an overall length of less than
26 inches or a barrel or barrels of less than 18 inches in length[, see
26 U.S.C.A. § 5845(a)(2)].'" (Appellant's Br. at 24.) We affirm the
conviction, concluding that the Government presented substantial evi-
dence, challenged neither at trial nor on appeal by Jackson, from
which a reasonable juror could determine beyond a reasonable doubt
that Jackson's weapon (1) was "made from a shotgun," and (2) was
shorter than the dimensions provided in § 5845(a)(2), thereby satisfy-
ing the definition of a firearm in the National Firearms Act.
While conceding that the Government needed to prove, in addition
to the weapon's length, only that the sawed-off shotgun was "made
from a shotgun," Jackson inexplicably argues that his conviction must
be reversed because the Government failed to present sufficient evi-
dence "to establish that the weapon possessed the physical character-
istics bringing it within the definition of a `shotgun' under the Act."
(Appellant's Br. at 24.) The term "shotgun" is defined by the statute
as
6
a weapon designed or redesigned, made or remade, and
intended to be fired from the shoulder and designed or rede-
signed and made or remade to use the energy of the explo-
sive in a fixed shotgun shell to fire through a smooth bore
either a number of projectiles (ball shot) or a single projec-
tile for each pull of the trigger, and shall include any such
weapon which may be readily restored to fire a fixed shot-
gun shell.
26 U.S.C.A. § 5845(d). Specifically, Jackson argues that the Govern-
ment presented insufficient evidence that the weapon he possessed (1)
had a "smooth bore," and (2) was "intended to be fired from the
shoulder."3 See id.
Jackson's argument is wholly without merit. A defendant may be
convicted under § 5861(d) if his unregistered weapon is any of a num-
ber of different types of weapons included within the definition of
"firearm," i.e., "a shotgun,""a weapon made from a shotgun," "a
rifle," "a weapon made from a rifle," "a machinegun," "a silencer," or
"a destructive device." See 26 U.S.C.A. § 5845(a). Thus, the Govern-
ment needs to prove only that the weapon possessed by a defendant
fits into one of a number of types of firearms included within the defi-
nition of "firearm." In this case, as Jackson admits, the Government
could prove Jackson's guilt by demonstrating that his weapon met the
statutory definition of "firearm," either as a"shotgun" or "a weapon
made from a shotgun." The evidence proved that Jackson possessed
"a weapon made from a shotgun" as provided in§ 5845(a)(2).
At trial, the Government presented evidence through Officer
_________________________________________________________________
3 In its brief and at oral argument, the Government conceded that we
should reverse Jackson's conviction under 26 U.S.C.A. § 5861(d)
because it failed to introduce evidence that the sawed-off shotgun pos-
sessed by Jackson came within the statutory definition of "shotgun."
(Appellee's Br. at 1 n.1.) Specifically, the Government admits that it did
not present any evidence that the weapon contained a"smooth bore," see
26 U.S.C.A. § 5845(d) (West 1989). The Government's concession,
however, does not preclude our review of the issue. See United States v.
Stanfield, 109 F.3d 976, 984 n.5 (4th Cir. 1997) (refusing to reverse
defendant's conviction despite Government's concession of error).
7
D'Ovidio; Jackson's ex-wife, Callie Jackson; and Agent Trainor of
the Bureau of Alcohol, Tobacco & Firearms (ATF), that the firearm
recovered in the Jackson home was of the type required to be regis-
tered. Officer D'Ovidio described the weapon as"a sawed-off shot-
gun." (J.A. at 26.) He testified that the "gun had been cut off at the
barrel, the metal part, and also at the wooden part, the stock end. So
it was smaller, probably . . . 18 inches in length total." (J.A. at 26.)
He concluded that the firearm had been "illegally altered." (J.A. at
29.) Callie Jackson testified that while she and Jackson were living
together, he brought a full-size shotgun into their home. (J.A. at 70-
71.) She further testified, however, that after a time the shotgun, while
still in Jackson's possession, became "sawed off" at both ends. (J.A.
at 72.) ATF Agent Trainor testified that the firearm had originally
been manufactured as "a Stevens shotgun, Model 9478[,] a 12-gauge
single shot shotgun with a pop-up mechanism." (J.A. at 108.) Agent
Trainor agreed that the weapon was now an operable"sawed-off shot-
gun." (J.A. at 108, 110.) Also, the firearm was admitted into evidence
and available for the jury to view. (J.A. at 110.)
Jackson did not challenge at trial, and does not contest on appeal,
Agent Trainor's conclusion that the firearm had originally been man-
ufactured as a Stevens 12-gauge shotgun, or the testimony of Officer
D'Ovidio, Callie Jackson, or Agent Trainor that the firearm was a
"sawed-off shotgun." In fact, Jackson did not object to the district
court's instructions to the jury that "[f]or purposes of this case, a fire-
arm is defined as a weapon made from a shotgun if such weapon as
modified has an overall length of less than 26 inches or a barrel or
barrels of less than 18 inches in length." (J.A. at 148.) Moreover,
Jackson did not request an instruction requiring the jury to find that
the sawed-off shotgun met the statutory definition of "shotgun" either
before or after it was altered. In sum, Jackson has not, at trial or on
appeal, disputed that the weapon at issue, before it was altered, was
a "shotgun."
Viewing the evidence and all reasonable inferences to be drawn
therefrom in the light most favorable to the jury's verdict, we con-
clude that there was sufficient evidence presented from which a jury
could determine that the sawed-off shotgun possessed by Jackson was
a "weapon made from a shotgun" and "had an overall length of less
8
than 26 inches," and therefore was a "firearm" under the Act.4 See
United States v. Breeland, 53 F.3d 100, 104-05 (5th Cir. 1995)
(rejecting defendant's claim that Government's failure to show that
his sawed-off shotgun was "intended to be fired from the shoulder"
required reversal of § 5861(d) conviction when it was undisputed that,
as originally manufactured, the sawed-off shotgun met the statutory
definition of "shotgun"); United States v. Cabral, 475 F.2d 715, 720
(1st Cir. 1973) (same); see also United States v. Bogers, 635 F.2d
749, 751 (8th Cir. 1980) (rejecting defendant's argument that a
"sawed-off shotgun" must meet the definition of "shotgun" as found
in 26 U.S.C.A. § 5845(d) for a conviction under § 5861(d)).
C.
Jackson also challenges the Government's failure to present evi-
dence from which the jury could adduce that Jackson knew that the
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4 Moreover, even if we were to construe Jackson's argument on appeal
as disputing that the weapon he possessed was originally a "shotgun" as
that term is statutorily defined, we conclude that there is sufficient evi-
dence from which a reasonable jury could infer that the sawed-off shot-
gun was an illegal alteration of "a weapon designed . . . and intended to
be fired from the shoulder and designed . . . to use the energy of the
explosive in a fixed shotgun shell to fire through a smooth bore either a
number of projectiles (ball shot) or a single projectile for each pull of the
trigger." ATF Agent Trainor, a firearms expert, testified that the firearm
was originally manufactured as a Stevens 12-gauge single shot shotgun.
This description, from a firearms expert, unchallenged by Jackson, was
sufficient to show that the firearm had been a "shotgun" for the purposes
of 26 U.S.C.A. § 5845(d) (West 1989). Any argument that Agent Trai-
nor's failure to explicitly note that the weapon, as manufactured, had a
"smooth bore" or was intended to be fired from the shoulder demon-
strates a fundamental misunderstanding of what a shotgun is: "A shotgun
is a gun with a smooth bore: a bore that has not been rifled to impart spin
to the projectile on its way out of the barrel." United States v. Janik, 723
F.2d 537, 549 (7th Cir. 1983) (rejecting defendant's contention that the
Government's failure to present expert testimony that the sawed-off shot-
gun had a "smooth bore" required reversal of his § 5861(d) conviction);
see also Webster's II New Riverside University Dictionary 1078 (1988)
(defining "shotgun" as "a shoulder-held firearm that fires multiple pellets
through a smooth bore").
9
firearm had the characteristics to bring it within the Act. A year prior
to Jackson's trial, the Supreme Court held that to obtain a § 5861(d)
conviction, the Government must "prove that [the defendant] knew of
the features of his [weapon] that brought it within the scope of the
Act." Staples v. United States, 511 U.S. 600, 619 (1994). We have
interpreted the Supreme Court's decision in Staples to overrule Fourth
Circuit precedent holding that proof of a defendant's knowledge of a
weapon's salient characteristics under § 5861(d) is not required for a
conviction. Consequently, pursuant to the Supreme Court's directive
in Staples, we have added mens rea as an element of the offense. See
United States v. Starkes, 32 F.3d 100 (4th Cir. 1994) (per curiam)
(granting a new trial to defendant when the Government failed to
present evidence to support a finding that defendant knew his sawed-
off shotgun had characteristics that brought it within the scope of the
Act).
When reviewing a sufficiency-of-the-evidence claim, circumstan-
tial as well as direct evidence may be considered, and the Government
is given "the benefit of all reasonable inferences from the facts proven
to those sought to be established." United States v. Tresvant, 677 F.2d
1018, 1021 (4th Cir. 1982). Viewing the evidence in the light most
favorable to the Government, we hold that there was substantial evi-
dence from which a reasonable jury could infer Jackson's knowledge
of the characteristics of the firearm. See United States v. Burgos, 94
F.3d 849, 862 (4th Cir. 1996) (en banc), cert. denied, 117 S. Ct. 1087
(1997). As previously noted, Jackson's ex-wife, Callie Jackson, testi-
fied that Jackson brought a full-size shotgun into their home in early
1992 and that it was later "sawed off" at both ends. She stated that
the firearm was in Jackson's possession both before and after its alter-
ation. Callie Jackson further identified the firearm recovered from
Ms. Jackson's home on the night of July 31, 1992, as the same sawed-
off shotgun Jackson kept in their home. The Government also pres-
ented the testimony of Officer D'Ovidio who testified that the sawed-
off shotgun he recovered from Ms. Jackson's home was approxi-
mately 18 inches in total length, an obvious 8 inches shorter than that
permitted under the statute. The evidence of Jackson's possession of
the firearm, both before and after it was illegally altered, leads to the
inescapable conclusion that Jackson knew that the firearm was "made
from a shotgun" and had "an overall length of less than 26 inches."
Indeed, Jackson failed to present evidence that he lacked knowledge
10
of the firearm's salient characteristics. Accordingly, we hold that a
reasonable jury could readily infer from the testimony of Callie Jack-
son and Officer D'Ovidio that Jackson knew that he possessed a
weapon with the pertinent features.
D.
Finally, we address Jackson's claim that the district court commit-
ted plain error when it failed to instruct the jury that the Government
had the burden of proving that Jackson knew of the characteristics of
his weapon that made it a "firearm" under the Act.5 Following the pre-
sentation of evidence, the district court instructed the jury as follows:
The second element which the Government must prove
beyond a reasonable doubt with respect to Count 2 is that
the defendant had knowledge that what he was possessing
was a firearm.
An act is done knowingly if it was done voluntarily and
purposely and not because of mistake, accident, mere negli-
gence or other innocent reason. I instruct you that the
requirement of proving that the defendant acted knowingly,
does not make it necessary for the [G]overnment to show
that the defendant knew about the registration provisions of
the law, or that he knew the firearm had physical character-
istics that might make it subject to registration . In other
words, the Government need not prove that the defendant
knew he was breaking the law.
(J.A. at 149-50 (emphasis added).) Jackson neither requested that the
district court instruct the jury that the Government was required to
prove his knowledge of the weapon's features nor did Jackson con-
temporaneously object to the district court's instructions. Accord-
ingly, we review his claim for plain error. See United States v.
Cedelle, 89 F.3d 181, 184 (4th Cir. 1996) ("When a criminal appellant
_________________________________________________________________
5 Although the Government is required to prove that a defendant had
knowledge of the characteristics of the weapon that brings it within the
scope of the Act, the Government is not required to prove that a defen-
dant knew that failure to register such a weapon is against the law.
11
asserts an error that occurred during proceedings before the district
court, but that was forfeited through a failure to timely object, we may
notice such error only if it is a `[p]lain error[ ] or defect[ ] affecting
substantial rights.'" (quoting Fed. R. Crim. P. 52(b)) (alterations in
original)). To establish plain error, Jackson must demonstrate that (1)
the asserted defect in the trial was, in fact, error; (2) the error was
plain; and (3) the error affected his substantial rights. See Fed. R.
Crim. P. 52(b); see also United States v. Olano , 507 U.S. 725, 732
(1993). "If all three conditions are met, an appellate court may then
exercise its discretion to notice a forfeited error, but only if (4) the
error seriously affect[s] the fairness, integrity, or public reputation of
judicial proceedings." Johnson v. United States, 117 S. Ct. 1544, 1549
(1997) (internal quotation marks omitted).
Jackson satisfies the three-prong test of Olano . First, Jackson has
demonstrated that the district court committed error. In Staples, the
Supreme Court held that to obtain a conviction under§ 5861(d), the
Government has to prove that a defendant has knowledge of the phys-
ical characteristics of his weapon that bring it within the scope of the
Act. 114 S. Ct. at 1796. The district court's failure to instruct the jury
in accordance with Staples, therefore, constitutes error. Second, the
error must be plain. "An error is plain, at least, when the error is clear
both at the time it occurred and at the time of appeal." Cedelle, 89
F.3d at 185; see also United States v. David, 83 F.3d 638, 642 (4th
Cir. 1996). The Supreme Court decided Staples in May 1994 -- more
than a year prior to Jackson's trial. Thus, the error was plain for pur-
pose of Rule 52(b). Third, Jackson must show that the error affected
his substantial rights. "[T]he failure to instruct on an element of the
crime, where the jury never made the constitutionally required find-
ings, . . . satisfies Olano's third prong." David, 83 F.3d at 647; see
also United States v. Aramony, 88 F.3d 1369, 1387 (4th Cir. 1996)
(holding that the district court's failure to instruct the jury on an
essential element of the crime was not subject to harmless-error anal-
ysis), cert. denied, 117 S. Ct. 1842 (1997). Accordingly, the district
court's failure to instruct the jury on the Government's burden of
proving an essential element of the charged offense-- Jackson's
knowledge -- affected Jackson's substantial rights because it is
unclear whether the jury found that Jackson knew the pertinent fea-
tures of his weapon that brought it within the statutory definition of
"firearm."
12
Although plain error occurred, we may decline to exercise our dis-
cretion to notice the error. See Johnson, 117 S. Ct. at 1550; Cedelle,
89 F.3d at 186 (declining to notice error committed by the district
court in failing to instruct the jury on an essential element of a crime).
Before we may notice a forfeited error, we must"determine whether
the forfeited error seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings." Johnson , 117 S. Ct. at 1550
(internal quotations omitted); see id. (holding that the appellate court
should decline to correct error unless failure to notice the error results
in a "miscarriage of justice"). In Cedelle , we reasoned that "[c]entral
to this inquiry is a determination of whether, based on the record in
its entirety, the proceedings against the accused resulted in a fair and
reliable determination of guilt." Cedelle, 89 F.3d at 186. In this case,
declining to correct the error will not result in a miscarriage of justice,
nor will declining to notice the error seriously affect the fairness,
integrity, or public reputation of the judicial proceedings, because, as
discussed in Part II.C., the proceedings resulted in a fair and reliable
determination of Jackson's guilt. See Johnson , 117 S. Ct. at 1550
(declining to reverse where trial court failed to instruct jury on essen-
tial element of the crime because evidence of guilt was "overwhelm-
ing"); Cedelle, 89 F.3d at 186 (declining to reverse where trial court
failed to instruct jury on essential element of the crime because evi-
dence presented at trial "permit[ted] no other conclusion" but that
defendant was guilty). The features of Jackson's weapon that brought
it within the scope of the Act were obvious qualities, easily observ-
able by even a layperson unfamilar with firearms. It is simply unfath-
omable that Jackson could have possessed this firearm and not have
known that it met the statutory requisites. Accordingly, we decline to
exercise our discretion to notice the district court's error and affirm
Jackson's conviction.
III.
Next, we address Jackson's argument that the evidence presented
at trial was insufficient to support his conviction under 18 U.S.C.A.
§ 922(g)(1) (West Supp. 1997). Jackson argues that the Government
failed to show (1) that he possessed the sawed-off shotgun and (2)
that he was a convicted felon at the time he allegedly possessed the
unlawful firearm. We disagree and affirm the conviction. For the rea-
sons cited in Part II.A., we conclude that the Government presented
13
ample evidence from which a reasonable jury could infer that Jackson
constructively possessed the firearm. We therefore limit our discus-
sion to Jackson's second assigned error, i.e. , the Government's failure
of proof regarding Jackson's felon status.
Jackson contends that his conviction for being a felon in possession
of a firearm, in violation of 18 U.S.C.A. § 922(g)(1), must be reversed
because the Government failed to present any evidence that Jackson
was convicted of a felony on or before July 31, 1992, the date he pos-
sessed the sawed-off shotgun. Jackson does not argue that he was not
a convicted felon at the time of the possession, only that the Govern-
ment failed to meet its burden of proof on this essential element of
the charged offense. We conclude that any error was invited by Jack-
son.
At the beginning of the trial, Jackson's counsel represented to the
district court that Jackson agreed to stipulate that he was "a convicted
felon." (J.A. at 11.) Jackson subsequently submitted proposed jury
instructions to the district court which indicated that the parties stipu-
lated to his status as a felon at the time of his possession of the fire-
arm on July 31, 1992. At the close of the Government's case,
however, the Assistant United States Attorney read the following stip-
ulation to the jury:
That Arnold Jackson, before his arrest for the offense for
which he is on trial, had been convicted of a crime punish-
able by imprisonment for a term exceeding one year, and
that defendant Arnold Jackson has not been pardoned for the
above referenced conviction, nor has the conviction been
expunged, nor ha[ve] his civil rights to possess a firearm
been restored.
(J.A. at 112-13.) This statement erroneously recited the parties' stipu-
lation because it showed only that Jackson was a felon at the time of
his arrest, rather than that Jackson was a felon at the time of his pos-
session of the firearm, which was almost three years earlier than his
arrest.6 Jackson, however, did not object to the inaccuracy of the stip-
_________________________________________________________________
6 On appeal, Jackson disputes the Government's assertion that prior to
trial he stipulated that he was a convicted felon on July 31, 1992. We
14
ulation as conveyed to the jury. In his Motion for Judgment of
Acquittal at the close of the Government's case, Jackson again failed
to challenge the apparent failure of proof. Moreover, Jackson failed
to object when the district court, adopting verbatim his proposed
instructions, charged the jury
that the parties have stipulated that the defendant was con-
victed of a crime in state court and that this crime is punish-
able by imprisonment for a term exceeding one year. It has
also been stipulated by the parties that this felony conviction
occurred prior to the time that the defendant is alleged to
have possessed the weapons charged in the indictment.
I instruct you, in this connection, that the prior conviction
that is an element of the charges here, and is not disputed,
is only to be considered by you for the fact that it exists and
for nothing else. You are not to consider it for any other pur-
pose. You are not to speculate what it was for. You may not
consider the prior conviction in deciding whether the defen-
dant was in knowing possession of the gun that is charged.
(J.A. at 144-45 (emphasis added).) Not until the jury returned a guilty
verdict did Jackson, for the first time, specifically challenge the Gov-
ernment's alleged failure of proof on the issue of whether he was a
felon at the time he possessed the firearm.7
_________________________________________________________________
find Jackson's argument untenable in light of the jury instructions pro-
posed by Jackson prior to trial. He requested that the district court
instruct the jury that "the parties have stipulated that the defendant was
convicted of a crime in state court and that this crime is punishable by
imprisonment for a term exceeding one year [and] that his felony convic-
tion occurred prior to the time that the defendant is alleged to have pos-
sessed the weapon charged in the indictment." (Def. Requested Jury Inst.
No. 31.)
7 As noted in n.2, supra, Jackson made Rule 29 Motions for Acquittal
on both counts prior to jury's deliberations. (J.A. at 114, 126.) Jackson
did not, however, specify the grounds upon which his motions were
based until his third Motion for Judgment of Acquittal, made after the
jury returned its guilty verdict.
15
The district court denied Jackson's motion, concluding that its
instruction regarding Jackson's felon status, as submitted by Jackson
himself, provided the jury with evidence from which it could have
found the essential elements of the crime. Jackson argues that a jury
instruction does not relieve the Government of its burden of proof on
an essential element of the crime, even if the defendant stipulated to
the existence of the element. See United States v. Muse, 83 F.3d 672,
679 (4th Cir.) (holding that "[w]hile a valid stipulation relieves the
prosecution of the burden of producing any other evidence in order
to establish the fact stipulated, it does not relieve the prosecution from
the burden of proving every element of the crime beyond a reasonable
doubt."), cert. denied, 117 S. Ct. 261 (1996) (internal quotation marks
omitted); see also id. ("In other words, the district court may not
remove the element from the jury's consideration, even though the
defendant has stipulated to that element."). We conclude that the Gov-
ernment's error in proof, if any, was invited by Jackson. Accordingly,
we affirm his conviction under 18 U.S.C.A. § 922(g)(1).8
_________________________________________________________________
8 In light of the United States Supreme Court's recent decision in Old
Chief v. United States, 117 S. Ct. 644 (1997), we question the validity
of our holding in United States v. Muse, 83 F.3d 672 (4th Cir.), cert.
denied, 117 S. Ct. 261 (1996), that a stipulation does not constitute a
waiver of the government's burden of proof in the limited circumstances
of a defendant's felon status for purposes of a 18 U.S.C.A. § 922(g)(1)
charge. In Old Chief, the Supreme Court held that if a defendant offers
to stipulate to his status as a felon at the time of his alleged possession
of a firearm in violation of 18 U.S.C.A. § 922(g)(1), the Government is
barred from offering any other evidence to prove the prior conviction.
See Old Chief, 117 S. Ct. at 655. The Court, rejecting the Government's
contention that it "is entitled to prove its case by evidence of its own
choice, or, more exactly, that a criminal defendant may not stipulate or
admit his way out of the full evidentiary force of the case as the govern-
ment chooses to present it," id. at 653, concluded that "[t]he most the
jury needs to know is that the conviction admitted by the defendant falls
within the class of crimes that Congress thought should bar a convict
from possessing a gun, and this point may be made readily in a defen-
dant's admission and underscored in the court's jury instructions," id. at
655. As a result, the Supreme Court held that the district court abused its
discretion when it admitted the defendant's record despite the availability
of an admission. See id. The Court further acknowledged that there are
other acceptable means of proof of a defendant's legal status besides a
formal admission on the record. For example, a redacted record of con-
16
The "invited error" doctrine recognizes that"`a court cannot be
asked by counsel to take a step in a case and later be convicted of
error, because it has complied with such request.'" United States v.
Herrera, 23 F.3d 74, 75 (4th Cir. 1994) (quoting Shields v. United
States, 273 U.S. 583, 586 (1927)). Jackson invited any error when (1)
Jackson's trial counsel affirmatively represented to the district court
prior to trial that Jackson had agreed to a stipulation that he was a
felon at the time of the alleged possession; (2) Jackson failed to object
to the inaccuracy of the stipulation as presented by the Government
at the close of its case; (3) Jackson never made any argument that the
Government failed in its burden of proof in his subsequent Motion for
Judgment of Acquittal at the close of the Government's case; (4)
Jackson submitted the proper stipulation concerning his felon status
to the district court as a requested jury instruction; and (5) Jackson
failed to object to the district court's instruction to the jury that the
parties had stipulated to Jackson's felon status at the time of the
offense. By stipulating to his felon status, Jackson effectively pre-
vented the Government from presenting any additional evidence of
his prior convictions, thereby clearly benefitting from the stipulation.
Cf. Old Chief, 117 S. Ct. 644 (reversing defendant's conviction and
holding that the district court abused its discretion in allowing the
Government to reject the defendant's stipulation as to his felon status
and admitting evidence of the defendant's prior convictions).
Although the Government presented the stipulation to the jury, the
stipulation was a consensual agreement between the parties. There-
fore, Jackson was obligated to correct any inaccuracies and place the
proper stipulation before the jury. We will not reward his failure to
do so. We find especially disturbing the admission by Jackson's
appellate counsel at oral argument that Jackson's trial counsel was
aware of the error prior to the district court's charge to the jury. We
refuse to countenance such "trial tactics." Based on the foregoing, we
_________________________________________________________________
viction, coupled with a jury instruction clarifying that the redacted judg-
ment was enough to satisfy the status element, would be acceptable. See
Old Chief, 117 S. Ct. at 655 n.10. Because we conclude that any error
was invited, we need not address whether the necessary result of the
holding of Old Chief is the elimination of the Government's burden of
proof of a defendant's felon status in a § 922(g)(1) charge when the
defendant has entered into a stipulation to that effect.
17
conclude that any error was invited by Jackson when he knowingly
failed to object to the Government's inaccurate portrayal of the stipu-
lation between Jackson and the Government.
IV.
In his final attack on his convictions, Jackson appeals the district
court's admission of two hearsay statements made by his mother to
Officer D'Ovidio when he arrived at her home on the night of July
31. At trial, Officer D'Ovidio testified that Ms. Jackson stated that
Jackson "had been threatening members of the family [and] had
threatened to shoot members of the family" (J.A. at 19), and "that
Arnold Jackson had a gun in the house but she had it secured upstairs"
(J.A. at 21). We give substantial deference to a district court's eviden-
tiary rulings and will not disturb them absent a clear abuse of discre-
tion. See United States v. ReBrook, 58 F.3d 961, 967 (4th Cir.), cert.
denied, 116 S. Ct. 451 (1995). Finding no abuse of discretion, we
affirm.
The district court allowed the first hearsay statement, that Jackson
was threatening to shoot family members, into evidence under the
present sense impression exception, see Fed. R. Evid. 803(1), and the
excited utterance exception, see Fed. R. Evid. 803(2). A present sense
impression is "[a] statement describing or explaining an event or con-
dition made while the declarant was perceiving the event or condition,
or immediately thereafter." Fed. R. Evid. 803(1). An excited utterance
is "[a] statement relating to a startling event or condition made while
the declarant was under the stress of excitement caused by the event
or condition." Fed. R. Evid. 803(2); see Morgan v. Foretich, 846 F.2d
941, 947 (4th Cir. 1988) (the Government must prove that the declar-
ant had experienced a startling event and that the utterance was made
while the declarant was still under the stress or the excitement of the
event). The district court reasoned that Ms. Jackson, the declarant,
was describing an event that was both ongoing and startling. We
agree. Ms. Jackson blurted out to Officer D'Ovidio that Jackson was
threatening to kill members of her family immediately upon the offi-
cer's arrival to the home. At that same time, Officer D'Ovidio
observed Jackson engaged in a heated argument with his sister. More-
over, considering the seriousness of Jackson's threats, as evidenced
by his mother's decision to seek police assistance, we cannot say that
18
the district court abused its discretion in concluding that Ms. Jack-
son's statement at that time was admissible either as a description of
ongoing events or as an excited utterance made while under stress.
As to the second hearsay statement, that Jackson"had a gun,"
viewing all facts in the light most favorable to the Government, we
can assume that her statement was made immediately after the offi-
cers separated her and Jackson after he assaulted her. Officer
D'Ovidio reported that Jackson "became engaged in an argument with
his mother. It was the same yelling. He was very aggressive in his
actions and his manners and his words. Cursing. We separated he
[sic] and his mother. . . . to de-escalate the situation." (J.A. at 20-21.)
It was immediately after this altercation that Ms. Jackson spoke of the
gun. We agree with the district court that "the event itself is an ade-
quate foundation" for admission of the statement as an excited utter-
ance. (J.A. at 22.)
V.
Finally, Jackson challenges his sentence. He argues that the Gov-
ernment's concession that it failed to present evidence that the firearm
Jackson possessed violated 26 U.S.C.A. § 5861(d) (West 1989),
requires reversal of his sentence. Because we conclude that Jackson's
§ 5861(d) conviction should be affirmed, and because Jackson raises
no additional challenges to his sentence, we also affirm his sentence
for the reasons articulated for the affirmance of his conviction. For the
foregoing reasons, we affirm Jackson's conviction under 26 U.S.C.A.
§ 5861(d) (West 1989), and 18 U.S.C.A. § 922(g)(1) (West Supp.
1997), and his sentence.
AFFIRMED
19