United States Court of Appeals
Fifth Circuit
F I L E D
REVISED SEPTEMBER 8, 2004
August 17, 2004
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 03-60589
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRIAN JOHNSON,
Defendant-Appellant.
Appeal from United States District Court
for the Northern District of Mississippi
Before JOLLY, WIENER, and PICKERING, Circuit Judges.
PER CURIAM:
Defendant-Appellant Brian Johnson appeals his jury conviction
for possession of a firearm with an obliterated serial number, in
violation of 18 U.S.C. §§ 922(k) and 924(a)(1)(B). Concluding that
the evidence was insufficient for a rational jury to find beyond a
reasonable doubt that, at the time in question, Johnson knew that
the serial number on the firearm had been obliterated, we reverse
his conviction, vacate his sentence, and remand to the district
court for entry of a judgment of acquittal.
I. FACTS & PROCEEDINGS
Shortly after midnight, Johnson was driving his car in
Clarksdale, Mississippi accompanied by co-defendant William Harper
who was occupying the front passenger seat. They were hailed by an
acquaintance, Daniell Hampton, who asked for a ride to get
something to eat.1 Johnson acceded to Hampton’s request on the
condition that Hampton drive. Hampton agreed, so Johnson got out
of his car and walked around to the passenger side while Hampton
was getting into the driver’s seat.
Meanwhile, Harper had gotten out of the car and retrieved his
loaded handgun from under the front passenger seat where he had
stowed it. He showed the gun to Hampton and asked if he wanted to
buy it. At the time, Harper and Johnson were standing next to each
other by the front passenger door, which was open. Hampton
recognized the pistol —— distinctive because of the black tape and
duct tape that were wrapped around the handle to hold the magazine
in place —— as one he had seen on two prior occasions: once a few
weeks earlier in the possession of Harper, and again four or five
days prior to this incident, in the possession of Johnson’s
brother, Fredrick.
Hampton testified that after Harper handed him the gun, he
1
At oral argument, the government advised this court that
Hampton was eventually released because he appeared to be the least
culpable of the three, was a star football player at a local high
school, who was due to report to college on a scholarship, and had
agreed to testify as a witness for the government, which he did.
2
noticed a “silvery scratched” area just above the trigger assembly
on the side of the receiver of the otherwise all-black gun.2 After
examining the gun briefly, Hampton advised that he was not
interested in purchasing it. He returned the gun to Harper who
placed it back under the front passenger seat of Johnson’s car,
then got into the back seat. Johnson got into the front passenger
seat, and Hampton drove away.
Shortly thereafter, police officers noticed Johnson’s car
obstructing traffic in a residential area. The occupants were
yelling and arguing loudly with two women who were standing in
front of a house. When Hampton drove Johnson’s car away from that
scene, the police followed and turned on their flashing lights.
When this happened, Harper twice told Johnson to get the gun from
under his seat and pass it to Harper in the back seat, presumably
so that he could hide it. Johnson obeyed, reaching under the seat
for Harper’s gun and immediately passing it rearward to Harper, who
then hid it under the back seat. The police found the pistol there
after obtaining Johnson’s consent to search his car. Noticing that
the serial number had been scratched to the point of obliteration,
the officers notified the Bureau of Alcohol, Tobacco & Firearm
(“BATF”) of the Department of the Treasury and took all three
2
There is no evidence in the record that the dome light or
other interior lights of the car were on at the time; however, it
appears that the street on which the car was stopped was
illuminated by street lights. Neither is there any record evidence
that Hampton had noticed the scratches on the gun on either of the
prior occasions on which he had seen it.
3
occupants of the car in for questioning.
After first claiming that it was Hampton who had passed the
gun to Harper, Johnson admitted to his interrogator that he had
recognized the gun by the black tape wrapped on it, and that he had
been “playing” with the gun a few days earlier. Significant to
this inquiry, the record is devoid of evidence or implication that
the serial number had already been obliterated at that earlier
occasion when Johnson had played with it or, for that matter, at
any time prior to the incident in question.
Both Johnson and Harper were convicted on single charges of
possessing a firearm with knowledge that the serial number had been
obliterated. Harper did not appeal, but Johnson —— who had filed
a motion for a judgment of acquittal or, alternatively, a new trial
—— timely filed a notice of appeal.
II. ANALYSIS
A. Standard of Review
In a criminal appeal, we review a challenge to the sufficiency
of the evidence to determine “whether any reasonable trier of fact
could have found that the evidence established guilt beyond a
reasonable doubt.”3 All reasonable inferences from the evidence
must be construed in favor of the jury verdict.4 Determining the
weight and credibility of the evidence is within the exclusive
3
United States v. Martinez, 975 F.2d 159, 160-61 (5th Cir.
1992) (emphasis in original), cert. denied, 507 U.S. 943 (1993).
4
Id. at 161.
4
province of the jury.5
B. Key Elements of the Crime of Conviction
Two scienter elements of the violation of § 922(k) are central
to our disposition of this appeal: (1) knowing possession of a
firearm and (2) knowledge that the serial number of the possessed
firearm had been removed, obliterated, or altered.6 Although
Johnson challenges both knowing possession and knowledge of the
obliteration of the serial number, he does not contest two other
elements: that in fact the serial number was obliterated at the
time of this incident or that the firearm had traveled in
interstate commerce.
C. Knowledge of Obliterated Serial Number
As we find the question of Johnson’s knowledge of the
obliteration of the serial number dispositive, we pretermit
consideration of his knowing possession of the pistol and assume,
without granting, that the evidence was sufficient to prove such
possession. Mindful that the evidence before the jury and its
reasonable inferences must support beyond a reasonable doubt the
jury’s finding that Johnson knew of the obliteration of the serial
number at the time he is assumed to have knowingly possessed the
firearm, we conclude that the verdict cannot stand.
Johnson did not testify; his statement regarding having played
5
Id.
6
See United States v. Hooker, 997 F.2d 67, 72 (5th Cir.
1993).
5
with the gun a few days earlier was made during his interrogation.
Absent any evidence whatsoever that the serial number was
obliterated when Johnson played with the gun, the fact of that
previous possession contributes nothing, even by inference, to the
jury’s conclusion. The same must be said of any inference that the
jury might draw from its awareness that Johnson was immersed in the
gang or dope culture that pervaded those areas of Clarksdale where
he lived and frequented, or that guns —— especially “Saturday Night
Specials” like the taped-up, off-brand handgun in question7 —— were
familiar tools of the trade in that culture. In this particular
instance, such generalized information and inferences from it have
no probative value in determining whether Johnson had personal
knowledge that the serial number of this specific firearm was
obliterated at the specific time in the wee hours of the specific
morning of his arrest.
The undisputed record evidence shows that (1) Harper (not
Johnson) owned the gun; (2) he physically possessed it on the date
and time in question except for the brief intervals (a) when he
handed the gun directly to Hampton in an effort to sell it, and (b)
when Johnson did Harper’s bidding by reaching under the front
passenger seat where Johnson was seated and quickly handing the gun
to Harper in the back seat while the car was rolling to a stop as
police lights were flashing behind it; and (3) during the course of
7
A Jennings/Bryco 9mm semi-automatic pistol.
6
that episode, none of the three occupants of the car —— Johnson,
Harper, or Hampton —— ever mentioned the scratches on the gun (much
less the missing serial number).8 Thus, based on evidence that was
before the jury, the only times that Johnson could conceivably have
gained knowledge that the pistol’s serial number was obliterated
were (1) while he was standing in the darkness outside the
passenger side of the car as Harper (i) handed the pistol to
Hampton (ii) got it back, and (iii) put it back under the front
passenger seat; and (2) when he (Johnson) reached under the front
passenger seat where he was seated (while the car was moving,
presumably with no interior lights on), grasped the gun from where
Harper had secreted it, and immediately handed it, over his
shoulder, to Harper, who was seated behind Johnson.
On the first occasion, itself brief, Johnson was standing near
Harper outside the front passenger door when Harper handed the gun
to Hampton (seated in the driver’s seat) and Hampton handed the gun
back to Harper, both exchanges presumably occurring inside the car.
The evidence reflects that Johnson was merely a bystander, outside
the car, at 1:00 a.m., on a dark street illuminated at best by
street lights (nothing in the record reflects that any interior
lights were “on” in Johnson’s car during the gun exchange between
Harper and Hampton). It would be an unwarranted leap for a jury to
8
Hampton testified that he noticed the scratches during his
examination of the pistol, but said nothing about any of the three
having spoken about it or otherwise noted that condition before
their arrests.
7
infer anything more than that if Johnson were paying close
attention to the gun itself, he might have been able to notice the
presence of “silvery scratches” on the gun’s action slide. But
even that inference cannot be equated with specific knowledge by
Johnson that those scratches (a) were in the vicinity of the serial
number, and (b) were sufficiently long, wide, and deep to
“obliterate” the serial number. Any inference to the contrary
would be fraught with reasonable doubt.
The second occasion is even more saturated with reasonable
doubt. A jury would have to have found that —— in the split second
that it would have taken to retrieve the pistol from underneath his
seat (where Harper, not Johnson, had placed the gun) and quickly
hand it to Harper in the back seat —— Johnson could even have seen
the silvery scratches. But if that inference could somehow pass
the reasonable doubt test, there would be insurmountable doubt in
a jury finding, reached by stacking another inference on that
inference, that from nothing more than such inferred knowledge of
the presence of the scratches, Johnson gained specific knowledge
that the serial number (1) was at the location of the scratches,
and (2) had been obliterated —— not just tampered with or defaced,
but rendered wholly illegible. And, the presence of reasonable
doubt on the second occasion is heightened further by the fact that
it took place in a darkened, moving car that was being pulled over
by the police.
Indeed, even if a person like Johnson, with his “street
8
smarts” about this category of handguns, could conceivably have
noticed the presence of these scratches on the receiver of the gun
during either of these fleeting, no-light or low-light instances,
his mere awareness of the scratches can support no greater jury
inference than that the presence of scratch marks in that location
on that pistol should give rise to a generalized suspicion that the
serial number might have been tampered with or even obliterated.
That is a far cry from specific knowledge of actual obliteration,
particularly when the evidence fails to demonstrate that Johnson
had any opportunity to investigate the scratched area of the
pistol, either during its change of hands between Harper and
Hampton or while Johnson was hurriedly complying with Harper’s
command to get the gun from under the front seat and pass it to the
rear seat.
The government would make much of the fact that, after denying
that he held the pistol on the night in question, Johnson told of
having played with it a few days earlier (an apparent effort to
explain in advance the possibility that his fingerprints might be
found on the gun). Although this evidence could lend support to a
conclusion of knowing possession of the gun (which we have already
assumed arguendo), it says nothing about Johnson’s knowledge of the
obliterated serial number. If we assume that Johnson was even
aware that possessing a gun with an obliterated serial number was
a specific crime (and there is no evidence in the record that he
was), we cannot imagine that such awareness would be a prerequisite
9
motivation for a young black male who is riding in a car at 1:00
a.m., in Clarksdale, Mississippi, instinctively to cooperate in an
endeavor to hide such a Saturday Night Special when being pulled
over by the police. Stated differently, a jury could not
reasonably infer knowledge of an obliterated serial number from
Johnson’s knee-jerk compliance with Harper’s request to hand him
the gun for the purpose of hiding it from the police.
The government also argues that, because the members of the
jury were afforded the opportunity to handle the gun and inspect
the scratches, they were somehow positioned to make the inference
that Johnson had both seen the scratches and recognized them for
what they were. Not so under these circumstances. In addition to
the fact that the jurors’ examination occurred in a well-lighted
courtroom under conditions free of either time constraints or
stress, we are satisfied that, as a matter of law, a double stacked
jury inference that (1) Johnson must have seen the scratches, and
(2) from seeing the scratches he must have gained actual knowledge
that they were (a) in the location of the serial number and (b)
sufficient to obliterate it, comes nowhere close to overcoming the
hurdle of reasonable doubt.
In the end, we cannot escape the determination that the
combination of the evidence presented to the jury and all
reasonable inferences from that evidence are insufficient to prove
beyond a reasonable doubt that Johnson knew that the serial number
of the gun that (1) he saw Harper attempt to sell to Hampton, and
10
(2) later took from the spot where Harper had placed it under the
front passenger seat and handed it to Harper in the back seat, had
been obliterated. As failure of the evidence to support a finding
of such knowledge beyond a reasonable doubt is fatal to a verdict
of guilty for committing the crime for which Johnson was charged
and convicted, we need not and therefore do not address whether
Johnson knowingly possessed that gun at all during the relevant
period between Hampton’s flagging down Johnson’s car and the
officers’ finding of the gun.
III. CONCLUSION
The evidence in the record and the inferences that could
properly be drawn from it were insufficient to support a jury
finding, beyond a reasonable doubt, that Johnson knew that the
serial number of the pistol in question was obliterated at the time
in question. Consequently, the jury’s verdict that Johnson
violated 18 U.S.C. §§ 922(k) and 924(a)(1)(B) cannot stand. We
therefore reverse Johnson’s conviction, vacate his sentence, and
remand this case to the district court for entry of a judgment of
acquittal.
CONVICTION REVERSED, SENTENCE VACATED, and CASE REMANDED WITH
INSTRUCTIONS TO ENTER JUDGMENT OF ACQUITTAL.
I:\AIMS\FORMS\03\03-60589\4938668\03-60589-CR0.wpd
9/8/04 1:04 pm
11
12