United States Court of Appeals
For the First Circuit
No. 09-2669
UNITED STATES OF AMERICA,
Appellee,
v.
HAZEN D. SHAW,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Boudin, Lipez and Howard,
Circuit Judges.
Jonathan G. Mermim, with whom Preti, Flaherty, Beliveau &
Pachios, LLP was on brief, for appellant.
Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellee.
February 29, 2012
HOWARD, Circuit Judge. A jury convicted the defendant,
Hazen Shaw, on one count of possessing an unregistered short-
barreled shotgun in violation of the National Firearms Act. 26
U.S.C. §§ 5861(d), 5871. At trial, he moved for a judgment of
acquittal, Fed. R. Crim. P. 29, contending that the Government
failed to present sufficient evidence that he knew the shotgun's
barrel was shorter than 18 inches, the statutory characteristic
subjecting the weapon to the Act. See 26 U.S.C. § 5845(a). The
trial court denied the motion, and Shaw now appeals his conviction.
I. BACKGROUND
The question on appeal is one of sufficing of the
evidence, so we recite the relevant factual background in the light
most favorable to the verdict. See United States v.
Gonzalez-Ramirez, 561 F.3d 22, 24 (1st Cir. 2009). On a Sunday
afternoon in November 2008, state law enforcement officers received
a complaint about gunshots being fired in a wooded residential area
in Springfield, Maine. Upon responding, State Trooper Barry
Meserve was informed by a resident that the suspected vehicle had
just sped away from the scene; Trooper Meserve pursued the
departing taillights. The vehicle took flight down the dirt road,
and a chase ensued. With considerable effort, including the aid of
other officers and two road blocks, the police finally stopped the
vehicle. Still not dissuaded, the driver rammed his sedan into a
police vehicle parked behind him. Two officers rapidly approached
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the sedan on foot with weapons drawn, demanding that the driver
show his hands. Maine Warden Service Sergeant Ronald Dunham heard
"the action of a gun" like a "pump-action gun being operated" and
saw the driver "rifling the action of [the] gun." Shaw, the
automobile's driver, then put his hands out the window and was
immediately apprehended. He was the only person in the car, and a
12 gauge sawed-off "Mossberg 500A" shotgun was found lying near him
within ready reach. The sound heard by Dunham was later
attributed to the weapon being unloaded.
Shaw was arrested for eluding a police officer and for
reckless conduct. A subsequent search of the automobile revealed
various items, including two knives and a hatchet, as well as a 20
gauge shotgun with a sawed-off stock in the trunk. A single
expelled or spent 12 gauge shotgun round was found between the
driver and passenger seats. Shaw himself was carrying, in a pack
and on his hunting belt, different types of ammunition, some boxed
and some loose. Additional evidence suggested that Shaw had been
engaging in some type of hunting activity while seated in his car,
by shooting at game from his open car window.
State Trooper Michael Johnston, an evidence technician,
arrived at the scene and quickly noticed that the 12 gauge shotgun
appeared to be too short for federal guidelines. He further
observed that the stock of the weapon had been cut off and covered
with duct tape, the gun's barrel "look[ed] like it also had been
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cut," and "a homemade sling" was attached "in the form of a yellow-
like nylon rope." The outside of the gun barrel still bore
printing indicating that the original barrel length had been 28
inches. While the weapon's overall length was about 29 inches, the
barrel itself, measured internally, was sixteen-and-a-quarter
inches in length. Because the length of the shortened barrel of
the 12 gauge was less than 18 inches, the weapon was subject to
federal registration requirements. See 26 U.S.C. §§ 5845(a),
5861(d). Shaw was subsequently charged with possession of an
unregistered firearm. See 26 U.S.C. §§ 5861(d), 5871. As noted,
the trial court rejected Shaw's Rule 29 motion for judgment of
acquittal on that charge, and the jury rendered a guilty verdict.
This timely appeal followed.
II. STANDARD OF REVIEW
We review de novo the denial of a Rule 29 motion to
determine whether the body of proof as a whole, including direct
and circumstantial evidence, was sufficient for a rational jury to
conclude beyond a reasonable doubt that the government established
each element of the crime. United States v. Pérez Meléndez, 599
F.3d 31, 40 (1st Cir. 2010). In so doing, we consider the evidence,
including all reasonable inferences drawn therefrom, in the light
most favorable to the jury's verdict. Id. Individual pieces of
evidence viewed in isolation may be insufficient in themselves to
prove a point, but in cumulation may indeed meet the mark. United
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States v. Spinney, 65 F.3d 231, 234 (1st Cir. 1995). Further,
"[a]ll credibility disputes are to be resolved in the verdict's
favor, and this court need not believe that no verdict other than
a guilty verdict could sensibly be reached, but must only satisfy
itself that the guilty verdict finds support in a plausible
rendition of the record." United States v. Hatch, 434 F.3d 1, 4
(1st Cir. 2006) (internal quotations omitted).
In this case, the question is whether there was enough
evidence to permit a rational jury to conclude beyond a reasonable
doubt that the defendant knew that the length of the barrel of the
shotgun was less than 18 inches. See 26 U.S.C. §§ 5845(a)(1)-(2),
5861(d).
III. GOVERNING LAW AND ANALYSIS
The National Firearms Act, 26 U.S.C. §§ 5801-5872,
imposes strict regulations on certain statutorily defined
"firearms." Pertinent here, Congress has deemed it unlawful for
any person "[t]o receive or possess a firearm which is not
registered to him in the National Firearms Registration and
Transfer Record." 26 U.S.C. § 5861(d). A "firearm" generally
constitutes certain shotguns and rifles, machineguns, silencers and
destructive devices; firearm feature terminology is further defined
by statute. See 26 U.S.C. § 5845. In the context of this appeal,
a "firearm" means "a weapon made from a shotgun if such weapon as
modified has . . . a barrel . . . of less than 18 inches in
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length." 26 U.S.C. § 5845(a)(2). Failure to comply with the
registration requirement is punishable by a fine of $10,000 and up
to ten years of imprisonment. 26 U.S.C. § 5871.
While the defendant's knowledge is at the heart of this
appeal, the statute itself does not expressly contain a mens rea
requirement. The United States Supreme Court addressed this
statutory silence in Staples v. United States, 511 U.S. 600 (1994).
There, the defendant had been convicted of possessing an
unregistered "machinegun" firearm in violation of section 5861(d).
511 U.S. at 614. The firearm, a semiautomatic AR-15 rifle had been
modified to render it capable of fully automatic firing; the
modified firing feature subjected the weapon to the Act's
registration requirement as a machinegun. See id.; see also 26
U.S.C. § 5845(a)(6), (b) (defining "machinegun" firearm). The
trial court had not required the jury to find that the defendant
knew that the weapon possessed the characteristic (which resulted
largely by an internal modification) rendering it a machinegun
under the statute. Staples, 511 U.S. at 603-04). Overturning
Staples' conviction, the Court held that the government "should
have been required to prove beyond a reasonable doubt that
[Staples] knew the weapon he possessed had the characteristics that
brought it within the statutory definition of a machinegun,"
reasoning that Congress had not clearly dispensed with the common
law mens rea requirement. Id. at 602, 616-20.
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The government assumes that Staples' scienter requirement
applies in this case involving a sawed-off weapon. For purposes of
our analysis, so will we.1
The defendant contends that the record contains "no
evidence that he knew the barrel of the shotgun was less than 18
inches." According to Shaw, the one-and-three-quarters inch
difference between the barrel's actual length, measured internally,
and the prescribed length cannot support the proposition that he
could have determined its length just by looking at it. Thus, he
argues, establishing knowledge required evidence that he was the
person who actually shortened the barrel from its original length,
1
Prior to Staples, we had held, in assessing a conviction for
aiding the transfer of a "firearm" under the National Firearms Act,
that proof of knowledge that a sawed-off shotgun barrel measured
less than 18 inches was not required. United States v. DeBartolo,
482 F.2d 312 (1st Cir. 1973). Since Staples, however, we have
applied Staples' mens rea requirement when reviewing a conviction
for unlawful possession of a combination shotgun and rifle under
section 5861(d), United States v. Giambro, 544 F.3d 26, 29 (1st
Cir. 2008), and for unlawful possession of a machinegun under 18
U.S.C. § 922(o), United States v. Nieves-Castaño, 480 F.3d 597,
599-600 (1st Cir. 2007).
Several courts have read Staples to require proof that a
defendant knew that an unregistered sawed-off weapon or its barrel
was shorter than the statutorily prescribed length. See United
States v. Michel, 446 F.3d 1122, 1129-30 (10th Cir. 2006); United
States v. Miller, 255 F.3d 1282, 1286-87 (11th Cir. 2001); United
States v. Gergen, 172 F.3d 719, 723-24 (9th Cir. 1999); United
States v. Reyna, 130 F.3d 104, 108-09, n.3 (5th Cir. 1997); United
States v. Edwards, 90 F.3d 199, 205 (7th Cir. 1996); United States
v. Starkes, 32 F.3d 100, 101 (4th Cir. 1994)(per curiam). At least
one circuit, however, has held that in the context of a "quasi-
suspect" weapon (such as "a hand grenade, sawed-off shotgun or
Molotov cocktail"), the government need only prove that the
defendant knowingly possessed the item. United States v. Dukes,
432 F.3d 910, 915-16 (8th Cir.), cert. denied 547 U.S. 1155 (2006).
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or that he owned the gun long enough "to become sufficiently well
acquainted with its characteristics to have ascertained its length
with the precise degree of accuracy (a margin of error of less than
10 percent)" for him to have visually discerned that the barrel was
shorter than 18 inches. He also discounts the evidence of flight
as readily susceptible to explanations other than culpable
knowledge of gun barrel length.
After carefully examining the record, we conclude that it
contains sufficient evidence to support the jury's finding beyond
a reasonable doubt that Shaw knew that the barrel of the 12 gauge
sawed-off shotgun was shorter than 18 inches. His acquaintance
with the particular weapon, his familiarity with firearms
generally, and the external and readily observable shortened
feature of the gun's sawed-off barrel permitted the jury to infer
Shaw's knowledge relative to barrel length. We explain below.
First, the evidence allowed the jury to rationally infer
that Shaw was well acquainted with this particular shotgun, which
had a shortened stock covered with duct tape and an immediately
apparent sawed-off barrel. See United States v. Giambro, 544 F.3d
26, 30 (1st Cir. 2008) (sufficient evidence of scienter based in
part on defendant's familiarity with the particular weapon). There
was evidence that he was engaging in some type of hunting excursion
and that he fired the 12 gauge from inside the confines of his
automobile through an open window. Indeed, the gun bore a
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"homemade sling" of "yellow-like nylon rope," apparently for ease
of use. Also, there was evidence that Shaw deftly unloaded the
shotgun while seated in a constricted area, the driver's seat of
his vehicle, while law enforcement officers descended upon him with
guns drawn amidst an intense effort to secure his custody.
Maneuvering the shotgun inside the close confines of his
car during his sport and during the highly charged circumstances of
his apprehension provides ample factual foundation for the jury to
rationally conclude that he was quite familiar with this particular
weapon and appreciated its smaller stature -- including the short
barrel feature. See Staples, 511 U.S. at 615 n.11 (noting that
defendant's use of the weapon can make its regulated
characteristics immediately apparent); United States v. Jones, 222
F.3d 349, 352 (7th Cir. 2000) (noting that evidence defendant
observed and handled the sawed-off shotgun can be sufficient for
jury to reasonably infer his knowledge of the weapon's statutory
characteristic relative to length of gun or length of barrel); cf.
United States v. Michel, 446 F.3d 1122, 1131 (10th Cir. 2006)
(collecting cases on same, but holding that where "government
presented absolutely no evidence that [defendant] ever observed or
handled the gun," the record was insufficient to establish
defendant's mens rea relative to barrel length); United States v.
Nieves-Castaño, 480 F.3d 597, 601-02 (1st Cir. 2007) (finding
scienter evidence insufficient where defendant had not observed the
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relevant external feature of the weapon, observation of weapon
would not alert a layman to such relevant feature, and defendant
had not used the gun to know that it operated as a machinegun).
Second, the evidence allowed the jury to rationally infer
that Shaw was familiar with firearms, more so than an average
layman, and thus able to meaningfully distinguish between the
physical characteristics and capabilities of different guns,
including the Mossberg. See Giambro, 544 F.3d at 30 (court's
holding on sufficiency of scienter evidence was based in part on
defendant's heightened knowledge and interest in firearms). For
example, he was wearing a pack of ammunition suitable to different
shotguns and different hunting purposes, and had more of such
ammunition in a hunting-style belt holder and strewn inside his
vehicle. Also, he chose to use his 12 gauge shotgun in his
sporting activity that day, with its crude strap apparently for
ease of use and with its shortened stock and barrel, rather than
using the 20-gauge found in the trunk, which had a shortened stock
but a much-longer intact barrel. Shaw's possession of two
different shotguns of distinctly different barrel lengths and with
varying ammunition, and his apparent hunting propensity and
peculiar use of the short-barrel gun allowed the jury to conclude
that he was an experienced hunter who understood the desirability
of different weapons in different circumstances. This evidence
allowed the jury to infer that Shaw knew about distinct
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characteristics of different guns generally, and particularly those
of his Mossberg pump. See Giambro, 544 F.3d at 30. And again,
Shaw's aptitude in maneuvering the 12 gauge inside his vehicle for
sport and during the charged interaction with law enforcement
further displayed his knowledge about and experience with shotguns.
Third, the shortened nature of the shotgun's barrel is an
external characteristic, and the evidence permitted the jury to
infer that the barrel length of less than 18 inches was readily
observable to the defendant. See Giambro, 544 F.3d at 30 (scienter
evidence found sufficient based in part on the visual appearance of
short barrel, which revealed that the statutory characteristics
were "evident from looking at the weapon"). Trooper Johnston
testified that the barrel looked like a portion had been cut off,
and its outside still bore printing indicating that the barrel's
original length had been 28 inches, a significant stretch lengthier
than the sixteen-and-a-quarter inches. See Staples, 511 U.S. at
615 n.11 (noting that defendant's knowledge of the regulated
characteristic can be inferred from "any external indicators
signaling the nature of the weapon"). Moreover, Johnston had
immediately noticed the short stature of the 12-gauge barrel when
he arrived at the scene, raising his concern about whether it
measured the requisite 18 inches. See Giambro, 544 F.3d at 30
(noting testimony that police detective recognized the weapon to be
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a firearm subject to federal regulation due to its short barrels
"as soon as he saw it").
Evidence relating to how the gun barrel was measured also
is telling. Special Agent Kenneth Stengel of the Bureau of
Alcohol, Tobacco, Firearms and Explosives testified that he
followed standard procedure when measuring the barrel's length,
which involved closing the bolt of the shotgun, inserting a wooden
dowel, and measuring the dowel mark to the bolt face. Stengel
testified that this process, which is performed on the inside of
the barrel, resulted in "measur[ing] to the furthest point on the
barrel" as a "way of giving the benefit of the doubt to the
defendant." This testimony gives rise to a reasonable inference
that the shotgun barrel when viewed externally appeared to be even
shorter than the internally measured sixteen-and-a-quarter inches.2
Moreover, the weapon's barrel was in fact one-and-three-quarters
inches shorter than the prescribed minimum. See United States v.
Green, 435 F.3d 1265, 1273 (10th Cir. 2006) (holding that evidence
of knowledge about barrel length was sufficient in part because
shotgun barrel was 16.5 inches; witness testified that the barrel
appeared short and "anyone who looked quickly at the gun would
notice it was short or that the barrel had been sawed off");
2
The record suggests that when measured externally, the length
of the shotgun barrel was fifteen-and-a-half inches, further
supporting that the jury could have rationally concluded the
barrel's visual appearance alerted the defendant to the fact that
it was shorter than 18 inches.
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Miller, 255 F.3d at 1287 (evidence that shotgun barrel was fifteen-
and-one-half inches permitted jury to infer that defendant knew
barrel was shorter than eighteen inches); Moore, 97 F.3d at 564
(the jury could have reasonably inferred defendant's knowledge that
rifle was shorter than 16 inches by observing the weapon, which was
thirteen-and-one-sixteenth inches long).
Other evidentiary details provided the jury with indicia
that, from looking at the weapon, the defendant would have known
that the barrel was shorter than 18 inches. Photographs of the
scene were displayed to the jury, including one depicting the
interior of the front seat of the vehicle where the 12-gauge was
resting pointed toward the floorboard. Another photograph
displayed the shotgun on the vehicle's hood beside a tape measure
showing the overall gun length. These pictures gave the jury the
opportunity to see the weapon -- and its barrel -- in proportion to
other real life objects, and even juxtaposed with a tape measure.
Moreover, the gun was admitted into evidence, allowing jurors to
see the weapon for themselves. Thus, the jury had ample
opportunity to reach its own determination as to whether the
statutorily prescribed short barrel length was clear from simply
looking at the shotgun. See Giambro, 544 F.3d at 30 (noting that
"[t]he jury saw the weapon and therefore could reach its own
determination of whether the characteristics were clear from simply
looking at the [weapon]"); United States v. Ortiz, 966 F.2d 707,
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712 (1st Cir. 1992) (noting that "jurors are neither required to
divorce themselves from their common sense nor to abandon the
dictates of mature experience"); see also United States v. Sanders,
520 F.3d 699, 701 (7th Cir. 2008) (noting that jury could infer
that defendant knew barrel length was shorter than 18 inches from
evidence that defendant handled the shotgun if its appearance would
have revealed that characteristic); Green, 435 F.3d at 1273
(upholding conviction for possession of unregistered firearm under
section 5861(d) where testimony established that sawed-off shotgun
with barrel of 16.5 inches obviously appeared short and "jurors
were permitted to examine the shotgun firsthand, allowing them to
make their own conclusions as to whether it was apparent the gun
was sawed-off").
Despite this record panoply on scienter, Shaw contends
that his case fails to reach the quantum of sufficient evidence set
forth in Giambro. Seeking to negate any inference that he is
knowledgeable about guns and their distinguishing characteristics,
Shaw asserts that the evidence against him cannot compare to
Giambro's extensive gun collection (more than 200 weapons) and
ready discernment that two had been seized -- the evidentiary
display of his "specialized knowledge and interest in firearms."
Giambro, 544 F.3d at 30. That there may have been extensive
evidence in Giambro, however, does not diminish the meaningful
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evidence here that Shaw was well acquainted with the particular 12
gauge shotgun at issue, and with shotguns in general.
Shaw also relies on the fact that the discrepancy between
the actual barrel length and the required eighteen inches amounts
to only one-and-three-quarters inches. We disagree that evidence
of a special ability to calculate length based purely on visual
inspection was necessary for the jury to reasonably conclude that
the defendant knew that the Mossberg's barrel was shorter than 18
inches. As we observed earlier, the evidence permitted the jury to
conclude that the barrel's length visually appeared to be some
stretch shorter than the actual internal measurement of sixteen-
and-a-quarter inches. In any event, the totality of the evidence
permitted the jury to conclude for itself that the barrel appeared
shorter than 18 inches.
Finally, Shaw urges us to discount the flight evidence.
He contends that his motivation for giving chase could have been
premised on sundry culpable reasons independent of his knowledge on
gun barrel length, ranging from unlawful hunting on a Sunday to
unlawful possession of a loaded firearm in the passenger
compartment of a car. Rather than parsing Shaw's motivations for
his conduct, the jury rationally could have concluded that he was
a knowledgeable hunter who flagrantly disregarded the law,
including knowingly possessing a shotgun with a barrel of less than
18 inches in length. Likewise, we are unmoved by the lack of
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evidence showing that he attempted to conceal the weapon; another
plausible read by the jury was simply that Shaw lacked the time,
opportunity or aforethought to try to hide the weapon. See United
States v. Rodríguez-Durán, 507 F.3d 749, 758, 759 (1st Cir. 2007)
(observing that "[t]he government need not succeed in eliminating
every possible theory consistent with the defendant's innocence" to
secure a conviction, and that the jury "may reject even a
reasonable hypothesis inconsistent with guilt, so long as the
evidence also reasonably supports culpablity" (internal quotations
and citation omitted)). In any event, even putting aside the
flight evidence, the government satisfied its evidentiary burden to
prove beyond a reasonable doubt that Shaw knew that his 12 gauge
shotgun had a barrel shorter than 18 inches.
One brief matter remains. When charging the jury, the
district court instructed on the meaning of "knowingly" and also
informed the jury that it "may infer" knowledge in the event that
it found the necessary predicate components of willful blindness.
See Pérez Meléndez, 599 F.3d at 41 (noting that "[w]illful
blindness serves as an alternate theory on which the government may
prove knowledge"); United States v. Azubike, 564 F.3d 59, (1st Cir.
2009) (discussing when a case warrants willful blindness charge);
United States v. Brandon, 17 F.3d 409, 451-54 (1st Cir. 1994)
(discussing boundaries of willful blindness charge). In its brief,
the government argued in support of the willful blindness
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instruction and the evidence supporting a willful blindness jury
finding as a basis to affirm. We note that the defendant did not
challenge the jury instruction either at trial or in the opening
brief. Nevertheless, given our conclusion that the evidence
supports a finding of actual knowledge, we see no need to address
whether the evidence also permitted the jury to find scienter
premised on willful blindness.
IV. CONCLUSION
That a different jury could have rendered a different
verdict does not undermine the legal sufficiency of Shaw's
conviction. See Hatch, 434 F.3d at 4. We do not shy away from
overturning jury verdicts for lack of sufficient evidence when the
record demands it, see O'Laughlin v. O'Brien, 568 F.3d 287, 301
(1st Cir. 2009) (collecting cases), and we have done so in the
context of the scienter element for unlawful conduct involving a
"firearm," see Nieves-Castaño, 480 F.3d at 602. After taking a
hard look at the record in this case, we are satisfied that the
jury's verdict is not based on sheer speculation, pure conjecture
or improperly stacked inferences, but is fully supported by
sufficient evidence.
The judgment is affirmed.
- Concurring and Dissenting Opinions Follow -
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BOUDIN, Circuit Judge, concurring. We can assume that
under Staples v. United States, 511 U.S. 600, 619 (1994), Shaw had
to know that his shotgun's barrel was less than 18 inches long,
although not that it was unlawful to possess an unregistered weapon
of that length.3 This juxtaposition may seem perverse; but a
defendant's ignorance of facts may often defeat a criminal charge
while ignorance of the law does so only rarely. Courts sometimes
say that knowledge of the law is imputed to a defendant, yet this
is not a factual proposition but legal shorthand for saying that
ignorance of the law does not usually excuse a violation.
Nevertheless, relevant to what Shaw knew about the length
of his shotgun is the likelihood that Shaw gave any attention to
the length of the weapon. One might be handed a fork and use it to
eat pie without being aware whether the fork had three tines or
four. By contrast, Shaw had to know that he possessed a short-
barreled sawed-off shotgun that was significantly shorter than an
ordinary shotgun used for hunting. See Laycock, The Shotgunnner's
Bible 48 (rev. ed. 1987) ("The modern shotgun barrels offered
across the counters commonly come in three sizes--twenty-six,
twenty-eight, or thirty inches.").
3
There is now a circuit split as to whether under Staples the
knowledge of length requirement applies to short-barreled shotguns,
compare, e.g., United States v. Erhart, 415 F.3d 965, 969 & n.4
(8th Cir. 2005), cert. denied, 546 U.S. 1156 (2006), with United
States v. Reyna, 130 F.3d 104, 107-09 (5th Cir. 1997), cert.
denied, 523 U.S. 1033; but the government does not argue that
Staples intended an exception for shotguns.
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The jurors were from Maine, a largely rural state with
many forests and fields, where hunting is a common pastime.
Whatever the average Boston resident may know about hunting, Maine
hunters--or at least those who use shotguns--are quite likely to
know that shotguns used in hunting are long-barreled weapons.4 And
the jury knew that Shaw was no stranger to shotguns; he was found
in possession of two--for which he had three different kinds of
ammunition--and was observed by law enforcement manipulating and
unloading one of the weapons in a manner suggesting familiarity
with its operation.
Sawed-off shotguns are notoriously associated not with
hunting but with crime.5 Even a city dweller who watches
television or reads newspapers would know the reputation of the
weapon. The shotgun in this case was not only short but visibly
shortened in both its stock and its barrel, both of which had been
cut down. A hunter like Shaw almost certainly had to know that his
4
District of Columbia v. Heller, 554 U.S. 570, 625 (2008)
("[T]he Second Amendment does not protect those weapons not
typically possessed by law-abiding citizens for lawful purposes,
such as short-barreled shotguns."); Demko v. United States, 216
F.3d 1049, 1051 (Fed. Cir. 2000) (noting that the ATF has
designated short-barreled shotguns as "destructive devices").
5
E.g., 10 The New Encyclopaedia Britannica 765 (15th ed. 1994)
("The sawed-off shotgun, with truncated barrels, is easily
concealed and is notorious as a criminal weapon."); Conf. Rep. No.
90-1956 (1968), reprinted in 1968 U.S.C.C.A.N. 4426, 4434 ("The
present National Firearms Act covers gangster-type weapons such as
. . . sawed-off shotguns . . . .").
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weapon was not a typical shotgun used in ordinary hunting but a
visibly and substantially shortened weapon.
Thus, Shaw almost certainly knew that the barrel was
considerably less than its ordinary length--here, the original
barrel length was marked as 28 inches--and that it was not an
ordinary hunting weapon. In fact, the visible length was only 15.5
inches. And once his awareness of its peculiar shortness is
posited, the remaining inference as to what he knew about its
length involves a far shorter jump. All the jury needed to
conclude was that Shaw, conscious of its shortened length, would
realize that the barrel was less than a foot and a half long.
An ordinary 12-inch ruler is a familiar item at school
and at home. Shaw's shotgun had a visible barrel length only 3.5
inches more than a ruler. A jury, looking at the shotgun and
reasonably believing that Shaw would himself appreciate its
aberrant shortness, could conclude that the barrel looked somewhat
longer than a ruler but not as long as a foot and a half, and that
Shaw therefore knew that it was less than 18 inches. Shaw did not
have to know that its precise visible length was 15.5 inches.
We cannot be certain how much jurors who sat on this jury
knew about hunting and typical shotgun lengths, for the background
facts that juries use in drawing inferences are not commonly
"proved" but assumed to be within their ken. United States. v.
Amado–Núñez, 357 F.3d 119, 121-22 (1st Cir.), cert. denied, 542
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U.S. 914 (2004). But Maine jurors, exercising common sense, could
gauge that a hunter would know his weapons as well as a carpenter
knows his tools--unless circumstances (e.g., a novice hunter)
suggested otherwise.
The question on appeal is not whether the particular
appeals court panel would vote to convict on this evidence; it is
whether a reasonable jury, entitled to considerable deference in
weighing this evidence, could find that Shaw was aware that his
shotgun barrel was less than a foot and a half long. As in most
cases of inference, the issue turns on real-world probabilities and
the jury's estimation of them in light of general knowledge and
experience. In this, as with credibility determinations, the jury
enjoys considerable latitude.
A great judge warned about the danger of "appellate
judges . . . whetting their appetite for dealing with facts" rather
than leaving them to the jury or judge who saw the witnesses and
heard the evidence. Chem. Transporter Inc. v. Reading Co., 426
F.2d 436, 439 (2d Cir. 1970) (Friendly, J., dissenting). A jury
verdict starts with a very strong presumption in its favor, and
that presumption is not overcome where, as here, one can imagine
how a reasoning jury might have arrived at the conclusion that this
one did.
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LIPEZ, Circuit Judge, dissenting. The majority concludes
that the government's evidence was sufficient to allow a jury to
determine beyond a reasonable doubt that Shaw had knowledge of the
specific fact that the barrel of his shotgun was less than 18
inches in length. I disagree. The jury's verdict required
impermissible speculation.
I.
The government bears a difficult burden of proof in this
case because of the specific mens rea requirement imposed by the
Supreme Court in Staples v. United States, 511 U.S. 600 (1994). As
the majority observes, the Court held in Staples that in a
prosecution under the National Firearms Act (the "Act"), 26 U.S.C.
§§ 5801-5872, "the Government should [be] required to prove that
[the defendant] knew of the features of his [weapon] that brought
it within the scope of the Act," Staples, 511 U.S. at 619. In this
case, Staples required that the government prove that Shaw knew
that the barrel of his 12-gauge shotgun was less than 18 inches in
length.6 See 26 U.S.C. § 5845(a)(1). The probative force of the
6
The concurrence begins by referring to United States v.
Erhart, 415 F.3d 965 (8th Cir. 2005), which reiterated the Eighth
Circuit's holding in United States v. Barr, 32 F.3d 1320 (8th Cir.
1994), that the knowledge requirement imposed by Staples does not
apply to short-barreled shotguns. However, these cases remain
outliers; no other circuit has adopted this position and several,
directly addressing Barr, have explained in detail why that
approach is a misreading of Staples. See, e.g., United States v.
Gergen, 172 F.3d 719, 723-34 (9th Cir. 1999); United States v.
Reyna, 130 F.3d 104, 107-09 (5th Cir. 1997); United States v.
Edwards, 90 F.3d 199, 203-05 (7th Cir. 1996). The majority does
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circumstantial evidence relied upon by the majority to support the
jury's verdict must be measured against this specific mens rea
requirement.
The majority finds that Shaw's "acquaintance with the
particular weapon, his familiarity with firearms generally, and the
external and readily observable shortened feature of the gun's
sawed-off barrel permitted the jury to infer Shaw's knowledge
relative to barrel length." These factors reflect the majority's
reliance on our decision in United States v. Giambro, 544 F.3d 26
(1st Cir. 2008). In that case, the weapon at issue was a 1914
Marble Game Getter. As described by the court,
[i]t has two barrels - a rifle barrel which is
on top of a shotgun barrel. Each barrel is
between twelve and eighteen inches long. The
gun has a folding stock that allows the user
to fire the gun like a pistol. It also has a
lock on the loading end of the barrels that
allows the user to fire a shot from either the
top or bottom barrel without reloading.
Id. at 28. The Act requires that owners register "weapons with
combination shotgun and rifle barrels 12 inches or more, less than
18 inches in length, from which only a single discharge can be made
from either barrel without manual reloading." 26 U.S.C. § 5845(e);
id. § 5841. The defendant in Giambro argued that the evidence was
insufficient to establish his knowledge of the characteristics of
the firearm that placed it within the Act's registration
not rely on Barr's reasoning and neither, ultimately, does the
concurrence.
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requirement. We held that the evidence was sufficient because the
defendant 1) was familiar with the specific firearm at issue, 2)
was unusually knowledgeable about firearms in general, and 3) the
relevant characteristics of the firearm were externally visible.
Giambro, 544 F.3d at 30. None of these factors support the verdict
here.
A. Familiarity with the Shotgun
In Giambro, officers seized 204 firearms from the
defendant. When the defendant went to the police station to
retrieve the guns, which were laid out in front of him, he noticed
that the gun covered by the Act was missing. Id. We concluded
that "[t]he jury could reasonably infer that [the defendant] was
well aware of the [gun's] particular characteristics. After all,
he specifically asked for it when it was not among the weapons
returned to him at the police station." Id.
In contrast, the government presented no evidence of
Shaw's history or familiarity with the shotgun at issue here, aside
from the fact that he was arrested with it. Nothing about the
exercise of preparing a gun for hunting requires awareness of the
precise length of the barrel of the gun. If the government had
presented evidence that Shaw himself had modified the shotgun, the
argument that he was aware that the barrel measured less than 18
inches would make more sense. See United States v. Sanders, 520
F.3d 699, 701 (7th Cir. 2008) (noting that fact that defendant
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personally modified shotgun was "compelling" evidence that he was
aware that the barrel was shorter than 18 inches in length). There
is no such evidence in this case. There is also no evidence that
Shaw had any particular reason or need to know the length of the
shotgun's barrel.
B. Knowledge of Firearms Generally
In Giambro, we also relied on the fact that the defendant
owned such a large number of guns - more than two hundred - that
the jury could infer that "he was a gun collector or had at least
a specialized knowledge and interest in firearms." 544 F.3d at 30.
This expertise supported the inference that he was aware of the
specific characteristics of the "Game Getter" weapon.
There is no similar evidence of expertise in this case.
Shaw was found with two guns in his possession, not two hundred,
some ammunition, and other items useful for hunting. Although the
evidence might support an inference that Shaw was an experienced
hunter, there was no evidence that an experienced hunter, unlike an
ordinary person, would be aware of the specific fact required by
the mens rea in this case - that the barrel of the shotgun being
used for hunting was less than 18 inches in length. While it is
true that one wishing to hunt illegally from within a vehicle may
be sensitive to the need for a weapon with a shorter barrel, this
need does not require an awareness of the precise length of a
weapon's barrel. In fact, for such an exercise, the overall length
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of the weapon is its more relevant characteristic, not the length
of its barrel.
C. The Visibility of the Shotgun's Relevant Characteristic
Perhaps most significantly, the majority relies on the
conclusion that "the evidence permitted the jury to infer that the
barrel length of less than 18 inches was readily observable to the
defendant." It is true that it may be reasonable in some
circumstances to infer that merely observing a weapon or handling
it on one occasion is sufficient to provide an awareness of its
relevant characteristics. See Staples, 511 U.S. at 615 n.11
(noting that, upon observation, knowledge may be inferred based on
"any external indications signaling the nature of the weapon").
For example, in Giambro, we noted that the Game Getter was a very
unusual weapon with "distinctive features." 544 F.3d at 28. In
particular, its vertically stacked rifle and shotgun barrels, along
with the lock that allowed the user to fire from either barrel
without reloading, were "external indications" that were
"sufficient to put even a layperson on notice that the Game Getter
had the characteristics required by the statute." Id. at 30-31
(internal quotation mark omitted); cf. United States v. Nieves-
Castaño, 480 F.3d 597, 601-02 (1st Cir. 2007) (reversing conviction
where relevant characteristics of firearm were not externally
visible and no other material evidence supported conviction).
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The Model Penal Code defines "knowledge" of an attendant
circumstance as an "aware[ness] that . . . such circumstances
exist."7 Model Penal Code § 2.02(b)(i). Here, the government has
produced no evidence indicating that, given the relatively small
discrepancy between the barrel's actual length of 15.5 inches and
the statutory length of 18 inches, Shaw was able to visually judge
the barrel of his shotgun to be impermissibly short. Yet this
capacity is a requisite premise of the government's case. One may
not be charged with awareness of a fact on the basis of observation
alone without proof of the capacity to apprehend that fact
visually. That is the inevitable logic of the specific mens rea
requirement imposed by Staples.8
7
This nearly tautological definition leaves unanswered the
question of whether a defendant must consciously consider the fact
in question to be deemed to have knowledge of the fact.
Alternatively stated, this is the problem of whether latent
knowledge - an ability to provide the requisite information if
prompted - would suffice to satisfy a mens rea requirement. While
I have found no decision addressing the issue, most commentators
appear to assume that latent knowledge is knowledge for the purpose
of establishing criminal liability. See, e.g., Kenneth W. Simons,
Should the Model Penal Code's Mens Rea Provisions Be Amended?, 1
Oh. St. J. Crim. L. 179, 194-95 (2003); Joanne Klineberg, Anger and
Intent for Murder: The Supreme Court Decision in R. v. Parent, 41
Osgoode Hall L.J. 37, 57-58 (2003). However, even if we accept
this proposition, a defendant must at least have the capacity to be
aware of a given fact before being charged with knowledge, actual
or latent.
8
I am aware that other circuits dealing with these gun
registration cases have shown a more relaxed approach to similar
sufficiency of the evidence challenges. See, e.g., United States
v. Michel, 446 F.3d 1122, 1131 (10th Cir. 2006) ("[E]vidence a
defendant observed and handled [a] sawed-off shotgun is sufficient
for a jury reasonably to infer that the defendant knew that the
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Emphasizing that the gun itself was introduced into
evidence, along with photographs of the gun at the scene of the
arrest, the majority asserts that the jury, relying on "common
sense" and the "dictates of mature experience," could determine
that Shaw's observation of this particular weapon was sufficient to
convey knowledge that its barrel was under 18 inches. Strikingly,
one of the photographs introduced by the government showed the
shotgun next to an extended tape measure showing the overall length
of the gun (not solely the barrel's length). It is difficult to
weapon was shorter than twenty-six inches overall or had a barrel
length of less than eighteen inches." (second alteration in
original) (internal quotation marks omitted)); United States v.
Miller, 255 F.3d 1282, 1287 (11th Cir. 2001) ("[T]he length of the
barrel is a patently obvious characteristic, readily apparent to
anyone, including [defendant], who observes the gun. . . . The
shotgun was admitted as evidence and published to the jury. This
evidence permitted the jury to infer that [defendant] knew the
barrel's [15.5-inch] length was under 18 inches."). The
assumption, oft unexamined, that mere observation is sufficient, in
every case, to convey knowledge that the length of a shotgun barrel
is under 18 inches is reflective of the "precedential cascade"
phenomenon, which leads courts to uncritically follow one another.
See Cass R. Sunstein, Why Societies Need Dissent 59-60 (2003);
Adrian Vermeule, Common Law Constitutionalism and the Limits of
Reason, 107 Colum. L. Rev. 1482, 1497 (2007) ("[A] line of
precedents may represent little more than a rational decision by
later judges to ignore their private information in favor of what
earlier courts have said. Where this occurs, later decisions in
the line of precedent are not independent contributions that add to
the informational value of the whole . . . ."). In most cases,
courts have taken for granted the proposition that observation
alone is sufficient to infer knowledge of the barrel's length.
Undoubtedly, there are many cases in which the discrepancy between
actual length and statutory length is large enough that this
observational approach makes sense. However, this will not always
be the case, and I respectfully disagree with my colleagues in
other circuits who have found that observation alone is always
sufficient, no matter how small the discrepancy.
-28-
understand how a demonstration for the jury of comparative length
reliant on a tape measure supports the majority's assertion that
the "common sense" of the jurors permitted them to infer that Shaw,
simply by looking at the shotgun, knew its barrel measured less
than 18 inches. Indeed, that tape measure demonstration hopelessly
tainted the appeal to common sense.9
The majority also notes that there was testimony that one
of the arresting officers "quickly noted that the gun . . .
appeared to be too short for federal guidelines." The
observational capacity of a seven-year veteran of the Maine State
Police whose job requires him to make visual judgments about the
barrel length of guns is an odd proxy for the "mature experience"
of jurors whose roles in life, so far as we know, do not require
them to make precise judgments about the length of objects.10
Certainly, the atypical experiences of the law enforcement officer
9
Apparently, no objection to this evidence was lodged at
trial. That was a mistake.
10
Offering a romanticized view of Maine as a rural state of
forest and field, where everyone knows their guns, the concurrence
assumes that the "background facts" available to Maine jurors give
them a special capacity to draw inferences about Shaw's awareness
of his shotgun's length. In fact, as of 2006, only 14% of Maine's
population self-identified as hunters. United States Fish and
Wildlife Service, 2006 National Survey of Fishing, Hunting, and
Wildlife-Associated Recreation 102 (2006), available at
http://wsfrprograms.fws.gov/Subpages/NationalSurvey/nat_survey200
6_final.pdf. This disparity between fact and assumption
illustrates the dangers of relying on stereotypes to defend a
jury's work. That reliance also highlights the conjecture at the
core of the majority's decision.
-29-
could not rationally inform the judgment of the jurors about Shaw's
capacity to judge the barrel length of the shotgun simply from
looking at it.
In trying to build its circumstantial case against Shaw,
the issue for the government was Shaw's particular capacity to
calculate the length of the gun barrel through observation. See
Giambro, 544 F.3d at 30-31 (relying on experience, knowledge and
awareness of particular defendant); see generally Staples, 511 U.S.
at 620 ("[I]f Congress had intended to make outlaws of gun owners
who were wholly ignorant of the offending characteristics of their
weapons, . . . it would have spoken more clearly to that effect.").
In this case, the overall length of the weapon at issue was
approximately 29 inches. There is no support in the record for the
proposition that Shaw's mere observation of a 29-inch long weapon
made him aware of the fact that its 15.5-inch barrel was less than
18 inches in length.11 In evaluating a similar case, the Seventh
Circuit has observed that "[t]here may be situations where a person
could honestly believe that their possession of the weapon was
entirely innocent. For example, it is not hard to conceive of a
person reasonably believing a 17.5 inch shotgun is over 18 inches
and therefore perfectly legal." Edwards, 90 F.3d at 205. While
11
The government points out that the shotgun's barrel carried
a notation indicating that it was originally 28 inches long. This
fact simply confirms that Shaw was aware that the barrel had been
shortened - a point that he does not dispute. It is not probative
of his knowledge of the extent to which the barrel was shortened.
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there are certainly some discrepancies that are so large that a
jury may readily infer the capacity to determine, by mere
observation, that the length of a barrel is under 18 inches, a 2.5-
inch discrepancy is too small to establish beyond a reasonable
doubt Shaw's knowledge by observation.12
D. Consciousness of Guilt
The majority also relies on Shaw's flight as evidence of
his consciousness of guilt regarding the barrel length of his
unregistered shotgun. However, Shaw was flaunting several laws on
the day of his arrest. As he outlines in his brief, "[h]unting on
Sunday is illegal. Shooting a gun from a car is illegal, as is
shooting a gun within 100 yards of a residence, and hunting without
a license. It is also illegal to have a loaded firearm in the
passenger compartment of a car." Indeed, Shaw's conduct upon being
arrested - ejecting ammunition from the shotgun, rather than
endeavoring to conceal it - is inconsistent with the government's
theory that he fled because he knew the barrel of the shotgun was
less than 18 inches long.
12
For instance, in Sanders, the Seventh Circuit found that the
fact that the defendant handled the gun and had it in his
possession when he was arrested was sufficient to allow inference
of the requisite knowledge. 520 F.3d at 701. However, in that
case, the gun at issue had a barrel of less than 12 inches in
length, making it more than one-third shorter than the statutory
length. While a jury may be entitled to infer that such a dramatic
difference is readily apparent, such an inference becomes more
speculative the smaller the discrepancy in length.
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Given the range of Shaw's illegal conduct on that day,
Shaw's flight says nothing about his awareness of the length of his
shotgun barrel. As we stated in Nieves-Castano, "knowledge that
one is guilty of some crime is not the same as knowledge that one
is guilty of the crime charged." 480 F.3d at 601 (emphasis in
original); see also O'Laughlin v. O'Brien, 568 F.3d 287, 303 (1st
Cir. 2009) ("Although [defendant's] behavior could indicate
consciousness of guilt for some crime, . . . it is an impermissible
inferential leap for a jury to find this behavior significantly
probative of whether [defendant] committed [the crime charged].").
II.
Because it finds that there was sufficient evidence to
permit the jury to find that Shaw had actual knowledge of the
length of his shotgun's barrel, the majority does not address the
issue of willful blindness. Since I do not find the evidence to be
sufficient to prove actual knowledge, I now do so.
As we have previously explained, "[w]illful blindness
serves as an alternate theory on which the government may prove
knowledge." United States v. Pérez-Meléndez, 599 F.3d 31, 41 (1st
Cir. 2010). In order to establish willful blindness, a jury must
make two findings: "First, that the defendant was aware of a high
probability of the fact in question; second, that the defendant
consciously and deliberately avoided learning of that fact."
United States v. Lizardo, 445 F.3d 73, 85 n.7 (1st Cir. 2006)
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(finding no error in quoted instruction). Willful blindness is
determined using a subjective standard, and thus "[t]he focus of
the willful blindness instruction must be on the particular
defendant and not on the hypothetical reasonable person." United
States v. Griffin, 524 F.3d 71, 80 (1st Cir. 2008).
Although willful blindness is not the same as actual
knowledge, it is not a lesser standard. United States v. Cunan,
152 F.3d 29, 40 (1st Cir. 1998) (stating that jury must find
willful blindness beyond a reasonable doubt); United States v.
Whittington, 26 F.3d 456, 462 (4th Cir. 1994) (stating that willful
blindness instruction does not alter requirement that knowledge be
proved beyond a reasonable doubt). Negligence, carelessness, or
mistake in apprehending a fact are insufficient to establish
willful blindness. See Griffin, 524 F.3d at 80-81. In fact, we
have cautioned that "[t]he danger of an improper willful blindness
instruction is 'the possibility that the jury will be led to employ
a negligence standard and convict a defendant on the impermissible
ground that he should have known [an illegal act] was taking
place.'"13 United States v. Brandon, 17 F.3d 409, 453 (1st Cir.
13
For this reason, we limit the circumstances in which willful
blindness instructions are given, and we are often faced with the
issue of whether the instruction was appropriate given the facts of
a particular case. We have held that "'[a] willful blindness
instruction is appropriate if (1) a defendant claims a lack of
knowledge, (2) the facts suggest a conscious course of deliberate
ignorance, and (3) the instruction, taken as a whole, cannot be
misunderstood as mandating an inference of knowledge.'" United
States v. Mitrano, 658 F.3d 117, 123 (1st Cir. 2011) (quoting
-33-
1994) (quoting United States v. Littlefield, 840 F.2d 143, 148 n.3
(1st Cir. 1988)(alteration in original)(internal quotation mark
omitted)).
Ultimately, a willful blindness instruction "'allows the
jury to impute knowledge to [a defendant] of what should be obvious
to him, if it f[inds], beyond a reasonable doubt, a conscious
purpose to avoid enlightenment.'" Pérez-Meléndez, 599 F.3d at 41
(quoting United States v. St. Michael's Credit Union, 880 F.2d 579,
585 (1st Cir. 1989)). Thus, the willful blindness instruction
permits conviction on the basis of imputed knowledge, as opposed to
actual knowledge. However, whether relying on inferred or imputed
knowledge, the quantum of evidence required remains the same --
sufficient evidence to permit a fact-finder to make a determination
beyond a reasonable doubt. Cunan, 152 F.3d at 40 (stating that
jury must find willful blindness beyond a reasonable doubt).
As explained, "[t]he focus of the willful blindness
instruction must be on the particular defendant and not on the
United States v. Azubike, 564 F.3d 59, 66 (1st Cir. 2009)). In
evaluating the second element, we have noted that "[i]n determining
whether the facts suggest the type of deliberate avoidance
warranting a willful blindness instruction, we must consider
whether the record evidence reveals flags of suspicion that,
uninvestigated, suggest willful blindness." Id. (internal
quotation marks omitted). In this appeal, Shaw does not challenge
the court's decision to give the willful blindness instruction, but
argues that, once given, there was insufficient evidence for the
jury to conclude, beyond a reasonable doubt, that he was willfully
blind to the length of his shotgun's barrel.
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hypothetical reasonable person." Griffin, 524 F.3d at 80. I have
already explained that the government's evidence of Shaw's
familiarity with the shotgun he was using, his knowledge of
firearms generally, the shotgun's observable length, and his
consciousness of guilt was insufficient to establish beyond a
reasonable doubt that he knew that the barrel of the shotgun was
less than 18 inches in length. Admittedly, the fact of Shaw's
observation and handling of the gun gets the government closer to
the mark, even pursuant to the beyond a reasonable doubt standard,
when it must prove only that Shaw was aware of a "high probability"
that the barrel was less than 18 inches long, and not his actual
knowledge of that fact. However, it is unnecessary to decide
whether Shaw's observation of the shotgun's 15.5-inch barrel
conveyed an awareness of a "high probability" that it was under 18
inches in length. That is so because the government has failed to
present any evidence that would permit the jury to find that the
second prong of the willful blindness analysis has been met.
To meet the second prong of the analysis, the government
must prove that Shaw "consciously and deliberately avoided
learning" of the barrel's length. Lizardo, 445 F.3d at 85 n.7. If
the government had introduced some evidence indicating that Shaw
had a reason or need to know of the barrel's length, it might have
provided a basis for the jury to find that Shaw deliberately
avoided learning of this fact. Without this evidence, or any other
-35-
evidence indicating a conscious and deliberate decision by Shaw,
there is nothing to permit the jury to infer that Shaw deliberately
closed his eyes to the barrel's length. Thus, even if I found the
evidence sufficient to permit the jury to conclude beyond a
reasonable doubt that Shaw was aware that there was a high
probability that the barrel was less than 18 inches long - and I do
not - I would still conclude that the government's evidence was
insufficient to support conviction on the basis of willful
blindness.
III.
The burden imposed by Staples in a case such as this is
heavy. It can be difficult to prove beyond a reasonable doubt
knowledge of a fact as specific as the length of a gun barrel.14
Nevertheless, we may not ease the government's burden by allowing
the jury to draw inferences that inescapably require undue
speculation, see O'Laughlin, 568 F.3d at 301 ("[A] reviewing court
should not give credence to evidentiary interpretations and
illations that are unreasonable, insupportable, or overly
speculative." (quoting Leftwich v. Maloney, 532 F.3d 20, 23 (1st
Cir. 2008)(internal quotation marks omitted)), and "[g]uilt beyond
14
This burden is neither inevitable nor unintended. As the
Court noted in Staples, "if Congress . . . intended to make outlaws
of gun owners who were wholly ignorant of the offending
characteristics of their weapons, . . . it would have spoken more
clearly to that effect." 511 U.S. at 620. After Staples, Congress
had the opportunity to amend the Act to eliminate the mens rea
requirement and it has declined to do so.
-36-
a reasonable doubt cannot be premised on pure conjecture," Stewart
v. Coalter, 48 F.3d 610, 615 (1st Cir. 1995).
The majority's decision endorses just such conjecture.
It impermissibly dilutes the beyond a reasonable doubt standard.
As the Seventh Circuit observed in Edwards,
although the government may face a tougher
burden in the close cases, we believe this is
exactly what the Supreme Court held Congress
intended - because the close case is exactly
when you run the highest risk of convicting
someone "whose conduct would not even alert
them to the probability of strict
regulations."
90 F.3d at 205 (quoting Staples, 511 U.S. at 616). As the
appellant forcefully argues, if we affirm the conviction here, we
will have adopted the legal fiction at the heart of the
government's case - namely, that upon mere observation it is
obvious to a person of ordinary perceptive powers that an object
15.5 inches in length does not measure 18 inches. Regrettably, the
majority has done so. That fiction is incompatible with the
exacting mens rea requirement imposed by Staples.
Therefore, I respectfully dissent.
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