United States v. Rogers

United States Court of Appeals, Eleventh Circuit.

No. 94-4692.

UNITED STATES of America, Plaintiff-Appellee,

v.

George G. ROGERS, Defendant-Appellant.

Sept. 17, 1996.

Appeal from the United States District Court for the Southern
District of Florida. (No. 91-6044-CR-NCR), Norman C. Roettger, Jr.,
Chief Judge.

Before EDMONDSON, Circuit Judge, and FAY and GIBSON*, Senior
Circuit Judges.

FLOYD R. GIBSON, Senior Circuit Judge:

A jury found appellant George Rogers guilty of committing

various firearms violations named in a three count indictment. He

now appeals the convictions, claiming that reversible error

occurred when the district court failed to instruct the jury on an

essential element of each of the offenses. Though the evidence

presented at trial is insufficient to sustain the jury's verdict on

one of the three counts, we deem the instructional omission to be

harmless beyond a reasonable doubt and thus affirm on the remaining

two charges.

I. BACKGROUND

After arresting appellant George Rogers for driving while

intoxicated, Broward County, Florida Deputy Sheriff Mahmoud

Mashnouk searched both Rogers and the truck he had been driving.

Deputy Mashnouk discovered that Rogers was carrying on his person

a .22 caliber handgun and one magazine of .380 caliber ammunition.

*
HONORABLE FLOYD R. GIBSON, Senior U.S. Circuit Judge for
the Eighth Circuit, sitting by designation.
Inside Rogers's vehicle, Mashnouk found a loaded .380 caliber

Baretta pistol equipped with a flash suppressor. In addition, the

officer located beneath the driver's side seat of the truck a black

bag containing a MAC-11 pistol, a silencer, a flash suppressor,

.380 caliber ammunition, several ammunition magazines for the MAC-

11, two holsters, and miscellaneous other items. Later

investigation revealed that the MAC-11 had been fully modified to

function as a "machinegun"1 under federal law. Further, the

silencer did not possess a serial number and had not been

registered in the National Firearms Registration and Transfer

Record.

Following his arrest, Rogers agreed to be interviewed by,

among others, Special Agent Dale Armstrong from the Bureau of

Alcohol, Tobacco, and Firearms. During this conversation, Rogers

professed his expertise in weapons and correctly identified the

silencer and the MAC-11. Nonetheless, Rogers vehemently denied

ownership of those two firearms and claimed that he had no idea who

might have placed them in his vehicle.

Thereafter, the United States returned an indictment charging

Rogers with: 1) knowing possession of a machinegun in violation of

18 U.S.C. § 922(o ) (1994) (count one); 2) knowing possession of

a silencer not registered to him in the National Firearms

Registration and Transfer Record in violation of 26 U.S.C. §§

1
"The term "machinegun' means any weapon which shoots, is
designed to shoot, or can be readily restored to shoot,
automatically more than one shot, without manual reloading, by a
single function of the trigger...." 26 U.S.C. § 5845(b) (1994);
see 18 U.S.C. § 921(a)(23) (1994) (providing that the term
"machinegun," as used in 18 U.S.C. §§ 921-930, should be defined
by reference to 26 U.S.C. § 5845(b)).
5861(d), 5871 (1994) (count two); and 3) knowing possession of a

silencer without a serial number in violation of 26 U.S.C. §§

5861(i), 5871 (1994) (count three). At trial, the Government

played for the jury an edited audiotape of Rogers's postarrest

interview.2 Testifying on his own behalf, Rogers contended that

2
As the following excerpts show, this recording revealed in
no uncertain terms the depth of Rogers's familiarity with
weapons, their construction, and their component parts:

[Rogers]: I don't know anything about [the ownership
of the MAC-11 or the silencer].

[Agent]: Okay.

[Rogers]: And I definitely know what they are.

[Agent]: You do.

[Rogers]: Yes sir.

[Agent]: Okay, what are they?

[Rogers]: One is a uh, that is a .380, I think a MAC.

[Agent]: Okay.

[Rogers]: And the other is a, that is a silencer.

[Rogers]: You want to ask me how to make a silencer,
I'll tell ya. You get, you get a [expletive] oil
filter, that's the best silencer you can get.
Don't they teach you that in, in a, in Special
Forces? That's what they taught me.

[Agent]: Do you know, do you know what these are?

[Rogers]: Yes sir.

[Agent]: What are those?

[Rogers]: Those are baffles for a silencer.

[Agent]: How did you, how did you learn so much about,
about silencers?

[Rogers]: I studied.

[Agent]: Studied?
the black bag seized by Deputy Mashnouk was not his, and he

continued to maintain that he had no knowledge of how the illegal

weapons came to be in his truck. Also, Rogers again positively

identified the firearms that are the subject of this case.3

[Rogers]: Yes, sir.

[Agent]: Okay.

[Rogers]: In fact if you probably go to my house now
there's a book on silencers.

[Rogers]: There's a book I think, unless I packed it
away, I don't know.

[Agent]: Okay.

[Rogers]: Some screwball book I bought at a gun show.

[Agent]: Okay, anything ...

[Rogers]: But it's nothing we weren't taught.

[Okay]: Okay.

[Rogers]: You know, you want a silencer, you, you, you
get a, what's the best silencer?

[Agent]: Sionics.

[Rogers]: No, it's, it's a two liter bottle. I mean
everybody knows that, I mean this....

[Agent]: A two liter Coke bottle you're telling me ...

[Rogers]: Yeah....
3
The following exchange took place between Rogers and his
attorney:

Q. Mr. Rogers, Government's Exhibit No. 5, do you know
what this is?

A. This is a silencer, yes. I know exactly.

Q. You are familiar with it?

A. Yes.

Q. Mr. Rogers, showing you Government's Exhibit No. 2,
 While instructing the jury on the pertinent offenses, the

district court generally advised the panel that for each violation

the Government had to prove Rogers "knowingly possessed" the

firearm in question. In explaining the law applicable to count 2,

however, the court elaborated:

It is not necessary for the Government to prove that the
Defendant knew that the item described in the indictment was
a "firearm" which the law requires to be registered.... What
must be proved beyond a reasonable doubt is that the Defendant
knowingly possessed the item as charged, that such item was a
"firearm" as defined above, and that i[t] was not then
registered to the Defendant in the National Firearms
Registration and Transfer Record.

Rogers objected to this instruction on the basis that the

prosecution could not prevail unless it demonstrated beyond a

reasonable doubt that "the defendant knew th[e] items in question

were firearms" under the National Firearms Act, 26 U.S.C. §§ 5801-

5872 (1994) (the "Act"). The district court overruled Rogers's

objection.

The jury subsequently convicted Rogers on all counts; the

district judge sentenced him to time served (thirty-three months),

three concurrent three year terms of supervised release, and a

special assessment of $150. Relying on the United States Supreme

Court's recent opinion in Staples v. United States, 511 U.S. 600,

114 S.Ct. 1793, 128 L.Ed.2d 608 (1994), Rogers presently asserts

the district court committed error when it refused to inform the

jury that the Government was obligated to establish he knew the

do you know what this is?

A. Yes. It's a .380 Ingram [MAC-11] and it was
manufactured first for the police departments and
then when war broke out they introduced it into
the military....
characteristics of the weapons at issue that subjected them to the

Act's regulatory scheme.

II. DISCUSSION

The Act contains various directives, including registration

requirements, that apply to a class of statutorily defined

"firearms." See 26 U.S.C. §§ 5845(a), 5861 (1994). In Staples,

the Supreme Court addressed the mens rea element under § 5861(d) of

the Act.4 After expressing its reluctance to interpret laws in a

manner that would "criminalize a broad range of apparently innocent

conduct," Staples, 511 U.S. at ----, 114 S.Ct. at 1799 (quotation

omitted), the Court concluded that the Government can procure a

conviction under the subsection only when it proves the defendant

"knew of the features of his [weapon] that brought it within the

scope of the Act," id. at ----, 114 S.Ct. at 1804. We must now

consider the effect of this holding, which overrules the previous

law of this Circuit, cf. United States v. Gonzalez, 719 F.2d 1516,

1522 (11th Cir.1983), cert. denied, 465 U.S. 1037, 104 S.Ct. 1312,

79 L.Ed.2d 710 (1984), on Rogers's convictions.

A. Rogers's Conviction Under 18 U.S.C. § 922(o)

With limited exceptions, 18 U.S.C. § 922(o) makes it unlawful

for an individual to possess a machinegun. In a consonant voice,

the parties contend that Rogers's conviction under this subsection

should be reversed due to insufficient evidence. We agree. 5 The

4
Section 5861(d) makes it unlawful for a 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. §
5861(d) (1994).
5
We also agree with the Government that the Supreme Court's
decision in Staples applies with equal force to prosecutions
MAC-11 machinegun located in Rogers's truck had originally been

manufactured as a semi-automatic pistol. Because the Government

did not introduce any evidence showing that Rogers was aware that

the MAC-11 had been altered to operate as a fully automatic

weapon,6 his conviction on this count cannot stand. See Staples,

511 U.S. at ----, 114 S.Ct. at 1804.

B. Rogers's Convictions Under 26 U.S.C. §§ 5861(d), (i), 5871

The jury also found that Rogers possessed an unregistered and

unserialized silencer in violation of 26 U.S.C. §§ 5861(d), (i),

5871. These convictions pose a considerably more difficult problem

on this appeal. As discussed above, the district court, over a

defense objection, refused to inform the jury that the Government

had the burden of showing Rogers "knew th[e] items in question were

firearms" under the Act.7 With the benefit of the Supreme Court's

opinion in Staples, we can now indubitably state that the district

court's action effectively omitted from the instructions an

essential element of the crime charged under § 5861(d).8

under 18 U.S.C. § 922(o ).
6
Notably, the conversion process, which sometimes ensues
from normal wear and tear, see Staples, 511 U.S. at ----, 114
S.Ct. at 1802, resulted in few, if any, noticeable changes in the
outward appearance of the handgun.
7
We underscore that the district court's instructions were
entirely in accord with the law of this Circuit at the time of
trial.
8
The Court in Staples limited its analysis to § 5861(d),
which prohibits the possession of an unregistered firearm.
Section 5861(i), in turn, proscribes the possession of a firearm
unidentified by a serial number. Because we adjudge the
instructional error involved here to be harmless, for the
purposes of this case only we will assume without deciding that
the Court's pronouncements in Staples apply as well to criminal
proceedings under § 5861(i).
 In 1947, the Supreme Court stressed that in a criminal case

"guilt is determined by the jury, not the court." United Bhd. of

Carpenters v. United States, 330 U.S. 395, 410, 67 S.Ct. 775, 783,
9
91 L.Ed. 973 (1947). This right, grounded in the Sixth Amendment,

to have the jury decide guilt or innocence reposes within that body

the "overriding responsibility ... to stand between the accused and

a potentially arbitrary or abusive Government that is in command of

the criminal sanction." United States v. Martin Linen Supply Co.,

430 U.S. 564, 572, 97 S.Ct. 1349, 1355, 51 L.Ed.2d 642 (1977).

"Thus, although a judge may direct a verdict for the defendant if

the evidence is legally insufficient to establish guilt, he may not

direct a verdict for the State, no matter how overwhelming the

evidence." Sullivan v. Louisiana, 508 U.S. 275, 277, 113 S.Ct.

2078, 2080, 124 L.Ed.2d 182 (1993).

While the Sixth Amendment ensures that the defendant's peers

in the community will serve as the ultimate arbiters of his fate,

the Fifth Amendment's Due Process Clause10 creates the legal

framework which guides the jury in its task. See id. at 277-78,

113 S.Ct. at 2080-81. Significantly, the Government bears the

burden of proving beyond a reasonable doubt all elements of the

crime charged. Id. Indeed, the Supreme Court has "explicitly

h[e]ld that the Due Process Clause protects the accused against

conviction except upon proof beyond a reasonable doubt of every

9
"In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury...."
U.S. Const. amend. VI.
10
"No person shall be ... deprived of life, liberty, or
property, without due process of law...." U.S. Const. amend. V.
fact necessary to constitute the crime with which he is charged."

In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d

368 (1970). Put simply, then, "the jury verdict required by the

Sixth Amendment is a jury verdict of guilty beyond a reasonable

doubt." Sullivan, 508 U.S. at 278, 113 S.Ct. at 2081.

Given this background, it is readily apparent that in this

case the district court committed an error of constitutional

dimension when it declined to instruct the jury on an essential

element of the crime. Our quite daunting task is to determine the
effect of that error. Rogers asserts that the failure to instruct

on an essential element of an offense is per se reversible. On the

other hand, the Government predictably declares that affirmance is

in order because the error was harmless. Neither we nor the

Supreme Court has ever definitively ascertained the consequences

that should follow from an instructional omission, and our sister

circuits are divided on the issue.11

11
Some circuits have determined that an instructional
omission mandates reversal regardless of the circumstances. See
United States v. Pettigrew, 77 F.3d 1500, 1511 (5th Cir.1996)
(explaining that harmless error analysis is inapplicable where an
essential element "was withheld from the jury"); Hoover v.
Garfield Heights Mun. Court, 802 F.2d 168, 178 (6th Cir.1986)
("[W]e conclude that the failure to instruct the jury on an
essential element of the crime charged is one of the exceptional
constitutional errors to which the Chapman harmless error
analysis does not apply."), cert. denied, 480 U.S. 949, 107 S.Ct.
1610, 94 L.Ed.2d 796 (1987). Other circuits have recognized that
this type of mistake will sometimes be amenable to harmless error
scrutiny. Roy v. Gomez, 81 F.3d 863, 866-67 (9th Cir.1996) (en
banc) (finding that harmless error analysis applies to a failure
to instruct on an element of the offense); United States v.
Parmelee, 42 F.3d 387, 392-93 (7th Cir.1994) (same), cert.
denied, --- U.S. ----, 116 S.Ct. 63, 133 L.Ed.2d 25 (1995).

We believe that this discord reflects the gravity of
the issue, and we realize, of course, that our opinion in
this case can merely provide controlling authority within
 To settle this dispute, we begin by recalling the benchmark

decision in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17

L.Ed.2d 705 (1967). There, the Court rejected the notion that a

constitutional error in all cases compels reversal. Id. at 22, 87

S.Ct. at 827. Rather, the encroachment at trial of a

constitutional right may be considered harmless if the beneficiary

of the error "prove[s] beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained." Id. at

24, 87 S.Ct. at 828. By so holding, the Court "continued a trend

away from the practice of appellate courts in this country and in

England of reversing judgments for the most trivial errors."

Connecticut v. Johnson, 460 U.S. 73, 82, 103 S.Ct. 969, 975, 74

L.Ed.2d 823 (1983) (plurality opinion) (quotation and alteration

omitted).

The Chapman Court did acknowledge, though, that there exist

"some constitutional rights so basic to a fair trial that their

infraction can never be treated as harmless error." Chapman, 386

U.S. at 23, 87 S.Ct. at 827-28. Throughout the years, it has

become evident that this limitation is confined to constitutional

errors that cause a "structural defect affecting the framework

within which the trial proceeds, rather than simply an error in the

trial process itself." Arizona v. Fulminante, 499 U.S. 279, 310,

111 S.Ct. 1246, 1265, 113 L.Ed.2d 302 (1991). Thus, we must

our own Circuit. For these reasons, we join the Ninth
Circuit in noting that further guidance and clarification
would be extremely helpful. See Hennessy v. Goldsmith, 929
F.2d 511, 515 n. 2 (9th Cir.1991); cf. Teel v. Tennessee,
498 U.S. 1007, 1007, 111 S.Ct. 571, 571, 112 L.Ed.2d 577
(1990) (White, J., dissenting from the denial of
certiorari).
reverse without regard to the underlying facts of a particular case

where, for example, the defendant is totally deprived of the right

to counsel, tried before a biased judge, refused his right to

self-representation, or denied his right to a public trial. See

id. at 309-10, 111 S.Ct. at 1264-65 (collecting cases). "Without

these basic protections, a criminal trial cannot reliably serve its

function as a vehicle for determination of guilt or innocence, and

no criminal punishment may be regarded as fundamentally fair."

Rose v. Clark, 478 U.S. 570, 577-78, 106 S.Ct. 3101, 3106, 92

L.Ed.2d 460 (1986) (citation omitted).

We would be hard pressed to conclude that incomplete jury

instructions exemplify a "structural defect[ ] in the constitution

of the trial mechanism, which def[ies] analysis by "harmless-error'

standards." Fulminante, 499 U.S. at 309, 111 S.Ct. at 1265.

Instead, we liken the error before us to other "trial errors which

occur "during the presentation of the case to the jury, and which

may therefore be quantitatively assessed in the context of other

evidence presented.' " Sullivan, 508 U.S. at 281, 113 S.Ct. at

2082-83 (quoting Fulminante, 499 U.S. at 307-08, 111 S.Ct. at

1264). Of particular relevance here are those cases dealing with

the application of harmless error analysis to constitutionally

defective jury instructions. 12 In Rose, the Court ruled that an

12
The Supreme Court has stated that "if the defendant had
counsel and was tried by an impartial adjudicator, there is a
strong presumption that any other errors that may have occurred
are subject to harmless-error analysis." Rose, 478 U.S. at 579,
106 S.Ct. at 3106. We find it telling that in only one case has
the Supreme Court deemed an instructional error to be per se
reversible. See Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct.
2078, 124 L.Ed.2d 182 (1993). The trial court in Sullivan had
given a constitutionally defective reasonable doubt instruction
error under Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61

L.Ed.2d 39 (1979), which erects an unconstitutional mandatory

presumption shifting to the defendant the burden of proof on an

element of the offense, could in some cases appropriately be the

subject of harmless error review. Rose, 478 U.S. at 579-82, 106

S.Ct. at 3106-08. The Court restated this conclusion inCarella v.

California, 491 U.S. 263, 266, 109 S.Ct. 2419, 2421, 105 L.Ed.2d

218 (1989) (per curiam). More importantly, however, Carella

included a cogent concurrence penned by Justice Scalia more
precisely elaborating upon the type of harmless error inquiry

suitable when reviewing a Sandstrom claim. See Carella, 491 U.S.

at 267-73, 109 S.Ct. at 2421-24 (Scalia, J., concurring).

Other circuits have indicated that Justice Scalia's

concurrence in Carella outlines the harmless error framework to be

that effectively "vitiate[d] all the jury's findings." Id. at
281, 113 S.Ct. at 2082. Thus, in that case there was no finding
of guilt beyond a reasonable doubt upon which harmless error
scrutiny could operate. Id. at 280-81, 113 S.Ct. at 2082-83.

We realize that at least one Court has relied upon
Sullivan to foreclose the possibility of harmless error
review where there has been an instructional omission. See
Pettigrew, 77 F.3d at 1511. With respect, we feel that
Pettigrew reads too broadly the basic holding of Sullivan.
Unlike a flawed reasonable doubt instruction, which
completely negates every jury finding, the typical
instructional omission will affect only one element of the
crime. Thus, as in this case, the jury will have made a
constitutionally valid determination of guilt on all issues
save one. Consequently, contrary to Sullivan, there is a
legitimate, though admittedly inchoate, adjudication of
guilt upon which, under appropriate circumstances, harmless
error analysis can operate. See United States v. Raether,
82 F.3d 192, 194 (8th Cir.1996) (observing that Sullivan
does not prevent harmless error review where "the district
court's failure to let the jury decide the [omitted] issue
did not prevent the jury from properly deciding the other
issues in the case").
used in appeals involving instructions that omit an essential

element of the offense. Roy, 81 F.3d at 866-67; Parmelee, 42 F.3d

at 392-93. We understand full well that there are some important

differences between the incomplete instructions in this case and

the Sandstrom violation at issue in Carella. Nonetheless, we, too,

find Justice Scalia's concurrence persuasive in the instant context

and therefore deem the reasoning of that opinion to be applicable

when adjudicating the effect of instructional omissions. Cf.

Carella, 491 U.S. at 270, 109 S.Ct. at 2423 (Scalia, J.,

concurring) (suggesting that all errors in instructions that

"deprive[ ] the jury of its factfinding role" should be evaluated

similarly).

According to Justice Scalia, where the trial court's

directions prevented the jury from determining guilt beyond a

reasonable doubt on every element of the offense, due regard for

the defendant's Fifth and Sixth Amendment rights necessitates that

harmless error analysis be available only in those "rare situations

when the reviewing court can be confident that such an error did

not play any role in the jury's verdict." Id. at 270, 109 S.Ct. at

2423 (quotations and alteration omitted). Consequently, an

instructional omission, similar to a Sandstrom error, may be viewed

as harmless only in three rather infrequent scenarios: 1) Where

the infirm instruction pertained to a charge for which the

defendant was acquitted (and not affecting other charges); 2)

Where the omission related to an element of the crime that the

defendant in any case admitted; and 3) Where the jury has

necessarily found certain other predicate facts that are so closely
related to the omitted element that no rational jury could find

those facts without also finding the element.13 See id. at 270-71,

109 S.Ct. at 2423-24.

Employing this standard in the appeal currently before us, we

are confident that the facts of this case fall squarely within the

second category listed above. In his postarrest interview, which

was reproduced for the jury via audiotape, and again on the witness

stand at trial, Rogers emphatically and without reservation

admitted that he knew the item found in his truck was a silencer.

13
In deciding that a constitutional error of the sort
involved here can in some situations be harmless, we take comfort
in our own prior opinions. Though before today we have not
directly addressed whether an instructional omission can
constitute harmless error, our Court has never treated this type
of flaw as reversible per se. See United States v. Miller, 22
F.3d 1075, 1079-80 (11th Cir.1994) (holding that omission was not
plain error); Knight v. Dugger, 863 F.2d 705, 707, 730-31 (11th
Cir.1988) (adopting and appending district court's opinion
finding omission harmless); United States v. Duncan, 855 F.2d
1528, 1531-32 (11th Cir.1988) (failing to find plain error),
cert. denied, 489 U.S. 1029, 109 S.Ct. 1161, 103 L.Ed.2d 220
(1989); Adams v. Wainwright, 764 F.2d 1356, 1363-64 (11th
Cir.1985) (concluding that omission was not reversible), cert.
denied, 474 U.S. 1073, 106 S.Ct. 834, 88 L.Ed.2d 805 (1986).

In United States v. Goetz, 746 F.2d 705, 709 (11th
Cir.1984), this Court held that it cannot be harmless when
the trial court directs a verdict on an element of the crime
charged. We wholeheartedly accept this observation as an
accurate recitation of the law. See Rose, 478 U.S. at 578,
106 S.Ct. at 3106 ("[H]armless-error analysis presumably
would not apply if a court directed a verdict for the
prosecution in a criminal trial by jury.") We do not,
however, equate an instructional omission with a directed
verdict. In contrast to a directed verdict, the failure to
instruct on a particular element does not completely
prohibit the jury from considering evidence relevant to that
issue. See Roy, 81 F.3d at 866-67 (distinguishing between
an omission and a directed verdict on an element).
Accordingly, we do not believe the Court's opinion in Goetz
precludes us from finding the error here to be harmless.
But see United States v. Mentz, 840 F.2d 315, 324 n. 17 (6th
Cir.1988) (refusing to distinguish between an omission and a
directed verdict on an element).
In fact, Rogers is a self-described student of silencers who had

purchased at least one book on the subject. Moreover, Rogers's

attorney during closing argument reiterated and attempted to

downplay the defendant's concession on this point.14 These

unequivocal assertions convince us that this is a case in which the

instructional omission related to an element of the crime that the

defendant in any case admitted.

Given Rogers's open and forthright admission, we may find the

instructional error harmless if we decide that the Government has

"prove[d] beyond a reasonable doubt that the error complained of

did not contribute to the verdict obtained." Chapman, 386 U.S. at

24, 87 S.Ct. at 828. "The inquiry, in other words, is not whether,

in a trial that occurred without the error, a guilty verdict would

surely have been rendered, but whether the guilty verdict actually

rendered in this trial was surely unattributable to the error."

Sullivan, 508 U.S. at 279, 113 S.Ct. at 2081. We have absolutely

no difficulty in concluding that the constitutional error was

14
Rogers's attorney argued to the jury:

They make, [the] Government makes a big deal about
the fact that Mr. Rogers readily is able to identify
and explain what all these items are. They want you to
take a quantum leap then because of that assume that
there is [sic]. Well that's not the case. Mr. Rogers
testified that he has been around firearms since the
'60's—or since he was a child; that he has used
silencers unfortunately in Vietnam where he was
wounded. So, sure, he knows what silencers are. Big
deal. He knows what automatic weapons are. He reads
books. He's a gun enthusiast. He goes to gun shows.
That's not illegal. So what? Yes, he knows what they
are and he honestly said "Yes, I know what they are,"
and expends [sic] what they are. That doesn't mean he
knew about it, he had knowledge of it being in the back
of his pickup truck. Don't jump to that conclusion
like the Government wants you to do.
harmless beyond a reasonable doubt, as we are certain that the

verdict in this case would have been the same absent the defective

instruction. In light of the relevant evidence evaluated by the

jury, including Rogers's repeated admissions, we hold that the

omission was "unimportant in relation to everything else the jury

considered on the issue in question, as revealed in the record."

Yates v. Evatt, 500 U.S. 391, 403, 111 S.Ct. 1884, 1893, 114

L.Ed.2d 432 (1991). It follows that Rogers's convictions for

violating 26 U.S.C. §§ 5861(d), (i), 5871 must be affirmed.15

III. CONCLUSION

Due to the Supreme Court's recent opinion in Staples, we are

constrained to reverse for insufficiency of the evidence Rogers's

conviction for violating 18 U.S.C. § 922( o ). Still, because we

have determined that the constitutional error committed by the

district court when instructing the jury was harmless beyond a

reasonable doubt, we affirm Rogers's convictions for violating 26

U.S.C. §§ 5861(d), (i), 5871.

AFFIRMED in part and REVERSED in part.

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15
This case represents another "concrete example of why it
would be a quixotic exercise of form over substance to deny under
all circumstances the application of harmless error analysis to
an instructional omission on an uncontested issue." Hennessy,
929 F.2d at 515.
* * * * * *

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