United States v. Richie Fontaine

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 11-2602
_____________

UNITED STATES OF AMERICA

v.

RICHIE FONTAINE,
Appellant
_______________

On Appeal from the District Court of the
Virgin Islands
(D.C. No. 09-cr-00050-001)
District Judge: Hon. Curtis V. Gomez
_______________

Argued
May 7, 2012

Before: CHAGARES, JORDAN, and COWEN, Circuit
Judges.

(Filed: August 28, 2012)
_______________
James Bernier, Jr.
Michael Fitzsimmons [ARGUED]
Duensing, Casner, Dollison & Fitzsimmons
5060 Forts Straede
Electra House
St. Thomas, VI 00802

Counsel for Appellant

Nelson L. Jones [ARGUED]
Office of United States Attorney
5500 Veterans Bldg. – Suite 260
Charlotte Amalie, St. Thomas, VI 00802

Counsel for Appellee
_______________

OPINION OF THE COURT
_______________

JORDAN, Circuit Judge.

Richie Fontaine appeals his conviction in the District
Court of the Virgin Islands of the United States for
unauthorized possession of a firearm or “imitation thereof”
during the commission of a crime of violence, in violation of
14 V.I. Code Ann. tit. 14, § 2253(a). Fontaine argues that
§ 2253(a) is void for vagueness and that the government
failed to prove he was not authorized to possess an
“imitation” firearm, which, under his interpretation of
§ 2253(a), it was required to do. For the following reasons,
we will affirm the judgment of conviction.

2
I. Background

A. Facts

On the night of August 14, 2009, Yully Geron and
Julio Martinez were driving in St. Thomas, when Fontaine
and an unidentified companion 1 forced them to stop and get
out of their car. Fontaine was brandishing what appeared to
be a black handgun, while his companion had what appeared
to be a silver handgun. After Geron and Martinez got out of
the car, Fontaine and his accomplice ordered them to lie on
the ground. Fontaine’s accomplice proceeded to search
Martinez and took his wallet, jewelry, and cell phone, while
Fontaine searched Geron and took his wallet and a steel
bracelet. Fontaine then held his gun – or what appeared to be
a gun – to Martinez’s head, and asked him “[w]here is the
money.” (Joint App. at 180.) Making the threat explicit,
Fontaine said, “I am going to count until three. And if you
don’t give me your money, I’m going to kill you.” (Id.) At
some point, Fontaine pulled the trigger, but the gun did not
fire. Fontaine also demanded money from Geron. Martinez
told Fontaine that Fontaine’s accomplice, who had by then
walked across the street, had the money. Fontaine then
departed. Martinez and Geron immediately drove to a police
station and reported the incident. Fontaine was arrested nine
days later. Law enforcement authorities never recovered the
gun (real or imitation) that was in Fontaine’s possession when
he robbed Martinez and Geron.

1
The police never located Fontaine’s accomplice, and
his identity is unknown.

3
 B. Procedural History

On October 1, 2009, the government charged Fontaine
with, among other things, six counts of unauthorized
possession of a firearm or “imitation thereof” during the
commission of a crime of violence, in violation of 14 V.I.
Code Ann. tit. 14, § 2253(a). 2 Because law enforcement
authorities did not recover a gun when they apprehended
Fontaine and so could not prove that he had possessed an
operable firearm, the government’s theory of the case was
that Fontaine possessed an “imitation” firearm when he
committed the crimes for which he was being prosecuted.

2
Section 2253(a) provides:
Whoever, unless otherwise authorized by law,
has, possesses, bears, transports or carries
either, actually or constructively, openly or
concealed any firearm, as defined in Title 23,
section 451(d) of this code, loaded or unloaded,
may be arrested without a warrant, and shall be
sentenced to imprisonment of not less than one
year nor more than five years and shall be fined
not less than $5,000 nor more than $15,000 or
both the fine and imprisonment, except that if
such person shall have been convicted of a
felony in any state, territory, or federal court of
the United States, or if such firearm or an
imitation thereof was had, possessed, borne,
transported or carried by or under the proximate
control of such person during the commission
or attempted commission of a crime of violence,
as defined in subsection (d) hereof, then such
person shall be fined $25,000 and imprisoned

4
 not less than fifteen (15) years nor more than
twenty (20) years. The foregoing applicable
penalties provided for violation of this section
shall be in addition to the penalty provided for
the commission of, or attempt to commit, the
felony or crime of violence.
14 V.I. Code Ann. tit. 14, § 2253(a).
The details of the indictment are as follows. Count
One charged Fontaine with receipt of a firearm by a person
under indictment, in violation of 18 U.S.C. § 922(n). Counts
Two and Eight charged him with first degree robbery, in
violation of 14 V.I. Code Ann. tit. 14, §§ 1861, 1862(2), and
11(a). Counts Four and Ten charged Fontaine with second
degree robbery, in violation of 14 V.I. Code Ann. tit. 14,
§§ 1861 and 1863(1). Counts Six and Twelve charged
Fontaine with first degree assault, in violation of 14 V.I. Code
Ann. tit. 14, §§ 295(3) and 11(a). The statute at issue here
figures in Counts Three, Five, Seven, Nine, Eleven, and
Thirteen, which charged Fontaine with unauthorized
possession of a firearm or “imitation thereof” during the
commission of a crime of violence, in violation of 14 V.I.
Code Ann. tit. 14, §§ 2253(a) and 11(a), in connection with
each of the aforementioned offenses. Count Three charged
Fontaine with violating § 2253 in connection with the first
degree robbery of Geron charged in Count Two. Count Five
charged Fontaine with violating § 2253(a) in connection with
the second degree robbery of Geron charged in Count Four.
Count Seven charged Fontaine with violating § 2253(a) in
connection with the conduct that gave rise to Count Six,
which alleges that Fontaine assaulted Geron with the intent to
commit robbery. Count Nine charges Fontaine with violating

5
 Trial commenced on November 16, 2009. At the close
of the government’s case-in-chief, Fontaine filed a motion for
a judgment of acquittal pursuant to Federal Rule of Criminal
Procedure 29. 3 The District Court initially denied the motion
but then became “concerned that the counts that charge the
possession of a firearm during a crime of violence may have
an elemental proof issue.” (Joint App. at 311.) The Court

§ 2253(a) in connection with the first degree robbery of
Martinez charged in Count Eight. Count Eleven charges
Fontaine with violating § 2253(a) in connection with the
second degree robbery of Martinez charged in Count Ten.
Count Thirteen charges Fontaine with violating § 2253(a) in
connection with the conduct that gave rise to Count Twelve,
which alleges that Fontaine assaulted Martinez with the intent
to commit robbery.
3
Federal Rule of Criminal Procedure 29(a) provides:
After the government closes its evidence or
after the close of all the evidence, the court on
the defendant’s motion must enter a judgment
of acquittal of any offense for which the
evidence is insufficient to sustain a conviction.
The court may on its own consider whether the
evidence is insufficient to sustain a conviction.
If the court denies a motion for a judgment of
acquittal at the close of the government’s
evidence, the defendant may offer evidence
without having reserved the right to do so.
Fed. R. Crim. P. 29(a).

6
was apparently concerned that § 2253(a), as written, required
the government to prove that the defendant did not have
authorization to possess an imitation firearm. (See id. at 320
(“And the way the statute is written, or the way it’s been
determined to be … you have to show that there was no
license to possess [an imitation firearm].”); id. (“If you can’t
get a license to possess a toy gun, say one you got at Kmart
that looks like a real gun, can you really establish that
[element of the offense]?”).) The Court thus instructed the
parties to submit additional briefing on the issue.

Before definitively resolving that issue, the District
Court instructed the jury that, for the government to sustain
its burden of proving that Fontaine was guilty of unauthorized
possession of a firearm or imitation thereof during a crime of
violence,

the government must prove the following
essential elements beyond a reasonable doubt:
[f]irst, that the defendant committed a crime of
violence; [s]econd, that during the commission
of that crime the defendant knowingly
possessed or carried a firearm, or imitation
thereof; [and] [t]hird, that the defendant was not
authorized to possess or carry the firearm or
imitation thereof.

(Id. at 345.) Based on that instruction, the jury found
Fontaine guilty on five of the six counts charging a violation
of § 2253(a). 4

4
The jury returned a verdict of not guilty on Count
Seven.

7
 Thereafter, the Court denied Fontaine’s Rule 29
motion. In denying the motion, it held “that the language [of
§ 2253] is clear enough to put those in the community on
notice [as to] which crimes are penalized, [and] what type of
conduct is prohibited.” (Id. at 474.) The Court also held that,
except to the extent of showing a defendant was a convicted
felon, § 2253(a) did not require the government to show that
Fontaine was not authorized to possess a firearm or “imitation
thereof” in order to prove that he was guilty of “possessing …
an imitation firearm during the commission of a crime of
violence.” 5 V.I. Code Ann. tit. 14, § 2253(a). Fontaine was

5
In reaching that post-trial conclusion, the Court
adopted the reading of § 2253(a) proposed by the government
in its brief. (See Joint App. at 474-75 (stating that “the
reading … the Government outlined in its papers is the one
that the Court will adopt in this case”).) The government
paraphrased § 2253(a) as follows:
Whoever has posses [sic], bears, transports or
carries either, actually or constructively, openly
or concealed any firearm, as defined in Title 23,
section 451(d) of this code, loaded or unloaded,
may be arrested without a warrant.
[The person] shall be sentenced to
imprisonment of not less than one year nor
more than five years and shall be fined not less
than $5,000 nor more than $15,000 or both the
fine and imprisonment.
[Additionally,] if [the] person [was] convicted
of a felony in any state, territory, or federal
court of the United States, or if [a] firearm or
imitation thereof was had, possessed, borne,

8
 transported or carried by or under the proximate
control of [a convicted felon] during the
commission or attempted commission of a
crime of violence, then [the convicted felon]
shall be fined $25,000 and imprisoned not less
than fifteen (15) years nor more than twenty
(20) years.
The foregoing applicable penalties provided for
violation of this section shall be in addition to
the penalty provided for the commission of, or
attempt to commit, the felony or crime of
violence.
(Id. at 107-08.) Thus, while it is not entirely clear, it appears
that, under the District Court’s and the government’s
interpretation of the statute, the government could show a
defendant was a convicted felon but would not otherwise
have to prove beyond a reasonable doubt that a defendant
accused of possessing an imitation firearm in the course of a
violent crime was not authorized to possess a firearm or an
imitation firearm. In other words, to the extent the universe
of persons “not otherwise authorized by law” to carry a
firearm contains non-felons, cf. V.I. Code Ann. tit. 23, § 454
(providing that "[a] firearm may be lawfully had, possessed,
borne, transported or carried in the Virgin Islands by the
following persons, provided a license for such purpose has
been issued by the Commissioner in accordance with the
provisions of this chapter ... ."), it seems the government and
the District Court would not require proof of a lack of
authorization as to those individuals.

9
subsequently sentenced to sixty months’ imprisonment on
Count One; fifteen years’ imprisonment on Counts Three,
Five, Nine, Eleven, and Thirteen; and fifteen years’
imprisonment on Counts Eight, Ten, and Twelve. All counts
were to be served concurrently. This timely appeal followed.

II. Discussion 6

Fontaine appeals his conviction on two grounds:
first, he argues that his conviction under § 2253(a) is
unconstitutional because the statute is unconstitutionally
vague; second, he argues that the government failed to
satisfy its burden of proving that he is guilty of violating
§ 2253(a) because it did not offer any evidence that he is

That interpretation is at odds with the instructions that
the Court gave to the jury. In particular, as noted above, the
Court instructed the jury that the government bore the burden
of proving that “the defendant was not authorized to possess
or carry [a] firearm or imitation thereof.” (Id. at 345.)
Despite any inconsistency, however, there appears to be no
dispute that the government offered evidence that Fontaine
did not have authorization to possess a firearm. (See
Appellees’ Br. at 14 (noting that “evidence was produced that
Fontaine did not possess a firearm license”); Appellant’s Br.
at 9 (asking whether government could demonstrate that
Fontaine did not have authorization to carry an imitation
firearm “by establishing that he did not possess a firearms
license.”).)
6
The District Court had jurisdiction under 18 U.S.C.
§ 3231 and 48 U.S.C. § 1612. We have jurisdiction pursuant
to 28 U.S.C. § 1291.

10
not authorized to possess an imitation firearm. We will
uphold the conviction because § 2253(a) clearly proscribes
Fontaine’s conduct in this case, and because, sensibly read,
it requires only that the government prove that an accused
is not authorized to possess a firearm, not that it prove a
lack of authorization to carry an imitation firearm.

A. The Void-For-Vagueness Challenge 7

As previously noted, supra note 2, Section 2253(a)
provides:

Whoever, unless otherwise authorized by law,
has, possesses, bears, transports or carries
either, actually or constructively, openly or
concealed any firearm, as defined in Title 23,
section 451(d) of this code,[8] loaded or
unloaded, may be arrested without a warrant,
and shall be sentenced to imprisonment of not
less than one year nor more than five years and
shall be fined not less than $5,000 nor more

7
We review “challenges to the constitutionality of a
statute under a de novo standard of review.” United States v.
Fullmer, 584 F.3d 132, 151 (3d Cir. 2009) (citation omitted).
8
V.I. Code Ann. tit. 23, § 451(d) defines a firearm as
“any device by whatever name known, capable of discharging
ammunition by means of gas generated from an explosive
composition, including any air gas or spring gun or any ‘BB’
pistols or ‘BB’ guns that have been adapted or modified to
discharge projectiles as a firearm.”

11
 than $15,000 or both the fine and imprisonment,
except that if such person shall have been
convicted of a felony in any state, territory, or
federal court of the United States, or if such
firearm or an imitation thereof was had,
possessed, borne, transported or carried by or
under the proximate control of such person
during the commission or attempted
commission of a crime of violence, as defined in
subsection (d) hereof, then such person shall be
fined $25,000 and imprisoned not less than
fifteen (15) years nor more than twenty (20)
years. The foregoing applicable penalties
provided for violation of this section shall be in
addition to the penalty provided for the
commission of, or attempt to commit, the felony
or crime of violence.

(emphasis added). And again, as noted, the jury found
Fontaine guilty of possessing a firearm or imitation firearm
“during the commission or attempted commission of a crime
of violence … .” V.I. Code Ann. tit. 14, § 2253(a). Fontaine
contends that § 2253(a) is void for vagueness because, by
penalizing those who possess an imitation firearm during a
crime of violence, it “fails to provide people of ordinary
intelligence a reasonable opportunity to understand what
conduct it prohibits and authorizes,” and “encourages
arbitrary and discriminatory enforcement.” (Appellant’s Br.
at 7, 8.) We disagree.

The void-for-vagueness doctrine reflects the
fundamental principle that, in order to comply with the
requirements of due process, a statute must give fair warning

12
of the conduct that it prohibits. See Bouie v. City of
Columbia, 378 U.S. 347, 351 (1964) (“We have recognized
… that a statute which either forbids or requires the doing of
an act in terms so vague that men of common intelligence
must necessarily guess at its meaning and differ as to its
application violates the first essential of due process of law …
.” (internal quotation marks and citation omitted)). A statute
is unconstitutionally vague under the Due Process Clause if it
“(1) ‘fails to provide people of ordinary intelligence a
reasonable opportunity to understand what conduct it
prohibits’; or (2) ‘authorizes or even encourages arbitrary and
discriminatory enforcement.’” United States v. Stevens, 533
F.3d 218, 249 (3d Cir. 2008) (quoting Hill v. Colorado, 530
U.S. 703, 732 (2000)). “In criminal cases, because vagueness
attacks are based on lack of notice, they may be overcome in
any specific case where reasonable persons would know their
conduct puts [them] at risk of punishment under the statute.”
United States v. Moyer, 674 F.3d 192, 211 (3d Cir. 2012)
(internal quotation marks and citation omitted). Where, as
here, a statute does not involve rights guaranteed by the First
Amendment, 9 we examine whether it is vague “as-applied to
the affected party.” United States v. Fullmer, 584 F.3d 132,
152 (3d Cir. 2009); see also United States v. Mazurie, 419
U.S. 544, 550 (1975) (“It is well established that vagueness
challenges to statutes which do not involve First Amendment

9
In the context of a case arising under the First
Amendment, “we are concerned with the vagueness of the
statute ‘on its face’ because such vagueness may in itself
deter constitutionally protected and socially desirable
conduct.” United States v. Nat’l Dairy Prods. Corp., 372
U.S. 29, 36 (1963) (citation omitted).

13
freedoms must be examined in the light of the facts of the
case at hand.” (citation omitted)).

Fontaine’s void-for-vagueness challenge fails because
§ 2253(a) is abundantly clear as applied to his conduct in this
case. As previously described, the statute prohibits the
possession of an imitation firearm during the commission of a
crime of violence. V.I. Code Ann. tit. 14, § 2253(a).
Although it does not define the term “imitation,” the plain and
ordinary meaning of that term is “something produced as a
copy,” and it shares the same Latin root as the verb “imitate,”
which means “to be or appear like.” 10 Webster’s Collegiate
Dictionary, 10th ed. (2002). Thus, § 2253(a) imposes
punishment on anyone who, while committing or attempting

10
In determining whether a statute is
unconstitutionally vague, we apply the canons of statutory
construction. See, e.g., United States v. Thomas, 932 F.2d
1085, 1090 (5th Cir. 1991) (applying “fundamental” canon of
construction “that, unless otherwise defined, words will be
interpreted as taking their ordinary, contemporary, common
meaning” in assessing vagueness challenge (internal
quotation marks and citation omitted)); Vernon Beigay, Inc. v.
Traxler, 790 F.2d 1088, 1093 (4th Cir. 1986) (same). Thus,
where a statutory term “is not defined in the statute, we must
construe the term ‘in accordance with its ordinary or natural
meaning.’” United States v. Alvarez-Sanchez, 511 U.S. 350,
357 (1994) (quoting FDIC v. Meyer, 510 U.S. 471, 476
(1994)); Williams v. Taylor, 529 U.S. 420, 431 (2000) (“We
give the words of a statute their ordinary, contemporary,
common meaning, absent an indication Congress intended
them to bear some different import.” (internal quotation
marks and citations omitted)).

14
to commit a crime of violence, possesses an object that is
“produced as a copy” of, or “appear[s] like,” a firearm.
During the trial, both Martinez and Geron testified that
Fontaine brandished a black object they recognized as a gun
when he robbed them. In fact, Fontaine held it to Martinez’s
head and pulled the trigger. There is no question that a
person of ordinary intelligence would have fair warning that
an object that appears to be a handgun is an “imitation”
firearm under § 2253(a), and that using it to threaten murder
during a robbery violates the law. Therefore, because a
person of ordinary intelligence would understand that the
statute proscribes Fontaine’s conduct in this case, it is not
unconstitutionally vague. 11

11
We also reject in short order Fontaine’s argument
that § 2253(a) encourages arbitrary and discriminatory
enforcement because “if a thief carried a green, plastic water
pistol while stealing $101 from a victim, section 2253
authorizes his prosecution … .” (Appellant’s Br. at 9.) As
already noted, a statute is unconstitutionally vague if it
“authorize[s] and even encourage[s] arbitrary and
discriminatory enforcement,” City of Chicago v. Morales, 527
U.S. 41, 56 (1999), by failing to “establish minimal
guidelines to govern law enforcement,” Kolender v. Lawson,
461 U.S. 352, 368 (1983) (citation omitted). Section 2253(a)
does provide adequate “guidelines to govern enforcement.” It
expressly allows territorial authorities to prosecute a person
only when that person commits a crime of violence while
possessing an object that is a copy of, or appears to be, a
firearm. The fact that a thief who carries something that
looks like a real firearm while committing a crime of violence
falls within the statute’s sweep does not mean that the statute

15
 B. The Demand for Proof of Unauthorized
Possession of an Imitation Firearm 12

Fontaine also argues that, even if we determine that
§ 2253(a) is not unconstitutionally vague, we should reverse
his conviction because, under that statute, the government had
the burden of proving that he was not authorized to possess an
imitation firearm, and it failed to do so. He is, however,
mistaken in his premise about the meaning of § 2253(a).

“A court’s primary purpose in statutory interpretation
is to discern legislative intent.” Morgan v. Gay, 466 F.3d
276, 277 (3d Cir. 2006). In determining legislative intent,
“[t]he plain meaning of legislation should be conclusive,
except in … rare cases in which the literal application of a
statute will produce a result demonstrably at odds with the
intentions of its drafters.” United States v. Ron Pair Enters.,
Inc., 489 U.S. 235, 242 (1989) (internal quotation marks and

encourages enforcement against people who have something
which, like a green water pistol, is obviously not a firearm.
12
We exercise plenary review of a district court’s
interpretation of a statute. Gibbs v. Cross, 160 F.3d 962, 964
(3d Cir. 1998). Because Fontaine’s appeal requires us to
interpret a territorial law, it is our role to predict how the
Supreme Court of the Virgin Islands would resolve this
interpretive issue. See Edwards v. HOVENSA, LLC, 497 F.3d
355, 361 n.3 (3d Cir. 2007) (stating that, with the
establishment of the Supreme Court of the Virgin Islands,
federal courts are now tasked with “predict[ing] how the
Supreme Court of the Virgin Islands would decide an issue of
territorial law”).

16
citation omitted). In those rare cases, we are obligated “to
construe statutes sensibly and avoid constructions which yield
absurd or unjust results.” United States v. McKie, 112 F.3d
626, 631 (3d Cir. 1997); see also In re Chapman, 166 U.S.
661, 667 (1897) (“[N]othing is better settled than that statutes
should receive a sensible construction, such as will effectuate
the legislative intention, and, if possible, so as to avoid an
unjust or an absurd conclusion.”). Thus, as we explained in
Government of the Virgin Islands v. Berry, 604 F.2d 221 (3d
Cir. 1979), when necessary, “[g]eneral terms should be so
limited in their application as not to lead to … an absurd
consequence,” and we should “presume[] that the legislature
intended exceptions to its language, which would avoid
[absurd]” results. Id. at 225 (quoting United States v. Kirby,
74 U.S. 482, 486-87 (1868)); see, e.g., United States v.
Carson, 455 F.3d 336, 385 n.44 (D.C. Cir. 2006) (reaching
“common sense conclusion” that, despite the language of the
statute, the violent crimes in aid of racketeering statute “[did]
not permit a fine to be levied in lieu of imprisonment or
death”); Chesapeake Ranch Water Co. v. Bd. of Comm’rs of
Calvert Cnty., 401 F.3d 274, 280 (4th Cir. 2005) (declining to
adopt interpretation of federal statute that “once a water
association is granted authority to serve some area—no matter
how small—it could then expand its monopoly indefinitely by
simply developing the physical capability to serve locations
beyond its original franchise area”); Coar v. Kazimir, 990
F.2d 1413, 1423-24 (3d Cir. 1993) (rejecting interpretation of
Employee Retirement Income Security Act that would permit
“dishonest trustees … ‘who repeatedly and indeed blatantly
breached their fiduciary duties to … pension plan’ to evade
their obligations,” and result in “[p]lan members and their
families [having] to watch their pension monies disappear
into the [dishonest trustees’] pockets” (quoting Crawford v.

17
La Boucherie Bernard Ltd., 815 F.2d 117, 121 (D.C. Cir.
1987)). An interpretation is absurd when it “defies
rationality,” Landstar Exp. Am. v. Fed. Maritime Comm’n,
569 F.3d 493, 498 (D.C. Cir. 2009), or renders the statute
“nonsensical and superfluous,” Corley v. United States, 556
U.S. 303, 314 (2009); see John F. Manning, The Absurdity
Doctrine, 116 Harv. L. Rev. 2387, 2390 (2003) (noting that
“standard interpretive doctrine ... defines an ‘absurd result’ as
an outcome so contrary to perceived social values that
Congress could not have ‘intended’ it”).

We hold that § 2253(a) does not require the
government to prove that Fontaine lacked authorization to
carry an imitation firearm, because, first, we do not think the
language of the statute necessarily leads to such a
requirement, and, second, to hold otherwise would require us
to adopt an interpretation of the statute that yields a patently
“absurd … result[].” McKie, 112 F.3d at 631.

As to the first point, although § 2253(a) is not a model
of clarity, it appears that, in enacting the provision, the Virgin
Islands legislature sought, among other things, to prohibit a
person who is not authorized to possess firearms from
possessing even an imitation of a firearm during the
commission of a crime of violence. That much emerges from
the wording of the statute, which limits its application to
those who are not authorized to possess firearms and which
then goes on to provide that whoever fits that qualification
and nevertheless possesses a “firearm” (as that term is defined
in V.I. Code Ann. tit. 23, § 451(d)) or an “imitation thereof”
(i.e., an object that appears to be a firearm) during the
commission of a crime of violence has committed an offense
punishable by a $25,000 fine and a fifteen-year term of

18
imprisonment. The most reasonable interpretation of
§ 2253(a) is not one that requires proof that a perpetrator
lacks authorization to carry an imitation firearm, but rather
one that requires proof of a lack of authorization to carry any
“firearm,” as that term is statutorily defined. More
specifically, the first clause of the statute – which makes it an
offense for a person to, “[u]nless otherwise authorized by law,
ha[ve], possess[], [or] bear[]” a firearm – does not mention
the term “imitation thereof.” V.I. Code Ann. tit. 14,
§ 2253(a). It speaks solely to authorization to carry a firearm.
It is thus the lack of authorization to have a firearm that
stands as a prerequisite to criminal liability for possessing an
imitation firearm in the course of a violent crime. Once that
circumstance is shown, the possession of an imitation firearm,
as much as a real one, in the course of a violent crime
becomes punishable under the statute. 13

13
The Dissent sees things differently. It says that
“there is no grammatical reason to distinguish between the
two objects [firearm and imitation firearm] that might justify
requiring authorization for the possession of one but not the
other.” (Dissent at 4-5.) The view of our dissenting
colleague is that the phrase “unless otherwise authorized” in
the first clause of the statute “describes the statute’s subject,
‘whoever.’” (Id. at 4.) He goes on to say that
“‘[w]however[,]’ is … understood as someone unauthorized.”
(Id.) He then says that the first clause of the statute prohibits
the statute’s subject (“someone unauthorized”) from
possessing a firearm, and that the third clause of the statute
prohibits the statute’s subject from having, possessing, or
bearing, a “firearm or an imitation thereof.” (Id.) Thus, he
concludes, the government must prove that the defendant is
not authorized to possess an imitation firearm in order to

19
prove that the defendant is guilty of possessing an imitation
firearm during the commission of a crime of violence. The
short answer to that reading, however, is that the legislature
“did not write the statute that way.” Russello v. United
States, 464 U.S. 16, 23 (1983) (internal quotation marks
omitted). As noted above, the first clause of the statute
speaks of authorization to have a firearm, and makes no
mention of the term “imitation thereof.” V.I. Code Ann. tit.
14, § 2253(a).
Our dissenting colleague also argues that our
interpretation of § 2253(a) is in tension with United States v.
Xavier, 2 F.3d 1281 (3d Cir. 2003). He says that “in Xavier,
we held that simple possession requires one to knowingly
possess a firearm without authorization to possess and is a
lesser included offense of possession during a crime of
violence,” (Dissent at 5), and that “[f]or the Majority’s
holding to be understood as consistent with Xavier so that
‘each provision [does not] require[] proof of a fact which the
other does not,’ the statute would criminalize simple
possession of an imitation firearm,” (id. at 6 (quoting Xavier,
2 F.3d at 1291)). We cannot agree with that interpretation.
First, as a matter of logic, the outlawing of one thing does not
necessarily require the outlawing of another. It simply does
not follow that outlawing the possession of an imitation
firearm during the course of a violent crime means that mere
possession of an imitation firearm must be illegal. Second, in
Xavier, we suggested that the clause prohibiting possession of
a firearm during the commission of a crime of violence is a
“separate crime[], directed at a separate evil[]” than the clause
prohibiting unlawful possession of a firearm generally. See
Xavier, 2 F.3d at 1292 n.12 (noting that clause in § 2253(a)
which “provid[es] heavier penalties for [a defendant] who

20
 In short, the Virgin Islands legislature intended to
prohibit a person who is not authorized to carry a firearm
from: (1) possessing a firearm; (2) possessing a firearm
during the commission of a crime of violence; and (3)
possessing an imitation firearm during the commission of a
crime of violence. It is entirely understandable that the
legislature would choose to punish the possession of both
actual and imitation firearms in the course of violent crime,
and to do so with reference to the territorial gun laws
requiring authorization to have a firearm. Real guns can of
course cause injury and death, but possessing even a fake gun
during a violent crime can have serious consequences,
including causing the victims to fear for their lives, as
Fontaine’s murderous threats in this case amply demonstrate.

As to the second point, even if a literal reading of the
statute did demand the construction that Fontaine gives
§ 2253(a), we would reject that reading because it leads to an
absurd result. There is no statute or regulation in the Virgin
Islands that requires an individual to obtain authorization or
licensure to possess an imitation firearm, so demanding proof
of compliance with a regulatory regime that does not exist is

uses or carries an unregistered firearm during the commission
… of a crime of violence” is a “separate crime, directed at [a]
separate evil[]” than the crime of unlawful possession of a
firearm (citation and internal quotation marks omitted)).
Thus, we disagree with the Dissent’s argument that, under
Xavier, any interpretation of § 2253(a) that outlaws
possession of an imitation firearm during the commission of a
crime of violence – a crime that is separate and distinct from
possession a firearm generally – must also criminalize
possession of an imitation firearm.

21
to demand an impossibility. That dilemma is not resolved by
leaning on the possibility that such a regime will be put in
place. It is hard to imagine that the Virgin Islands – or any
other state or territory for that matter – would take that step,
and Fontaine does not suggest they will. Put simply, it
“defies rationality” to believe that the Virgin Islands
legislature contemplated a new program for licensing fake
firearms – even realistic ones – and for turning Toys “R” Us
and Kmart into regulated dealers of cap guns. 14 We decline

14
Our dissenting colleague misinterprets, we believe,
our precedent regarding statutory interpretation. He says that
“instead of taking the first – and, in this case what should be
the last – step of analyzing the statute’s plain language, the
Majority reasons that the legislature intended to prohibit only
those persons not authorized to possess firearms from
possessing even an imitation of a firearm during the
commission of a crime of violence.” (Dissent at 1-2 (citation
and internal quotation marks omitted).) While the Dissent
correctly notes that the “first step” “in all statutory
construction cases,” (id. at 1), is “to determine whether the
language at issue has a plain and unambiguous meaning,” (id.
(citation and internal quotation marks omitted)), there is a
reason why we take that step in the first instance: it is to
“discern [the legislature’s] intent,” Morgan, 466 F.3d at 277.
Thus, if we take the first step and determine that the “literal
application of a statute will produce a result obviously at odds
with the intentions of its drafters,” United States v. Ron Pair
Enters., Inc., 489 U.S. 235, 242 (1989), it is our duty to adopt
an interpretation of the statute that does not clearly
contravene the legislature’s intent, if such an interpretation is
reasonably possible. See In re Chapman, 166 U.S. at 667
(“[N]othing is better settled than that statutes should receive a

22
to adopt Fontaine’s reading of § 2253(a), and instead choose
to construe the statute as requiring only proof that the
defendant lacks authorization to possess a firearm, rather than

sensible construction, such as will effectuate the legislative
intention, and, if possible, so as to avoid an unjust or an
absurd conclusion.”).
But, says our colleague, this is not like a “‘rare case’
warranting invocation of the ‘absurd results’ doctrine.”
(Dissent at 7 (quoting Ron Pair Enters., Inc., 489 U.S. at 242-
43).) He observes that “there is no legislative history
contradicting the plain language construction [of § 2253(a)]
or jurisprudential shift away from that construction, [or] any
error in drafting [that can] be characterized as a
‘typographical error’ … .” (Dissent at 8.) Again, we are not
persuaded that the statute requires proof of a lack of
authorization to possess an imitation firearm. But, even if
that were the most natural construction, we have never said
that the doctrine of avoiding absurd results applies only when
“there is no legislative history contradicting the plain
language construction” of a statute, or there is a
“jurisprudential shift away from that construction,” or the
statute contains what can fairly be characterized as a
“typographical error.” (Id.) We have not had to consider
every circumstance in which the literal reading of a statute
may end up being “absurd,” but we believe that a statute that
creates an analytical impossibility would meet that definition
and would require us to consider whether a sensible
alternative reading is possible.

23
requiring proof of a lack of authorization to possess an
imitation firearm. 15

Fontaine relies heavily on our decision in United
States v. Daniel, 518 F.3d 205 (3d Cir. 2008) to support his
statutory interpretation. Specifically, he contends that
because “there is no procedure by which a person may obtain
authorization to possess an imitation firearm[, we] should
reverse [his] Section 2253(a) conviction using the same
reasoning [we] employed when [we] reversed the conviction
for unauthorized possession of ammunition in Daniel.”
(Reply Br. at 4.) But his reliance on Daniel is misplaced.

15
In interpreting the statute in this way, we part
company with the District Court, which, as we have noted,
supra, n.5, seemed to accept when ruling on Fontaine’s post-
trial Rule 29 motion that the ban on possessing imitation
firearms in the course of a violent crime may require proof of
a lack of authorization to possess firearms only when the
offender is a convicted felon. Despite what it said in its Rule
29 decision, however, the District Court did instruct the jury
that one of the elements the government had to prove to
sustain the § 2253(a) charges against Fontaine is that the
defendant was not authorized to carry a firearm or an
imitation thereof. (Joint App. at 345.) Since § 2253(a) does
not require the government to prove that a defendant is not
authorized to possess an imitation firearm, it would have been
preferable for the District Court’s instruction to omit the
“imitation thereof” phrase. However, to the extent that the
District Court’s instruction was erroneous, any such error was
harmless because the evidence introduced at trial showed that
Fontaine did not have authorization to possess a firearm when
he committed the robbery for which he was convicted.

24
 In Daniel, the defendant was convicted of unlawfully
possessing ammunition, in violation of V.I. Code Ann. tit. 14,
§ 2256. Section 2256 provided that “[a]ny person, who
unless authorized by law, possesses, purchases, manufactures,
advertises for sale or uses any firearm ammunition shall be
guilty of a felony.” Daniel, 518 F.3d at 207-08 (quoting V.I.
Code Ann. tit. 14, § 2256). At the time Daniel was decided, 16
Virgin Islands law “[did] not establish a licensing
requirement for ammunition … [n]or [did] it provide any
specific procedure by which possession of ammunition
[could] be licensed or otherwise authorized,” id. at 208, but
the law did “prohibit a dealer in firearms or ammunition from
selling ammunition to anyone without a firearms license,” id.
(citation omitted). The government argued that, because a
firearms dealer could not lawfully sell ammunition to anyone
who did not possess a firearms license, possession of
ammunition could only be lawful if one first obtained a
firearms license. Since the defendant did not have a firearms
license, the government claimed he could not lawfully –
under § 2256 – possess ammunition. Id.

We rejected the government’s argument based on our
determination that there was “no basis for combining the
offense of unlawful possession of ammunition … with the

16
The statute at issue in Daniel, V.I. Code Ann. tit. 14,
§ 2256, has since been amended to more precisely define the
prohibition on unauthorized possession, sale, advertisement
for sale, purchase, use, or manufacture of ammunition.

25
firearm licensing provisions,” because “neither [the
unauthorized possession of ammunition statute], nor any
other statutory provision of which we [were] aware, ma[de]
lawful possession of ammunition contingent on having a
firearms license.” Id. at 209. Similarly, we held that the
provision prohibiting a dealer from selling ammunition to
anyone without a firearms license did not alter our conclusion
because “[w]e [could] envision ways to acquire ammunition
other than from a dealer.” Id. Ultimately, we held that by
showing that the defendant was not licensed to possess a
firearm, the government did not prove beyond a reasonable
doubt that the defendant’s possession of ammunition was
unlawful. Id. at 206. We thus reversed the defendant’s
conviction. Id. at 209.

Daniel is distinguishable from this case in at least three
material ways. First, as a threshold matter, it involved an
interpretative problem that is different than the one at issue
here. In Daniel, the authorization requirement in the statute
related to a regulatory regime that did not then exist (i.e., the
generalized regulation of ammunition), and we held that the
government could not fix that legislative drafting error by
roaming about in the Virgin Islands Code looking for another
regulatory regime (i.e., the regulation of firearms) to make
sense of the “authorized by law” requirement. But Daniel is
inapposite here because there is no need to reach beyond the
applicable statute to understand or justify the authorization
requirement we are called to interpret. The requirement that
one be authorized by law to possess a firearm – which relates
to a well-established regulatory regime under Virgin Islands
law – is in the statute itself. Both the provision limiting the
statute to those who are authorized to possess a firearm and
the prohibition on possession of an imitation firearm in the

26
course of a violent crime appear together in the same
statutory provision that Fontaine was convicted of violating.

Second, the disputed criminal statute in Daniel was
fairly susceptible to only one interpretation. As previously
noted, at the time Daniel was decided, V.I. Code Ann. tit. 14,
§ 2256 provided that “[a]ny person, who unless authorized by
law, possesses … any firearm ammunition shall be guilty of a
felony.” Daniel, 518 F.3d at 207-08. The only plausible
reading of that statute was that the government had to prove
that the accused possessed ammunition without authority to
do so. Here, by contrast, we are faced with a statute that is
susceptible to two different interpretations. Section 2253(a)
says that “[w]hoever, unless otherwise authorized by law, …
possesses … any firearm, as defined in Title 23, section
451(d) of this code, … may be arrested without a warrant”
and shall be fined and imprisoned, but it goes on to say “that
… if such firearm or an imitation thereof was … possessed …
during the commission or attempted commission of a crime of
violence,” the violator is subject to more severe punishment.
V.I. Code Ann. tit. 14, § 2253(a). It is possible to read that
language, as Fontaine does, as requiring the government to
prove that someone accused of possessing an imitation
firearm during a crime of violence is not “authorized by law”
to do so. But the more reasonable textual interpretation, as
already discussed, is that the authorization requirement refers
to authorization to possess a firearm, not an imitation firearm.

Third, even though, at the time Daniel was decided, no
Virgin Islands law required people to obtain authorization to
possess ammunition, we did not face the same kind of absurd
outcome Fontaine argues for here. The only available
interpretation of the statute at issue in Daniel, § 2256, was not

27
necessarily nonsensical because, even though Virgin Islands
law did not then directly regulate the possession of
ammunition, it did regulate the sale of it by firearms dealers.
Thus, it did not “def[y] rationality,” Landstar, 569 F.3d at
498, to allow that the legislature might move to directly
regulate possession. Indeed, when the Virgin Islands
legislature enacted § 2256, there were already numerous state
and federal laws governing the possession of ammunition.
See, e.g., 18 U.S.C. § 922(d), (g) (1968) (prohibiting the
possession of ammunition by persons who, among other
things, are (1) under indictment for a crime punishable by
more than 1 year of imprisonment, (2) unlawful users of a
controlled substance, or (3) illegal aliens); see generally Ill.
Rev. Stat. ch. 38, § 24-3.1 (regulating possession of
ammunition); Mass. Gen. Laws ch. 140, § 129C(1) (1973)
(same). By contrast, Fontaine has pointed to no law that
requires licensure of an imitation firearm; we are not aware of
any such law; and we are hard-pressed to imagine that any is
in the offing.

We thus reject Fontaine’s challenge to his conviction
based on the assertion that the government failed to prove that
he was not authorized to possess an imitation firearm. See
Dowd v. United Steelworkers of Am., Local No. 286, 253 F.3d
1093, 1099 (8th Cir. 2001) (“When the meaning of a statute is
questionable, it should be given a sensible construction and
construed to effectuate the underlying purposes of the law.”
(quoting United States v. McAllister, 225 F.3d 982, 986 (8th
Cir. 2000))); United States v. Alaniz, 235 F.3d 386, 389 (8th
Cir. 2000) (acknowledging “duty to give an ambiguous
statute a sensible construction”); Burns v. Stone Forest Indus.,
Inc., 147 F.3d 1182, 1185 (9th Cir. 1998) (“We should not
choose a construction of ambiguous statutory language that

28
would attribute irrationality to Congress, where the words
also lend themselves to a sensible construction.”).

III. Conclusion

In sum, we hold that § 2253(a) is not void for
vagueness because it puts a person of ordinary intelligence on
notice that it prohibits Fontaine’s conduct in this case. In
addition, we hold that, to prove a defendant guilty of
possessing an imitation firearm “during the commission or
attempted commission of a crime of violence,” V.I. Code
Ann. tit. 14, § 2253(a), the government must show that the
defendant lacks authorization to possess a firearm but need
not show that the defendant lacks authorization to possess an
imitation firearm. Accordingly, we will affirm Fontaine’s
conviction and sentence.

29
United States v. Fontaine, No. 11-2602, dissenting in part
and in the judgment.

COWEN, Circuit Judge.

I join the majority opinion regarding whether 14 V.I.C.
§ 2253(a) is unconstitutionally vague. (Maj. Op. 11-15.) I
respectfully dissent, however, with regard to the Majority’s
disposition of the other issues raised by the defendant. The
unambiguous plain language of 14 V.I.C. § 2253(a) requires
the government to prove beyond a reasonable doubt that the
defendant was unauthorized to possess an imitation firearm
and evidence that the defendant did not have a license to
possess a firearm did not meet the government’s burden of
proof on this issue. As a result, I would reverse the judgment
of the District Court.

(a) Authorization to Possess an Imitation Firearm

“The first step” “in all statutory construction cases” is
“‘to determine whether the language at issue has a plain and
unambiguous meaning.’” Barnhart v. Sigmon Coal Co., Inc.,
534 U.S. 438, 450 (2002) (quoting Robinson v. Shell Oil Co.,
519 U.S. 337, 340 (1997)). “‘When the words of a statute are
unambiguous, then, this first canon is also the last: “judicial
inquiry is complete.”’” Barnhardt, 534 U.S. at 462 (quoting
Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-254
(1992) (quoting Rubin v. United States, 449 U.S. 424, 430
(1981)) (citations omitted)).

The language of 14 V.I.C. § 2253(a) is unambiguous
and susceptible to only one interpretation. But instead of
taking the first—and, in this case what should be the last—
step of analyzing the statute’s plain language, the Majority
reasons that the legislature intended to prohibit only those
persons “not authorized to possess firearms from possessing
even an imitation of a firearm during the commission of a
crime of violence.” (Maj. Op. 18.) Notably, there is no
evidence of this legislative intent on which the Majority’s
conclusion is premised; indeed, it is as likely that that the
legislature intended to criminalize brandishing an imitation
firearm during the commission of a violence crime without
reference to whether an individual is authorized to possess an
actual firearm. Nevertheless, in an effort to realize this
purported legislative intent, and to avoid what they
characterize as an “absurd result” at odds with it, the Majority
reads the statute as requiring proof of “lack of authorization
to have a firearm . . . [for] criminal liability for possessing an
imitation firearm in the course of a violent crime.” (Maj. Op.
19.) The Majority attempts to ground their conclusion in the
statutory language, stating that the unauthorization element
appears in the first clause of the statute and the term
“imitation thereof” does not. Therefore, according to the
Majority, the statute can be interpreted as requiring proof that
someone is unauthorized to possess a firearm when
possessing an imitation during the commission of a violent
crime.

The Majority’s construction ignores the plain language
grammatical structure of the statute. The statute does not
state “Whoever, unless otherwise authorized by law to have,
possess, bear . . . a firearm, has possesses, bears . . . .” Had
it so stated, the Majority’s reading might be a legitimate plain
language construction. In drafting the statute, however, the
legislature chose not to link the authorization requirement

2
with possession of a firearm specifically. Title 14, Section
2253(a) of the Virgin Islands Code, provides as follows:

Whoever, unless otherwise
authorized by law, has,
possesses, bears, transports or
carries either, actually or
constructively, openly or
concealed any firearm, as
defined in Title 23, section 451(d)
of this code, loaded or unloaded,
may be arrested without a
warrant, and shall be sentenced to
imprisonment of not less than one
year nor more than five years and
shall be fined not less than $5,000
nor more than $15,000 or both the
fine and imprisonment, except
that if such person shall have
been convicted of a felony in any
state, territory, or federal court of
the United States, or if such
firearm or an imitation thereof
was had, possessed, borne,
transported or carried by or under
the proximate control of such
person during the commission or
attempted commission of a crime
of violence, as defined in
subsection (d) hereof, then such
person shall be fined $25,000 and
imprisoned not less than fifteen
(15) years nor more than twenty

3
 (20) years. The foregoing
applicable penalties provided for
violation of this section shall be in
addition to the penalty provided
for the commission of, or attempt
to commit, the felony or crime of
violence.

14 V.I.C. § 2253(a) (emphasis added). “Unless otherwise
authorized” is a modifying phrase set apart by commas and
does not refer to that which must be authorized. Under a
plain language construction, that which must be authorized is
understood in the context of the conduct targeted by the
particular clause. In the first clause, the conduct that must be
unauthorized for criminal liability is possession of a firearm;
in the third clause, the relevant clause here, the conduct is
possession of a firearm or imitation thereof.

“Unless otherwise authorized” describes the statute’s
subject, “whoever.” The word “unless” denotes an exception
to the subject contemplated by “whoever.” “Whoever” is
therefore understood as someone unauthorized. The third
clause refers to “such person,” the statute’s subject, or
“whoever.” Substituting the understanding of “whoever” as
someone unauthorized, the relevant statutory clause would
read “or if such firearm or an imitation thereof was had,
possessed, borne, transported or carried by or under the
proximate control of someone unauthorized [to
have/possess/bear it] during the commission or attempted
commission of a crime of violence . . . .” Unlike in the first
clause, which is limited to the possession of firearms, in the
third clause, the objects of “ha[ve], possess[], [bear] . . . ”are
a “firearm and an imitation thereof.” And there is no

4
grammatical reason to distinguish between the two objects
that might justify requiring authorization for the possession of
one but not the other. Because the requirement that the
government prove the individual was unauthorized attaches to
the subject of the statute and is in reference to the targeted
conduct in the particular subsection, the plain language
statutory construction unambiguously requires the
government to show that the person was unauthorized to
possess a firearm or imitation thereof. Accord United States
v. McKie, 112 F.3d 626, 629 (3d Cir. 1997) (it is the
government’s burden to prove that defendants were
unauthorized to carry or possess); Government of Virgin
Islands v. Bedford, 671 F.2d 758, 763 n. 7 (3d Cir.1982)
(approving a jury instruction that § 2253(a) is violated if, “the
defendant possessed the firearm; ... he was not licensed
[authorized] to possess it; and ... it meets the definition ... of a
firearm.”).

Moreover, our prior analysis of the language of 14
V.I.C. § 2253(a), albeit in the context of a Double Jeopardy
challenge, is instructive. United States v. Xavier, 2 F.3d 1281,
1290-91 (3d Cir. 1993). In Xavier, we held that simple
possession requires one to knowingly possess a firearm
without authorization to possess and is a lesser included
offense of possession during a crime of violence; the Double
Jeopardy Clause, therefore, prevented imposing separate
sentences for possession and possession during the
commission of a violent crime. We stated that “[c]onviction
for possession during a crime of violence under § 2253(a)
requires proof of three elements: one must 1) knowingly
possess a firearm 2) without authorization 3) during a crime
of violence.” Xavier, 2 F.3d at 1291. The statute was meant
to mandate minimum and maximum sentences for simple

5
unauthorized possession, “except that if” certain additional
circumstances were present, a greater sentence is mandated.
Xavier, 2 F.3d at 1291. In reaching this conclusion, we did
not parse the phrase “or if such firearm or an imitation thereof
was had . . .,” and, as already stated, there is no structural or
grammatical reason to distinguish within it. In accord with
Xavier, when an imitation firearm is at issue, the statute
would require that “one must 1) knowingly possess [an
imitation] firearm 2) without authorization 3) during a crime
of violence.”

As we decided in Xavier, the plain language of 14
V.I.C. § 2253(a) establishes that possession during a crime of
violence contains elements that simple possession does not
contain, but the reverse is not true. All of the elements for the
crime of simple possession are included in possession during
a crime of violence. For the Majority’s holding to be
understood as consistent with Xavier so that “‘each provision
[does not] require[] proof of a fact which the other does not,’”
Id. at 1291 (quoting with alterations Blockberger v. United
States, 284 U.S. 299, 304 (1932)), the statute would
criminalize simple possession of an imitation firearm. Like
the possession of a firearm in Xavier, possession of an
imitation firearm would be the lesser included offense of
possession during a violent crime. Considering that the term
“imitation firearm” is without limitation, the Majority’s
holding, when viewed in conjunction with our precedent,
criminalizes the simple possession of a toy pistol—a truly
“absurd result.” There is nothing that would suggest that the
Virgin Islands legislature intended the statute sweep so
broadly. And, in response to the defendant’s Constitutional
vagueness challenge, the government argues the opposite. Of
course, “the outlawing of one thing does not necessarily

6
require the outlawing of another” (Maj. Op. n. 13), but an
interpretation of the Majority’s holding that criminalizes only
the type of conduct at issue in this case—and excludes
criminalization of simple possession of an imitation firearm—
undermines our holding in Xavier by imposing a construction
in which “each provision requires proof of a fact which the
other does not.” Criminalizing behavior and prescribing
punishments are strictly within the purview of the legislature.
Here, the Majority usurps that role and simultaneously
undermines our precedent.

Because I conclude that the statutory language is plain
and unambiguous, I do not agree with the Majority that this
case requires employing alternate tools of statutory
interpretation. United States v. Ron Pair Enters., Inc., 489
U.S. 235, 242-43 (1989). But, even conceding that 14 V.I.C.
§ 2253(a)’s plain language construction leads to an unusual
result of requiring the government to prove an element that
might be impossible to prove, I do not agree that this is a
“rare case” warranting invocation of the “absurd results”
doctrine. Ron Pair Enters., Inc., 489 U.S. at 242-43 (“The
plain meaning of legislation should be conclusive, except in
the ‘rare cases [in which] the literal application of a statute
will produce a result demonstrably at odds with the intentions
of its drafters.’”) (alteration in original) (emphasis added).

The cases from our Circuit cited by the Majority
illustrate the type of “rare case” in which we have
disregarded the unambiguous plain language construction of
the statute. For example, in Morgan v. Gay, 466 F.3d 276,
277 (3d Cir. 2006), we concluded that the statute contained a
typographical error; instead of “not less than 7 days” the
statute should have stated “not more than 7 days” to appeal a

7
remand order. In so limiting the time for an appeal, we relied
on the fact that the plain language reading of the statute was
directly contrary to the legislative history. And in
Government of the Virgin Islands v. Berry, 604 F.2d 221,
225-26 (3d Cir. 1979), we limited liability under a kidnapping
statute by requiring that violations of the statute be analyzed
with reference to four factors because potential liability was
limitless under the literal meaning of the statutory language.
We stated that this was consistent with “the modern approach
[] to construe the kidnapping statutes so as ‘to prevent gross
distortion of lesser crimes into a much more serious crime by
excess of prosecutorial zeal’” and warranted in light of the
mandatory life sentence and the absence of legislative history
to the contrary. 1

Neither of these cases is analogous to the result of a
plain language construction of 14 V.I.C. § 2253(a). Here,
there is no legislative history contradicting the plain language
construction or jurisprudential shift away from that
construction, any error in drafting cannot be characterized as
a “typographical error,” and the interpretation urged by the
Majority expands the scope of the conduct targeted by the

1
The additional case from our Circuit cited by the
majority is Coar v. Kazimir, 990 F.2d 1413, 1419-20 (3d Cir.
1993). Coar is inapplicable in resolving the issues before us
because it did not address whether an unambiguous plain
language construction of the statute should be abandoned. We
reconciled one section of ERISA with another seemingly
inconsistent section by finding a reading “consistent with the
purposes of the entire statute considered as a whole.”
(citations omitted).

8
statute and enhances the sentence, as opposed to limiting it.
Indeed, in United States v. Daniel, 518 F.3d 205, 208 (3d Cir.
2008), the precise result of 14 V.I.C. § 2253(a), which the
Majority believes “creates an analytical impossibility,” (Maj.
Op. n. 14) was not so “absurd” as to require us to read the
unauthorized element out of the statute. Further, each of the
results of the Majority’s holding highlighted above is as
“absurd” as requiring the government to prove an element of
a sentence enhancement statute. Under the guise of avoiding
an “absurd result” the Majority invites others by ignoring the
statute’s sentence enhancement purpose, criminalizing
behavior not addressed by the Virgin Islands Code, and
violating basic canons of statutory construction.

(b) Sufficient Proof of Unauthorization

In concluding that the government was required to
prove that the defendant was unauthorized to possess an
imitation firearm, I next address whether the government met
its burden. Because I conclude that evidence that the
defendant was unauthorized to possess a firearm is not
sufficient, I would reverse the District Court’s judgment.

We have interpreted “unless authorized by law” to
mean “possession without a license.” Daniel, 518 F.3d at 208;
McKie, 112 F.3d at 630. Here, however, similar to in Daniel,
Virgin Islands law does not provide for the licensing of
imitation firearms. Applying the same reasoning used in
Daniel, we cannot “construe the clause ‘unless otherwise
authorized by law’ . . . as meaning ‘unless possessing a
license to possess [an imitation firearm].’” Daniel, 518 F.3d
at 208. The question is then whether evidence that the
defendant was unlicensed to possess a firearm is evidence,

9
beyond a reasonable doubt, that he was unauthorized to
possess an imitation firearm.

In Daniel, the defendant was convicted of
unauthorized possession of ammunition. Virgin Islands law
did not provide for any procedure for licensing ammunition
possession. The government argued that proof that the
defendant did not have a firearms license was proof that the
ammunition possession was unauthorized because dealers
were prohibited from selling ammunition to anyone without a
firearms license. Daniel 518 F.3d at 208. Although
acknowledging that ammunition is generally possessed for
use in a firearm, we were “loath to construe these provisions
to create an offense relating to unlawful possession of
ammunition” because no statutory provision made “lawful
possession of ammunition contingent on having a firearms
license.” Id. at 208-209. Further, the provision prohibiting
dealers from selling ammunition to persons without firearms
licenses restricted only the conduct of dealers, not an
individual’s possession. Id.

In accord with Daniel, absence of a license to possess
a firearm cannot be proof beyond a reasonable doubt that the
defendant was unauthorized to possess an imitation firearm.
In this case, there is nothing that regulates an imitation
firearm at all, let alone with regard to an individual’s
possession. And nothing links authorization to possess a
firearm to authorization to possess an imitation. The breadth
of the term “imitation,” which is undefined in the statute,
makes drawing a link nearly impossible. Since the only proof
the government offers that the defendant was unauthorized to
possess the imitation is the absence of a license to possess a

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firearm, the government has failed to meet its burden of
proof.

Because I believe that the government failed to prove a
requisite element of 14 V.I.C. § 2253(a), I respectfully dissent
from the Majority’s judgment insofar as it holds otherwise.
Accordingly, I would reverse the District Court’s July 22,
2011 judgment.

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