United States v. Smith

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
December 20, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

UNITED STATES OF AM ERICA,

Plaintiff-Appellee,
v. No. 05-3474
D O U G LAS SM ITH ,

Defendant-Appellant.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF KANSAS
(D.C. NO . 04-20090-01-CM )

Submitted on the briefs: *

Robin D. Fow ler of Bath & Edmonds, P.A., Overland Park, Kansas, for
Defendant-Appellant.

Eric F. M elgren, United States Attorney, and Tristram W . Hunt, Assistant United
States Attorney, Kansas City, Kansas, for Plaintiff-A ppellee.

Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.

M cCO NNELL, Circuit Judge.

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fe. R. App. P. 34(a)(2); 10 th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
 A jury convicted Douglas Smith on June 17, 2005, of four counts of

manufacturing methamphetamine with intent to distribute, maintaining a drug-

involved premises, and possessing firearms during and in relation to a drug-

trafficking crime. On December 5, 2005, the trial court sentenced M r. Smith to

123 months in prison. M r. Smith appeals his conviction as to one

count— possession of firearms during the crime— on the ground that the

government failed to present sufficient evidence for the jury to conclude that the

five weapons charged in the indictment were in fact “firearms” under 18 U.S.C. §

921(a)(3). W e reject M r. Smith’s challenge and AFFIRM the court below.

18 U.S.C. § 921(a)(3) defines a firearm as follows:

The term “firearm” means (A) any weapon (including a starter gun) which
will or is designed to or may readily be converted to expel a projectile by
the action of an explosive; (B) the frame or receiver of any such weapon;
(C) any firearm muffler or firearm silencer; or (D) any destructive device.
Such term does not include an antique firearm.

Id. Although M r. Smith argues that the government did not prove the weapons

recovered from his home fell within this statutory definition, he stipulated before

trial that the weapons did indeed satisfy the statute. The government did not,

however, read this stipulation to the jury during the evidentiary portion of the

trial. Instead, M r. Smith’s stipulation formed the basis for jury instruction thirty-

three, which advised jurors that the five weapons found in the defendant’s home

“were all test-fired by government agents, and all the firearms functioned as

designed.” R. vol. 1, doc. 54 at 39. M r. Smith asks this Court to hold that as a

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result of the prosecution’s failure to present the stipulation directly to the jury,

there was insufficient evidence to support a guilty verdict.

W e begin with a statement of the applicable law. It is well established that

“by stipulating to elemental facts, a defendant waives his right to a jury trial on

that element.” United States v. M ason, 85 F.3d 471, 472 (10th Cir. 1996). See

also United States v. M eade, 175 F.3d 215, 223 (1st Cir. 1999); United States v.

M elina, 101 F.3d 567, 572 (8th Cir. 1996); United States v. Keck, 773 F.2d 759,

769-70 (7th Cir. 1985); United States v. Houston, 547 F.2d 104, 107 (9th Cir.

1976) (per curiam). By virtue of his stipulation, M r. Smith waived his right to a

jury finding that the w eapons recovered from his home satisfied the statutory

definition.

M r. Smith contends that despite his waiver, he retained the right to require

the government to present his stipulation to the jury before the close of evidence.

But the very nature of a defendant’s waiver is that it frees the government from

the obligation to present any evidence regarding the element in question.

Certainly the government must inform the jury of the defendant’s stipulation at

some point, in order to provide jurors with the information they need to convict

under the statute. Yet the stipulation is not itself evidence; it is an admission— a

waiver of the right to demand evidence. Therefore, there is no reason that a

stipulation must be presented to the jury during the evidentiary portion of the

trial. W e hold that the government is at liberty to inform jurors of the stipulation

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via jury instruction, so long as the instruction is clear and accurately reports the

facts admitted by the defendant.

Other courts to consider the issue have reached this same conclusion. In

United States v. Harrison, 204 F.3d 236, 242 (D.C. Cir. 2000), the District of

Columbia Circuit held that “nothing in either law or logic compels us to reverse a

conviction when the defendant enters into a stipulation on an element and then

seeks a windfall from the government’s failure to formally read the stipulation to

the jury.” The Fifth Circuit, United States v. Branch, 46 F.3d 440, 442 (5th Cir.

1995), and the Eleventh Circuit, United States v. Hardin, 139 F.3d 813, 816 (11th

Cir. 1998), have similarly held that a stipulation waives the defendant’s right to

put the government to proof on the stipulated element, including a reading of the

stipulation itself.

M r. Smith points this Court to the Ninth Circuit’s decision in United States

v. James, 987 F.2d 648 (9th Cir. 1993), in which the court reversed Defendant

James’s conviction due to insufficient evidence after the government failed to

present the defendant’s stipulation of a critical element to the jury. Id. at 652. In

James, however, the government not only declined to read the defendant’s

stipulation into evidence, it failed to inform the jury of the stipulation at all.

Specifically, the jury instructions made no mention of the defendant’s waiver. In

light of this omission, the Ninth Circuit concluded that “the government has failed

to present any evidence on an essential element of the crime.” Id. That is not the

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case here. Jury instruction thirty-three explicitly informed jurors that they were

entitled to assume the status of M r. Smith’s weapons as properly functioning

firearms to be “facts . . . proven beyond a reasonable doubt.” R. vol. 1, doc. 54 at

39.

Even had the government not informed the jury of M r. Smith’s stipulation,

we conclude that the evidence introduced at trial was sufficient for a reasonable

juror to infer that the weapons recovered in the Smith residence were firearms

within the meaning of the statute. Officer A.J. Schmidt of the O ttawa, Kansas,

police department testified that the weapons officers found— a .22 M agnum, tw o

12-gauge shotguns, a 20-gauge shotgun, and a 30-30 M arlin rifle— were all fully

intact, loaded, and ready to be fired. The M arlin rifle had a round in the chamber.

M r. Smith’s daughter testified that she had observed M r. Smith fire the shotguns

and watched her mother and father both fire the .22 handgun at “New Year’s,”

presumably referring to New Year’s Day 2004, two weeks before M r. Smith’s

arrest. This evidence is sufficient to support a reasonable juror’s conclusion that

the weapons w ere “designed to or may readily be converted to expel a projectile

by the action of an explosive.” 18 U.S.C. § 921(a)(3)(A). W e need not explore

this basis for affirmance in great depth, however, as M r. Smith’s stipulation on

this issue was appropriately presented to the jury.

The judgment of the U nited States District Court for the D istrict of K ansas

is AFFIRM ED.

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