Myers v. United States
Myers v. United States
Opinion of the Court
Michael Myers appeals his conviction for unlawful possession of a firearm by a convicted felon (“FIP”), in violation of D.C.Code § 22-4503(a)(2) (2009). He contends, and the government concedes, that the trial judge erred in responding to the jury’s request for clarification of the mens rea element of the offense. We conclude that the error was preserved and not harmless, and that appellant therefore is
I.
Appellant was arrested in 2009 at a bus stop in Northeast Washington, D.C., when police found him carrying a garbage bag containing a shotgun that had been disassembled into three parts: a stock and receiver, a barrel, and a barrel nut. He was charged with FIP, which prohibits the knowing possession of a firearm by a felon. Appellant was convicted of a felony in 1993.
At trial, appellant’s defense was that he did not knowingly possess a “firearm” within the meaning of the FIP statute. For purposes of that statute, the term “firearm” is defined to mean “any weapon, regardless of operability, which will, or is designed or redesigned, made or remade, readily converted, restored, or repaired, or is intended to, expel a projectile or projectiles by the action of an explosive.”
Acknowledging the conceptual validity of appellant’s denial of knowledge as a defense, the judge instructed the jury in pertinent part that
The essential elements of this offense [FIP], each of which the Government must prove beyond a reasonable doubt, are: One, that the Defendant possessed a firearm; two, that he did so knowingly and intentionally, this means consciously, voluntarily, and on purpose, not mistakenly, accidentally or inadvertently. And three, that, at the time the Defendant possessed the firearm, the Defendant had been convicted of a felony. The term “firearm” means a weapon, regardless of operability, which will or is designed or is intended, if assembled, to expel a bullet or other projectile by the action of an explosive.... The Defendant maintains that he did not know that the parts in the bag could be assembled or could form a complete firearm.
After deliberating for about an hour, the jury sent a note seeking clarification of the mens rea requirement. The note read:
We would like further explanation on elements 1 + 2 of Count 1 [FIP]. If the defendant was not aware at the time of arrest that the components he was carrying could be assembled to form a complete firearm,* then are the elements 1 and 2 satisfied?
* we are assuming that he did know that he had some firearm components
In the ensuing discussion with the judge, the prosecutor agreed with appellant that he would not be guilty if he was “unaware that the parts in the bag could make a firearm.” Appellant suggested that the judge respond to the note by telling the jury “that, if you do not believe that the Government has proved beyond a reasonable doubt that [appellant] knew the parts he had could form a complete firearm, then element number two is not satisfied.” The prosecutor agreed that this instruction would be “appropriate” and proposed that the judge “use the word firearm” with the definition the judge previously had given
At this point, the judge expressed misgivings about using the imprecise word “complete” to modify the word “firearm.” Although the judge had used the term “complete firearm” in her initial instructions as a shorthand synonym for the definition of “firearm,” she was concerned that the word “complete” could be misleading, as it might suggest the weapon had to be operable. Noting that this was no problem because operability was not in issue in this case, appellant rejoined that, “It does have to be a complete firearm. Otherwise, we’re talking about ... suggesting to the jury that it’s a strict liability offense to possess ... component parts of a firearm .... [I]t can be something that is made or remade, designed, or redesigned into a complete firearm but it still has to be a complete firearm.”
The judge disagreed. Up until this point, it appears the disagreement was merely semantic, but then the judge cited this court’s decision in Rouse v. United States
Appellant argued that Rouse did not mean a defendant could be convicted of CPWL (or other firearms offenses, including FIP) based on his knowing possession of a part of the weapon such as the frame if he did not know that “all the components are there, that can actually form a complete firearm.” Unpersuaded, the judge stated that she would not use the word “complete” to modify “firearm” in re-in-strueting the jury. Instead, the judge said, she would define “firearm” for the jury “according to the language in our Red Book instructions defining a firearm and say to them that, if they do not find beyond a reasonable doubt that the Defendant knew that the components he was carrying could be assembled to form a firearm ... and then I will define it, then you must find the Defendant not guilty....”
The judge proceeded to re-instruct the jury as follows:
If you do not find beyond a reasonable doubt that the Defendant knew that the components he was carrying could be assembled to form a firearm, then the Government has not satisfied its burden as to elements one and two of count one [FIP]. The term firearm means any weapon regardless of operability which will or is designed or redesigned, made or remade, readily converted, restored or repaired or is intended to expel a projectile or projectiles by the action of an explosive, the frame or receiver of any such device, or any firearm muffler or silencer. Antique firearms, destructive devices, signaling devices, and ...*1151 equipment that fire exploding rivets, studs and the like, are not firearms for purposes of District of Columbia law. (Emphasis added.)
The definition of “firearm” in this supplementary instruction (which deviated from the definition in the original instruction) is given in the comment to the Red Book instruction on FIP as “the complete definition of firearm.”
Approximately two hours after being re-instructed, the jury returned a verdict, finding appellant guilty of FIP.
II.
It is undisputed that the trial judge’s response to the jury note was erroneous. In essence, the jury asked what appellant had to know to be guilty of FIP: Was it enough that he knowingly possessed certain firearm parts, or did he have to know that the parts in his possession could be assembled to make what the judge had defined as a firearm (what the judge initially had referred to as a “complete” firearm as opposed to a mere component)? In order to fulfill its obligation to clear up the jury’s confusion with “concrete accuracy,”
The government argues that appellant failed to preserve his objection to this re-instruction, even though he objected to the judge’s decision not to include the word “complete” to modify “firearm,” because he failed to object specifically to the judge’s use of the inapplicable definition of what constitutes a “firearm.” We disagree. Appellant specifically asked the judge to instruct the jury that, in order to find him guilty, it would have to find that he knew the parts in his possession could be assembled to form a “complete” firearm — meaning, he explained, a firearm as the judge initially (and correctly) had defined it for the jury. Plus appellant specifically objected when the judge relied on Rouse for the proposition that his knowing possession of the frame or other component parts of a firearm would suffice to convict him without more. Appellant clearly objected to any instruction that equated knowing possession of a frame or receiver (or other part) with knowing possession of a firearm. While appellant did not make every argument he could have made — he evidently was unaware of the error in the Red Book — he “fairly ap
We cannot find the error to have been harmless, even under the less stringent test applicable to non-constitutional error.
For the foregoing reasons, we hereby vacate appellant’s conviction and remand his case for a new trial.
. D.C.Code § 22-4501(2A) (2009).
. The police were able, in fact, to reassemble a shotgun from the three component parts in appellant's bag, and they successfully test-fired the repaired weapon.
. 391 A.2d 790 (D.C. 1978).
.Id. at 791. It should be noted that Rouse did not involve any question as to the definition of a ‘'firearm.”
. Criminal Jury Instructions for the District of Columbia § 6.511 (5th ed. 2009).
. The Red Book does not cite the Code section where the definition is found.
. Preacher v. United States, 934 A.2d 363, 368 (D.C. 2007) (quoting Alcindore v. United States, 818 A.2d 152, 155 (D.C. 2003)).
. In re M.C., 8 A.3d 1215, 1223 (D.C. 2010) (quoting Hunter v. United States, 606 A.2d 139, 144 (D.C. 1992) (internal brackets omitted)).
. See Kotteakos v. United States, 328 U.S. 750, 765, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946) (holding that non-constitutional error requires' reversal unless appellate court can conclude, with “fair assurance,” that the error did not have "a substantial and injurious effect or influence on the jury’s verdict”). If the error was constitutional, because the re-instruction misdescribed the mens rea element of the offense and thereby permitted the jury to find appellant guilty without proof of each element beyond a reasonable doubt, reversal is required unless the error was harmless beyond a reasonable doubt. See Tyree v. United States, 942 A.2d 629, 638-39 (D.C. 2008).
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