In a recent decision, the First Circuit upheld a jury conviction in Maine District Court (Woodcock, J.) for one count of possessing an unregistered shortbarreled shotgun in violation of the National Firearms Act. 26 U.S.C. §§ 5861(d), 5871. U.S. v. Shaw, Docket 09-2669 [http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=09-2669P.01A]. What makes this interesting is that the opinion was by Judge Howard; Judge Boudin concurred, and Judge Lipez dissented. Their remarks about bucolic gun totin' Maine are also worth noting.
Since this case is all about the facts, here they are as recited in Judge Howard's decision:
"On a Sunday afternoon in November 2008, state law enforcement officers received a complaint about gunshots being fired in a wooded residential area in Springfield, Maine. Upon responding, State Trooper Barry Meserve was informed by a resident that the suspected vehicle had just sped away from the scene; Trooper Meserve pursued the departing taillights. The vehicle took flight down the dirt road, and a chase ensued. With considerable effort, including the aid of other officers and two road blocks, the police finally stopped the vehicle. Still not dissuaded, the driver rammed his sedan into a police vehicle parked behind him. Two officers rapidly approached the sedan on foot with weapons drawn, demanding that the driver show his hands. Maine Warden Service Sergeant Ronald Dunham heard 'the action of a gun' like a 'pump-action gun being operated' and saw the driver 'rifling the action of [the] gun.' Shaw, the automobile's driver, then put his hands out the window and was immediately apprehended. He was the only person in the car, and a 12 gauge sawed-off 'Mossberg 500A' shotgun was found lying near him within ready reach. The sound heard by Dunham was later attributed to the weapon being unloaded.
Shaw was arrested for eluding a police officer and for reckless conduct. A subsequent search of the automobile revealed various items, including two knives and a hatchet, as well as a 20 gauge shotgun with a sawed-off stock in the trunk. A single expelled or spent 12 gauge shotgun round was found between the driver and passenger seats. Shaw himself was carrying, in a pack and on his hunting belt, different types of ammunition, some boxed and some loose. Additional evidence suggested that Shaw had been engaging in some type of hunting activity while seated in his car, by shooting at game from his open car window.
State Trooper Michael Johnston, an evidence technician, arrived at the scene and quickly noticed that the 12 gauge shotgun appeared to be too short for federal guidelines. He further observed that the stock of the weapon had been cut off and covered with duct tape, the gun's barrel 'look[ed] like it also had been cut,' and 'a homemade sling' was attached 'in the form of a yellowlike nylon rope.' The outside of the gun barrel still bore printing indicating that the original barrel length had been 28 inches. While the weapon's overall length was about 29 inches, the barrel itself, measured internally, was sixteen-and-a-quarter inches in length. Because the length of the shortened barrel of the 12 gauge was less than 18 inches, the weapon was subject to federal registration requirements."
The issue in the case was whether there was sufficient evidence to show beyond a reasonable doubt that Shaw knew that the barrel of his gun was less than 18 inches long.
Judge Howard said yes: "His acquaintance with the particular weapon, his familiarity with firearms generally, and the external and readily observable shortened feature of the gun's sawed-off barrel permitted the jury to infer Shaw's knowledge relative to barrel length."
In concurinng, Judge Boudin, in agreeing that a jury could find that Shaw knew the gun was too short, noted, inter alia: "The jurors were from Maine, a largely rural state with many forests and fields, where hunting is a common pastime. Whatever the average Boston resident may know about hunting, Maine hunters–or at least those who use shotguns–are quite likely to know that shotguns used in hunting are long-barreled weapons."
Moreover, he reasoned, "Sawed-off shotguns are notoriously associated not with hunting but with crime. Even a city dweller who watches television or reads newspapers would know the reputation of the weapon…. A hunter like Shaw almost certainly had to know that his weapon was not a typical shotgun used in ordinary hunting but a visibly and substantially shortened weapon." And "Maine jurors, exercising common sense, could gauge that a hunter would know his weapons as well as a carpenter knows his tools–unless circumstances (e.g., a novice hunter) suggested otherwise."
From there, it's just a matter of proving that Shaw knew that the gun was not just short, but past the legal shortened length. Judge Boudin decided that this was proven because the jury could have reasoned as follows: "Shaw, conscious of its shortened length, would realize that the barrel was less than a foot and a half long. An ordinary 12-inch ruler is a familiar item at school and at home. Shaw's shotgun had a visible barrel length only 3.5 inches more than a ruler. A jury, looking at the shotgun and reasonably believing that Shaw would himself appreciate its aberrant shortness, could conclude that the barrel looked somewhat longer than a ruler but not as long as a foot and a half, and that Shaw therefore knew that it was less than 18 inches."
Judge Boudin concluded his concurrence by stating: "A great judge warned about the danger of 'appellate judges . . . whetting their appetite for dealing with facts' rather than leaving them to the jury or judge who saw the witnesses and heard the evidence. [citing Judge Friendly.] A jury verdict starts with a very strong presumption in its favor, and that presumption is not overcome where, as here, one can imagine how a reasoning jury might have arrived at the conclusion that this one did."
Judge Lipez respectfully disagreed with both of his colleagues' analyses.
As to familiarity with the gun, "the government presented no evidence of Shaw's history or familiarity with the shotgun at issue here, aside from the fact that he was arrested with it. Nothing about the exercise of preparing a gun for hunting requires awareness of the precise length of the barrel of the gun."
As to familiarity with guns in general, "Shaw was found with two guns in his possession, not two hundred, some ammunition, and other items useful for hunting. Although the evidence might support an inference that Shaw was an experienced hunter, there was no evidence that an experienced hunter, unlike an ordinary person, would be aware of the specific fact required by the mens rea in this case – that the barrel of the shotgun being used for hunting was less than 18 inches in length. While it is true that one wishing to hunt illegally from within a vehicle may be sensitive to the need for a weapon with a shorter barrel, this need does not require an awareness of the precise length of a weapon's barrel. In fact, for such an exercise, the overall length of the weapon is its more relevant characteristic, not the length of its barrel." [I learn something new every time I read a court opinion.]
As to the alleged obviousness that the barrel was too short, Judge LIpez said that the discrepancy, a matter of a couple of inches [the relevant differential was between 18 and 15.5, given how the barrel is measured for statutory purposes] wasn't enough to infer obviousness: "One may not be charged with awareness of a fact on the basis of observation alone without proof of the capacity to apprehend that fact visually." In so reasoning, Judge Lipez noted that the photo of the gun given to the jury had a big tape measure next to it, hopelessly tainting its usefulness [oops, unpreserved error].
Moving on, "The majority also notes that there was testimony that one of the arresting officers 'quickly noted that the gun . . . appeared to be too short for federal guidelines.' The observational capacity of a seven-year veteran of the Maine State Police whose job requires him to make visual judgments about the barrel length of guns is an odd proxy for the 'mature experience' of jurors whose roles in life, so far as we know, do not require them to make precise judgments about the length of objects."
Notably, Judge Lipez observed in a footnote: "Offering a romanticized view of Maine as a rural state of forest and field, where everyone knows their guns, the concurrence assumes that the 'background facts' available to Maine jurors give them a special capacity to draw inferences about Shaw's awareness of his shotgun's length. In fact, as of 2006, only 14% of Maine's population self-identified as hunters. [cite omitted] This disparity between fact and assumption illustrates the dangers of relying on stereotypes to defend a jury's work. That reliance also highlights the conjecture at the core of the majority's decision."
Conciousness of guilt, Judge Lipez said, was also not particularly illuminating, given how many other laws Shaw was flaunting: "As we stated in Nieves-Castano, 'knowledge that one is guilty of some crime is not the same as knowledge that one is guilty of the crime charged.' 480 F.3d at 601 (emphasis in original)."
So what does this decision teach us? I leave the reader to ponder. I would note, however, that I've never fired a gun in my life, while I believe Boston's murder rate would tend to show that some folks down there are packing some serious heat.
