
    UNITED STATES of America v. Jose Ramos RIVERA, Defendant.
    Cr. No. 16-10165-MLW
    United States District Court, D. Massachusetts.
    Filed March 8, 2018
    Emily O. Cannon, Michael J. Crowley, US Attorney's Office, Boston, MA, for United States of America.
    Derege B. Demissie, Demissie & Church, Cambridge, MA, R. Bradford Bailey, Brad Bailey Law, P.C., Carlos Jorge Dominguez, Victoria R. Kelleher Boston, MA, John A. Amabile, Amabile & Burkly, P.C., Brockton, MA, Peter C. Horstmann, Law Offices of Peter Charles Horstmann, Newton, MA, James B. Krasnoo, Krasnoo, Klehm & Falkner LLP, Andover, MA, Michael C. Bourbeau, Bourbeau and Bonilla, LLP, Norwell, MA, for Defendant.
    MEMORANDUM AND ORDER
   MARK L. WOLF, UNITED STATES DISTRICT JUDGE

On March 7, 2018, the court noted that First Circuit Pattern Jury Instruction 4.26.5681(d) concerning Possession of an Unregistered Firearm, in violation of 26 U.S.C. § 5861(d), indicates that the jury should be instructed that the government must prove both that the defendant knew that (1) the firearm at issue in Count 2 was a weapon made from a shotgun that had been modified to have a barrel less than 18 inches in length, see 26 U.S.C. § 5845(a)(2) and (d), and (2) that the weapon was "operable." The court questioned whether knowledge that the weapon was operable is an element of the offense and noted that the Pattern Instruction cites no authority for the proposition that it is.

The court provided the parties an opportunity to brief this issue. The government filed a Memorandum arguing that proof of knowledge of operability is not required. See Docket No. 346. The defendant, who previously agreed with the government's proposed instruction which would not require proof of knowledge of operability, did not submit a memorandum.

The court finds that the government is not required to prove that the defendant knew that the weapon was operable. In Staples v. United States, 511 U.S. 600, 603-04, 619-20, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994), the Supreme Court held that the government must prove the defendant knew the "characteristics" of the firearm that made it one that was required to be registered. In this case, the firearm at issue was required to be registered because it is a weapon made from a shotgun that was modified to have a barrel of less than 18 inches in length. See 26 U.S.C. § 5845(a). Such weapons are commonly called "sawed-off shotguns."

In United States v. Shaw, 670 F.3d 360, 363 (1st Cir. 2012), the First Circuit applied the Staples scienter requirement in a case involving a sawed-off shotgun. It noted that:

Several courts have read Staples to require proof that a defendant knew that an unregistered sawed-off weapon or its barrel was shorter than the statutorily prescribed length. See United States v. Michel, 446 F.3d 1122, 1129-30 (10th Cir. 2006) ; United States v. Miller, 255 F.3d 1282, 1286-87 (11th Cir. 2001) ; United States v. Gergen, 172 F.3d 719, 723-24 (9th Cir. 1999) ; United States v. Reyna, 130 F.3d 104, 108-09, n. 3 (5th Cir. 1997) ; United States v. Edwards, 90 F.3d 199, 205 (7th Cir. 1996) ; United States v. Starkes, 32 F.3d 100, 101 (4th Cir. 1994) (per curiam).

Id., n.1. The First Circuit also applied the Staples knowledge of the "characteristics" test by analyzing whether the evidence was sufficient to prove that the defendant knew that the barrel of the sawed-off shotgun he possessed was less than 18 inches in length. Id. at 364. It did not analyze, or even discuss, whether he knew the weapon was operable.

The Pattern Jury Instructions of the Third, Fifth, and Tenth Circuits each require that the government prove that the defendant "knew the characteristics of the firearm (that is, that it was ... e.g., a shotgun having a barrel of less than 18 inches in length)." 3rd Cir. Pattern Instruction 6.26.5861; 5th Cir. Pattern Jury Instruction 2.94; 10th Cir. Pattern Jury Instruction 2.91. These Pattern Instructions do not state that the proof of knowledge of operability is required. See id. The court has found no case that holds that proof of knowledge of operability is required. It expects that the First Circuit would not do so if it had to decide the issue.

In view of the foregoing, the court does not intend to instruct that the government must prove the defendant knew the sawed-off shotgun was operable to achieve his conviction on Count 2. The instructions it intends to give on Count 2 are attached hereto as Exhibit 1. The court will discuss them with the parties before their closing arguments.

EXHIBIT 1

COUNT 2 POSSESSION OF AN UNREGISTERED FIREARM

Count Two of the Indictment charges the defendant with a violation of 26 U.S.C. § 5861(d), knowing possession of an unregistered firearm, namely a shotgun having a barrel of less than 18 inches in length. Such a weapon is commonly called a "sawed off" shotgun.

[READ COUNT 2]

Defendant is charged with knowing possession of an unregistered firearm. It is against federal law for a person to knowingly possess certain kinds of firearms that are not registered to him in the National Firearms Registration and Transfer Record. For you to find defendant guilty of this crime, the government must prove each of the following things beyond a reasonable doubt.

First, the government must prove beyond a reasonable doubt that the defendant possessed a "firearm." For the purpose of Count 2, a "firearm" is a weapon made from a "shotgun" which has been modified to have a barrel that is less than 18 inches in length. 18 U.S.C. § 5845(a)(2). A "shotgun" is a weapon made to be fired from the shoulder to shoot a number of ball shots or a single projectile for each pull of the trigger. § 5845(d).

The term "possess" means to exercise authority, dominion or control over something. It is not necessarily the same as legal ownership.

Possession includes both actual and constructive possession. A person who has direct physical control of something on or around his person is then in actual possession of it. A person who is not in actual possession, but who has both the power and the intention to exercise control over something is in constructive possession of it. Whenever I use the term "possession" in these instructions, I mean both actual and constructive possession.

Possession also includes both sole and joint possession. If one person alone has actual or constructive possession, possession is sole. If two or more persons share actual or constructive possession, possession is joint. Whenever I use the word "possession" in these instructions, I mean joint as well as sole possession.

Second, the government must prove beyond a reasonable doubt that the defendant knowingly possessed a shotgun that had been modified to have a barrel of less than 18 inches in length. As I told you earlier, to act "knowingly" means to act intentionally, not by accident or mistake. In contrast to the conspiracy charged in Count 1, to prove Count 2 the government is not required to also prove that defendant knew that his conduct violated the law or knew that registration was required. What must be proved beyond a reasonable doubt is that defendant knowingly possessed the firearm and knew that it was a shotgun that had been modified to have a barrel less than 18 inches in length.

Third, the government must prove beyond a reasonable doubt that the firearm was operable, [or could readily have been made operable]. This means that it must be proven that the weapon would shoot [or that it could readily have been put in a condition to shoot].

Fourth, the government must prove beyond a reasonable doubt that the firearm was not registered to the defendant in the National Firearms Registration and Transfer Record.

The parties have agreed that "The Mossberg, 600AT, pump-action 12-guage shotgun recovered on October 4, 2015, by agents of the federal Bureau of Alcohol, Tobacco Firearms and Explosives was not registered in the National Firearms Registration and Transfer Record to any person, including defendant Jose Ramos Rivera or Omar Villegas." You may accept this as true. 
      
      First Circuit Pattern Instruction 4.36.5861(d) states in pertinent part that:
      For you to find [defendant] guilty of this crime, the government must prove ... beyond a reasonable doubt ... Third, that [defendant] knew that the firearm had these characteristics: [e.g., that it was an operable shotgun (or could be restored to be operable) with either a barrel length less than 18 inches or an overall length less than 26 inches]...
     
      
      3rd Cir. Pattern Jury Instruction 6.26.5861; 5th Cir. Pattern Jury Instruction 2.94; 10th Cir. Pattern Jury Instruction 2.91; United States v. Shaw, 670 F.3d 360, 363 n. 1 (1st Cir. 2012) ; United States v. Michel, 446 F.3d 1122, 1129-30 (10th Cir. 2006) ; United States v. Miller, 255 F.3d 1282, 1286-87 (11th Cir. 2001) ; United States v. Gergen, 172 F.3d 719, 723-24 (9th Cir. 1999) ; United States v. Reyna, 130 F.3d 104, 108-09, n. 3 (5th Cir. 1997) ; United States v. Edwards, 90 F.3d 199, 205 (7th Cir. 1996) ; United States v. Starkes, 32 F.3d 100, 101 (4th Cir. 1994).
     