Submitted: November 17, 2015
Appeal from United States District Court for the Western District of Missouri - Kansas City
Before COLLOTON, GRUENDER, and SHEPHERD, Circuit Judges.
SHEPHERD, Circuit Judge.
A jury convicted Ronald F. White of one count of possession of an unregistered firearm in violation of 26 U.S.C. §§ 5841, 5861(d), 5871, and one count of possession of a stolen firearm in violation of 18 U.S.C. §§ 922(j), 924(a)(2). White argues that: (1) the government did not present sufficient evidence that White knew the firearm in his possession had been stolen; (2) the court improperly instructed the jury on possession of an unregistered firearm by not requiring the jury to find that White knew of the characteristics of the firearm or had observed the firearm; and (3) the court abused its discretion when it admitted evidence that White was under investigation for a series of violent criminal offenses. Finding that the government did not provide sufficient evidence of possession of a stolen firearm, we reverse this conviction. We affirm the conviction for possession of an unregistered firearm.
In October of 2013, White was a person of interest in Kansas City law enforcement's investigation of a series of felonies. As a part of the investigation, law enforcement conducted surveillance of White's parents' house in Lee's Summit, Missouri, where White sometimes stayed when visiting. The police searched trash left outside of the residence and found marijuana and rolling papers. Based on this contraband, law enforcement obtained a search warrant for the residence and conducted a search. In searching the top shelf of a closet in a guest bedroom, law enforcement found a black duffel bag containing five guns, magazines for the firearms, an Amtrak ticket in White's name dated January or February of 2013, and a credit card receipt. One gun was a Romarm Draco, a 7.62x39 handgun, and another was a Street Sweeper, a 12 gauge shotgun. In other rooms, law enforcement found mail bearing the names "Ronald F. White" and "Ronald F. White, Jr., " and lyrics with "Ron Ron" written at the top.
A Bureau of Alcohol, Tobacco, and Firearms ("ATF") agent examined the guns and determined that because each gun had been manufactured outside of the state of Missouri, all had traveled in interstate commerce. No latent fingerprints were found on the guns. White's DNA was discovered on the trigger of one of the five guns, but not on the Romarm Draco or Street Sweeper. The Romarm Draco had been legally owned by Richard Cushingberry and reported stolen in Kansas City, Missouri, on July 3, 2011. At trial, Cushingberry testified that he fell asleep in his bedroom while holding the gun, woke up to find the gun missing, looked out the window, and saw a man called Rashaad walking away from him. Cushingberry further testified that Rashaad had a friend named "Ron Ron."
White was charged by indictment with one count of possession of an unregistered firearm under 26 U.S.C. §§ 5841, 5861(d), 5871, for the Street Sweeper, and one count of possession of a stolen firearm in violation of 18 U.S.C. §§ 922(j), 924(a)(2), for the Romarm Draco. The case proceeded to jury trial on July 21 and 22, 2014. White submitted a motion in limine seeking to prohibit evidence that White was a person of interest in a series of homicides and a home invasion in the Kansas City area, asserting that such evidence was irrelevant, unduly prejudicial, and constituted improper evidence of other bad acts under Federal Rules of Evidence 401, 402, 403, and 404(b). The government argued that the evidence was admissible to explain the context of the police investigation of White. The district court denied the motion, determining that such evidence was "admissible to show context and the circumstances of the crimes charged in this case." White renewed the motion at trial and the district court instructed the government that it should limit any reference to the fact that White was under investigation for other felonies or other criminal activity.
At trial, Loran Freeman, a Kansas City Police Department Detective who secured the search warrant and conducted the search, testified. He explained that he was assigned to the career criminal unit which investigated "violent crimes, whether it be weapons-related offenses, violent assaults, serious crime in the way of robbery, whether it be armed or not, and other violent offenses." Freeman further testified that he was told by an officer investigating "a series of violent criminal offenses" to start surveillance of White. The court admitted the signed application for the search warrant, which referred to homicides, but prohibited the government from displaying it to the jury. A second detective testified that he investigated those offenders who "are [of] career criminal status[, ] repeat offenders, [or the] more violent type of offenders." (sic).
The court instructed the jury as to possession of an unregistered firearm as follows:
INSTRUCTION NO. 16
The crime of possession of an unregistered firearm, a Street Sweeper, Model Street Sweeper, 12 gauge shotgun, serial number SH 12277 as charged in Count One of the Superseding Indictment has five elements, which are:
One, on or about October 31, 2013, the defendant knowingly possessed a firearm, a Street Sweeper, Model Street Sweeper, 12 gauge ...