                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-6-2008

USA v. Daniel
Precedential or Non-Precedential: Precedential

Docket No. 07-2413




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"USA v. Daniel" (2008). 2008 Decisions. Paper 1351.
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                                      PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                    No. 07-2413


         UNITED STATES OF AMERICA

                           v.

               AMBROSE DANIEL,

                                      Appellant.




   On Appeal from the United States District Court
        for the District of the Virgin Islands
                 Division of St. Croix
          (District Court No. 05-cr-00054)
       District Judge: Hon. Curtis V. Gomez




           Argued on December 11, 2007


Before: SMITH, NYGAARD and ROTH, Circuit Judges
               (Opinion filed: March 6, 2008)


Martial A. Webster, Esquire (ARGUED)
116 Queen Cross Street
Frederiksted, St. Croix
USVI 00840

                 Counsel for Appellant


Denise A. Hinds-Roach, Esquire (ARGUED)
Assistant U. S. Attorney
Office of the United States Attorney
1108 King Street, Suite 201
Christiansted, St. Croix
USVI 00820

                 Counsel for Appellee




                        OPINION


ROTH, Circuit Judge:

        Defendant Ambrose Daniel appeals his conviction of
unlawful possession of ammunition under section 2256 of Title
14 of the Virgin Islands Code. This appeal presents the question
of whether the government, having shown that Daniel was not

                               2
licensed to possess a firearm, likewise proved beyond a
reasonable doubt that his possession of ammunition was
unlawful. We hold that the government has failed to prove a
requisite element of the offense in this case, and accordingly we
will reverse the conviction.

I. Factual and Procedural Background

       On May 10, 2005, Virgin Islands police received a
complaint from José Marrero that defendant Ambrose Daniel
had robbed him at gunpoint. Marrero claimed that the robbery
took place at Daniel’s residence when Marrero came to purchase
a gold chain from Daniel. Police arrived at the apartment
shortly after speaking with Marrero.

        The police arrested Daniel and, after receiving a warrant,
searched the apartment. During the search, the police found,
among other items, a Glock nine-millimeter pistol (with a bullet
in the chamber) and two extended magazines with rounds of
ammunition.1 Both the pistol and the ammunition were found
in the kitchen stove, underneath the range top.

       The United States subsequently charged Daniel in an
eight-count indictment with numerous criminal violations of
federal and Virgin Islands law. The alleged offenses included
possession of a firearm during/and in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c)(1)(A) (Count I);


     1
    A magazine is a device used for storing and feeding
ammunition. It may be inside or attached to a gun.

                                3
felon in possession of a firearm, in violation of 18 U.S.C. §§
922(g)(1) and 924(a)(2) (Count II); felon in possession of
ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2) (Count III); felon in possession of body armor, in
violation of 18 U.S.C. § 931 (Count IV); possession of a
machine gun during commission of a crime of violence, in
violation of 14 V.I.C. § 2253(b) (Count V);2 felon in possession
of a machine gun, in violation of 14 V.I.C. § 2253 (Count VI);
unlawful possession of ammunition, in violation of 14 V.I.C. §
2256 (Count VII); and robbery in the first degree, in violation of
14 V.I.C. § 1862 (Count VIII).

       At trial, the prosecution and the defense offered disputing
accounts of the series of events that gave rise to Daniel’s arrest
and indictment. Of relevance to this appeal, the jury heard
testimony from Detective Marisol Colon that a Glock pistol and
two extended magazines with live ammunition were found in the
stove. Detective Colon also testified that the two magazines
“were too long to fit” in the gun and that no magazine was
inside the gun, but that there was a bullet in the chamber.
Photographs of the weapon and the location where it was found
were admitted as evidence.

      Karen Stoutt, the Virgin Islands Police Department
Supervisor of Firearms and records custodian for the Firearms
License Department, testified that she performed a check to


   2
   The court granted in part Daniel’s motion for relief under
Federal Rule of Criminal Procedure Rule 29 and dismissed
Count V.

                                4
determine whether Daniel was licensed to possess a firearm and
found that he never had been. No information as to whether
Daniel was licensed or otherwise authorized to possess
ammunition was presented. Nor did the government present any
evidence as to how one could become authorized to possess
ammunition.

        Daniel’s girlfriend, Nichole Albert, testified for the
defense. Albert stated that she was visiting Daniel’s apartment
on May 10, 2005, when Marrero arrived. According to Albert,
Marrero brought a gun with him in a black plastic bag,
demanded money for the gun, placed the gun on the counter, and
left. Albert testified that she left soon thereafter. Albert
testified further that she had never seen Daniel with either the
gun or the ammunition.

      The court instructed the jury regarding the charge of
unlawful possession of ammunition as follows:

              In order for the defendant to be
              found guilty of the charge alleged
              in Count 7, the government must
              prove two essential elements
              beyond a reasonable doubt: first,
              that the defendant, Ambrose
              Daniel, possessed, actually or
              constructively, ammunition on or
              about May 10th, 2005; and second,
              that the defendant was not licensed
              or otherwise authorized to possess
              the ammunition. . . . The phrase

                               5
              ‘unless otherwise authorized by
              law’ means that the defendant had
              no license nor other legal authority
              to possession [sic] ammunition.

       The jury returned a verdict of acquittal on all charges,
except for the unlawful possession of ammunition. Having been
found guilty on that charge, Daniel was sentenced to a five-year
term of imprisonment, with all but three years suspended, two
years of supervised probation, and a $5,000 fine. The District
Court denied Daniel’s untimely post-verdict motion for
judgment of acquittal under Federal Rule of Criminal Procedure
Rule 29. Daniel now appeals, arguing that there was insufficient
evidence to convict him of unlawful possession of ammunition.

II. Discussion

       We have jurisdiction over this appeal from a final
judgment of the District Court pursuant to 28 U.S.C. § 1291.
We exercise deference to the jury’s verdict in reviewing a
challenge to the sufficiency of the evidence. United States v.
Rosario, 118 F.3d 160, 162-63 (3d Cir. 1997). “We must
determine whether, viewing the evidence most favorably to the
government, there is substantial evidence to support the jury’s
guilty verdict.” United States v. Idowu, 157 F.3d 265, 268 (3d
Cir. 1998) (internal quotations omitted). We must uphold the
jury’s verdict “if a reasonable jury believing the government’s
evidence could find beyond a reasonable doubt that the
government proved all the elements of the offenses.” Rosario,
118 F.3d at 163 (internal quotations omitted).


                               6
       Here the jury found Daniel guilty of unlawful possession
of ammunition. The offense of unlawful possession of
ammunition is set forth in section 2256 of Title 14 of the Virgin
Islands Code, which provides, “Any person, who unless
authorized by law, possesses, purchases, manufactures,
advertises for sale or uses any firearm ammunition shall be
guilty of a felony.” 14 V.I.C. § 2256. To convict Daniel of
violating this provision, the government had to prove (and the
jury had to find beyond a reasonable doubt) that Daniel
possessed ammunition and that he was unauthorized to possess
such ammunition.

      We find that there is insufficient evidence to support a
conclusion that Daniel was unauthorized to possess ammunition.
We are mindful that we must view the evidence in the light most
favorable to the government, but here there is no evidence as to
whether Daniel was authorized to possess ammunition.3


   3
     As noted earlier, ammunition was found both outside the
firearm (in the two extended magazines) and inside the firearm
(one bullet in the chamber). It appears that the jury’s conviction
on the unlawful possession of ammunition charge was based on
the ammunition outside the firearm, for the jury acquitted Daniel
of unlawful possession of the firearm. Although the government
argues to the contrary (contending that the jury could have found
that Marrero left the gun at Daniel’s apartment but that Daniel
later loaded the bullet inside), it is reasonable to conclude that
if Daniel did not possess the firearm, he did not possess the
ammunition inside.


                                7
       While Virgin Islands law criminalizes the possession of
ammunition “unless authorized by law,” 14 V.I.C. § 2256, it
does not establish a licensing requirement for ammunition. Nor
does it provide any specific procedure by which possession of
ammunition may be licensed or otherwise authorized. Section
2253 of Title 14 of the Virgin Islands Code, which prohibits the
unlawful possession of firearms, has been interpreted to provide
that “unless otherwise authorized by law” means possession
without a license. United States v. McKie, 112 F.3d 626, 630
(3d Cir. 1997) (quoting Government of Virgin Islands v. Soto,
718 F.2d 72, 80 (3d Cir. 1983) (“The gravamen of [14 V.I.C. §
2253] appears to have been the possession of
unlicensed firearms, since the statute proscribes possession of
firearms ‘unless otherwise authorized by law.’ (emphasis
added).”)). Although Virgin Islands law does provide for the
licensing of firearms, it does not provide for the licensing of
ammunition. Given that there is no means to obtain a license for
ammunition under Virgin Islands law, we cannot construe the
clause “unless otherwise authorized by law” in section 2256 as
meaning “unless possessing a license to possess ammunition.”

        The government, however, contends that, in order for an
individual to possess ammunition lawfully, he must first obtain
a firearms license. It is true, as the government points out, that,
under Virgin Islands law, certain persons may lawfully possess
a firearm “provided a license for such purpose has been issued
by the [Police] Commissioner of the Virgin Islands ....” 23
V.I.C. § 454. Virgin Islands law in turn establishes specific
requirements for obtaining such a license. See, e.g., 23 V.I.C.
§ 455 (application for firearm license); § 456 (qualifications of
applicant); § 457 (contents of license). It is also true that Virgin

                                 8
Islands law prohibits a dealer in firearms or ammunition from
selling ammunition to anyone without a firearms license. 23
V.I.C. § 466 (“No dealer in firearms or ammunition shall sell
any quantity of ammunition to any person failing to present a
firearm license.”).

       The government would have us infer from the licensing
provisions cited above that, having shown that Daniel did not
possess a firearms license, the government established beyond
a reasonable doubt that his possession of ammunition was
unlawful. However, we are loath to construe these provisions
to create an offense relating to unlawful possession of
ammunition not enunciated by the Virgin Islands legislature.
See, e.g., United States v. Harriss, 347 U.S. 612, 617 (1954)
(“[N]o man shall be held criminally responsible for conduct
which he could not reasonably understand to be proscribed.”).

       We find no basis for combining the offense of unlawful
possession of ammunition established by 14 V.I.C. § 2256 with
the firearm licensing provisions set forth in Title 23. We
recognize that ammunition is generally possessed for use in a
firearm, but neither section 2256, nor any other statutory
provision of which we are aware, makes lawful possession of
ammunition contingent on having a firearms license. The
firearm licensing requirements restrict the possession of
firearms, not ammunition.

        Similarly, the provision prohibiting dealers from selling
ammunition to persons without a firearms license on its face
restricts only the conduct of dealers with respect to ammunition.
It in no way restricts an individual’s possession of ammunition.

                               9
We can envision ways to acquire ammunition other than from a
dealer. Moreover, we find nothing in the record suggesting that
the jury was ever informed of the statutory prohibition of dealer
sales of ammunition. That statute could not, therefore, have been
the basis for the jury’s guilty verdict.

         The statutory provisions related to the licensing of
firearms and dealer sales of ammunition, even combined, are
insufficient to establish the offense of unlawful possession of
ammunition as the government would construe it. To obtain a
criminal conviction, the government must establish each element
of the alleged offense beyond a reasonable doubt. In order to
fulfill that requirement, the government cannot substitute proof
of a lack of authorization to possess a firearm for the requisite
proof of lack of authorization to possess ammunition –
particularly in view of the fact there is no apparent way under
Virgin Islands law to obtain permission to possess ammunition.

      We will address one final argument made by the
government, namely that Daniel failed to raise as an affirmative
defense that he was authorized to possess a firearm under one of
the exemptions to Section 2256.4 We have previously


  4
    Section 2256 provides that the restrictions on possession of
ammunition do not apply to “law enforcement officials for use
in their employment or in the exercise of their duties as defined
by law.” 14 V.I.C. § 2256(e). Virgin Islands law also provides
that certain individuals (e.g., members of the United States
Armed Forces, members of the Virgin Islands police force) may
lawfully carry firearms. 23 V.I.C. § 453.

                               10
acknowledged that “requir[ing] the government to prove in each
prosecution that none of the statutory exceptions to the firearm
license requirement are satisfied . . . would conflict with our
obligation to construe statutes sensibly and avoid constructions
which yield absurd or unjust results.” United States v. McKie,
112 F.3d 626, 630 (3d Cir. 1997) (holding that, notwithstanding
that Virgin Islands law allows a twenty-four hour grace period
in which a person bringing a firearm into the Virgin Islands to
report such fact, the government is not required to prove that the
defendant possessed a firearm for more than twenty-four hours
because duration of possession is an affirmative defense). This
analysis is inapposite to the present case, however.
Authorization to possess ammunition is not an affirmative
defense. As noted above, the government is required to prove
the absence of authorization as an element of the offense of
unlawful possession of ammunition. The government has failed
to do so here.

IV. Conclusion

      Because the government failed to prove a requisite
element of the offense of unlawful possession of ammunition,
we are compelled to conclude that Daniel’s conviction of that
offense cannot stand. Accordingly, we will reverse the
conviction.




                               11
