                            UNITED STATES of America, Plaintiff-Appellee,

                                                     v.
                                Anastasio MOORE, Defendant-Appellant.

                                              No. 00-12587.

                                      United States Court of Appeals,
                                             Eleventh Circuit.

                                               June 6, 2001.

Appeal from the United States District Court Southern District of Alabama. (No. 99-00166-CR-1-001-RV),
Richard W. Vollmer, Jr., Judge.

Before DUBINA and KRAVITCH, Circuit Judges, and DUPLANTIER*, District Judge.

        DUPLANTIER, District Judge:

        Anastasio Moore appeals his conviction for one count of possession of a silencer not registered in
the National Firearms Registration and Transfer Record, in violation of 26 U.S.C. § 5861(d). On appeal

Moore asserts several alleged trial errors. Finding no merit in his claims, we affirm his conviction.
        Pursuant to a warrant, local narcotics investigators searched the house where Anastasio Moore lived.
While searching under a bundle of clothes in Moore's bedroom, Detective Gillis found and seized a long

tubular object which he thought to be a silencer.
        Because Moore was not present during the search, Detective Gillis left a copy of the search warrant
and his card at the house. Later that same morning Moore spoke with Detective Gillis. After reading Moore

his Miranda1 rights, Detective Gillis asked him, among other things, "[w]hat's the deal with the silencer?"

Moore stated that he bought "that old thing" from a pawn shop in Georgia for $150.00.
        Several months later, Detective Gillis and Moore met with Kenny Grissert, an Alabama State
Trooper. When Officer Grissert asked Moore "where he got the silencer," Moore responded that he had

purchased it in Georgia.

        Some time thereafter, law enforcement agents arrested Moore. While ATF agent Busey Ward was

transporting Moore to jail, Moore asked Agent Ward why he was "being arrested Federally and charged."

In response to Moore's question, the agent asked him if he remembered the device that was found inside his


    *
     Honorable Adrian G. Duplantier, U.S. District Judge for the Eastern District of Louisiana, sitting by
designation.
    1
     Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
home during the search, referring to it as a "silencer." Moore answered "yes." After the ATF agent told

Moore that "you're being charged Federally with it," Moore voluntarily stated that he bought "that thing" in
Georgia from someone in the military.

        Appellant asserts four grounds for reversal of his conviction:

!       the district judge improperly instructed the jury concerning the mens rea requirement for a conviction
        for possession of a silencer not registered in the National Firearms Registration and Transfer Record;

!       insufficient evidence that Moore knew the characteristics of the object seized which required it to be
        registered;
!       insufficient evidence that the object seized is in fact a silencer; and

!       the district judge improperly denied Moore's motion to suppress.

                                         STANDARD OF REVIEW
         Where, as here, appellant challenges a jury instruction for the first time on appeal, the instruction

is reviewed for plain error. United States v. Prather, 205 F.3d 1265, 1270 (11th Cir.), cert. denied, --- U.S.

----, 121 S.Ct. 188, 148 L.Ed.2d 130 (2000).

        Arguments challenging the sufficiency of the evidence are reviewed de novo. United States v. Hunt,

187 F.3d 1269, 1270 (11th Cir.1999).
         The district court's ruling on a motion to suppress is a mixed question of law and fact. The findings

of fact are reviewed for clear error, while the district court's application of law to the facts is reviewed de

novo. United States v. Zapata, 180 F.3d 1237, 1240 (11th Cir.1999).

                                           JURY INSTRUCTION
         "Generally, district courts 'have broad discretion in formulating jury instructions provided that the
charge as a whole accurately reflects the law and the facts,' and we will not reverse a conviction on the basis

of a jury charge unless 'the issues of law were presented inaccurately, or the charge improperly guided the

jury in a substantial way as to violate due process.' " United States v. Prather, 205 F.3d at 1270, quoting

United States v. Arias, 984 F.2d 1139, 1143 (11th Cir.1993).

        Title 26 U.S.C. § 5861(d) makes it unlawful for any person "to receive or possess a firearm which

is not registered to him in the National Firearms Registration and Transfer Record." "[F]irearm" includes

"any silencer (as defined in section 921 of title 18, United States Code)." 26 U.S.C. § 5845(a)(7). A

"silencer" is "any device for silencing, muffling, or diminishing the report of a portable firearm, including
any combination of parts, designed or redesigned, and intended for use in assembling or fabricating a firearm
silencer or firearm muffler, and any part intended only for use in such assembly or fabrication." 18 U.S.C.

§ 921(a)(24).
         To support a conviction under 26 U.S.C. § 5861(d), the government need not prove that the

defendant knew that the "firearm" was not registered, but must prove beyond a reasonable doubt that the

defendant knew of the features of the "firearm" that brought it within the scope of the National Firearms Act

(Act), 26 U.S.C. §§ 5801-5872. Staples v. United States, 511 U.S. 600, 619, 114 S.Ct. 1793, 1804, 128

L.Ed.2d 608 (1994).

         Relying on United States v. Rogers, 94 F.3d 1519 (11th Cir.1996), Moore contends that the district

judge erred by failing to instruct the jury that in order to convict Moore the government had to prove beyond
a reasonable doubt that he knew the characteristics of the object seized which brought it within the statutory

definition of "silencer." In Rogers, tried before the Supreme Court's decision in Staples, the district judge

instructed the jury that the government had to prove that the defendant "knowingly possessed" the firearm

in question. Id. at 1522. On appeal, this court considered whether the district judge had erred in denying a

requested instruction that the government had the burden of proving that the defendant "knew th[e] items in

question were firearms" under the Act. Id. at 1523. The panel concluded that in refusing to include the

requested instruction the district judge omitted an essential element of the crime from the jury instruction.
Notwithstanding that omission, the error was harmless beyond a reasonable doubt because Rogers admitted

at trial that he knew the items in question were firearms under the Act. Id. at 1527.

        The Supreme Court granted certiorari to decide "[w]hether a district court's failure to instruct the jury

on an element of an offense is harmless error where, at trial, the defendant admitted that element." Rogers

v. United States, 520 U.S. 1239, 117 S.Ct. 1841-42, 137 L.Ed.2d 1046 (1997). The Supreme Court concluded

that the question on which the writ had been granted was "not fairly presented by the record" and dismissed

the writ as "improvidently granted." Rogers v. United States, 522 U.S. 252, 253, 118 S.Ct. 673, 675, 139

L.Ed.2d 686 (1998). In reaching that conclusion, a plurality concluded that "a fair reading of the instructions

as actually given did require the jury to find that petitioner knew that he possessed a silencer." Id. at 256, 118

S.Ct. at 676.

        In dissent, Justice Kennedy, joined by Chief Justice Rehnquist and Justice Souter, analyzed the phrase

"knowingly possessed a 'firearm' as described above," and concluded that "knowingly" modified only
"possessed" and did not require proof that the defendant knew that the device which he possessed was a
"firearm" as defined by the statute. Id. at 260, 118 S.Ct. at 678.

        Relying upon the issue discussed in Rogers, defendant contends that the jury instruction in the instant

case required only that the government prove that Moore knew that he was in possession of the instrument,
not that he knew that it was a silencer. It is true that the instruction contained the ambiguous phrase

"knowingly possessed a silencer." However, after explaining the statutory definition of "silencer," the judge

instructed the jury that "[t]he Government must prove beyond a reasonable doubt that the Defendant knew

he possessed a silencer." (emphasis added). This additional instruction, not given in Rogers, properly

instructed the jury that in order to convict appellant of violating 26 U.S.C. § 5861(d) they must conclude that
the government proved beyond a reasonable doubt that defendant knew the characteristics of the item seized

that brought it within the scope of the Act.2
                                   SUFFICIENCY OF THE EVIDENCE
         Moore contends that the government presented no evidence that he knew the characteristics of the

object seized which made it fall within the statutory definition of "silencer."
         The evidence is sufficient to support a conviction if, "after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560

(1979) (emphasis in original). All reasonable inferences and credibility choices must be made in favor of the

jury verdict. United States v. Young, 39 F.3d 1561, 1565 (11th Cir.1994). Construing the evidence in the

light most favorable to the government, there is sufficient evidence to conclude that a rational trier of fact
could have found that Moore knew the characteristics of the silencer which made it fall within the statutory
definition of "silencer."

        Although Moore never referred to the item seized from his bedroom as a "silencer," law enforcement



    2
     The portion of the jury instruction containing the ambiguous "knowingly possessed" phrase closely
resembles this circuit's pattern instruction for this offense. See Eleventh Circuit Pattern Jury Instructions
(Criminal Cases), Section 80.1 (West 1997). We note that it might be advisable to amend that pattern
jury instruction to list the requirement that the government prove that the defendant knew of the
characteristics of the firearm that brought it within the Act. The relevant pattern jury instructions for the
Fifth (Fifth Circuit Pattern Jury Instructions (Criminal Cases), No. 2.95 (West 1997)), Seventh (Federal
Criminal Jury Instructions of the Seventh Circuit, 26 U.S.C. § 5861 (West 1999)), and Eighth (Manual of
Model Criminal Jury Instructions for the District Courts of the Eighth Circuit, Section 6.26.5861 (West
2000)) Circuits all include this requirement. For example, the Fifth Circuit's pattern instruction states in
pertinent part that the government must prove "[t]hat the defendant knew of the characteristics of the
firearm [describe, e.g., that it was a shotgun having a barrel of less than 18 inches in length]." Fifth
Circuit Pattern Jury Instruction (Criminal Cases), No. 2.95.
officials, in speaking with Moore both before and after he was arrested, referred to it as such, and Moore

never denied that the object was a silencer or indicated that he did not know what object the law enforcement
officials were referring to. Additionally, the jury could have inferred the requisite knowledge from the

condition of the object. "[K]nowledge can be inferred from circumstantial evidence, including any external

indications signaling the nature of the weapon." Staples v. United States, 511 U.S. at 616 n. 11, 114 S.Ct.

at 1802 n. 11.
        Richard Craze, a firearms enforcement officer with ATF, testified that steel wool packing protruded

from the outside cylinder of the object. He also testified that when he looked down the end of the object he

saw that there were holes drilled in the central cylinder. The jury could reasonably infer that someone who
possessed the object would similarly see the steel wool packing protruding from the outside cylinder and the

holes drilled in the central cylinder. The jury could also reasonably infer that one who possessed an object

in that condition, with those features, would know that the object was a "device for silencing, muffling, or
diminishing the report of a portable firearm."
                                             OTHER ISSUES

        Defendant raises two additional issues: the district judge erred in denying Moore's motion to
suppress, and there was insufficient evidence for the jury to conclude that the object seized was a silencer
within the definition of 18 U.S.C. § 921(a)(24). After reviewing the record and carefully considering the
briefs and oral argument, we conclude that those contentions lack merit and require no further discussion.
Accordingly, we AFFIRM Moore's conviction.
