                         UNITED STATES COURT OF APPEALS

                                FOR THE FIFTH CIRCUIT

                         _____________________________

                                     NO. 91-7261

                         _____________________________

                           UNITED STATES OF AMERICA,
                                                         Plaintiff-Appellee,

                                       versus

                                  DENNIS J. MURRAY,
                                                    Defendant-Appellant.
                         _____________________________

                  Appeal from the United States District Court
                    for the Southern District of Mississippi
                        _____________________________
                                 (April 1, 1993)

Before DUHE', and BARKSDALE, Circuit Judges and HUNTER1, District
Judge.

EDWIN F. HUNTER, JR., District Judge

         On       November 6, 1992, a five count indictment was returned

against defendant-appellant, Dennis Murray, for his alleged role in

an illegal firearms transfer. The basis of the indictment was that

Murray,       a    previously    convicted   felon,   participated   with,   and

facilitated Glenn Reid in the sale of a sawed-off shotgun and a .38

caliber revolver to acting, undercover agents for the Bureau of

Alcohol, Tobacco, and Firearms.              After trial by jury, defendant

was found guilty on four charges. We affirm Murray's conviction on

Counts II, III, and IV.           Murray's conviction on Count V is reversed

for insufficient evidence.


     1
        Senior Judge of the Western District of Louisiana,
sitting by designation.
                             Background

    In April of 1990, Dennis Murray went to work for Glenn Reid at

Reid's business, "Fat Charlie's Buy and Sell".    While at the pawn

shop, Murray performed a variety of tasks including, receiving

broken appliances, repairing appliances, and moving heavy items

around the store.    Whenever Reid was away from the store, Murray

was often left in charge of the business.

     Reid's business encompassed more than just buying and selling

appliances.    He was also a licensed gun dealer; and consequently,

guns were kept in the shop under lock and key.   Due to his previous

felony conviction, Murray was not allowed to handle the guns.

    The Bureau of Alcohol, Tobacco, and Firearms ("ATF") began an

investigation of "Fat Charlie's" when Thomas Walker, an ex-police

officer, notified them of possible illegal gun transactions. Under

the auspices of the ATF, Walker secured the assistance of Jerry

Atkinson, a former employee at "Fat Charlie's".      They agreed to

participate in an undercover ATF investigation to purchase illegal

firearms from Glenn Reid.

     On April 20, 1990, Atkinson (in a recorded conversation)

telephoned Reid, and arranged for the purchase of an unregistered,

sawed-off shotgun, plus other handguns.   Reid agreed to supply the

weapons, despite his knowledge that Atkinson was a previously

convicted felon, and could not purchase firearms through legitimate

channels.

     On April 26, 1990, Reid asked Murray to take a ride with him

in his van.    Reid placed a rectangular styrofoam box between the

front seats.   From one end of the styrofoam, the stock of a shotgun
was clearly visible.        The barrel of the gun extended from the

opposite side.      Despite the obvious nature of the box's contents,

Murray   contends    that   he   never   suspected   that    the    styrofoam

contained a firearm.

      Reid and Murray drove to Atkinson's house, where Reid and

Atkinson were to consummate the firearm transaction.            Unbeknownst

to Reid and Murray, Atkinson had a hidden microphone taped to his

body.    Special Agent Wright of the ATF hid in another room of the

house, monitoring and recording the proceedings.             Murray carried

the   styrofoam   package   inside   the   house,    and    waved   it   about

exclaiming, "Smile, I'm taking your picture." Subsequently, Murray

handed the styrofoam-encased shotgun to Atkinson, who turned it

over to Walker.     The styrofoam package was opened, and the shotgun

exposed to view.     Reid also offered to sell a .38 caliber revolver

to the ATF informants, which they agreed to buy.

      The conversation between the men focused upon the purchase of

the firearms and the characteristics of the weapons.            Murray took

an active role in the dialogue.      Instead of indicating surprise or

apprehension upon learning the true purpose of the visit, Murray

laughed, joked, and contributed as if he knew all along what had

been planned.     When Atkinson asked Reid whether the shotgun would

fire, Murray responded, "Na.         That son of a bitch will shoot."

When Reid was asked whether he had any shells for the shotgun,

Murray volunteered, "I think you do have, didn't somebody come by

there and sell you a bunch of them the other day?...Did you buy

them from that boy, he had a box full of them."                     After the


                                     3
discussion ended, Reid was paid.       The weapons were left with the

informants.

     Dennis J. Murray was charged with a five count indictment.

The charges included:     I) conspiracy with Glenn Reid to violate

federal firearms law, 18 U.S.C. § 371;          II) possession by a

previously convicted felon of a firearm which had been transported

in interstate commerce - 18 U.S.C. § 922(g)(1);        III) aiding and

abetting Reid in the transfer of an unregistered firearm - 26

U.S.C. §§ 861(c) and 5871;       IV) possession of an unregistered

firearm - 26 U.S.C. §§ 5861(d) and 5871;            and V) aiding and

abetting Reid in the sale of a firearm to a convicted felon - 18

U.S.C § 922(d)(1).

     Murray was tried by jury on September 9, 1991.       At the close

of the government's case, the court granted an acquittal on Count

I, and as to the sale of a .357 Magnum listed in Count V, due to

insufficient evidence.     The remaining charges went to the jury.

Murray was found guilty on Counts II, III, IV and V.     Appellant was

sentenced to thirty months imprisonment on each count to run

concurrently, plus two years supervisory release.       Murray appeals

the sufficiency of the evidence, and questions the admission of

Reid's guilty plea.    We consider these issues in turn.

                      Sufficiency of the Evidence

Counts II-IV

     The appropriate standard of review is whether, "any rational

trier of fact could have found the essential elements beyond a

reasonable doubt."     United States v. Webster, 960 F.2d 1301 (5th


                                   4
Cir.), cert. denied, in Nelson v. United States, 113 S.Ct. 355

(1992);    Jackson v. Virginia, 443 U.S. 307, 319 (1979).         A

conviction challenged for insufficiency of the evidence must be

considered in the light most favorable to the prosecution.   United

States v. Hopkins, 916 F.2d 207 (5th Cir. 1990);         Jackson v.

Virginia, 443 U.S. at 318-319.

     The basis for Murray's appeal on Counts II-IV is that he

remained unaware of the contents of the styrofoam package until

after the transfer.    Thus, he argues that he could not possibly

have knowingly possessed the firearm as required to sustain the

conviction.   United States v. Parker, 566 F.2d 1304, 1306 (5th Cir.

1978), cert. denied, 435 U.S. 956 (1978).

    The evidence reveals that the styrofoam-encased shotgun rested

under the counter at "Fat Charlie's" for a considerable time; and

that Murray picked up the package from inside the van, and carried

it to the transfer site.     Then, too, Murray waved the shotgun

around, and pointed it at the undercover agents exclaiming, "Smile,

I want to take your picture."    Obviously, either Murray thought he

was carrying a camera, or he was making a joke, knowing full well

that the styrofoam contained a shotgun.       We reject defendant's

argument   that the evidence did not suffice to prove beyond a

reasonable doubt that he knowingly possessed the firearm.

Count V

      Murray was convicted of aiding and abetting co-defendant,

Reid, in the sale of firearms to a previously convicted felon




                                  5
(Atkinson) in violation of 18 U.S.C. § 922(d)(1).2     The statute

requires that the perpetrator either know or have reasonable cause

to believe that the transferee was a previously convicted felon.

Murray argues that the evidence is insufficient to establish beyond

a reasonable doubt that he knew that Atkinson had been previously

convicted.    The government implicitly argues that even if the

evidence is insufficient to conclude that Murray personally knew

that Atkinson was a convicted felon, it is undisputed that co-

defendant, Reid, was aware of Atkinson's status, and this knowledge

was attributable to Murray as an aider and abettor.

     The only evidence presented by the government that Murray had

personal knowledge of Atkinson's prior conviction was testimony by

Atkinson and Bobby Williams (a friend of Glenn Reid's).   Atkinson

stated that Reid used to joke about Atkinson's conviction "all the

time" in front of Murray and other employees.    But, there was no

proof offered that Murray was definitely present on any specific

occasion, or that he was within earshot of the conversations.

Williams merely testified that it was common knowledge around "Fat

Charlie's" that Atkinson was a previously convicted felon.    On no


     2
         18 U.S.C. § 922(d) (1) provides in pertinent part:
           It shall be unlawful for any person to sell
           or otherwise dispose of any firearm or
           ammunition to any person knowing or having
           reasonable cause to believe that such person
           is

                (1) under indictment for, or has
                been convicted in any court, of a
                crime punishable by imprisonment
                for a term exceeding one year.
                (emphasis added).

                                 6
occasion prior to the transfer had Murray actually met or talked

with Atkinson.       Atkinson's prior conviction was not discussed or

referred to at the time of the firearms sale.             No witness testified

that Murray was present, or that Murray definitely overheard

references to Atkinson's prior criminal history.                We find that the

evidence    was     not   sufficient    to    support    the    conclusion      that

defendant was aware of Atkinson's record.

     Having decided that the evidence was insufficient to establish

that Murray was personally aware of Atkinson's conviction, our next

focus is to consider whether a principal may supply the requisite

criminal knowledge or intent which is necessary to satisfy a

conviction against an aider and abettor.

     In order to sustain a conviction for aiding and abetting, the

government must demonstrate that the defendant: 1) associated with

a criminal venture; 2) participated in the venture; and 3) sought

by   action    to   make    the   venture     succeed.        United     States    v.

Martiarena, 955 F.2d 363, 366 (5th Cir. 1992). "Association" means

that the defendant shared in the criminal intent of the principal.

"Participation"       means    that     the   defendant        engaged    in    some

affirmative conduct designed to aid the venture. Mere presence and

association are insufficient to sustain a conviction for aiding and

abetting.     Id.   The essence of aiding and abetting is a "community

of   unlawful     intent"     between   the   aider     and    abettor    and     the

principal.      United States v. Pena, 949 F.2d 751, 755 (5th Cir.

1991).   Although the aider and abettor need not know the means by

which the crime will be carried out, he must share in the requisite


                                         7
intent.    United States v. Westbo, 746 F.2d 1022, 1025 (5th Cir.

1984).

Under 18 U.S.C. § 922 (d)(1), it is the purchaser's status as a

felon which makes the activity criminal.              If the aider and abettor

does not know this fact, it is difficult to say that he shared in

the criminal intent of the principal.

     There      is   no   doubt   that   Murray     was   in    possession    of    an

unregistered firearm. But, since 28 U.S.C. § 922(d)(1) is an added

offense    with      enhanced     elements,    it   was    incumbent     upon      the

prosecutor to establish that Murray knew or had reasonable cause to

believe that Atkinson was a convicted felon.                     United States v.

Longoria, 569 F.2d 422, 425 (5th Cir. 1978).                   The mental state of

the principal alone, is insufficient to inculpate an aider and

abettor.     United States v. Williams, No. 91-7284, 1993 WL 46565

(5th Cir. Feb. 24, 1993);             United States v. Beck, 615 F.2d 441

(5th Cir. 1980).          Murray may very well have known that Reid was

going to transfer unregistered firearms, but he did not know (or at

least there is precious little evidence to show) that Reid was

committing the additional offense of selling firearms to a felon.

The very intent which makes this conduct criminal is the knowledge

or reasonable belief that the transferee is a previously convicted

felon.     We     must    conclude   that     the   evidence      adduced    by    the

government at trial, when viewed most favorably to the verdict,

cannot support an inference of guilt as to                Count V.

                            Prejudicial Reference

     Murray's        co-defendant,    Reid,    testified        in   favor   of    the


                                         8
defense.    Before tendering the witness, defense counsel elicited

the fact that Reid pled guilty to conspiring with Murray to violate

the federal firearms laws.        On cross-examination, the prosecutor

extensively questioned Reid concerning the apparent inconsistencies

between his testimony at Murray's trial, and the implications of

his guilty plea to the conspiracy charge. Despite these references

to Reid's guilty plea, the judge was never requested to, nor did he

sua sponte instruct the jury on the limited evidentiary purpose of

the co-defendant's guilty plea.          Also, defense counsel made no

objection at trial.       Accordingly, we review this issue under the

plain    error   standard,   examining     whether   the   error     seriously

affected the defendant's substantial rights.               United States v.

Leach, 918 F.2d 464, 467 (5th Cir. 1990), cert. denied, 111 S.Ct.

2802 (1991) (citing United States v. Mattoni, 698 F.2d 691 (5th

Cir. 1983)).     Plain error is an error, "so obvious that our failure

to notice it would seriously affect the fairness, integrity, or

public reputation of [the] judicial proceedings and result in a

miscarriage of justice."        United States v. Fortenberry, 914 F.2d

671, 673 (5th Cir. 1990), cert. denied, 111 S.Ct. 1333 (1991)

(citing United States v. Graves, 669 F.2d 964, 971 (5th Cir.

1982)).

       In United States v. Black, the Court enumerated the factors to

be considered when evaluating the impact of a witness' guilty plea.

They    include:     1)   the   presence    or   absence    of   a    limiting

instruction; 2) whether there was a proper evidentiary purpose for

introduction of the guilty plea; 3) whether the plea was improperly


                                     9
emphasized or used as substantive evidence of guilt; and 4) whether

the introduction of the plea was invited by defense counsel.

United States v. Black, 685 F.2d 132, 135 (5th Cir.), cert. denied,

459 U.S. 1021 (1982);      United States v. Leach, 918 F.2d at 467;

United States v. Borchardt, 698 F.2d 697, 701 (5th Cir. 1983).       Our

analysis of the facts reveal that two of the four factors are

present.   First, the prosecution clearly had a proper purpose in

emphasizing the guilty plea.        The plea served to impeach the

witness' testimony.      Second, it was the defendant who originally

introduced the guilty plea. Moreover, the defendant did not object

to the prosecutor's questioning, nor did he request a limiting

instruction from the judge.      See United States v. Cook, 461 F.2d

906 (5th Cir.), cert. denied, 409 U.S. 949 (1972) (found no plain

error when defendant's attorney introduced co-defendants' guilty

pleas) and United States v. Bass, 562 F.2d 967 (5th Cir. 1977) (no

plain error where: government elicited guilty pleas, no objection

by   defense,   and   defense   emphasized   guilty   pleas   on   cross-

examination).

      Similarly, in United States v. Howard, the Court found no

plain error where the same two Black factors were present as in the

case sub judice.      United States v. Howard, 961 F.2d 1571 (5th Cir.

1992) (unpublished opinion)3.      The facts in Howard are virtually


      3
        According to local rule 47.5.3, unpublished opinions are
precedent, but may only be cited when: "1) it establishes the law
of the case, 2) is relied upon as a basis for res judicata or
collateral estoppel, or 3) involves related facts." Finding the
circumstances in Howard closely related to the facts herein, a
copy of the opinion is attached.

                                   10
identical to the facts in this case.   Not only did defense counsel

not object to the testimony, he was the one who introduced it.

Howard, supra.   Murray suffered no plain error as a result of

Reid's guilty plea.

                           Conclusion

      We affirm Murray's conviction on Counts II, III, and IV.

Murray's conviction on Count V is reversed. A review of the pre-

sentencing report indicates that the reversed charge factored into

defendant's sentence calculation, and accordingly, resentencing is

necessary.

     AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.




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