UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                        No. 94-5551

PAUL ANDREW HENSON,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, District Judge.
(CR-93-89)

Argued: May 10, 1996

Decided: September 16, 1996

Before WILKINSON, Chief Judge, and HALL and
ERVIN, Circuit Judges.

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Vacated and remanded for a new trial by unpublished opinion. Judge
Ervin wrote the opinion, in which Chief Judge Wilkinson and Judge
Hall joined.

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COUNSEL

ARGUED: Sam Garrison, Roanoke, Virginia, for Appellant. Joseph
William Hooge Mott, Assistant United States Attorney, Roanoke,
Virginia, for Appellee. ON BRIEF: Richard Lee Lawrence, Roanoke,
Virginia, for Appellant. Robert P. Crouch, Jr., United States Attorney,
Roanoke, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

ERVIN, Circuit Judge:

Paul Andrew Henson challenges his conviction for possession of
an unregistered firearm under 26 U.S.C. § 5861(d). He argues that the
district court should have instructed the jury that the government was
required to prove his knowledge that the weapon had a barrel length
triggering a statutory duty to register. In Staples v. United States--
decided after Henson's trial--the Supreme Court held that a defen-
dant must be proven to have known that a weapon had characteristics
bringing it within the statutory definition of "firearm." 114 S. Ct.
1793 (1994). Accordingly, we vacate Henson's conviction for posses-
sion of an unregistered firearm, and remand for a new trial.

I.

The Pittsylvania County, Virginia, Sheriff's Office investigated
Paul A. Henson as part of an alleged conspiracy involving gambling,
manufacturing illegal whiskey, cultivating marijuana, and dealing in
chemicals used to make amphetamine. On January 6, 1993, officers
obtained a warrant to search Henson's home, and seized--among
other items--an "Uzi" semiautomatic rifle. A jury later convicted
Henson of conspiracy to distribute marijuana, possession of mari-
juana, and possession of an unregistered firearm. 1 Henson was sen-
tenced to twelve months' imprisonment on the possession of
marijuana offense, ninety-six months' on the conspiracy count, and
ninety-six months' on the firearms violation, all running concurrently.

II.

The National Firearms Act, 26 U.S.C. §§ 5801-5872, makes it "un-
lawful for any person . . . to receive or possess a firearm which is not
registered to him in the National Firearms Registration and Transfer
Record." 26 U.S.C. § 5861(d). The statute defines a "firearm" to
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1 Henson was acquitted of three other counts: possession of cocaine,
possession with intent to distribute marijuana, and possession of a fire-
arm during a drug-trafficking crime. Henson was also tried separately
and convicted on four counts related to an illegal distillery. On those
counts, Henson received 60 months, to be served concurrently with the
other sentences.

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include "a rifle having a barrel or barrels of less than 16 inches in
length." 26 U.S.C. § 5845(a)(3). Henson argues that the Supreme
Court's decision in Staples v. United States entitles him to an instruc-
tion that the government must prove that he knew his Uzi rifle had
characteristics bringing it within the statute's grasp.2

In Staples, the defendant was convicted of possessing an unregis-
tered machine gun, defined under the National Firearms Act as "any
weapon which shoots . . . or can be readily restored to shoot, automat-
ically more than one shot, without manual reloading, by a single func-
tion of the trigger." 26 U.S.C. § 5845(b). A search of the defendant's
home uncovered an AR-15 assault weapon--the civilian, semi-
automatic version of the military's M-16 automatic. 114 S. Ct. at
1795-96. On the defendant's weapon, a manufacturer's metal stop
designed to inhibit conversion to automatic firing capability had been
filed away, and the gun had been reassembled with various M-16
parts. Id. Federal Bureau of Alcohol, Tobacco and Firearms
("BATF") agents testified that upon testing, the AR-15 fired more
than one shot with a single trigger pull. Id. The defendant testified,
however, that the weapon had never fired automatically while in his
possession, and that he did not know that the weapon was capable of
firing automatically. Id.

The Court decided that § 5861(d) required proof that a defendant
knew of the characteristics of his weapon that made it a "firearm"
under the Act. The Court reasoned that, in the absence of an indica-
tion of Congressional intent, the common law favors mens rea as an
element of the crime. Id. at 1797. The Court rejected the contention
that, like "public welfare" or "regulatory" offenses concerning inher-
ently dangerous items, the National Firearms Act imposes strict crimi-
nal liability. Id. at 1800. Guns do not fall in the same category, the
Court explained, because of their long tradition of lawful ownership,
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2 The district court instructed the jury:

          It is not necessary for the Government to prove that the defen-
          dant knew that the item described in the indictment was a fire-
          arm which the law required to be registered. What must be
          proven beyond a reasonable doubt is that the defendant know-
          ingly possessed the item as charged, that such item was a firearm
          as defined herein and that it was not then registered to the defen-
          dant in the National Firearms Register and Transfer Record.

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and thus gun owners cannot be said to be sufficiently on notice of the
likelihood of strict regulation. Id. at 1801. The Act's severe penalties,
the Court added, strengthen the conclusion that Congress did not
intend to eliminate the mens rea requirement. Id. at 1802.

The Supreme Court remanded United States v. Starkes--a case
involving the possession of an unregistered sawed-off shotgun--to
this court for reconsideration in light of its decision in Staples. United
States v. Starkes, 32 F.3d 100 (4th Cir. 1994). On remand, we inter-
preted Staples to have overruled circuit precedent holding that proof
of a defendant's knowledge of a weapon's salient characteristics
under § 5861(d) was not required for a conviction, and we returned
the case to the district court for a new trial. Starkes, 32 F.3d at 101.
Our decision in Starkes makes untenable the Government's conten-
tion that Staples should be limited to characteristics not easily
observable--such as firing capacity--and that knowledge of obvious
qualities--such as barrel length--should be presumed.

In the wake of Staples and Starkes, Henson was entitled to a jury
instruction to the effect that the Government was required to put on
evidence that he knew that his Uzi had a barrel length bringing it
within the scope of the statute. Because the Staples decision changed
the elements of the offense, we vacate Henson's conviction, and
remand the case for a new trial.3See Starkes, 32 F.3d at 101 (remand-
ing for new trial rather than entering judgment of acquittal).

VACATED AND REMANDED FOR A NEW TRIAL
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3 We note in passing that, on appeal, Henson argued that the evidence
was insufficient to convict him of possessing an unregistered "firearm"
under 26 U.S.C. § 5861(d), because the government did not prove that
his Uzi rifle was capable of being fired. At trial, a BATF agent testified
that an "operation check" was performed on the weapon; however, the
prosecution did not ask about the results of that test. Because the district
court did not rule on the issue, we express no opinion on whether the
Government was required to adduce evidence that the Uzi was operable
or readily restorable.




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