                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-3562
                                   ___________

United States of America,             *
                                      *
            Plaintiff-Appellee,       *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * Western District of Missouri.
Jesse D. Counce,                      *
                                      *      [TO BE PUBLISHED]
            Defendant-Appellant.      *
                                 ___________

                             Submitted: April 17, 2006
                                Filed: May 3, 2006
                                 ___________

Before LOKEN, Chief Judge, LAY and BYE, Circuit Judges.
                              ___________

PER CURIAM.

       On the morning of October 11, 2003, Kansas City, Missouri police officers
stopped Jesse D. Counce for a traffic violation. After a computer check confirmed
that Counce had outstanding warrants, he was placed under arrest. During a search
for Counce’s inhaler, Officer Connor-Pettey discovered a handgun, a magazine, and
a box of ammunition inside a black nylon bag on the floor behind the front passenger
seat. Counce told the arresting officers and a detective who questioned him at the
police station that the bag did not belong to him. He claimed the bag belonged to a
friend whom he had dropped off before he was stopped by the police.
        After a jury trial, Counce was convicted of being a felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Counce was sentenced
to the statutory maximum sentence of 120 months. Counce appeals the district court’s
refusal to allow him to introduce evidence that the firearm was inoperable, the district
court’s failure to define “knowingly” in the jury instructions, and the sentence
imposed by the district court. We affirm.

       First, Counce challenges an evidentiary ruling of the district court. To obtain
a conviction under 18 U.S.C. § 922(g), the government must prove that an object
satisfies the federal definition of a firearm. See 18 U.S.C. § 921(a)(3). ATF Agent
Timothy Canon testified the handgun was “designed to expel a projectile by the action
of an explosive.” The district court did not allow Counce to challenge this conclusion
by cross examining the government’s expert or through other means of proof. Counce
argues this violated his Sixth Amendment right to confront a witness against him and
his Fifth Amendment right to present a defense.

       We review the district court’s decision to exclude evidence for an abuse of
discretion. United States v. Naiden, 424 F.3d 718, 722 (8th Cir. 2005). The firearm
in this case was missing the safety, thereby preventing the hammer from operating
with a pull of the trigger. Counce argues the evidence of the defective condition of
the handgun was relevant to an essential element of the case–whether the handgun was
designed to operate as a firearm–and therefore he should have been able to cross
examine Agent Canon and present evidence on this point. Section 921(a)(3) defines
a firearm as “any weapon (including a starter gun) which will or is designed to or may
readily be converted to expel a projectile by the action of an explosive.” 18 U.S.C.
§ 921(a)(3).

       The district court concluded Counce’s evidence of firearm inoperability was
irrelevant to determine whether the weapon was a firearm under § 921(a)(3). We
disagree. Although § 921(a)(3) does not require a firearm to be operable, see, e.g.,

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United States v. Maddix, 96 F.3d 311, 316 (8th Cir. 1996); United States v. York, 830
F.2d 885, 891 (8th Cir. 1987), the operation of a weapon may be relevant to whether
it is designed to expel a projectile by the action of an explosive. See United States v.
Aldaco, 201 F.3d 979, 985-86 (7th Cir. 2000). However, Counce neither provided the
district court with an offer of proof nor cross-examined ATF Agent Canon regarding
the design of the weapon. Specifically, Counce made no argument before the district
court, and makes no argument before this court, the missing safety was the result of
the manufacturer’s design. Accordingly, we conclude the evidence of firearm
inoperability was properly excluded under Rule 403 because such evidence would
have yielded substantial juror confusion without having significant probative value
regarding the issue of weapon design. Cf. United States v. McCaster, 193 F.3d 930,
933 (8th Cir. 1999) (“We may affirm the judgment on any grounds supported by the
record, even if not relied on by the district court.”).

       Second, Counce argues the district court erred by failing to submit the defense’s
proposed jury instruction defining “knowingly.” A district court’s denial or
acceptance of a proposed jury instruction is reviewed under an abuse of discretion
standard. United States v. Gary, 341 F.3d 829, 834 (8th Cir. 2003). The proposed jury
instruction stated, in part: “An act is done knowingly if the defendant is aware of the
act and does not act or fail to act through ignorance, mistake, or accident.” Counce
offered the defense that the individual he dropped off immediately before the police
stopped him left the handgun in his car.

       A defendant is entitled to a theory of defense instruction if a timely request is
made, the evidence supports the requested instruction, and the instruction correctly
states the law. Id. However, this does not guarantee a particular formulation of the
proposed instruction. Id. The district court submitted Instruction No. 19, which
defined actual and constructive possession. While the instructions did not define
“knowingly,” the term is within the understanding of a lay juror. Id. (citing United
States v. Johnson, 892 F.2d 707, 710 (8th Cir. 1989)). Further, the submitted

                                          -3-
instruction correctly states the law of this circuit and the jury’s verdict is supported
by the evidence under either actual or constructive possession.

       Finally, Counce argues his sentence was imposed in violation of the Ex Post
Facto and Due Process Clauses. A district court’s conclusions of law are reviewed de
novo. United States v. Jeffries, 405 F.3d 682, 684 (8th Cir. 2005). Counce’s conduct
occurred in 2003, prior to the Supreme Court’s decisions in Blakely v. Washington,
542 U.S. 296 (2004) and United States v. Booker, 543 U.S. 220 (2005). Counce
argues that he is entitled to the benefit of the Sixth Amendment holdings of Blakely
and Booker, but he cannot be disadvantaged by the remedial portion of Booker. This
court has already rejected this argument in United States v. Wade, 435 F.3d 829, 832
(8th Cir. 2006). Therefore, the district court did not err in imposing the statutory
maximum sentence of ten years.

      For the above stated reasons, we affirm.
                      ______________________________




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