                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-8-1997

United States v. McKie
Precedential or Non-Precedential:

Docket 96-7010,96-7011,96-7014




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Recommended Citation
"United States v. McKie" (1997). 1997 Decisions. Paper 98.
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Filed May 8, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 96-7010, 96-7011
and 96-7014

UNITED STATES OF AMERICA;
GOVERNMENT OF THE VIRGIN ISLANDS

v.

MICHAEL McKIE,
Appellant at No. 96-7010

JERMAINE HALL,
Appellant at No. 96-7011

GUY M. HENRY,
Appellant at No. 96-7014

On Appeal from the District Court of the Virgin Islands
Division of St. Croix
(D.C. Criminal Nos. 95-cr-00036-1,
95-cr-00036-2 and 95-cr-00036-3)

Argued December 9, 1996

Before: SCIRICA, NYGAARD and McKEE, Circuit Judges

(Filed May 8, 1997)
MICHAEL A. JOSEPH, ESQUIRE
(ARGUED)
52A Company Street, Suite 1
Christiansted, St. Croix
U.S. Virgin Islands 00820

Attorney for Appellant,
Michael McKie

MARTIAL A. WEBSTER, ESQUIRE
P.O. Box 1568, Suite 10
298 Peter's Rest
Kingshill, St. Croix
U.S. Virgin Islands 00851

Attorney for Appellant,
Jermaine Hall

JEFFREY B.C. MOORHEAD,
 ESQUIRE (ARGUED)
1132 King Street, 2nd Floor
Christiansted, St. Croix
U.S. Virgin Islands 00820

Attorney for Appellant, Guy Henry

DENISE HINDS-ROCH, ESQUIRE
 (ARGUED)
JAMES R. FITZNER, ESQUIRE
Office of United States Attorney
1108 King Street, Suite 201
Christiansted, St. Croix
U.S. Virgin Islands 00820

Attorneys for Appellees

OPINION OF THE COURT

SCIRICA, Circuit Judge.

In this joint appeal, defendants Michael McKie, Guy
Henry and Jermaine Hall challenge their convictions on
weapons offenses. We will reverse defendants' convictions

                   2
for unlawful firearm possession under Virgin Islands law,
but we will affirm all other issues raised in this appeal.

I.

On April 14, 1995, at 12:30 a.m. in St. Croix, defendants'
car was stopped for a traffic violation. Four police officers
ordered the driver, McKie, out of the car. The passengers,
Hall, Henry and a juvenile, were also ordered to leave the
car after an officer observed them conversing and looking
around inside the car. At that point, an officer spotted a .38
caliber revolver on the back seat of the car. Further
inspection revealed two more firearms -- a Tec-9 machine
gun1 on the front passenger sidefloorboard, and a .45
caliber pistol on the rear driver's side floorboard.2

At trial, Hall testified that he and the other defendants
flew to St. Croix from St. Thomas on a chartered airplane.
They arrived at 11 a.m. to attend a reggae concert later that
evening. Although unemployed, Hall brought with him $700
in cash that he had accumulated by gambling and cock
fighting. Upon arrival, they were met by a friend whose car
they borrowed.

Hall testified that after arriving in St. Croix, he received
a death threat from someone who previously had shot him.
He did not report this to the police but instead decided to
obtain a firearm. By chance, he ran into an acquaintance
who sold him three firearms for $500. Hall testified he
_________________________________________________________________

1. The Tec-9 pistol is considered a machine gun under Virgin Islands law
because, even though it cannot fire in fully automatic mode, it has the
capacity to fire more than 12 shots without reloading. See V.I. Code Ann.
tit. 14, § 2253(d)(2). Under federal law, this weapon is not classified as
a machine gun but as a semiautomatic assault weapon. See 18 U.S.C.
§ 921(a)(30)(a)(viii).

2. The .38 caliber revolver was positioned between Hall and the juvenile,
"on top of the back seat . . . a long bench seat . . . right in the middle
of the seat, just sitting there." The Tec-9 machine gun was located on
the front passenger side floorboard, "right on the floor, right where your
feet would be." The .45 caliber pistol was located on the rear driver's side
floorboard where the juvenile had been sitting. At trial, a firearms expert
testified that each of the three firearms was loaded with ammunition and
ready to fire.

                    3
concealed the three weapons in the car without telling
McKie and Henry about his purchase.

According to Hall, defendants left in the car to attend the
concert around 10:30 p.m. McKie was driving. Hall initially
sat in the front passenger seat and Henry in the back, but
they switched positions when Henry complained about
being cramped in the back of the subcompact car (an Isuzu
I-Mark). As noted, defendants were stopped by the police
around 12:30 a.m.

All three defendants were convicted under Count I of the
indictment for possession of a firearm with an obliterated
serial number in violation of federal law (18 U.S.C.
§§ 922(k) and 2) and under Counts II and III for possession
of firearms in violation of Virgin Islands law (V.I. Code Ann.
tit. 14, §§ 2253(a), (b) and 11). McKie was also convicted
under Count IV for possession of a firearm by a felon in
violation of federal law (18 U.S.C. § 922(g)(1)). McKie was
sentenced to 60 months imprisonment on Count I, 5 years
each on Counts II and III, and 72 months on Count IV, all
to run concurrently. Hall was sentenced to 36 months on
Count I and 30 months each for Counts II and III, with the
territorial sentences to run concurrently but consecutive to
the federal sentence. Henry was sentenced to 37 months on
Count I and 3 years each on Counts II and III, all to run
concurrently.

As we have noted, all defendants appeal their firearm
convictions under Virgin Islands law. Hall also appeals the
district court's denial of his motion to compel performance
of a plea agreement. Defendants do not appeal their federal
firearm convictions.

II.

Before trial, the government offered a plea agreement to
Hall. In exchange for his guilty plea, truthful testimony at
trial and "complete debriefing" regarding the guns, the
government would recommend a reduction in his offense
level. But during debriefing, the government questioned
Hall's credibility and withdrew the plea offer. Hall now
claims the district court erred in denying his motion to
compel performance of the plea agreement. We review for

                    4
abuse of discretion. See United States v. Trott, 779 F.2d
912, 915-16 (3d Cir. 1985); Government of Virgin Islands v.
Berry, 631 F.2d 214, 219-20 (3d Cir. 1980).

Hall contends the government breached the plea
agreement by withdrawing the plea offer. But the plea
agreement recites, "The defendant [Hall] recognizes that, in
the event it is determined he has made any materially false
statements pursuant to this agreement, the agreement will
be voided." Hall also argues he did not get the benefit of his
bargain with the government. But neither did the
government. Hall neither pled guilty nor testified for the
government at trial. In the plea agreement, the government
retained discretion to withdraw its offer. The district court
did not abuse its discretion.3

III.

Defendants challenge their convictions for possession of
firearms in violation of V.I. Code Ann. tit. 14,§§ 2253(a)
and (b).4 The statute provides in part:
_________________________________________________________________

3. Although Hall was invited by the court to move for an evidentiary
hearing on this matter at the end of trial, he failed to do so. Whether or
not this constitutes waiver, see Baker v. United States, 781 F.2d 85, 90
(6th Cir.), cert. denied, 479 U.S. 1017 (1986), the district court properly
denied his motion.

4. As noted, defendants do not appeal their federal firearm convictions
for violations of 18 U.S.C. §§ 922 and 2. Because McKie and Henry are
serving their unchallenged federal sentences concurrently with their
territorial sentences, the concurrent sentence doctrine may apply. Under
the concurrent sentence doctrine, we have discretion to avoid resolution
of legal issues affecting less than all of the counts in an indictment
where at least one count will survive and the sentences on all counts are
concurrent. See United States v. American Investors of Pittsburgh, Inc.,
879 F.2d 1087, 1100 (3d Cir.), cert. denied, 493 U.S. 955 (1989). The
concurrent sentence doctrine may not be invoked where a defendant
may suffer collateral consequences from the multiple convictions. It is
rarely invoked in federal court now because of the mandatory $50.00
assessment imposed on each federal count resulting in conviction. See
Ray v. United States, 481 U.S. 736, 737 (1987) (holding concurrent
sentence doctrine does not apply where a monetary assessment is
imposed on each count because of the collateral consequences of the
multiple convictions, i.e. a defendant's "liability to pay th[e] total depends
on the validity of each of his . . . convictions.").

                    5
(a) Whoever, unless otherwise authorized by law,
has, possesses, bears, transports or carries either
openly or concealed on or about his person, or under
his control in any vehicle of any description any
firearm . . . may be arrested without a warrant, and
shall be sentenced to imprisonment . . . .

(b) Whoever, unless otherwise authorized by law,
has, possesses, bears, transports or carries either
openly or concealed on or about his person, or under
his control in any vehicle of any description any
machine gun . . . may be arrested without a warrant,
and shall be sentenced to imprisonment . . . .

V.I. Code Ann. tit. 14, § 2253 (emphasis added). McKie
contends the weapons were not under his control. In
addition, all three defendants contend the government
failed to meet its burden to prove their possession was not
"authorized by law."

A.

"A weapon is under one's control, within the meaning of
§ 2253, if it is in an area from which [one] might gain
immediate possession." United States v. Xavier, 2 F.3d
1281, 1289 (3d Cir. 1993). We believe there was sufficient
evidence to sustain a verdict that the weapons in the
vehicle were under McKie's control. Each of the three
firearms was in plain view inside the car. The car was
described as a subcompact, and Hall testified that two of
the occupants changed places because of cramped seating.
At trial, one of the officers testified that all the weapons
were "in the open." Photographs of the guns' locations were
displayed to the jury. Based on this evidence we believe the
jury could have reasonably inferred that McKie knew of and
had immediate access to the guns. See New York v. Belton,
453 U.S. 454, 460 (1981) ("[A]rticles inside the relatively
_________________________________________________________________

But Hall's sentences on his territorial and federal convictions are not
concurrent. Because it will be necessary to decide the validity of Hall's
Virgin Islands conviction, we will not address whether the concurrent
sentence doctrine applies to the other defendants.

                    6
narrow compass of the passenger compartment of an
automobile are in fact generally, even if not inevitably,
within `the area into which an arrestee might reach in order
to grab a weapon . . . .' ") (quoting Chimel v. California, 395
U.S. 752, 763 (1969)). The weapons were therefore under
McKie's control within the meaning of § 2253.

B.

It is the government's burden under V.I. Code Ann. tit.
14, § 2253 to prove defendants were unauthorized to carry
or possess the guns. See Xavier, 2 F.3d at 1289. The
district court held the government would satisfy this
burden by proving, among other things, that defendants did
not have a firearms license. But defendants contend that,
under V.I. Code Ann. tit. 23, § 470 (1968) (amended Sept.
1996), unlicensed firearm possession is not unauthorized
by law until it lasts beyond a twenty-four hour period.
Defendants maintain the government bears the burden to
prove possession beyond twenty-four hours. The
government disagrees, contending § 470 provides
defendants an affirmative defense to a charged violation of
V.I. Code Ann. tit. 14, § 2253, and falls within defendants'
burden of production. See Patterson v. New York, 432 U.S.
197, 210 (1977) (holding the government need not prove
beyond a reasonable doubt the nonexistence of all
affirmative defenses); Government of Virgin Islands v. Smith,
949 F.2d 677, 686 (3d Cir. 1991) (defendant bears burden
of production on affirmative defenses).

1.

At the time of the arrest, V.I. Code Ann. tit. 23,§ 470
(1968), allowed gun owners twenty-four hours to register
their firearms:

(a) Any person . . . who purchases or otherwise
obtains any firearms or ammunition from any source
within or outside of the Virgin Islands shall report such
fact in writing or in person to the Commissioner within
24 hours after receipt of the firearm or ammunition
....

                    7
(c) . . . If the person is not qualified for a license then
the Commissioner shall retain the firearms or
ammunition . . . , but no prosecution shall lie against
the person for unlawful possession of the firearm or
ammunition.5

The twenty-four hour grace period was removed from§ 470
in September 1996. Under the current statute, a person
must obtain a license "immediately" upon possession of a
firearm. V.I. Code Ann. tit. 23, § 470 (Sept. 1996).

Defendants argue it was the government's burden to
prove their firearm possession lasted beyond twenty-four
hours. It is always the government's burden to prove
_________________________________________________________________

5. The complete text of § 470 (1968) provided:

(a) Any person other than a licensed dealer, who purchases or
otherwise obtains any firearms or ammunition from any source
within or outside of the Virgin Islands shall report such fact in
writing or in person to the Commissioner within 24 hours after
receipt of the firearm or ammunition, furnishing a complete
description of the firearm or ammunition purchased or otherwise
obtained. He shall also furnish his own name, address, date of birth
and occupation.

(b) Any person upon entering the Virgin Islands bringing with him
any firearm or ammunition shall report in writing or in person to
the Commissioner within 24 hours of his arrival, furnishing a
complete description of the firearm or ammunition brought into the
Virgin Islands. He shall also furnish his own name, address, date of
birth and occupation.

(c) In the event the person reporting under subsections (a) or (b),
above, is qualified for a license to carry firearms in the Virgin
Islands, the Commissioner shall issue the same, upon payment of
the proper fee, and the firearm shall be registered in the Weapons
Register provided for in section 469 of this chapter. If the person is
not qualified for a license then the Commissioner shall retain the
firearms or ammunition for disposition in accordance with the
provisions of section 475 of this chapter, but no prosecution shall
lie against the person for unlawful possession of the firearm or
ammunition.

(d) Any person who fails to comply with this section shall be
punished as provided in section 484 of this chapter [the General
Penalty section].

                      8
"beyond a reasonable doubt . . . every fact necessary to
constitute the crime with which [a defendant] is charged."
In re Winship, 397 U.S. 358, 364 (1970). The issue, then, is
whether possession for more than twenty-four hours is a
fact necessary to constitute the crime of unlawful
possession in violation of § 2253. Our review of statutory
construction is plenary. See Christopher v. Davis Beach Co.,
15 F.3d 38, 41 (3d Cir. 1994).

We must first look to the language of V.I. Code Ann. tit.
14, § 2253. See United States v. Schneider, 14 F.3d 876,
879 (3d Cir. 1994). The statute punishes anyone who,
"unless otherwise authorized by law, has, possesses, bears,
transports or carries either openly or concealed on or about
his person, or under his control in any vehicle of any
description any firearm." Section 2253 does not mention
duration of possession nor does it reference the twenty-four
hour grace period in § 470. In the past we have interpreted
the clause "unless otherwise authorized by law" to mean
possession without a license. See Government of Virgin
Islands v. Soto, 718 F.2d 72, 80 (3d Cir. 1983) ("[T]he
gravamen of [§ 2253] appears to have been the possession
of unlicensed firearms . . . ."); Government of Virgin Islands
v. Bedford, 671 F.2d 758, 763 n.7 (3d Cir. 1982) (approving
a jury instruction that § 2253(a) is violated if, "the
defendant possessed the firearm; . . . he was not licensed
to possess it; and . . . it meets the definition .. . of a
firearm."). The government must prove the absence of a
firearms license. But we have never designated proof of
possession for more than twenty-four hours as an element
of the crime.

Nonetheless, we will examine whether possession for less
than twenty-four hours is a proper affirmative defense
under the Supreme Court standard. At issue is whether the
government is required to prove enough under § 2253,
without proof of duration, "to make it just for the defendant
to be required to repel" the charges with an affirmative
defense. Patterson, 432 U.S. at 203 n.9 (quoting Morrison v.
California, 291 U.S. 82, 88-89 (1934)). We must balance the
parties' "opportunities for knowledge" and determine
whether "the shifting of the burden will be found to be an
aid to the accuser without subjecting the accused to
hardship or oppression." Id.

                    9
A balancing of the "opportunities for knowledge" reveals
it is far easier for the defendant to know of, and assert,
firearm possession under twenty-four hours than it is for
the government to establish possession for more than
twenty-four hours. Except when a firearm is purchased
lawfully from a vendor who keeps records and the purchase
and buyer are capable of being traced, we believe that when
a firearm was obtained is almost always exclusively within
the knowledge of the defendant. See United States v.
Gainey, 380 U.S. 63, 63 (1965) (The "practical
impossibility" of proving a statutory violation resulted in
presumption against defendants charged with violating the
statute.)

In addition, the defendants' argument would require the
government to prove in each prosecution that none of the
statutory exceptions to the firearm license requirement are
satisfied.6 Such an interpretation would conflict with our
obligation to construe statutes sensibly and avoid
constructions which yield absurd or unjust results. See
United States v. Turkette, 452 U.S. 576, 580 (1981);
Government of Virgin Islands v. Berry, 604 F.2d 221, 225
(3d Cir. 1979).

After the government proves unlicensed firearm
possession, we do not find it a hardship for the defendant
to come forward with evidence of the duration of possession.7
Therefore, we hold § 470 is not an element of the offense of
unlawful firearm possession under V.I. Code Ann. tit. 14,
§ 2253, but rather is an affirmative defense.
_________________________________________________________________

6. For example, the government would have to prove the defendants are
not members of any of the armed forces of the United States, see V.I.
Code Ann. tit. 23, § 453(a)(1), that defendants are not officers or
employees of a federal agency authorized by law to carry firearms, see
V.I. Code Ann. tit. 23, § 453(a)(2), that defendants are not jail wardens,
see V.I. Code Ann. tit. 23, § 453(a)(5), and that defendants do not have
licenses to carry firearms in any of the United States, see V.I. Code Ann.
tit. 23, § 460.

7. It is consistent with Virgin Islands statutory law to draw an inference
against a defendant from his unlicensed firearm possession. See, e.g.,
V.I. Code Ann. tit. 14, § 2253(c) (Defendant's unlicensed firearm
possession "shall be evidence of his intention to commit [a] crime of
violence.").

                    10
2.

But this is not the end of the inquiry. Defendants also
contend they are entitled to acquittal because they
presented uncontradicted evidence they purchased the
guns less than twenty-four hours before their arrest. The
district court instructed the jury that it may nonetheless
convict defendants unless they intended to obtain afirearm
license within twenty-four hours and were prevented from
doing so by their arrests. Defendants challenge the court's
instruction on intent, contending they may not be convicted
as a matter of law if their possession did not extend beyond
twenty-four hours.

The district court relied on Government of Virgin Islands
v. King, No. CRIM. 529/1994, 1995 WL 217613 (Terr. Ct.
V.I. March 3, 1995), which held the twenty-four hour grace
period protects only those persons who intend to register
and lawfully own their firearms, stating "[s]ection 470 is not
a refuge for all who desire to possess a gun for less than a
day." Id., 1995 WL 217613, at *5. The government urges us
to follow King, arguing the stated purpose of § 470 is to
proscribe possession of unlicensed firearms. See V.I. Code
Ann. tit. 23, ch. 5 (1968) (Annotations) ("This chapter
[including § 470] provides for penalizing constructive
possession of an unlicensed firearm . . . .") The history of
Virgin Islands statutory law reveals a consistent increase in
the penalty for unlawful gun possession,8 and a consistent
decrease in the time allowed for firearm registration.9 The
government argues that interpreting § 470 to immunize
anyone arrested within twenty-four hours of a purchase is
directly contrary to § 470's legislative intent.
_________________________________________________________________

8. In 1957, carrying a concealed firearm without a license resulted in
imprisonment for up to one year. V.I. Code Ann. tit. 14, § 2252 (1957).
The current penalty for simple firearm possession is a maximum of three
years and a minimum of six months incarceration. V.I. Code Ann. tit. 14,
§ 2253(a).

9. In 1953, firearm owners were required to register their firearms within
forty-eight hours. Ord. Mun. C. St. T. and St. J. app. Dec. 18, 1953, Bill
no. 291. In 1968, the period was decreased to twenty-four hours. V.I.
Code Ann. tit. 23, § 470 (1968). In September 1996, the statute was
amended again, requiring "immediate" registration. V.I. Code Ann. tit.
23, § 470 (Sept. 1996).

                    11
The government maintains the Virgin Islands legislature
did not intend § 470 to provide a refuge for gun owners who
never intended to register their firearms. But the language
of § 470 does not include a requirement of "intent to
register" for a firearm license. It simply requires registration
"within 24 hours." Other than King, the government cites
no authority for its interpretation. We have examined
similar statutes from other states, but we have been unable
to find any court which creates an intent requirement
under similar circumstances. We must interpret criminal
statutes strictly, "and any ambiguity must be resolved in
favor of lenity" towards the defendants. United States v.
Enmons, 410 U.S. 396, 411 (1973); United States v. Long,
654 F.2d 911, 914 (3d Cir. 1981).

The language of the statute (now repealed) was clear and
unambiguous. It required only that "[a]ny person . . . who
purchases or otherwise obtains any firearm . . .[to] report
such fact . . . within 24 hours after receipt of thefirearm
. . . ." V.I. Code Ann. tit. 23, § 470 (1968). If the legislature
meant to include "intent to report" as part of the defense,
it did not say so. See Government of Virgin Islands v.
Smalls, No. CRIM. F12/1994, 1995 WL 457975 (Terr. Ct.
V.I. July 27, 1995) ("[W]hether a defendant intended to
report the firearm or not does not vitiate the legal authority
to possess the firearm for twenty four hours before
reporting it. There is no element of `intent to report' under
the statute."). For this reason, we believe, the Virgin Islands
legislature eliminated the twenty-four hour grace period in
September 1996. Section 470 now requires registration
"immediately" upon possession of a firearm.

The extensive legislative history reveals the reasons for
the amendment. Concerned with the conflict between the
territorial court decisions in King and Smalls, the
legislature wanted to close the loophole created by the
twenty-four hour grace period. As stated by one Virgin
Islands senator, "[W]ith a loophole as big as the one that is
currently on the books that allow[s] for a 24 hour reporting
period you can clearly see that anyone at any time can
easily utilize that loophole as a means of getting out of their
basic responsibility and their whole possession of afirearm
whether acquired legally or illegally." Hearing on Bill No. 21-

                     12
0219, to amend Title 23, Section 470 of the Virgin Islands
Code, Reg. Sess. (V.I. Aug. 29, 1996) (statement of Senator
Osbert Potter). Another senator stated, "This bill involves
closing some loopholes that essentially provide for a field
day for a criminal element in the area of firearm
possession." Id. (statement of Senator Almando Liburd).
And yet another said, "There are too many guns in this
community. And if we don't start by closing these loopholes
we never will." Id. (statement of Senator Lorraine L. Berry).
"We believe "intent to report" was not an element of the
affirmative defense of firearm possession for less than
twenty-four hours, as it existed under § 470 before its
recent amendment. Because the defendants presented
uncontradicted evidence of possession for less than twenty-
four hours,10 we find theirfirearm possession was not
unauthorized by Virgin Islands law. Therefore we must
reverse defendants' convictions under V.I. Code Ann. tit.
14, §§ 2253(a), (b) and 11 (aiding and abetting).

IV.

We will reverse the convictions of all defendants under
V.I. Code Ann. tit. 14, §§ 2253(a), (b) and 11 (Counts II and
III of the indictment). We will remand for resentencing on
_________________________________________________________________

10. The district court implied in its jury instructions that the duration of
firearm possession was under twenty-four hours:

Now, Virgin Islands firearms licensing law allows someone who
obtains a firearm in the territory a grace period of 24 hours after
receiving the firearm to report that fact to the Commissioner of
Police for the purpose of obtaining a license for the firearm. . . .

You've heard the testimony of defendant, Jermaine Hall, that he
bought these three firearms . . . in the early evening of the night the
car was stopped and he was arrested for these charges.

If, after you examine the evidence, you find that Mr. Hall possessed
these firearms . . . and did not have a license to possess these
firearms, you should then consider his testimony in determining
whether he intended to report his purchase, and whether his arrest
prevented him from so reporting his purchase of the guns to the
police within 24 hours.

(Appellants' Br. at 222a - 223a.)

                     13
the remaining convictions under 18 U.S.C. §§ 922 and 2.11
See United States v. Levy, 865 F.2d 551, 559 n.5 (3d Cir.
1989) ("[W]here the sentences imposed on two of the three
counts are vacated and all three sentences arise from the
same criminal transaction, it is appropriate to vacate the
third, valid sentence in order to afford the trial judge an
opportunity to properly exercise his sentencing discretion
. . . .") (citations omitted).

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

_________________________________________________________________

11. As we have noted, all defendants were convicted of violating 18
U.S.C. § 922(k) and 2, which prohibit possession (and aiding and
abetting possession) of a firearm with an obliterated serial number.
McKie was also convicted of violating 18 U.S.C.§ 922(g)(1), which
prohibits possession of a firearm by a felon. Defendants did not appeal
their convictions for the § 922 violations.

                   14
