                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 13a0500n.06

                                             No. 12-5342

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

                                                                                       FILED
UNITED STATES OF AMERICA,                                  )                       May 20, 2013
                                                           )                 DEBORAH S. HUNT, Clerk
          Plaintiff-Appellee,                              )
                                                           )
v.                                                         )   On Appeal from the United States
                                                           )   District Court for the Eastern
THOMAS STETLER,                                            )   District of Tennessee
                                                           )
          Defendant-Appellant.                             )                OPINION




Before:          BOGGS and COLE, Circuit Judges; and QUIST, District Judge.*

                 BOGGS, Circuit Judge. Defendant-appellant Thomas Stetler appeals his conviction

for possessing a firearm as a prohibited person subject to a domestic-violence order of protection,

in violation of 18 U.S.C. § 922(g)(8). On appeal, Stetler first argues that the district court should

have granted his motion, made at the close of the prosecution’s case in chief, for a judgment of

acquittal, pursuant to Fed. R. Crim. P. 29. Second, Stetler argues that his conviction should be

overturned because the jury returned inconsistent verdicts when it convicted him of possessing a

firearm as a prohibited person subject to a domestic-violence order of protection, as mentioned

above, but acquitted him of selling firearms across state lines, in violation of 18 U.S.C. § 922(a)(5).

For the reasons that follow, we affirm Stetler’s conviction.



          *
       The Honorable Gordon J. Quist, United States District Judge for the Western District of
Michigan, sitting by designation.
No. 12-5342
United States v. Stetler

                                                    I

        The events underlying Stetler’s conviction were set in motion on December 29, 2010, when

Detective Sergeant David Sakich of the Bedford County Sheriff’s Office in Tennessee contacted

Stetler, who lived in Ohio, and asked whether Stetler had any guns for sale. After Stetler confirmed

that he had guns that he was willing to sell, there were two more phone calls between the two men.

From the record, it is clear that during these two calls the parties eventually agreed that Stetler would

receive $4,000 in return for delivering 14 guns to Sakich in Tennessee. Both parties agree that

Stetler originally was not keen on delivering the guns himself—offering to let Sakich pick them up

or to have his son deliver them to Sakich—but that he eventually agreed to perform the delivery.

On January 5, 2011, Stetler met Sakich in Tennessee. After Sakich observed the 14 firearms in

Stetler’s vehicle, he signaled other officers to arrest Stetler.

        At the time of Stetler’s arrest, he was subject to a domestic-violence order of protection that

required him not to “possess, use, carry, or obtain any deadly weapon” and that was valid until

February 10, 2011. Accordingly, the government prosecuted Stetler for possessing a firearm as a

prohibited person subject to a domestic-violence order of protection, in violation of 18 U.S.C.

§ 922(g)(8), as well as for selling firearms across state lines, in violation of 18 U.S.C. § 922(a)(5).

        At trial, Sakich testified and provided audio recordings of his phone calls and face-to-face

meeting with Stetler, all of which were played to the jury. FBI Special Agent Richard Poff testified

that he had participated in Stetler’s arrest and that he had observed the 14 guns in Stetler’s car. He

then confirmed that the 14 guns introduced by the prosecution at trial were the same guns that he had

observed in the trunk of Stetler’s car. Finally, Jason Reeves, a Criminal Investigator for the Bureau

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United States v. Stetler

of Alcohol, Tobacco, Firearms, and Explosives, testified that the guns introduced by the government

at trial were firearms, as defined by the United States Code, and that they had traveled in interstate

commerce.

        At the close of the prosecution’s case in chief, Stetler moved for a judgment of acquittal

pursuant to Fed. R. Crim. P. 29, arguing that there was insufficient evidence to support either of the

charges against him. The district court denied the motion. Stetler then testified on his own behalf.

While he admitted that he had voluntarily placed guns in the trunk of his car and that he was indeed

subject to a domestic-violence protective order at that time, he claimed that he mistakenly thought

that the protective order had already expired. He also presented an entrapment defense, arguing that

he would not have brought the firearms to Tennessee had Sakich not initiated contact and offered

to buy them. After the close of trial, the jury convicted Stetler of possessing a firearm as a prohibited

person subject to a domestic-violence order of protection but acquitted him of selling firearms across

state lines. Stetler now appeals.

                                                   II

                                                   A

        Stetler first argues that the district judge erred by not granting his Rule 29 motion at the close

of the government’s case in chief. He argues that the evidence was insufficient to sustain his

conviction for possessing a firearm as a prohibited person subject to a domestic-violence order of

protection and thus that the judge, in accordance with Rule 29, should have entered a judgment of

acquittal. See generally Fed. R. Crim. P. 29(a) (“After the government closes its evidence . . . , the



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United States v. Stetler

court on the defendant’s motion must enter a judgment of acquittal of any offense for which the

evidence is insufficient to sustain a conviction.”).

       We review de novo a district court’s denial of a motion challenging the sufficiency of the

evidence under Rule 29, United States v. Coleman, 458 F.3d 453, 456 (6th Cir. 2006), asking

“whether, 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 (1979); see also United States v. Damrah, 412 F.3d 618, 625 (6th Cir.

2005). “[W]e may not reweigh the evidence, reevaluate the credibility of witnesses, or substitute our

judgment for that of the jury,” United States v. Martinez, 430 F.3d 317, 330 (6th Cir. 2005), and we

are bound to “view[] the evidence in the light most favorable to the prosecution and give[] the

prosecution the benefit of all reasonable inferences from the testimony,” United States v. Abboud,

438 F.3d 554, 589 (6th Cir. 2006). Accordingly, “[a] defendant claiming insufficiency of the

evidence bears a very heavy burden.” United States v. Vannerson, 786 F.2d 221, 225 (6th Cir. 1986)

(internal quotation marks omitted).

       Conviction for possessing a firearm as a prohibited person subject to a domestic-violence

order of protection requires that the government prove that the defendant: “(1) . . . knowingly

possessed a firearm (2) at a time when he was subject to a domestic violence order, and that (3) the

firearm was ‘in or affecting commerce.’” United States v. Cope, 312 F.3d 757, 770 (6th Cir. 2002).

First, it is undisputed that Stetler knowingly possessed firearms, as he admits that he retrieved the

guns at issue from storage and transported them to Tennessee. See Appellant Br. at 11. Second, the



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No. 12-5342
United States v. Stetler

government presented undisputed evidence at trial that the firearms possessed by Stetler were in or

affecting interstate commerce, and Stetler does not challenge or even mention this element on appeal.

       The only element of the crime that Stetler asserts was not supported by sufficient evidence

is the second—that his possession of firearms occurred at a time when he was subject to a domestic-

violence order of protection. While Stetler admits that he was subject to a domestic-violence order

of protection that had not yet expired when he transported his guns to Tennessee, he nevertheless

argues that the government failed to establish the second element of his crime because it did not

prove that he knew the protective order was still in force. Essentially, Stetler argues that 18 U.S.C.

§ 922(g)(8) requires knowledge of a protective order’s continuing vitality and that, due to his mistake

of fact, he lacked the necessary mens rea.

       Under this circuit’s longstanding case law, however, Stetler’s argument fails on its face. In

United States v. Napier, 233 F.3d 394, 398–99 (6th Cir. 2000), we expressly ruled that a defendant

need not have received or even been aware of the contents of a domestic-violence order to be

convicted of a violation of 18 U.S.C. § 922(g)(8). We reached this result by noting that the statute

requires only that the protective order “was issued after a hearing of which such person received

actual notice, and at which such person had an opportunity to participate,” 18 U.S.C. § 922(g)(8)(A),

and that the statute did not require any further knowledge on the part of the defendant. We thus held:

       We find no basis for requiring actual notice of the [protective order containing the]
       gun prohibition. [The defendant] was notified of the proceedings that led up to
       issuance of the domestic violence orders and did in fact attend those hearings. He
       was made subject to a domestic violence order. . . . [W]hether or not he received or
       read those domestic violence orders is of no moment. His status alone, as one subject
       to a domestic violence order, was sufficient to preclude him from claiming a lack of
       fair warning with respect to the requirements of § 922(g)(8). . . . [Accordingly,] the

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No. 12-5342
United States v. Stetler

       evidence [the defendant] sought to introduce regarding his knowledge as to the
       existence of those orders was irrelevant.

Napier, 233 F.3d at 399; see also United States v. Coccia, 249 F. Supp. 2d 79, 82 (D. Mass. 2003)

(“[18 U.S.C. § 922(g)(8)] requires that a defendant have actual notice of the hearing at which the

order issued and that a defendant have the opportunity to participate in that hearing. By requiring

a hearing and an opportunity to be heard, these provisions satisfy due process, and also prevent a

potential defendant from dodging future criminal liability merely by ducking an appearance at an

important civil hearing. . . . [Thus] any argument that [a defendant] must have had actual knowledge

of the order against him must fail.”).

       Accordingly, Stetler cannot argue that the government failed to establish the second element

of his crime—that his possession of firearms occurred at a time when he was subject to a domestic-

violence order of protection—simply by asserting that he mistakenly thought that the protective order

had already expired. In the instant case, Stetler had far more than just the required notice of the

hearing at which a protective order might be imposed; he admits that he had notice that such an order

actually was imposed, that he received this order, and that he knew it expressly prohibited him from

possessing guns for some period of time. That Stetler did not note carefully the exact term of the

order does not relieve him of guilt, especially in light of our holding that a defendant who did not

even receive a protective order could still be held guilty under § 922(g)(8) as long as he knew of the

possibility that one might exist. Napier, 233 F.3d 394. It is therefore patently obvious that at least

one rational trier of fact could have found that the government established the second element of

Stetler’s crime beyond a reasonable doubt, as, by his own admission, Stetler already had far more


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United States v. Stetler

knowledge than what is required for conviction under 18 U.S.C. § 922(g)(8). Consequently, Stetler’s

challenge to the sufficiency of the evidence underlying his conviction must fail.

                                                  B

       In addition, Stetler argues that the jury returned inconsistent verdicts when it convicted him

of possessing a firearm as a prohibited person, in violation of 18 U.S.C. § 922(g)(8) (Count Two),

but acquitted him of selling firearms across state lines, in violation of 18 U.S.C. § 922(a)(5) (Count

One). Stetler makes the general claim that, in his case, acquittal of Count One is inconsistent with

conviction of Count Two. Stetler also more specifically alleges that his acquittal of Count One

indicates that the jury accepted his entrapment defense as to that charge. According to Stetler, once

the jury made an entrapment finding as to Count One, it was bound to find that he was also entrapped

with respect to Count Two.

       To begin, the jury’s two verdicts do not appear to be inconsistent. First, it is not clear that

the jury acquitted Stetler of Count One based on his entrapment defense. A jury’s verdict is not

accompanied by a narrative of its reasoning, and the jurors in Stetler’s case could have acquitted him

of Count One for any number of reasons. In addition, even if the jury did acquit Stetler of Count

One based on entrapment, it does not necessarily follow that the jury was inconsistent in finding that

he was not entrapped and ultimately guilty of Count Two. The crimes alleged in each count require

proof of entirely different elements, and thus acquittal of one does not necessarily render conviction

of the other inconsistent.

       In any event, “inconsistent verdicts are generally held not to be reviewable.” United States

v. Lawrence, 555 F.3d 254, 262 (6th Cir. 2009). As the Supreme Court has made clear, “[t]he fact

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United States v. Stetler

that [verdict] inconsistency may be the result of lenity, coupled with the Government’s inability to

invoke review, suggests that inconsistent verdicts should not be reviewable.” United States v.

Powell, 469 U.S. 57, 66 (1984). Rather, “a defendant’s protection against an inconsistent verdict

lies in an independent review of the sufficiency of the evidence.” United States v. Ruiz, 386 F.

App’x 530, 533 (6th Cir. 2010); see also Powell, 469 U.S. at 67 (“[A] criminal defendant already

is afforded protection against jury irrationality or error by the independent review of the sufficiency

of the evidence undertaken by the trial and appellate courts.”). Thus, as we have already determined

that sufficient evidence existed to convict Stetler under § 922(g)(8) for possessing firearms as a

prohibited person, he cannot obtain relief by alleging inconsistent verdicts.

                                                 III

       For the foregoing reasons, we AFFIRM Stetler’s conviction of possessing a firearm as a

prohibited person, in violation of 18 U.S.C. § 922(g)(8).




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