                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                       REVISED SEPTEMBER 8, 2004
                                                                August 17, 2004
                 IN THE UNITED STATES COURT OF APPEALS
                                                            Charles R. Fulbruge III
                         FOR THE FIFTH CIRCUIT                      Clerk


                             No. 03-60589



UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

                                versus


BRIAN JOHNSON,

                                                   Defendant-Appellant.



              Appeal from United States District Court
              for the Northern District of Mississippi


Before JOLLY, WIENER, and PICKERING, Circuit Judges.

PER CURIAM:

     Defendant-Appellant Brian Johnson appeals his jury conviction

for possession of a firearm with an obliterated serial number, in

violation of 18 U.S.C. §§ 922(k) and 924(a)(1)(B). Concluding that

the evidence was insufficient for a rational jury to find beyond a

reasonable doubt that, at the time in question, Johnson knew that

the serial number on the firearm had been obliterated, we reverse

his conviction, vacate his sentence, and remand to the district

court for entry of a judgment of acquittal.
                            I.    FACTS & PROCEEDINGS

     Shortly    after       midnight,    Johnson        was    driving    his    car   in

Clarksdale, Mississippi accompanied by co-defendant William Harper

who was occupying the front passenger seat.                   They were hailed by an

acquaintance,       Daniell      Hampton,       who   asked    for   a   ride    to    get

something to eat.1          Johnson acceded to Hampton’s request on the

condition that Hampton drive.            Hampton agreed, so Johnson got out

of his car and walked around to the passenger side while Hampton

was getting into the driver’s seat.

     Meanwhile, Harper had gotten out of the car and retrieved his

loaded handgun from under the front passenger seat where he had

stowed it.   He showed the gun to Hampton and asked if he wanted to

buy it.   At the time, Harper and Johnson were standing next to each

other by the front passenger door, which was open.                              Hampton

recognized the pistol —— distinctive because of the black tape and

duct tape that were wrapped around the handle to hold the magazine

in place —— as one he had seen on two prior occasions:                        once a few

weeks earlier in the possession of Harper, and again four or five

days prior     to    this    incident,      in    the   possession       of   Johnson’s

brother, Fredrick.

     Hampton testified that after Harper handed him the gun, he


     1
       At oral argument, the government advised this court that
Hampton was eventually released because he appeared to be the least
culpable of the three, was a star football player at a local high
school, who was due to report to college on a scholarship, and had
agreed to testify as a witness for the government, which he did.

                                            2
noticed a “silvery scratched” area just above the trigger assembly

on the side of the receiver of the otherwise all-black gun.2           After

examining   the   gun    briefly,   Hampton   advised    that   he   was   not

interested in purchasing it.         He returned the gun to Harper who

placed it back under the front passenger seat of Johnson’s car,

then got into the back seat.        Johnson got into the front passenger

seat, and Hampton drove away.

     Shortly thereafter, police officers noticed Johnson’s car

obstructing traffic in a residential area.              The occupants were

yelling and arguing loudly with two women who were standing in

front of a house.       When Hampton drove Johnson’s car away from that

scene, the police followed and turned on their flashing lights.

When this happened, Harper twice told Johnson to get the gun from

under his seat and pass it to Harper in the back seat, presumably

so that he could hide it.      Johnson obeyed, reaching under the seat

for Harper’s gun and immediately passing it rearward to Harper, who

then hid it under the back seat.       The police found the pistol there

after obtaining Johnson’s consent to search his car. Noticing that

the serial number had been scratched to the point of obliteration,

the officers notified the Bureau of Alcohol, Tobacco & Firearm

(“BATF”) of the Department of the Treasury and took all three

     2
       There is no evidence in the record that the dome light or
other interior lights of the car were on at the time; however, it
appears that the street on which the car was stopped was
illuminated by street lights. Neither is there any record evidence
that Hampton had noticed the scratches on the gun on either of the
prior occasions on which he had seen it.

                                      3
occupants of the car in for questioning.

     After first claiming that it was Hampton who had passed the

gun to Harper, Johnson admitted to his interrogator that he had

recognized the gun by the black tape wrapped on it, and that he had

been “playing” with the gun a few days earlier.     Significant to

this inquiry, the record is devoid of evidence or implication that

the serial number had already been obliterated at that earlier

occasion when Johnson had played with it or, for that matter, at

any time prior to the incident in question.

     Both Johnson and Harper were convicted on single charges of

possessing a firearm with knowledge that the serial number had been

obliterated.    Harper did not appeal, but Johnson —— who had filed

a motion for a judgment of acquittal or, alternatively, a new trial

—— timely filed a notice of appeal.

                            II.   ANALYSIS

A.   Standard of Review

     In a criminal appeal, we review a challenge to the sufficiency

of the evidence to determine “whether any reasonable trier of fact

could have found that the evidence established guilt beyond a

reasonable doubt.”3    All reasonable inferences from the evidence

must be construed in favor of the jury verdict.4   Determining the

weight and credibility of the evidence is within the exclusive

     3
       United States v. Martinez, 975 F.2d 159, 160-61 (5th Cir.
1992) (emphasis in original), cert. denied, 507 U.S. 943 (1993).
     4
         Id. at 161.

                                   4
province of the jury.5

B.     Key Elements of the Crime of Conviction

       Two scienter elements of the violation of § 922(k) are central

to our disposition of this appeal:                    (1) knowing possession of a

firearm and (2) knowledge that the serial number of the possessed

firearm had been removed, obliterated, or altered.6                             Although

Johnson challenges both knowing possession and knowledge of the

obliteration of the serial number, he does not contest two other

elements:            that in fact the serial number was obliterated at the

time       of    this    incident    or     that   the    firearm   had    traveled    in

interstate commerce.

C.     Knowledge of Obliterated Serial Number

       As       we    find   the   question    of     Johnson’s     knowledge    of   the

obliteration            of   the   serial    number      dispositive,     we   pretermit

consideration of his knowing possession of the pistol and assume,

without granting, that the evidence was sufficient to prove such

possession.             Mindful that the evidence before the jury and its

reasonable inferences must support beyond a reasonable doubt the

jury’s finding that Johnson knew of the obliteration of the serial

number at the time he is assumed to have knowingly possessed the

firearm, we conclude that the verdict cannot stand.

       Johnson did not testify; his statement regarding having played

       5
           Id.
       6
            See United States v. Hooker, 997 F.2d 67, 72 (5th Cir.
1993).

                                               5
with the gun a few days earlier was made during his interrogation.

Absent    any   evidence   whatsoever   that   the   serial   number   was

obliterated when Johnson played with the gun, the fact of that

previous possession contributes nothing, even by inference, to the

jury’s conclusion.    The same must be said of any inference that the

jury might draw from its awareness that Johnson was immersed in the

gang or dope culture that pervaded those areas of Clarksdale where

he lived and frequented, or that guns —— especially “Saturday Night

Specials” like the taped-up, off-brand handgun in question7 —— were

familiar tools of the trade in that culture.         In this particular

instance, such generalized information and inferences from it have

no probative value in determining whether Johnson had personal

knowledge that the serial number of this specific firearm was

obliterated at the specific time in the wee hours of the specific

morning of his arrest.

     The undisputed record evidence shows that (1) Harper (not

Johnson) owned the gun; (2) he physically possessed it on the date

and time in question except for the brief intervals (a) when he

handed the gun directly to Hampton in an effort to sell it, and (b)

when Johnson did Harper’s bidding by reaching under the front

passenger seat where Johnson was seated and quickly handing the gun

to Harper in the back seat while the car was rolling to a stop as

police lights were flashing behind it; and (3) during the course of


     7
         A Jennings/Bryco 9mm semi-automatic pistol.

                                    6
that episode, none of the three occupants of the car —— Johnson,

Harper, or Hampton —— ever mentioned the scratches on the gun (much

less the missing serial number).8               Thus, based on evidence that was

before the jury, the only times that Johnson could conceivably have

gained knowledge that the pistol’s serial number was obliterated

were       (1)   while   he   was    standing    in   the   darkness    outside     the

passenger side of the car as Harper (i) handed the pistol to

Hampton (ii) got it back, and (iii) put it back under the front

passenger seat; and (2) when he (Johnson) reached under the front

passenger seat where he was seated (while the car was moving,

presumably with no interior lights on), grasped the gun from where

Harper had        secreted     it,    and   immediately     handed     it,   over   his

shoulder, to Harper, who was seated behind Johnson.

       On the first occasion, itself brief, Johnson was standing near

Harper outside the front passenger door when Harper handed the gun

to Hampton (seated in the driver’s seat) and Hampton handed the gun

back to Harper, both exchanges presumably occurring inside the car.

The evidence reflects that Johnson was merely a bystander, outside

the car, at 1:00 a.m., on a dark street illuminated at best by

street lights (nothing in the record reflects that any interior

lights were “on” in Johnson’s car during the gun exchange between

Harper and Hampton).          It would be an unwarranted leap for a jury to

       8
       Hampton testified that he noticed the scratches during his
examination of the pistol, but said nothing about any of the three
having spoken about it or otherwise noted that condition before
their arrests.

                                            7
infer    anything   more   than   that   if   Johnson    were   paying   close

attention to the gun itself, he might have been able to notice the

presence of “silvery scratches” on the gun’s action slide.                   But

even that inference cannot be equated with specific knowledge by

Johnson that those scratches (a) were in the vicinity of the serial

number,    and   (b)   were   sufficiently    long,     wide,   and   deep   to

“obliterate” the serial number.           Any inference to the contrary

would be fraught with reasonable doubt.

     The second occasion is even more saturated with reasonable

doubt.    A jury would have to have found that —— in the split second

that it would have taken to retrieve the pistol from underneath his

seat (where Harper, not Johnson, had placed the gun) and quickly

hand it to Harper in the back seat —— Johnson could even have seen

the silvery scratches.        But if that inference could somehow pass

the reasonable doubt test, there would be insurmountable doubt in

a jury finding, reached by stacking another inference on that

inference, that from nothing more than such inferred knowledge of

the presence of the scratches, Johnson gained specific knowledge

that the serial number (1) was at the location of the scratches,

and (2) had been obliterated —— not just tampered with or defaced,

but rendered wholly illegible.           And, the presence of reasonable

doubt on the second occasion is heightened further by the fact that

it took place in a darkened, moving car that was being pulled over

by the police.

     Indeed, even if a person like Johnson, with his “street

                                     8
smarts” about this category of handguns, could conceivably have

noticed the presence of these scratches on the receiver of the gun

during either of these fleeting, no-light or low-light instances,

his mere awareness of the scratches can support no greater jury

inference than that the presence of scratch marks in that location

on that pistol should give rise to a generalized suspicion that the

serial number might have been tampered with or even obliterated.

That is a far cry from specific knowledge of actual obliteration,

particularly when the evidence fails to demonstrate that Johnson

had any opportunity to investigate the scratched area of the

pistol, either during its change of hands between Harper and

Hampton or while Johnson was hurriedly complying with Harper’s

command to get the gun from under the front seat and pass it to the

rear seat.

     The government would make much of the fact that, after denying

that he held the pistol on the night in question, Johnson told of

having played with it a few days earlier (an apparent effort to

explain in advance the possibility that his fingerprints might be

found on the gun).   Although this evidence could lend support to a

conclusion of knowing possession of the gun (which we have already

assumed arguendo), it says nothing about Johnson’s knowledge of the

obliterated serial number.    If we assume that Johnson was even

aware that possessing a gun with an obliterated serial number was

a specific crime (and there is no evidence in the record that he

was), we cannot imagine that such awareness would be a prerequisite

                                 9
motivation for a young black male who is riding in a car at 1:00

a.m., in Clarksdale, Mississippi, instinctively to cooperate in an

endeavor to hide such a Saturday Night Special when being pulled

over   by   the    police.      Stated    differently,    a     jury   could   not

reasonably infer knowledge of an obliterated serial number from

Johnson’s knee-jerk compliance with Harper’s request to hand him

the gun for the purpose of hiding it from the police.

       The government also argues that, because the members of the

jury were afforded the opportunity to handle the gun and inspect

the scratches, they were somehow positioned to make the inference

that Johnson had both seen the scratches and recognized them for

what they were.        Not so under these circumstances.         In addition to

the fact that the jurors’ examination occurred in a well-lighted

courtroom under conditions free of either time constraints or

stress, we are satisfied that, as a matter of law, a double stacked

jury inference that (1) Johnson must have seen the scratches, and

(2) from seeing the scratches he must have gained actual knowledge

that they were (a) in the location of the serial number and (b)

sufficient to obliterate it, comes nowhere close to overcoming the

hurdle of reasonable doubt.

       In the end, we cannot escape the determination that the

combination       of   the   evidence    presented   to   the    jury   and    all

reasonable inferences from that evidence are insufficient to prove

beyond a reasonable doubt that Johnson knew that the serial number

of the gun that (1) he saw Harper attempt to sell to Hampton, and

                                         10
(2) later took from the spot where Harper had placed it under the

front passenger seat and handed it to Harper in the back seat, had

been obliterated.   As failure of the evidence to support a finding

of such knowledge beyond a reasonable doubt is fatal to a verdict

of guilty for committing the crime for which Johnson was charged

and convicted, we need not and therefore do not address whether

Johnson knowingly possessed that gun at all during the relevant

period between Hampton’s flagging down Johnson’s car and the

officers’ finding of the gun.

                          III. CONCLUSION

      The evidence in the record and the inferences that could

properly be drawn from it were insufficient to support a jury

finding, beyond a reasonable doubt, that Johnson knew that the

serial number of the pistol in question was obliterated at the time

in   question.   Consequently,   the   jury’s      verdict        that      Johnson

violated 18 U.S.C. §§ 922(k) and 924(a)(1)(B) cannot stand.                          We

therefore reverse Johnson’s conviction, vacate his sentence, and

remand this case to the district court for entry of a judgment of

acquittal.

CONVICTION REVERSED, SENTENCE VACATED, and CASE REMANDED WITH

INSTRUCTIONS TO ENTER JUDGMENT OF ACQUITTAL.




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