     Case: 13-20272      Document: 00512861590         Page: 1    Date Filed: 12/08/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 13-20272                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                December 8, 2014
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

TYRONE REID,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CR-577-4


Before DAVIS, DeMOSS, and ELROD, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Tyrone Reid (“Reid”) appeals his convictions for (1)
conspiring to make false statements to a Federal Firearms Licensee (“FFL”)
and (2) aiding and abetting false statements to two FFLs. On appeal, Reid
argues that the Government produced insufficient evidence of a necessary
element of the offenses – namely, that the firearms dealers were FFLs at the




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                      No. 13-20272
time of his offenses. 1 We agree, and accordingly reverse and remand with
instructions that the district court dismiss the conspiracy and aiding and
abetting charges against Reid.


                                             I.
       The Gun Control Act (the “Act”) 2 “establishes a detailed scheme to enable
[FFLs] to verify, at the point of sale, whether a potential buyer may lawfully
own a gun.” 3 The Act
           insists that the dealer keep certain records[] to enable federal
           authorities both to enforce the law’s verification measures and to
           trace firearms used in crimes. A dealer must maintain [the
           purchaser’s name, age, and residence] in its permanent files. In
           addition, the dealer must keep “such records of . . . sale[] or other
           disposition of firearms . . . as the Attorney General may by
           regulations prescribe.” 4

       To implement the Act, the Bureau of Alcohol, Tobacco, Firearms, and
Explosives (the “ATF”) developed Form 4473 for gun sales. “The part of that
form to be completed by the buyer requests his name, birth date, and address,
as well as certain other identifying information (for example, his height,
weight, and race).” 5 “The form further lists all the factors disqualifying a
person from gun ownership,” such as a prior felony conviction, “and asks the
would-be buyer whether any of them apply.” 6 Of primary importance in this
case is Form 4473 Question 11.a, which asks the prospective firearm
purchaser: “Are you the actual transferee/buyer of the firearm(s) listed on this


       1  Reid’s second challenge on appeal is precluded by Abramski v. United States, 134 S.
Ct. 2259 (2014), which the Supreme Court decided after the parties filed their appellate
briefs.
        2 18 U.S.C. §§ 921-31.
        3 Abramski, 134 S. Ct. at 2263.
        4 Id.
        5 Id. at 2264.
        6 Id. at 2263.

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form? Warning: You are not the actual buyer if you are acquiring the
firearm(s) on behalf of another person. If you are not the actual buyer,
the dealer cannot transfer the firearm(s) to you.” Form 4473 also
requires the buyer to affirm the following: “I understand that answering
‘yes’ to question 11.a. if I am not the actual buyer is a crime punishable
as a felony under Federal law.” Section 924(a)(1) of the Act prescribes
criminal penalties for anyone who “knowingly makes any false statement or
representation with respect to the information” that the Act requires “to be
kept in the records of” an FFL, including Question 11.a. on Form 4473. 7
       A federal grand jury charged Reid in a four-count superseding
indictment with conspiring to violate and aiding and abetting violations of §
924(a)(1). The indictment alleged that Reid agreed to recruit, and did recruit,
straw buyers to purchase firearms from FFLs and falsely represent on Form
4473s that they were the actual buyers of the firearms.
       At the conclusion of a trial, a jury convicted Reid on the conspiracy count.
The jury also found that Reid aided and abetted false statements to two FFLs,
Bachman Pawn and Academy Sports, and accordingly rendered guilty verdicts
on two of the three aiding and abetting counts. 8 On appeal, Reid claims that
the Government failed to produce sufficient evidence that Bachman Pawn and
Academy Sports were licensed at the time of his offenses.


                                            II.
       To establish a violation of § 924(a)(1)(A), the government must
       prove that: (1) the dealer was a federally licensed firearms dealer
       at the time the events occurred; (2) the defendant made a false
       statement or representation in a record that the licensed firearms


       7See generally id. at 2262-75.
       8However, the jury found Reid not guilty of aiding and abetting false statements to a
third FFL, K.K. Sales.
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                                       No. 13-20272
       dealer was required by federal law to maintain; and (3) the
       defendant made the false statement with knowledge of its
       falsity. 9

       Importantly, section 924(a)(1)(A)’s requirement that the Government
prove that the firearm dealers in question were federally licensed at the time
of the offense is jurisdictional. 10 When a criminal defendant argues on appeal
that the Government failed to carry its burden of proof on a jurisdictional
element, “the applicable standard of review . . . does not escalate to plain
error” even if the appellant “failed to move for acquittal due to the
insufficiency of the evidence of the jurisdictional issue.” 11 Whether Reid failed
to raise this particular evidentiary sufficiency challenge in his motion for
acquittal below, as the Government insists, “is therefore of no moment.” 12 We
must “review all of the admissible evidence and the reasonable inferences
which flow therefrom in a light most favorable to the verdict to determine
whether a reasonable trier of fact could find that that evidence established
guilt beyond a reasonable doubt.” 13


                                             III.
       To establish that Reid conspired to violate or aided and abetted a
violation of § 924(a)(1)(A), the Government had to prove that Bachman Pawn




       9 United States v. Pena, 541 F. App’x 453, 455 (5th Cir. 2013) (quoting United States
v. Abramski, 706 F.3d 307, 316-17 (4th Cir. 2013), aff’d, 134 S. Ct. 2259 (2014)).
       10 United States v. Prince, 647 F.3d 1257, 1267 (10th Cir. 2011) (“§ 924(a)(1)(A)'s

records requirement is simply a jurisdictional hook. It provides authority for the United
States to criminalize false statements made to firearms dealers.”); United States v. Green,
544 F.2d 746, 747 (4th Cir. 1976) (“The fact that the dealer was licensed serves only to
establish a basis for federal jurisdiction.”).
       11 United States v. Schultz, 17 F.3d 723, 725 (5th Cir. 1994).
       12 See id.
       13 Id. (citing United States v. Trice, 823 F.2d 80, 86 (5th Cir. 1987); United States v.

Maner, 611 F.2d 107, 108-09 (5th Cir. 1980)).
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and Academy Sports were FFLs at the time Reid committed his offenses. 14
Reid argues that the Government failed to do so.
       “The government [i]s not required to produce the license” itself “in
order to prove that the store [in question] was a licensed firearms dealer.” 15
The government may instead prove that element by circumstantial
evidence. 16 Thus, we have upheld a conviction under the Act where the
Government introduced no evidence on the licensing requirement other than
an ATF agent’s testimony that he “knew that the [store in question] was a
licensed firearm dealer.” 17 We have also ruled that the Government satisfied
its burden of proof on the licensing element where the dealer’s employee
testified that the dealer “had a valid license during the relevant period.” 18
Finally, we have held that a license application bearing an expiration date
but no date of issuance was by itself “sufficient to show” that the dealer “was
a ‘licensed’ dealer at the time of the firearm sales in question” because the
application “by statutory definition” was issued one year prior to the
expiration date. 19
       However, we have never considered a case where the Government
introduced as little evidence on the licensing element as it did here. The
Government did not produce copies or originals of the dealers’ licenses. Nor
did the Government produce a license application with an expiration date, as



       14 Cf. Pena, 541 F. App’x at 455 (quoting Abramski, 706 F.3d at 316-17) (describing
elements of a direct § 924(a)(1)(A) violation, rather than a conspiracy or aiding and abetting
offense); Schultz, 17 F.3d at 724, 727-28 (reversing conspiracy and aiding and abetting
convictions under bank fraud statute where Government failed to establish jurisdictional
element that defrauded bank was insured by FDIC).
       15 United States v. Frazier, 547 F.2d 272, 273 (5th Cir. 1977).
       16 See United States v. Ransom, 545 F.2d 481, 482-83 (5th Cir. 1977).
       17 Frazier, 547 F.2d at 273.
       18 United States v. Ballard, 18 F.3d 935 (5th Cir. 1994). Accord Ransom, 545 F.2d at

483.
       19 See United States v. Snell, 508 F.2d 21, 23 (5th Cir. 1975).

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                                 No. 13-20272
it did in Snell. Nor did the Government call any employees from Bachman
Pawn or Academy Sports to testify that the dealers were federally licensed at
the time of Reid’s offenses.
      Although the Government called an ATF agent to testify at trial, he did
not testify that Bachman Pawn or Academy Sports were FFLs at the time of
Reid’s offenses. He testified only that (1) FFLs are generally required to keep
Form 4473s in the course of their business, and (2) certain dealers other than
Bachman Pawn and Academy Sports from which Reid’s co-conspirators
purchased firearms on other occasions were federally licensed.
      Thus, the Form 4473s that Reid’s co-conspirator signed constitute the
only evidence in the trial record casting any light on whether Bachman Pawn
and Academy Sports were licensed on the date of Reid’s offenses. Those forms
contain the dealer’s federal license number, stamped signature, business
name, and address. While a jury could certainly infer from this information
that Bachman Pawn and Academy Sports were licensed at some point, the
Form 4473s contain no indication that the stores were licensed at the time of
Reid’s offenses. They do not contain the date the license was issued or its
expiration date. Nor do the Form 4473s contain a certification that the dealer
is currently licensed, or any other indication that the dealer’s license was
valid on the date of the sale. We therefore conclude that the Form 4473s
alone were insufficient to allow the jury to infer that Bachman Pawn and
Academy Sports had valid licenses at the time of Reid’s offenses.




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                                          IV.
      As additional support on the jurisdictional element, the Government
points to the ATF Form 3310.4s that it produced at trial. 20 An FFL must
complete Form 3310.4 and submit it to the ATF and state and local
authorities whenever an unlicensed buyer purchases multiple firearms
within a short timeframe. 21
      Even with this additional evidence, however, the jury still could not
infer that Bachman Pawn and Academy Sports were licensed at the time of
Reid’s offenses. The Form 3310.4s do not contain any information that the
Form 4473s do not. Namely, both forms contain the dealer’s federal license
number, stamped signature, business name, and address. For the reasons
identified above, this information, standing alone, is insufficient to allow a
jury to infer that the dealers were licensed at the time of Reid’s offenses.
      It is true that FFLs are required to transmit Form 3310.4s to the ATF
when an unlicensed purchaser buys multiple firearms. 22 If the jury heard
testimony that Bachman Pawn and Academy Sports transmitted these forms
to the ATF, it perhaps could have inferred that the dealers were licensed at
the time of Reid’s offenses; an unlicensed dealer would presumably not want
to alert the ATF if it was conducting potentially unlawful firearm sales.
However, because the jury heard no such testimony, it could draw no such
inference here.
      Thus, at most, the Form 4473s and the Form 3310.4s show that
Bachman Pawn and Academy Sports held federal firearms licenses at one
time. They do not allow an inference that the dealers had valid licenses on



      20  We granted the Government’s motion to supplement the appellate record with PDF
format copies of these exhibits over Reid’s objection. Docket No. 99.
       21 See United States v. Ortiz, 318 F.3d 1030, 1033 (11th Cir. 2003).
       22 Ortiz, 318 F.3d at 1033.

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                                       No. 13-20272
the date of the sales. Because the Government failed to carry its burden of
proof as to a jurisdictional element of Reid’s offenses, his convictions cannot
stand.
       “Our disposition of this appeal, because it is dictated by lack of
sufficient evidence, compels dismissal” of the charges against Reid, “not just
remand for a new trial with better evidence.” 23 We therefore reverse and
remand with instructions that the district court dismiss the conspiracy and
aiding and abetting charges against Reid. 24
       REVERSED and REMANDED.




       23  United States v. Trevino, 720 F.2d 395, 401 (5th Cir. 1983) (citing Burks v. United
States, 437 U.S. 1 (1978)).
        24 See Schultz, 17 F.3d at 728 (5th Cir. 1994) (citing Burks, 437 U.S. at 18).

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