In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1199

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WILLIE C. JONES,

Defendant-Appellant.



Appeal from the United States District Court
for the Southern District of Illinois.
No. 99 CR 40053--William D. Stiehl, Judge.


Argued June 13, 2000--Decided July 21, 2000




      Before COFFEY, RIPPLE, and KANNE, Circuit Judges.

      RIPPLE, Circuit Judge. Attempting to break up a
domestic argument, police officer Ron Almaroad
helped Willie Jones move his property from the
front lawn of his ex-wife’s apartment building to
a nearby residence. Among other items, Mr. Jones
placed a .30 caliber semi-automatic rifle in the
backseat of the police car. Despite Mr. Jones’
assertion that the rifle was a "BB gun," Officer
Almaroad arrested him because the officer knew
that he was a felon and, therefore, was
prohibited by law from possessing the firearm.

      A federal grand jury then indicted Mr. Jones for
possession of a firearm by a felon, in violation
of 18 U.S.C. sec. 922(g)(1). At trial, Mr. Jones
did not testify, but he sought to establish
through cross-examination and argument that he
thought the rifle was a BB gun and, therefore,
that he did not knowingly possess a firearm. See
18 U.S.C. sec.sec. 922(g)(1), 924(a)(2). To
undermine this defense, the prosecution offered
as evidence, a .30 caliber cartridge and standard
air rifle ammunition--two BBs and a .177 caliber
pellet. The ammunition, none of which was
recovered from Mr. Jones, was offered over
objection for demonstrative purposes. A jury
found Mr. Jones guilty, and the district court
then sentenced him to 200 months’ imprisonment.
He appeals, arguing that the district court erred
both when it admitted the ammunition and when it
denied his motion for judgment of acquittal. For
the reasons set forth in the following opinion,
we affirm the judgment of the district court.

I
BACKGROUND

      At trial, Mr. Jones stipulated to his prior
felony conviction and did not dispute that he
possessed the firearm or that it previously had
moved in or affected interstate commerce. Officer
Almaroad testified that, on July 15, 1998, he
responded to a report of a domestic disturbance.
Upon arriving at the residence, Officer Almaroad
observed that police officers were already on the
scene and had separated Mr. Jones from Carolyn
Doggin, his ex-wife. Once Officer Almaroad
ascertained that no offense had occurred in
connection with the domestic dispute, he offered
to drive Mr. Jones away from the area in order to
avoid any further conflict. Mr. Jones agreed and
said that he would like to take some personal
items. Officer Almaroad helped Mr. Jones load a
typewriter and a television into his squad car.
After Officer Almaroad seated himself in the
driver’s seat, he looked in the rearview mirror
and observed Mr. Jones place a rifle in the
backseat. Mr. Jones then sat in the front
passenger’s seat. Officer Almaroad inquired as to
the item that Mr. Jones had placed in the
backseat. Mr. Jones replied that it was a BB gun.


      The prosecution offered the rifle into evidence,
allowing the jurors to handle the firearm, to
feel the weight of the gun and to observe the
diameter of the rifle’s bore. The prosecution
also offered as demonstrative evidence a .30
caliber cartridge, and standard air rifle
ammunition--two BBs and a .177 caliber pellet--to
show the difference between the bore of a BB gun
and that of a .30 caliber rifle. The court
admitted the ammunition evidence over objection
from Mr. Jones, who sought to exclude it on the
theory that the police had not recovered it from
him or found it with the gun. Additionally,
Officer Almaroad and Illinois State Police Crime
Lab Technician Robert Dunbar testified that, upon
viewing the weapon, they immediately knew that
the rifle was not a BB gun. Mr. Jones never
requested a cautionary instruction concerning the
ammunition, and the court did not give one in its
final charge to the jury.

II
DISCUSSION
A. Admissibility of the Ammunition

      Mr. Jones first argues that the district court
should have excluded the ammunition evidence as
irrelevant. He contends that it was not found in
his possession and so was not probative of
whether he knew the instrument he possessed was a
firearm. Because Mr. Jones objected to the
ammunition’s relevancy at trial, we review the
district court’s decision to admit that evidence
for an abuse of discretion. See United States v.
Montani, 204 F.3d 761, 765 (7th Cir. 2000).

      Relevant evidence is defined as evidence "having
any tendency to make the existence of any fact
that is of consequence to the determination of
the action more probable or less probable than it
would be without the evidence." Fed. R. Evid.
401; United States v. Griffin, 194 F.3d 808, 821
n.6 (7th Cir. 1999), cert. denied, 120 S. Ct.
1546 (2000). At trial, Mr. Jones’ sole defense--
one presented exclusively through cross-
examination and argument by counsel--was that he
thought that the instrument he possessed was a BB
gun. The prosecution’s ammunition evidence
demonstrated the size differences between .30
caliber ammunition and standard BB gun ammunition
and between the BB gun ammunition and the bore of
Mr. Jones’ rifle. This evidence rendered less
probable Mr. Jones’ contention that he thought
his rifle was a BB gun; therefore, the ammunition
evidence was relevant. Because relevant evidence
is admissible under Federal Rule of Evidence 402,
the district court did not abuse its discretion
in admitting the ammunition. See Griffin, 194
F.3d at 821 n.7.

      Mr. Jones also contends that admission of the
ammunition was "highly prejudicial." We note,
however, that despite two opportunities to do so,
Mr. Jones did not request that the jury be
cautioned that the ammunition was admitted solely
for demonstrative purposes. We cannot say that
the district court erred in concluding that the
probative value of the evidence was not
substantially outweighed by the danger of unfair
prejudice. See Fed. R. Evid. 403.

B.   Motion for Judgment of Acquittal

      Mr. Jones next argues that the district court
erred in denying his motion for judgment of
acquittal. We review a district court’s denial of
a motion for acquittal de novo. See United States
v. Blassingame, 197 F.3d 271, 284 (7th Cir.
1999), cert. denied, 120 S. Ct. 2024 (2000). Such
motions should be granted only where "the
evidence is insufficient to sustain a
conviction." Fed. R. Crim. P. 29(a). In
considering the sufficiency of the evidence, we
review it in the light most favorable to the
prosecution, see United States v. Hach, 162 F.3d
937, 942 (7th Cir. 1998), cert. denied, 119 S.
Ct. 1586 (1999), and as long as any rational jury
could have returned a guilty verdict, the verdict
must stand. See Blassingame, 197 F.3d at 284.



      To prove that a defendant is guilty of
possession of a firearm by a felon, the
Government must establish that: (1) the defendant
knowingly possessed a firearm; (2) he previously
had been convicted of a crime punishable by
imprisonment for a term exceeding one year; and
(3) the possession of the firearm was in or
affecting interstate commerce. See 18 U.S.C.
sec.sec. 922(g)(1), 924(a)(2). See also United
States v. Johnson, 127 F.3d 625, 629 (7th Cir.
1997). In this case, Mr. Jones does not dispute
the sufficiency of the prosecution’s evidence as
to elements two and three; he argues only that
the prosecution failed to present sufficient
evidence that he knew that the object he
possessed was a firearm. To prove that a
defendant "knowingly possessed a firearm," the
Government must establish that the defendant
consciously possessed what he knew to be a
firearm. See United States v. Deleveaux, 205 F.3d
1292, 1298 (11th Cir. 2000), cert. denied, ___ S.
Ct. ___ (2000); United States v. Frazier-El, 204
F.3d 553, 561 (4th Cir. 2000); United States v.
Reed, 114 F.3d 1053, 1056 (10th Cir. 1997). The
Government argues that it presented sufficient
evidence, i.e., the rifle, the demonstrative
ammunition, and the testimony from two police
witnesses, to prove that Mr. Jones knowingly
possessed the rifle.

      We first note that the rifle alone provided the
jury with a sufficient basis to reasonably
conclude that Mr. Jones knew that he possessed a
"firearm" and not a BB gun. Due to a lack of sec.
922(g)(1) cases on point, we are guided by
sufficiency-of-the-evidence cases discussing a
similar knowledge requirement under the National
Firearms Act, 26 U.S.C. sec.sec. 5801-72, in
evaluating the probative value of the rifle as
evidence of Mr. Jones’ knowledge. We conclude
that the rifle was sufficient evidence for a jury
to find that Mr. Jones knew that he possessed a
firearm. Under sec. 5861(d), it is unlawful to
possess an unregistered "firearm," as that term
is defined in the Act. See 26 U.S.C. sec.
5861(d). Included within the definition of
"firearm" is a shotgun with an overall length of
less than twenty-six inches or a barrel length of
less than eighteen inches. See 26 U.S.C. sec.
5845. To obtain a conviction under the National
Firearms Act, the government must prove that the
defendant knew of the particular characteristics
that brought his weapon within the scope of the
Act. See Staples v. United States, 511 U.S. 600,
619 (1994); United States v. Edwards, 90 F.3d
199, 204-05 (7th Cir. 1996) (holding that the
government must prove that the defendant knew
that the barrel of his shotgun was less than
eighteen inches).

      In prosecutions under the National Firearms Act,
courts have held that evidence a defendant
observed and handled his "sawed-off shotgun" is
sufficient for a jury reasonably to infer that
the defendant knew that the weapon was shorter
than twenty-six inches overall or had a barrel
length of less than eighteen inches./1 Here, the
prosecution presented evidence from which a
rational jury could infer that Mr. Jones
possessed what he knew to be a firearm. The
jurors inspected the rifle at trial. Based on the
rifle’s obvious characteristics--the diameter of
the rifle’s bore, the rifle’s weight, and its
general appearance--the jury could infer that Mr.
Jones knew that the instrument he possessed was a
firearm, not a BB gun. The ammunition and the
testimony of Officer Almaroad and Mr. Dunbar adds
to the sufficiency of the prosecution’s evidence,
providing further support for the jury’s
conclusion that Mr. Jones knew that he possessed
a firearm. Accordingly, we conclude that a
rational jury could have determined that Mr.
Jones knowingly possessed a firearm.

Conclusion

      Because the ammunition evidence was probative of
Mr. Jones’ knowledge that the instrument he
possessed was a firearm, the district court did
not err in admitting the ammunition. As well, the
government presented sufficient evidence to
support the jury’s determination that Mr. Jones
knowingly possessed a firearm. Consequently, the
district court properly denied Mr. Jones’ motion
for judgment of acquittal. Accordingly, the
judgment of the district court is affirmed.

AFFIRMED


/1 See United States v. Gergen, 172 F.3d 719, 725
(9th Cir. 1999) (reasoning that "[e]xternally
visible characteristics weigh heavily as to . . .
knowledge of the shotgun’s dangerous
characteristics"); United States v. Jackson, 124
F.3d 607, 614 (4th Cir. 1997) (concluding that
the defendant’s knowledge of the proscribed
nature of the firearm could be inferred from his
possession of the weapon because it was "an
obvious 8 inches shorter than that permitted
under the statute"); United States v. Moore, 97
F.3d 561, 564 (D.C. Cir. 1996) (concluding that
the jury could have reasonably inferred that the
defendant knew the rifle was shorter than 16
inches by observing the 13-1/16 inch weapon);
United States v. Foster, 19 F.3d 1452, 1454 (D.C.
Cir. 1994) (concluding that the readily apparent
barrel length and general appearance of the
sawed-off rifle were sufficient to allow a jury
to conclude that the defendant had the requisite
knowledge); see also Edwards, 90 F.3d at 20
(noting that the fact that the shotgun’s length
is externally obvious is a means of proving
knowledge). Similarly, in United States v.
Thompson, 82 F.3d 849, 854 (9th Cir. 1996), the
Ninth Circuit held that the prosecution presented
sufficient evidence to prove that the defendant
knew that his unregistered "fake suppressor"--an
aesthetic gun accessory designed to look like a
silencer--had been modified to work as a real
silencer in violation of the National Firearms
Act. The court, reasoning that the defendant’s
"knowledge can be inferred from . . . any
external indications signaling the nature of the
weapon," found the evidence sufficient primarily
due to a government expert’s testimony that upon
viewing the modified suppressor "anyone could
notice" that holes had been drilled in the device
to transform it into a functioning silencer. Id.
(quoting Staples, 511 U.S. at 615 n.11).
