1 Senior Judge of the Western District of Louisiana,

sitting by designation. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________________

NO. 91-7261

_____________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DENNIS J. MURRAY,

Defendant-Appellant.

_____________________________

Appeal from the United States District Court

for the Southern District of Mississippi

_____________________________ (April 1, 1993)

Before DUHE', and BARKSDALE, Circuit Judges and HUNTER 1

, Distri c t

Judge.

EDWIN F. HUNTER, JR., District Judge

On November 6, 1992, a five count indictment was returned

against defendant-appellant, Dennis Murray, for his alleged role in

an illegal firearms transfer. The basis of the indictment was that

Murray, a previously convicted fe lon, participated with, and

facilitated Glenn Reid in the sale of a sawed-off shotgun and a .38

caliber revolver to acting, undercover agents for the Bureau of

Alcohol, Tobacco, and Firearms. A fter trial by jury, defendant

was found guilty on four charges. We affirm Murray's conviction on

Counts II, III, and IV. Murray's conviction on Count V is reversed

for insufficient evidence.Background

In April of 1990, Dennis Murray went to work for Glenn Reid at

Reid's business, "Fat Charlie's Buy and Sell". While at the pawn

sho p, Murray performed a variety of tasks including, receiving

broken appliances, repair ing appliances, and moving heavy items

around the store. Whenever Reid was away from the store, Murray

was often left in charge of the business.

Reid's business encompassed more than just buying and selling

appliances. He was also a licensed gun dealer; and consequently,

guns were kept in the shop under lock and key. Due to his previous

felony conviction, Murray was not allowed to handle the guns.

The Bureau of Alcohol, Tobacco, and Firearms ("ATF") began an

investigation of "Fat Charlie's" when Thomas Walker, an ex-police

officer, notified them of possible illegal gun transactions. Under

the auspices of the ATF, Walker secured the assistance of Jerry

Atkinson, a former employee at "Fat Charlie's". They agreed to

participate in an undercover ATF investigation to purchase illegal

firearms from Glenn Reid.

On April 20, 1990, Atkinson (in a recorded conversation)

telephoned Reid, and arranged for the purchase of an unregistered,

sawed-off shotgun, plus other handguns. Reid agreed to supply the

weapons, despite his knowledge that Atkinson was a previously

convicted felon, and could not purchase firearms through legitimate

channels.

On April 26, 1990, Reid asked Murray to take a ride with him

in his van. Reid placed a rectangular styrofoam box between the

front seats. From one end of the styrofoam, the stock of a shotgun3

was clearly visible. The barrel of the gun extended from the

opposite side. Despite the obvious nature of the box's contents,

Murray contends that he never suspected that the styrofoam

contained a firearm.

Reid and Murray drove to Atkinson's house, where Reid and

Atkinson were to consummate the firearm transaction. Unbeknownst

to Reid and Murray, Atkinson had a hidden microphone taped to his

body. Special Agent Wright of the ATF hid in another room of the

house, monitoring and recording the proceedings. Murray carried

the styrofoam package ins ide the house, and waved it about

exclaiming, "Smile, I'm taking your picture." Subsequently, Murray

handed the styrofoam-encased sho tgun to Atkinson, who turned it

over to Walker. The styrofoam package was opened, and the shotgun

exposed to view. Reid also offered to sell a .38 caliber revolver

to the ATF informants, which they agreed to buy.

The conversation between the men focused upon the purchase of

the firearms and the characteristics of the weapons. Murray took

an active role in the dialogue. Instead of indicating surprise or

a pprehension upon learning the true purpose of the visit, Murray

laughed, joked, and contributed as if he knew all along what had

been planned. When Atkinson asked Reid whether the shotgun would

fire, Murray responded, "Na. That son of a bitch will shoot."

When Reid was asked whether he had any shel ls for the shotgun,

Murray volunteered, "I think you do have, didn't somebody come by

there and sell you a bunch of them the other day?...Did you buy

t hem from that boy, he had a box full of them." After the4

discussion ended, Reid was paid. The weapons were left with the

informants.

Dennis J. Murray was charged with a five count indictment.

The charges included: I) conspiracy with Glenn Reid to violate

federal firearms law, 18 U.S.C . § 371; II) possession by a

previously convicted felon of a firearm which had been transported

in interstate com merce - 18 U.S.C. § 922(g)(1); III) aiding and

abetting Reid in the transfer of an unregistered firearm

- 26

U.S.C. §§ 861(c) and 5871; IV) possession of an unregistered

firearm

- 26 U.S.C. §§ 5861(d) and 5871; and V) aiding and

abetting Reid in the sale of a fi rearm to a convicted felon - 18

U.S.C § 922(d)(1).

Murray was tried by jury on September 9, 1991. At the close

of the government's case, the court granted an acquittal on Count

I, and as to the sale of a .357 Magnum listed in Count V, due to

insufficient evidence. The remaining charges went to the jury.

Murray was found guilty on Counts II, III, IV and V. Appellant was

sentenced to thirty months imprisonment on each count to run

concurrently, plus two years supervisory release. Murray appeals

the sufficien cy of the evidence, and questions the admission of

Reid's guilty plea. We consider these issues in turn.

Sufficiency of the Evidence

Counts II-IV

The appropriate standard of review is whether, "any rational

trier of fact could have found the essential elements beyond a

reasonable doubt." U nited States v. Webster

, 960 F.2d 1301 (5th5

Cir.), cert. denied

, in Nelson v. United States

, 113 S.Ct. 355

(1992); J ackson v. Virginia

, 443 U.S . 307, 319 (1979). A

conviction cha llenged for insufficiency of the evidence must be

considered in the light most favorable to the prosecution. U nited

States v. Hop kins , 916 F.2d 207 (5th Cir. 1990); J ackson v.

Virginia , 443 U.S. at 318-319.

The basis for Murray's appeal on Counts II-IV is that he

remained u naware of the contents of the styrofoam package until

after the transfer. Thus, he argues that he could not possibly

have knowingly posses sed the firearm as required to sustain the

conviction. U nited States v. Parker

, 566 F.2d 1304, 1306 (5th Cir.

1978), cert. denied , 435 U.S. 956 (1978).

The evidence reveals that the styrofoam-encased shotgun rested

under the counter at "Fat Charlie's" for a considerable time; and

that Murray picked up the package from inside the van, and carried

it to the transfer site. Then, too, Murray waved the shotgun

around, and pointed it at the undercover agents exclaiming, "Smile,

I want to take your picture." Obviously, either Murray thought he

was carrying a camera, or he was making a joke, knowing full well

that the styrofoam contained a shotgun. We reject defendant's

argument that the evidence did not suffice to prove beyond a

reasonable doubt that he knowingly possessed the firearm.

Count V

Murray was convicted of aiding and abetting co-defendant,

Reid, in the sale of firearms to a previously convicted felon2 18 U.S.C. § 922(d) (1) provides in pertinent part:

It shall be unlawful for any person to sell

or otherwise dispose of any firearm or

ammunition to any person knowing or having

reasonable cause to believe that such person

is

(1) under indictment for, or has

been convicted in any court, of a

crime punishable by imprisonment

for a term exceeding one year.

(emphasis added).

6 (At kinson) in violation of 18 U.S.C. § 922(d)(1). 2 The statute

requires that the perpetrator either know or have reasonable cause

t o believe that the transferee was a previously convicted felon.

Murray argues that the evidence is insufficient to establish beyond

a reasonable doubt that he knew that Atkinson had been previously

convicted. The government implicitly argues that even if the

evidence is insuf ficient to conclude that Murray personally knew

that Atkinson was a convicted felon, it is undisputed that codefendant, Reid, was aware of Atkinson's status, and this knowledge

was attributable to Murray as an aider and abettor.

The only evidence presented by the government that Murray had

personal knowledge of Atkinson's prior conviction was testimony by

Atkinson and Bobby Williams (a friend of Glenn Reid's). Atkinson

stated that Reid used to joke about Atkinson's conviction "all the

time" in front of Murray and other employees. But, there was no

proof offered that Mu rray was definitely present on any specific

occasion, or that he was within earsh ot of the conversations.

Williams merely testified that it was common knowledge around "Fat

Charlie's" that Atkinson was a previously convicted felon. On no7

occasion prior to the transfer had Murray actually met or talked

with Atkinson. Atkinson's prior conviction was not discussed or

referred to at the time of the firearms sale. No witness testified

that Murray was present, or that Murray definitely overheard

references to Atkinson's prior criminal history. We find that the

evidence was not sufficient to support the conclusion that

defendant was aware of Atkinson's record.

Having decided that the evidence was insufficient to establish

that Murray was personally aware of Atkinson's conviction, our next

focus is to consider whether a principal may supply the requisite

criminal know ledge or intent which is necessary to satisfy a

conviction against an aider and abettor.

In order to sustain a conviction for aiding and abetting, the

government must demonstrate that the defendant: 1) associated with

a criminal venture; 2) participated in the venture; and 3) sought

by action to make the venture succeed. U nited States v.

Martiarena

, 955 F.2d 363, 366 (5th Cir. 1992). "Association" means

that the defendant shared in the criminal intent of the principal.

"Participation" means tha t the defendant engaged in some

affirmative conduct designed to aid the venture. Mere presence and

association are insufficient to sustain a conviction for aiding and

abetting. I d

. The essence of aiding and abetting is a "community

of unlawful intent" between the aider an d abettor and the

principal. U nited States v. Pena , 949 F.2d 751, 755 (5th Cir.

1991). Although the aider and abettor need not know the means by

which the crime will be carried out, he must share in the requisite8

int ent. U nited States v. Westbo

, 746 F.2d 1022, 1025 (5th Cir.

1984).

Under 18 U.S.C. § 922 (d)(1), it is the purchaser's status as a

felon which makes the activity criminal. If the aider and abettor

does not know this fact, it is difficult to say that he shared in

the criminal intent of the principal.

There is no doubt that Murray was in possession of an

unregistered firearm. But, since 28 U.S.C. § 922(d)(1) is an added

offense with enhanced elements, it was incumbent upon the

prosecutor to establish that Murray knew or had reasonable cause to

b elieve that Atkinson was a convicted f elon. U nited Stat es v.

Longoria , 569 F.2d 422, 425 (5th Cir. 1978). The mental state of

the principal alone, is insufficient to inculpate an aider and

abettor. U n ited States v. Williams , No. 91-7284 , 1993 WL 46565

(5th Cir. Feb. 24 , 1993); U nited States v. Beck

, 615 F.2d 441

(5th Cir. 1980). Murray may very well have known that Reid was

going to transfer unregistered firearms, but he did not know (or at

least there is precious little evidence to show) that Reid was

committing the additional offense of selling firearms to a felon.

The very intent which makes this conduct criminal is the knowledge

or reasonable belief that the transferee is a previously convicted

felon. We must conclude that the evidence adduced by the

government at trial, when viewed most favorably to the verdict,

cannot support an inference of guilt as to Count V.

Prejudicial Reference

M urray's co-defendant, Reid, testified in favor of the9

defense. Before tendering the witness, defense counsel elicited

the fact that Reid pled guilty to conspiring with Murray to violate

t he federal firearms laws. On cross-examination, the prosecutor

extensively questioned Reid concerning the apparent inconsistencies

between h is testimony at Murray's trial, and the implications of

his guilty plea to the conspiracy charge. Despite these references

to Reid's guilty plea, the judge was never requested to, nor did he

sua sponte instruct the jury on the limited evidentiary purpose of

the co-defendant's guilty plea. Also, defense counsel made no

objection at trial. Accordingly, we review this issue under the

plain error standard, examining whether the error seriously

affected the defendant's substantial rights. U nited States v.

Leach , 918 F.2d 464, 467 (5th Cir. 1990), cert. denied , 111 S.Ct.

2802 (1991) (citing United States v. Mattoni

, 698 F.2d 691 (5th

Cir. 1983)). Plain error is an error, "so obvious that our failure

to notice it would seriously affect the fairness, inte grity, or

public reputation of [the] j udicial proceedings and result in a

miscarriage of justice." U ni ted States v. Fortenberry , 914 F.2d

671, 673 (5th Cir. 1990), cert. denied

, 111 S.Ct. 1333 (1991)

(citing United States v. Graves

, 669 F.2d 964, 971 (5th Cir.

1982)).

In U nited States v. Black

, the Court enumerated the factors to

be considered when evaluating the impact of a witness' guilty plea.

They include: 1) the presence or absence of a limiting

instruction; 2) whether there was a proper evidentiary purpose for

introduction of the guilty plea; 3) whether the plea was improperly3 According to local rule 47.5.3, unpublished opinions are

precedent, but may only be cited when: "1) it establishes the law

of the case, 2) is relied upon as a basis for res judicata or collateral estoppel, or 3) involves related facts." Finding the

circumstances in Howard closely related to the facts herein, a

copy of the opinion is attached.

10 emphasized or used as substantive evidence of guilt; and 4) whether

the introduct ion of the plea was invited by defense counsel.

United States v. Black

, 685 F.2d 132, 135 (5th Cir.), cert. denied

,

459 U.S. 1021 (1982); U nited States v. Leach

, 918 F.2d at 467;

United States v. Borchardt

, 698 F.2d 697, 701 (5th Cir. 1983). Our

analysis of the facts reveal that t wo of the four factors are

present. First, the prosecution clearly had a proper purpose in

emphasizing the guilty plea. The plea served to impeach the

witness' testimony. Second, it was the defendant who originally

introduced the guilty plea. Moreover, the defendant did not object

to the prosecutor's questioning, nor did he request a limiting

instr uction from the judge. See U nited States v. Cook

, 461 F.2d

906 (5th Cir.), cert. denied , 409 U.S. 949 (1972) (found no plain

error when defendant's attorney introduced co-defendants' guilty

pleas) and United States v. Bass

, 562 F.2d 967 (5th Cir. 1977) (no

plain error where: government elicited guilty pleas, no objection

by defense, and defense emphasized guilty pleas on crossexamination).

Similarly, in United States v. Howard

, the Court found no

plain error where the same two Black factors were present as in the

case sub judice

. U nited States v. Howard

, 961 F.2d 1571 (5th Cir.

1992) (unpublished opinion) 3

. The facts in Howard are virtually11

identical to the facts in this case. Not only did defense counsel

not object to the testimony, he was the one who int roduced it.

Howard

, supra

. Murray suffered no plain error as a result of

Reid's guilty plea.

Conclusion

We affirm Murray's conviction on Counts II, III, and IV.

Murray's convicti on on Count V is reversed. A review of the presentencing report indicates that the reversed charge factored into

defendant's sentence calculation, and accordingly, resentencing is

necessary.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.