1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-8-1997

United States v. McKie

Precedential or Non-Precedential:

Docket 96-7010,96-7011,96-7014

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Recommended Citation

"United States v. McKie" (1997). 1997 Decisions. Paper 98.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/98
Filed May 8, 1997 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

Nos. 96-7010, 96-7011 

and 96-7014 

UNITED STATES OF AMERICA; 

GOVERNMENT OF THE VIRGIN ISLANDS 

v. 

MICHAEL McKIE, 

Appellant at No. 96-7010 

JERMAINE HALL, 

Appellant at No. 96-7011 

GUY M. HENRY, 

Appellant at No. 96-7014 

On Appeal from the District Court of the Virgin Islands 

Division of St. Croix 

(D.C. Criminal Nos. 95-cr-00036-1, 

95-cr-00036-2 and 95-cr-00036-3) 

Argued December 9, 1996 

Before: SCIRICA, NYGAARD and McKEE, Circuit Judges

(Filed May 8, 1997) 
MICHAEL A. JOSEPH, ESQUIRE 

 (ARGUED) 

52A Company Street, Suite 1 

Christiansted, St. Croix 

U.S. Virgin Islands 00820 

Attorney for Appellant, 

Michael McKie 

MARTIAL A. WEBSTER, ESQUIRE 

P.O. Box 1568, Suite 10 

298 Peter's Rest 

Kingshill, St. Croix 

U.S. Virgin Islands 00851 

Attorney for Appellant, 

Jermaine Hall 

JEFFREY B.C. MOORHEAD, 

 ESQUIRE (ARGUED) 

1132 King Street, 2nd Floor 

Christiansted, St. Croix 

U.S. Virgin Islands 00820 

 Attorney for Appellant, Guy Henry 

DENISE HINDS-ROCH, ESQUIRE 

 (ARGUED) 

JAMES R. FITZNER, ESQUIRE 

Office of United States Attorney 

1108 King Street, Suite 201 

Christiansted, St. Croix 

U.S. Virgin Islands 00820 

 Attorneys for Appellees 

OPINION OF THE COURT 

SCIRICA, Circuit Judge. 

In this joint appeal, defendants Michael McKie, Guy

Henry and Jermaine Hall challenge their convictions on 

weapons offenses. We will reverse defendants' convictions 

 2 
for unlawful firearm possession under Virgin Islands law, 

but we will affirm all other issues raised in this appeal. 

I. 

On April 14, 1995, at 12:30 a.m. in St. Croix, defendants' 

car was stopped for a traffic violation. Four police officers 

ordered the driver, McKie, out of the car. The passengers, 

Hall, Henry and a juvenile, were also ordered to leave the 

car after an officer observed them conversing and looking 

around inside the car. At that point, an officer spotted a .38 

caliber revolver on the back seat of the car. Further 

inspection revealed two more firearms -- a Tec-9 machine 

gun1 on the front passenger sidefloorboard, and a .45 

caliber pistol on the rear driver's side floorboard.2 

At trial, Hall testified that he and the other defendants 

flew to St. Croix from St. Thomas on a chartered airplane. 

They arrived at 11 a.m. to attend a reggae concert later that 

evening. Although unemployed, Hall brought with him $700 

in cash that he had accumulated by gambling and cock 

fighting. Upon arrival, they were met by a friend whose car 

they borrowed. 

Hall testified that after arriving in St. Croix, he received 

a death threat from someone who previously had shot him. 

He did not report this to the police but instead decided to 

obtain a firearm. By chance, he ran into an acquaintance 

who sold him three firearms for $500. Hall testified he 

_________________________________________________________________ 

1. The Tec-9 pistol is considered a machine gun under Virgin Islands law 

because, even though it cannot fire in fully automatic mode, it has the 

capacity to fire more than 12 shots without reloading. See V.I. Code Ann. 

tit. 14, § 2253(d)(2). Under federal law, this weapon is not classified as 

a machine gun but as a semiautomatic assault weapon. See 18 U.S.C. 

§ 921(a)(30)(a)(viii). 

2. The .38 caliber revolver was positioned between Hall and the juvenile, 

"on top of the back seat . . . a long bench seat . . . right in the middle 

of the seat, just sitting there." The Tec-9 machine gun was located on 

the front passenger side floorboard, "right on the floor, right where your 

feet would be." The .45 caliber pistol was located on the rear driver's side 

floorboard where the juvenile had been sitting. At trial, a firearms expert 

testified that each of the three firearms was loaded with ammunition and 

ready to fire. 

 3 
concealed the three weapons in the car without telling 

McKie and Henry about his purchase. 

According to Hall, defendants left in the car to attend the 

concert around 10:30 p.m. McKie was driving. Hall initially 

sat in the front passenger seat and Henry in the back, but 

they switched positions when Henry complained about

being cramped in the back of the subcompact car (an Isuzu 

I-Mark). As noted, defendants were stopped by the police 

around 12:30 a.m. 

All three defendants were convicted under Count I of the 

indictment for possession of a firearm with an obliterated 

serial number in violation of federal law (18 U.S.C. 

§§ 922(k) and 2) and under Counts II and III for possession 

of firearms in violation of Virgin Islands law (V.I. Code Ann. 

tit. 14, §§ 2253(a), (b) and 11). McKie was also convicted 

under Count IV for possession of a firearm by a felon in 

violation of federal law (18 U.S.C. § 922(g)(1)). McKie was 

sentenced to 60 months imprisonment on Count I, 5 years 

each on Counts II and III, and 72 months on Count IV, all 

to run concurrently. Hall was sentenced to 36 months on 

Count I and 30 months each for Counts II and III, with the 

territorial sentences to run concurrently but consecutive to 

the federal sentence. Henry was sentenced to 37 months on 

Count I and 3 years each on Counts II and III, all to run 

concurrently. 

As we have noted, all defendants appeal their firearm 

convictions under Virgin Islands law. Hall also appeals the 

district court's denial of his motion to compel performance 

of a plea agreement. Defendants do not appeal their federal 

firearm convictions. 

II. 

Before trial, the government offered a plea agreement to 

Hall. In exchange for his guilty plea, truthful testimony at 

trial and "complete debriefing" regarding the guns, the 

government would recommend a reduction in his offense 

level. But during debriefing, the government questioned 

Hall's credibility and withdrew the plea offer. Hall now 

claims the district court erred in denying his motion to 

compel performance of the plea agreement. We review for 

 4 
abuse of discretion. See United States v. Trott, 779 F.2d 

912, 915-16 (3d Cir. 1985); Government of Virgin Islands v.

Berry, 631 F.2d 214, 219-20 (3d Cir. 1980). 

Hall contends the government breached the plea 

agreement by withdrawing the plea offer. But the plea 

agreement recites, "The defendant [Hall] recognizes that, in 

the event it is determined he has made any materially false 

statements pursuant to this agreement, the agreement will 

be voided." Hall also argues he did not get the benefit of his 

bargain with the government. But neither did the 

government. Hall neither pled guilty nor testified for the 

government at trial. In the plea agreement, the government 

retained discretion to withdraw its offer. The district court 

did not abuse its discretion.3 

III. 

Defendants challenge their convictions for possession of 

firearms in violation of V.I. Code Ann. tit. 14,§§ 2253(a) 

and (b).4 The statute provides in part: 

_________________________________________________________________ 

3. Although Hall was invited by the court to move for an evidentiary 

hearing on this matter at the end of trial, he failed to do so. Whether or 

not this constitutes waiver, see Baker v. United States, 781 F.2d 85, 90 

(6th Cir.), cert. denied, 479 U.S. 1017 (1986), the district court properly

denied his motion. 

4. As noted, defendants do not appeal their federal firearm convictions 

for violations of 18 U.S.C. §§ 922 and 2. Because McKie and Henry are 

serving their unchallenged federal sentences concurrently with their 

territorial sentences, the concurrent sentence doctrine may apply. Under 

the concurrent sentence doctrine, we have discretion to avoid resolution 

of legal issues affecting less than all of the counts in an indictment 

where at least one count will survive and the sentences on all counts are 

concurrent. See United States v. American Investors of Pittsburgh, Inc., 

879 F.2d 1087, 1100 (3d Cir.), cert. denied, 493 U.S. 955 (1989). The 

concurrent sentence doctrine may not be invoked where a defendant 

may suffer collateral consequences from the multiple convictions. It is 

rarely invoked in federal court now because of the mandatory $50.00 

assessment imposed on each federal count resulting in conviction. See

Ray v. United States, 481 U.S. 736, 737 (1987) (holding concurrent 

sentence doctrine does not apply where a monetary assessment is 

imposed on each count because of the collateral consequences of the 

multiple convictions, i.e. a defendant's "liability to pay th[e] total depends 

on the validity of each of his . . . convictions."). 

 5 
(a) Whoever, unless otherwise authorized by law, 

has, possesses, bears, transports or carries either

openly or concealed on or about his person, or under 

his control in any vehicle of any description any 

firearm . . . may be arrested without a warrant, and 

shall be sentenced to imprisonment . . . . 

(b) Whoever, unless otherwise authorized by law, 

has, possesses, bears, transports or carries either

openly or concealed on or about his person, or under 

his control in any vehicle of any description any 

machine gun . . . may be arrested without a warrant, 

and shall be sentenced to imprisonment . . . . 

V.I. Code Ann. tit. 14, § 2253 (emphasis added). McKie 

contends the weapons were not under his control. In

addition, all three defendants contend the government 

failed to meet its burden to prove their possession was not 

"authorized by law." 

A. 

"A weapon is under one's control, within the meaning of 

§ 2253, if it is in an area from which [one] might gain 

immediate possession." United States v. Xavier, 2 F.3d 

1281, 1289 (3d Cir. 1993). We believe there was sufficient 

evidence to sustain a verdict that the weapons in the 

vehicle were under McKie's control. Each of the three 

firearms was in plain view inside the car. The car was 

described as a subcompact, and Hall testified that two of 

the occupants changed places because of cramped seating. 

At trial, one of the officers testified that all the weapons 

were "in the open." Photographs of the guns' locations were 

displayed to the jury. Based on this evidence we believe the 

jury could have reasonably inferred that McKie knew of and 

had immediate access to the guns. See New York v. Belton, 

453 U.S. 454, 460 (1981) ("[A]rticles inside the relatively 

_________________________________________________________________ 

But Hall's sentences on his territorial and federal convictions are not 

concurrent. Because it will be necessary to decide the validity of Hall's 

Virgin Islands conviction, we will not address whether the concurrent 

sentence doctrine applies to the other defendants. 

 6 
narrow compass of the passenger compartment of an 

automobile are in fact generally, even if not inevitably, 

within `the area into which an arrestee might reach in order 

to grab a weapon . . . .' ") (quoting Chimel v. California, 395 

U.S. 752, 763 (1969)). The weapons were therefore under 

McKie's control within the meaning of § 2253. 

B. 

It is the government's burden under V.I. Code Ann. tit. 

14, § 2253 to prove defendants were unauthorized to carry 

or possess the guns. See Xavier, 2 F.3d at 1289. The 

district court held the government would satisfy this 

burden by proving, among other things, that defendants did 

not have a firearms license. But defendants contend that, 

under V.I. Code Ann. tit. 23, § 470 (1968) (amended Sept. 

1996), unlicensed firearm possession is not unauthorized 

by law until it lasts beyond a twenty-four hour period. 

Defendants maintain the government bears the burden to 

prove possession beyond twenty-four hours. The 

government disagrees, contending § 470 provides 

defendants an affirmative defense to a charged violation of 

V.I. Code Ann. tit. 14, § 2253, and falls within defendants' 

burden of production. See Patterson v. New York, 432 U.S. 

197, 210 (1977) (holding the government need not prove 

beyond a reasonable doubt the nonexistence of all 

affirmative defenses); Government of Virgin Islands v. Smith, 

949 F.2d 677, 686 (3d Cir. 1991) (defendant bears burden 

of production on affirmative defenses). 

1. 

At the time of the arrest, V.I. Code Ann. tit. 23,§ 470 

(1968), allowed gun owners twenty-four hours to register 

their firearms: 

(a) Any person . . . who purchases or otherwise 

obtains any firearms or ammunition from any source 

within or outside of the Virgin Islands shall report such 

fact in writing or in person to the Commissioner within 

24 hours after receipt of the firearm or ammunition

. . . . 

 7 
(c) . . . If the person is not qualified for a license then 

the Commissioner shall retain the firearms or 

ammunition . . . , but no prosecution shall lie against 

the person for unlawful possession of the firearm or 

ammunition.5 

The twenty-four hour grace period was removed from§ 470 

in September 1996. Under the current statute, a person 

must obtain a license "immediately" upon possession of a 

firearm. V.I. Code Ann. tit. 23, § 470 (Sept. 1996). 

Defendants argue it was the government's burden to 

prove their firearm possession lasted beyond twenty-four 

hours. It is always the government's burden to prove 

_________________________________________________________________ 

5. The complete text of § 470 (1968) provided: 

(a) Any person other than a licensed dealer, who purchases or 

otherwise obtains any firearms or ammunition from any source 

within or outside of the Virgin Islands shall report such fact in 

writing or in person to the Commissioner within 24 hours after 

receipt of the firearm or ammunition, furnishing a complete 

description of the firearm or ammunition purchased or otherwise 

obtained. He shall also furnish his own name, address, date of birth 

and occupation. 

(b) Any person upon entering the Virgin Islands bringing with him 

any firearm or ammunition shall report in writing or in person to 

the Commissioner within 24 hours of his arrival, furnishing a 

complete description of the firearm or ammunition brought into the 

Virgin Islands. He shall also furnish his own name, address, date of 

birth and occupation. 

(c) In the event the person reporting under subsections (a) or (b), 

above, is qualified for a license to carry firearms in the Virgin 

Islands, the Commissioner shall issue the same, upon payment of 

the proper fee, and the firearm shall be registered in the Weapons 

Register provided for in section 469 of this chapter. If the person is 

not qualified for a license then the Commissioner shall retain the 

firearms or ammunition for disposition in accordance with the 

provisions of section 475 of this chapter, but no prosecution shall 

lie against the person for unlawful possession of the firearm or 

ammunition. 

(d) Any person who fails to comply with this section shall be 

punished as provided in section 484 of this chapter [the General 

Penalty section]. 

 8 
"beyond a reasonable doubt . . . every fact necessary to 

constitute the crime with which [a defendant] is charged." 

In re Winship, 397 U.S. 358, 364 (1970). The issue, then, is 

whether possession for more than twenty-four hours is a 

fact necessary to constitute the crime of unlawful 

possession in violation of § 2253. Our review of statutory 

construction is plenary. See Christopher v. Davis Beach Co., 

15 F.3d 38, 41 (3d Cir. 1994). 

We must first look to the language of V.I. Code Ann. tit. 

14, § 2253. See United States v. Schneider, 14 F.3d 876, 

879 (3d Cir. 1994). The statute punishes anyone who, 

"unless otherwise authorized by law, has, possesses, bears, 

transports or carries either openly or concealed on or about 

his person, or under his control in any vehicle of any 

description any firearm." Section 2253 does not mention 

duration of possession nor does it reference the twenty-four 

hour grace period in § 470. In the past we have interpreted 

the clause "unless otherwise authorized by law" to mean 

possession without a license. See Government of Virgin

Islands v. Soto, 718 F.2d 72, 80 (3d Cir. 1983) ("[T]he 

gravamen of [§ 2253] appears to have been the possession 

of unlicensed firearms . . . ."); Government of Virgin Islands

v. Bedford, 671 F.2d 758, 763 n.7 (3d Cir. 1982) (approving 

a jury instruction that § 2253(a) is violated if, "the 

defendant possessed the firearm; . . . he was not licensed 

to possess it; and . . . it meets the definition .. . of a 

firearm."). The government must prove the absence of a 

firearms license. But we have never designated proof of 

possession for more than twenty-four hours as an element 

of the crime. 

Nonetheless, we will examine whether possession for less 

than twenty-four hours is a proper affirmative defense 

under the Supreme Court standard. At issue is whether the 

government is required to prove enough under § 2253, 

without proof of duration, "to make it just for the defendant 

to be required to repel" the charges with an affirmative 

defense. Patterson, 432 U.S. at 203 n.9 (quoting Morrison v.

California, 291 U.S. 82, 88-89 (1934)). We must balance the 

parties' "opportunities for knowledge" and determine 

whether "the shifting of the burden will be found to be an 

aid to the accuser without subjecting the accused to 

hardship or oppression." Id. 

 9 
A balancing of the "opportunities for knowledge" reveals 

it is far easier for the defendant to know of, and assert, 

firearm possession under twenty-four hours than it is for 

the government to establish possession for more than 

twenty-four hours. Except when a firearm is purchased 

lawfully from a vendor who keeps records and the purchase 

and buyer are capable of being traced, we believe that when 

a firearm was obtained is almost always exclusively within 

the knowledge of the defendant. See United States v.

Gainey, 380 U.S. 63, 63 (1965) (The "practical 

impossibility" of proving a statutory violation resulted in 

presumption against defendants charged with violating the 

statute.) 

In addition, the defendants' argument would require the 

government to prove in each prosecution that none of the 

statutory exceptions to the firearm license requirement are 

satisfied.6 Such an interpretation would conflict with our 

obligation to construe statutes sensibly and avoid 

constructions which yield absurd or unjust results. See

United States v. Turkette, 452 U.S. 576, 580 (1981); 

Government of Virgin Islands v. Berry, 604 F.2d 221, 225 

(3d Cir. 1979). 

After the government proves unlicensed firearm 

possession, we do not find it a hardship for the defendant 

to come forward with evidence of the duration of possession.7 

Therefore, we hold § 470 is not an element of the offense of 

unlawful firearm possession under V.I. Code Ann. tit. 14, 

§ 2253, but rather is an affirmative defense. 

_________________________________________________________________ 

6. For example, the government would have to prove the defendants are 

not members of any of the armed forces of the United States, see V.I. 

Code Ann. tit. 23, § 453(a)(1), that defendants are not officers or 

employees of a federal agency authorized by law to carry firearms, see

V.I. Code Ann. tit. 23, § 453(a)(2), that defendants are not jail wardens, 

see V.I. Code Ann. tit. 23, § 453(a)(5), and that defendants do not have 

licenses to carry firearms in any of the United States, see V.I. Code Ann. 

tit. 23, § 460. 

7. It is consistent with Virgin Islands statutory law to draw an inference 

against a defendant from his unlicensed firearm possession. See, e.g., 

V.I. Code Ann. tit. 14, § 2253(c) (Defendant's unlicensed firearm 

possession "shall be evidence of his intention to commit [a] crime of 

violence."). 

 10 
2. 

But this is not the end of the inquiry. Defendants also 

contend they are entitled to acquittal because they

presented uncontradicted evidence they purchased the 

guns less than twenty-four hours before their arrest. The 

district court instructed the jury that it may nonetheless 

convict defendants unless they intended to obtain afirearm 

license within twenty-four hours and were prevented from 

doing so by their arrests. Defendants challenge the court's 

instruction on intent, contending they may not be convicted 

as a matter of law if their possession did not extend beyond 

twenty-four hours. 

The district court relied on Government of Virgin Islands

v. King, No. CRIM. 529/1994, 1995 WL 217613 (Terr. Ct. 

V.I. March 3, 1995), which held the twenty-four hour grace 

period protects only those persons who intend to register 

and lawfully own their firearms, stating "[s]ection 470 is not 

a refuge for all who desire to possess a gun for less than a 

day." Id., 1995 WL 217613, at *5. The government urges us 

to follow King, arguing the stated purpose of § 470 is to 

proscribe possession of unlicensed firearms. See V.I. Code 

Ann. tit. 23, ch. 5 (1968) (Annotations) ("This chapter 

[including § 470] provides for penalizing constructive 

possession of an unlicensed firearm . . . .") The history of 

Virgin Islands statutory law reveals a consistent increase in 

the penalty for unlawful gun possession,8 and a consistent 

decrease in the time allowed for firearm registration.9 The 

government argues that interpreting § 470 to immunize 

anyone arrested within twenty-four hours of a purchase is 

directly contrary to § 470's legislative intent. 

_________________________________________________________________ 

8. In 1957, carrying a concealed firearm without a license resulted in 

imprisonment for up to one year. V.I. Code Ann. tit. 14, § 2252 (1957). 

The current penalty for simple firearm possession is a maximum of three 

years and a minimum of six months incarceration. V.I. Code Ann. tit. 14, 

§ 2253(a). 

9. In 1953, firearm owners were required to register their firearms within 

forty-eight hours. Ord. Mun. C. St. T. and St. J. app. Dec. 18, 1953, Bill 

no. 291. In 1968, the period was decreased to twenty-four hours. V.I. 

Code Ann. tit. 23, § 470 (1968). In September 1996, the statute was 

amended again, requiring "immediate" registration. V.I. Code Ann. tit. 

23, § 470 (Sept. 1996). 

 11 
The government maintains the Virgin Islands legislature 

did not intend § 470 to provide a refuge for gun owners who 

never intended to register their firearms. But the language 

of § 470 does not include a requirement of "intent to 

register" for a firearm license. It simply requires registration 

"within 24 hours." Other than King, the government cites 

no authority for its interpretation. We have examined 

similar statutes from other states, but we have been unable 

to find any court which creates an intent requirement 

under similar circumstances. We must interpret criminal 

statutes strictly, "and any ambiguity must be resolved in 

favor of lenity" towards the defendants. United States v.

Enmons, 410 U.S. 396, 411 (1973); United States v. Long, 

654 F.2d 911, 914 (3d Cir. 1981). 

The language of the statute (now repealed) was clear and 

unambiguous. It required only that "[a]ny person . . . who 

purchases or otherwise obtains any firearm . . .[to] report 

such fact . . . within 24 hours after receipt of thefirearm 

. . . ." V.I. Code Ann. tit. 23, § 470 (1968). If the legislature 

meant to include "intent to report" as part of the defense, 

it did not say so. See Government of Virgin Islands v.

Smalls, No. CRIM. F12/1994, 1995 WL 457975 (Terr. Ct. 

V.I. July 27, 1995) ("[W]hether a defendant intended to 

report the firearm or not does not vitiate the legal authority 

to possess the firearm for twenty four hours before

reporting it. There is no element of `intent to report' under 

the statute."). For this reason, we believe, the Virgin Islands 

legislature eliminated the twenty-four hour grace period in 

September 1996. Section 470 now requires registration 

"immediately" upon possession of a firearm. 

The extensive legislative history reveals the reasons for 

the amendment. Concerned with the conflict between the 

territorial court decisions in King and Smalls, the 

legislature wanted to close the loophole created by the 

twenty-four hour grace period. As stated by one Virgin 

Islands senator, "[W]ith a loophole as big as the one that is 

currently on the books that allow[s] for a 24 hour reporting 

period you can clearly see that anyone at any time can 

easily utilize that loophole as a means of getting out of their 

basic responsibility and their whole possession of afirearm 

whether acquired legally or illegally." Hearing on Bill No. 21-

 12 
0219, to amend Title 23, Section 470 of the Virgin Islands

Code, Reg. Sess. (V.I. Aug. 29, 1996) (statement of Senator 

Osbert Potter). Another senator stated, "This bill involves 

closing some loopholes that essentially provide for a field 

day for a criminal element in the area of firearm 

possession." Id. (statement of Senator Almando Liburd). 

And yet another said, "There are too many guns in this 

community. And if we don't start by closing these loopholes 

we never will." Id. (statement of Senator Lorraine L. Berry). 

"We believe "intent to report" was not an element of the 

affirmative defense of firearm possession for less than 

twenty-four hours, as it existed under § 470 before its 

recent amendment. Because the defendants presented 

uncontradicted evidence of possession for less than twentyfour hours,10 we find theirfirearm possession was not 

unauthorized by Virgin Islands law. Therefore we must 

reverse defendants' convictions under V.I. Code Ann. tit. 

14, §§ 2253(a), (b) and 11 (aiding and abetting). 

IV. 

We will reverse the convictions of all defendants under 

V.I. Code Ann. tit. 14, §§ 2253(a), (b) and 11 (Counts II and 

III of the indictment). We will remand for resentencing on 

_________________________________________________________________ 

10. The district court implied in its jury instructions that the duration of 

firearm possession was under twenty-four hours: 

Now, Virgin Islands firearms licensing law allows someone who 

obtains a firearm in the territory a grace period of 24 hours after 

receiving the firearm to report that fact to the Commissioner of 

Police for the purpose of obtaining a license for the firearm. . . . 

You've heard the testimony of defendant, Jermaine Hall, that he 

bought these three firearms . . . in the early evening of the night the 

car was stopped and he was arrested for these charges. 

If, after you examine the evidence, you find that Mr. Hall possessed 

these firearms . . . and did not have a license to possess these 

firearms, you should then consider his testimony in determining 

whether he intended to report his purchase, and whether his arrest 

prevented him from so reporting his purchase of the guns to the 

police within 24 hours. 

(Appellants' Br. at 222a - 223a.) 

 13 
the remaining convictions under 18 U.S.C. §§ 922 and 2.11 

See United States v. Levy, 865 F.2d 551, 559 n.5 (3d Cir. 

1989) ("[W]here the sentences imposed on two of the three 

counts are vacated and all three sentences arise from the 

same criminal transaction, it is appropriate to vacate the 

third, valid sentence in order to afford the trial judge an 

opportunity to properly exercise his sentencing discretion 

. . . .") (citations omitted). 

A True Copy: 

Teste: 

Clerk of the United States Court of Appeals

for the Third Circuit

_________________________________________________________________ 

11. As we have noted, all defendants were convicted of violating 18 

U.S.C. § 922(k) and 2, which prohibit possession (and aiding and 

abetting possession) of a firearm with an obliterated serial number. 

McKie was also convicted of violating 18 U.S.C.§ 922(g)(1), which 

prohibits possession of a firearm by a felon. Defendants did not appeal 

their convictions for the § 922 violations. 

 14