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. e du/thir dc ir c uit_1997/98Filed 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 Isl ands
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' convi ctions

2for unlawful firearm possession under Virgin Island s 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, defe ndants' car was stopped for a traffic violation. Four polic e officers ordered the driver, McKie, out of the car. The pass engers, Hall, Henry and a juvenile, were also ordered to le ave the car after an officer observed them conversing and l ooking around inside the car. At that point, an officer sp otted a .38
caliber revolver on the back seat of the car. Furth er inspection revealed two more firearms -- a Tec-9 ma chine 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 defe ndants
flew to St. Croix from St. Thomas on a chartered ai rplane. 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 coc k fighting. Upon arrival, they were met by a friend w hose 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 de cided to obtain a firearm. By chance, he ran into an acquain tance who sold him three firearms for $500. Hall testifie d he

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1. The Tec-9 pistol is considered a machine gun und er Virgin Islands law because, even though it cannot fire in fully automa tic mode, it has the capacity to fire more than 12 shots without reloadi ng. See V.I. Code Ann. tit. 14, § 2253(d)(2). Under federal law, this weap on 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 loade d with ammunition and ready to fire.

3concealed the three weapons in the car without tell ing

McKie and Henry about his purchase.

According to Hall, defendants left in the car to at tend the concert around 10:30 p.m. McKie was driving. Hall i nitially sat in the front passenger seat and Henry in the ba ck, 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 p olice
around 12:30 a.m.

All three defendants were convicted under Count I o f the indictment for possession of a firearm with an obli terated serial number in violation of federal law (18 U.S.C

. §§ 922(k) and 2) and under Counts II and III for po ssession of firearms in violation of Virgin Islands law (V.I . Code Ann. tit. 14, §§ 2253(a), (b) and 11). McKie was also co nvicted under Count IV for possession of a firearm by a fel on in violation of federal law (18 U.S.C. § 922(g)(1)). M cKie was sentenced to 60 months imprisonment on Count I, 5 y ears each on Counts II and III, and 72 months on Count I V, all to run concurrently. Hall was sentenced to 36 month s on Count I and 30 months each for Counts II and III, w ith the territorial sentences to run concurrently but conse cutive to the federal sentence. Henry was sentenced to 37 mon ths on Count I and 3 years each on Counts II and III, all to run concurrently.

As we have noted, all defendants appeal their firea rm convictions under Virgin Islands law. Hall also app eals the district court's denial of his motion to compel per formance of a plea agreement. Defendants do not appeal their federal
firearm convictions.

II.

Before trial, the government offered a plea agreeme nt to Hall. In exchange for his guilty plea, truthful tes timony at trial and "complete debriefing" regarding the guns, the government would recommend a reduction in his offen se level. But during debriefing, the government questi oned Hall's credibility and withdrew the plea offer. Hal l now claims the district court erred in denying his moti on to compel performance of the plea agreement. We review for

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

912, 915-16 (3d Cir. 1985); Government of Virgin Is lands 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 pl ea agreement recites, "The defendant [Hall] recognizes that, in the event it is determined he has made any material ly false statements pursuant to this agreement, the agreemen t will be voided." Hall also argues he did not get the ben efit 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 gov ernment
retained discretion to withdraw its offer. The dist rict court
did not abuse its discretion.3

III.

Defendants challenge their convictions for possessi on of firearms in violation of V.I. Code Ann. tit. 14,§§ 2253(a) and (b).4 The statute provides in part:

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3. Although Hall was invited by the court to move f or an evidentiary hearing on this matter at the end of trial, he fail ed to do so. Whether or not this constitutes waiver, see Baker v. United St ates , 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 M cKie and Henry are serving their unchallenged federal sentences concur rently with their territorial sentences, the concurrent sentence doct rine may apply. Under the concurrent sentence doctrine, we have discretio n to avoid resolution of legal issues affecting less than all of the coun ts in an indictment
where at least one count will survive and the sente nces 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 whe re a defendant may suffer collateral consequences from the multipl e 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 a ssessment is imposed on each count because of the collateral con sequences 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 unde r his control in any vehicle of any description any firearm . . . may be arrested without a warrant, an d 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 unde r 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). Mc Kie contends the weapons were not under his control. In addition, all three defendants contend the governme nt failed to meet its burden to prove their possession was not "authorized by law."

A.

"A weapon is under one's control, within the meanin g 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 suf ficient evidence to sustain a verdict that the weapons in t he
vehicle were under McKie's control. Each of the thr ee 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 sea ting. At trial, one of the officers testified that all th e weapons were "in the open." Photographs of the guns' locati ons were displayed to the jury. Based on this evidence we be lieve the jury could have reasonably inferred that McKie knew of and had immediate access to the guns. See New York v. B elton

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

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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 whet her the concurrent sentence doctrine applies to the other defendants.

6narrow compass of the passenger compartment of an

automobile are in fact generally, even if not inevi tably, within `the area into which an arrestee might reach in order to grab a weapon . . . .' ") (quoting Chimel v. Cal ifornia , 395 U.S. 752, 763 (1969)). The weapons were therefore u nder 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 th is burden by proving, among other things, that defenda nts 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 unautho rized by law until it lasts beyond a twenty-four hour per iod. 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 viol ation of V.I. Code Ann. tit. 14, § 2253, and falls within de fendants' burden of production. See Patterson v. New York , 432 U.S. 197, 210 (1977) (holding the government need not pr ove 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 b urden 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 reg ister
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 repor t such fact in writing or in person to the Commissioner wi thin 24 hours after receipt of the firearm or ammunition

. . . .

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

the Commissioner shall retain the firearms or ammunition . . . , but no prosecution shall lie aga inst the person for unlawful possession of the firearm o r ammunition.5

The twenty-four hour grace period was removed from§ 470 in September 1996. Under the current statute, a per son 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 prov e

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

(a) Any person other than a licensed dealer, who pu rchases or otherwise obtains any firearms or ammunition from a ny source within or outside of the Virgin Islands shall repor t 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, addre ss, date of birth and occupation.

(b) Any person upon entering the Virgin Islands bri nging with him any firearm or ammunition shall report in writing o r in person to the Commissioner within 24 hours of his arrival, fu rnishing a complete description of the firearm or ammunition b rought 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 subsect ions (a) or (b), above, is qualified for a license to carry firearms in the Virgin Islands, the Commissioner shall issue the same, upo n payment of the proper fee, and the firearm shall be registered in the Weapons Register provided for in section 469 of this chapte r. If the person is not qualified for a license then the Commissioner s hall retain the firearms or ammunition for disposition in accordanc e with the provisions of section 475 of this chapter, but no p rosecution shall lie against the person for unlawful possession of t he firearm or
ammunition.

(d) Any person who fails to comply with this sectio n shall be punished as provided in section 484 of this chapter [the General Penalty section].

8"beyond a reasonable doubt . . . every fact necessa ry to constitute the crime with which [a defendant] is ch arged." 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 st atutory construction is plenary. See Christopher v. Davis B each 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 men tion duration of possession nor does it reference the tw enty-four hour grace period in § 470. In the past we have int erpreted the clause "unless otherwise authorized by law" to mean possession without a license. See Government of Vir gin
Islands v. Soto , 718 F.2d 72, 80 (3d Cir. 1983) ("[T]he gravamen of [§ 2253] appears to have been the posse ssion of unlicensed firearms . . . ."); Government of Vir gin 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 l icensed to possess it; and . . . it meets the definition .. . of a firearm."). The government must prove the absence o f a firearms license. But we have never designated proo f of possession for more than twenty-four hours as an el ement
of the crime.

Nonetheless, we will examine whether possession for less than twenty-four hours is a proper affirmative defe nse under the Supreme Court standard. At issue is wheth er 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 affirm ative
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 determin e whether "the shifting of the burden will be found t o be an aid to the accuser without subjecting the accused t o hardship or oppression." Id

.

9A balancing of the "opportunities for knowledge" re veals

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 tha n twenty-four hours. Except when a firearm is purchas ed lawfully from a vendor who keeps records and the pu rchase and buyer are capable of being traced, we believe t hat 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 res ulted in presumption against defendants charged with violati ng the statute.)

In addition, the defendants' argument would require the government to prove in each prosecution that none o f the statutory exceptions to the firearm license require ment are satisfied.6 Such an interpretation would conflict w ith 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 de fendant to come forward with evidence of the duration of po ssession.7 Therefore, we hold § 470 is not an element of the o ffense of unlawful firearm possession under V.I. Code Ann. ti t. 14, § 2253, but rather is an affirmative defense.

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6. For example, the government would have to prove the defendants are not members of any of the armed forces of the Unite d 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 defendant s are not jail wardens,

see V.I. Code Ann. tit. 23, § 453(a)(5), and that defe ndants do not have licenses to carry firearms in any of the United Sta tes, see V.I. Code Ann. tit. 23, § 460.

7. It is consistent with Virgin Islands statutory l aw to draw an inference against a defendant from his unlicensed firearm pos session. See , e.g. , V.I. Code Ann. tit. 14, § 2253(c) (Defendant's unli censed firearm possession "shall be evidence of his intention to c ommit [a] crime of violence.").

102.

But this is not the end of the inquiry. Defendants also contend they are entitled to acquittal because they presented uncontradicted evidence they purchased th e guns less than twenty-four hours before their arres t. The district court instructed the jury that it may none theless convict defendants unless they intended to obtain a firearm 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 c onvicted as a matter of law if their possession did not exte nd beyond twenty-four hours.

The district court relied on Government of Virgin I slands v. King , No. CRIM. 529/1994, 1995 WL 217613 (Terr. Ct. V.I. March 3, 1995), which held the twenty-four hou r grace period protects only those persons who intend to re gister and lawfully own their firearms, stating "[s]ection 470 is not a refuge for all who desire to possess a gun for le ss 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 cha pter [including § 470] provides for penalizing construct ive possession of an unlicensed firearm . . . .") The h istory of Virgin Islands statutory law reveals a consistent i ncrease in the penalty for unlawful gun possession,8 and a co nsistent decrease in the time allowed for firearm registrati on.9 The government argues that interpreting § 470 to immuni ze anyone arrested within twenty-four hours of a purch ase is directly contrary to § 470's legislative intent.

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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 i s 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 registe r their firearms within forty-eight hours. Ord. Mun. C. St. T. and St. J. a pp. Dec. 18, 1953, Bill no. 291. In 1968, the period was decreased to twent y-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).

11The government maintains the Virgin Islands legisla ture did not intend § 470 to provide a refuge for gun ow ners 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 examin ed similar statutes from other states, but we have bee n unable to find any court which creates an intent requireme nt under similar circumstances. We must interpret crim inal statutes strictly, "and any ambiguity must be resol ved in favor of lenity" towards the defendants. United Sta tes 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 clea r 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 th efirearm . . . ." V.I. Code Ann. tit. 23, § 470 (1968). If t he 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 intende d to report the firearm or not does not vitiate the lega l authority to possess the firearm for twenty four hours before reporting it. There is no element of `intent to rep ort' under the statute."). For this reason, we believe, the Vi rgin Islands legislature eliminated the twenty-four hour grace p eriod in September 1996. Section 470 now requires registrati on "immediately" upon possession of a firearm.

The extensive legislative history reveals the reaso ns 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 Vir gin Islands senator, "[W]ith a loophole as big as the o ne 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-

120219, to amend Title 23, Section 470 of the Virgin Islands

Code , Reg. Sess. (V.I. Aug. 29, 1996) (statement of Sen ator 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 t his community. And if we don't start by closing these l oopholes
we never will." Id . (statement of Senator Lorraine L. Berry). "We believe "intent to report" was not an element o f 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 n ot unauthorized by Virgin Islands law. Therefore we mu st
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 u nder V.I. Code Ann. tit. 14, §§ 2253(a), (b) and 11 (Cou nts II and III of the indictment). We will remand for resenten cing on

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10. The district court implied in its jury instruct ions that the duration of firearm possession was under twenty-four hours:

Now, Virgin Islands firearms licensing law allows s omeone who obtains a firearm in the territory a grace period o f 24 hours after receiving the firearm to report that fact to the Co mmissioner of Police for the purpose of obtaining a license for t he firearm. . . .

You've heard the testimony of defendant, Jermaine H all, that he bought these three firearms . . . in the early even ing of the night the car was stopped and he was arrested for these charg es.

If, after you examine the evidence, you find that M r. 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 whe ther his arrest prevented him from so reporting his purchase of the guns to the police within 24 hours.

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

13the remaining convictions under 18 U.S.C. §§ 922 an d 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 fr om the same criminal transaction, it is appropriate to vac ate the third, valid sentence in order to afford the trial judge an opportunity to properly exercise his sentencing dis cretion . . . .") (citations omitted).

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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11. As we have noted, all defendants were convicted of violating 18 U.S.C. § 922(k) and 2, which prohibit possession (a nd aiding and abetting possession) of a firearm with an obliterat ed serial number. McKie was also convicted of violating 18 U.S.C.§ 92 2(g)(1), which prohibits possession of a firearm by a felon. Defen dants did not appeal their convictions for the § 922 violations.

14