United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-3562

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United States of America, *

*

Plaintiff-Appellee, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri.

Jesse D. Counce, *

* [TO BE PUBLISHED]

Defendant-Appellant. *

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Submitted: April 17, 2006

Filed: May 3, 2006

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Before LOKEN, Chief Judge, LAY and BYE, Circuit Judges.

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PER CURIAM.

On the morning of October 11, 2003, Kansas City, Missouri police officers

stopped Jesse D. Counce for a traffic violation. After a computer check confirmed

that Counce had outstanding warrants, he was placed under arrest. During a search

for Counce’s inhaler, Officer Connor-Pettey discovered a handgun, a magazine, and

a box of ammunition inside a black nylon bag on the floor behind the front passenger

seat. Counce told the arresting officers and a detective who questioned him at the

police station that the bag did not belong to him. He claimed the bag belonged to a

friend whom he had dropped off before he was stopped by the police. 
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After a jury trial, Counce was convicted of being a felon in possession of a

firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Counce was sentenced

to the statutory maximum sentence of 120 months. Counce appeals the district court’s

refusal to allow him to introduce evidence that the firearm was inoperable, the district

court’s failure to define “knowingly” in the jury instructions, and the sentence

imposed by the district court. We affirm.

First, Counce challenges an evidentiary ruling of the district court. To obtain

a conviction under 18 U.S.C. § 922(g), the government must prove that an object

satisfies the federal definition of a firearm. See 18 U.S.C. § 921(a)(3). ATF Agent

Timothy Canon testified the handgun was “designed to expel a projectile by the action

of an explosive.” The district court did not allow Counce to challenge this conclusion

by cross examining the government’s expert or through other means of proof. Counce

argues this violated his Sixth Amendment right to confront a witness against him and

his Fifth Amendment right to present a defense.

We review the district court’s decision to exclude evidence for an abuse of

discretion. United States v. Naiden, 424 F.3d 718, 722 (8th Cir. 2005). The firearm

in this case was missing the safety, thereby preventing the hammer from operating

with a pull of the trigger. Counce argues the evidence of the defective condition of

the handgun was relevant to an essential element of the case–whether the handgun was

designed to operate as a firearm–and therefore he should have been able to cross

examine Agent Canon and present evidence on this point. Section 921(a)(3) defines

a firearm as “any weapon (including a starter gun) which will or is designed to or may

readily be converted to expel a projectile by the action of an explosive.” 18 U.S.C.

§ 921(a)(3). 

The district court concluded Counce’s evidence of firearm inoperability was

irrelevant to determine whether the weapon was a firearm under § 921(a)(3). We

disagree. Although § 921(a)(3) does not require a firearm to be operable, see, e.g.,
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United States v. Maddix, 96 F.3d 311, 316 (8th Cir. 1996); United States v. York, 830

F.2d 885, 891 (8th Cir. 1987), the operation of a weapon may be relevant to whether

it is designed to expel a projectile by the action of an explosive. See United States v.

Aldaco, 201 F.3d 979, 985-86 (7th Cir. 2000). However, Counce neither provided the

district court with an offer of proof nor cross-examined ATF Agent Canon regarding

the design of the weapon. Specifically, Counce made no argument before the district

court, and makes no argument before this court, the missing safety was the result of

the manufacturer’s design. Accordingly, we conclude the evidence of firearm

inoperability was properly excluded under Rule 403 because such evidence would

have yielded substantial juror confusion without having significant probative value

regarding the issue of weapon design. Cf. United States v. McCaster, 193 F.3d 930,

933 (8th Cir. 1999) (“We may affirm the judgment on any grounds supported by the

record, even if not relied on by the district court.”).

Second, Counce argues the district court erred by failing to submit the defense’s

proposed jury instruction defining “knowingly.” A district court’s denial or

acceptance of a proposed jury instruction is reviewed under an abuse of discretion

standard. United States v. Gary, 341 F.3d 829, 834 (8th Cir. 2003). The proposed jury

instruction stated, in part: “An act is done knowingly if the defendant is aware of the

act and does not act or fail to act through ignorance, mistake, or accident.” Counce

offered the defense that the individual he dropped off immediately before the police

stopped him left the handgun in his car.

A defendant is entitled to a theory of defense instruction if a timely request is

made, the evidence supports the requested instruction, and the instruction correctly

states the law. Id. However, this does not guarantee a particular formulation of the

proposed instruction. Id. The district court submitted Instruction No. 19, which

defined actual and constructive possession. While the instructions did not define

“knowingly,” the term is within the understanding of a lay juror. Id. (citing United

States v. Johnson, 892 F.2d 707, 710 (8th Cir. 1989)). Further, the submitted
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instruction correctly states the law of this circuit and the jury’s verdict is supported

by the evidence under either actual or constructive possession. 

Finally, Counce argues his sentence was imposed in violation of the Ex Post

Facto and Due Process Clauses. A district court’s conclusions of law are reviewed de

novo. United States v. Jeffries, 405 F.3d 682, 684 (8th Cir. 2005). Counce’s conduct

occurred in 2003, prior to the Supreme Court’s decisions in Blakely v. Washington,

542 U.S. 296 (2004) and United States v. Booker, 543 U.S. 220 (2005). Counce

argues that he is entitled to the benefit of the Sixth Amendment holdings of Blakely

and Booker, but he cannot be disadvantaged by the remedial portion of Booker. This

court has already rejected this argument in United States v. Wade, 435 F.3d 829, 832

(8th Cir. 2006). Therefore, the district court did not err in imposing the statutory

maximum sentence of ten years. 

For the above stated reasons, we affirm.

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