2011 D e c i sion s O p inion s of the U nit e d

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UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 0 9

- 3487 & 09

- 3699

_____________

UNITED STATES OF AMERICA

,

Appellant in 09

- 3699

v.

SHAWN TYSON, Appellant in 09

- 3487

_____________

On Appeal from the District Court
of the U nited States Virgin Islands
District Court No. 3

- 08

- cr

- 00049

- 001 District Judge: The Honorable Curtis V. Gómez

Argued December 1 4 , 2 010

Before: McK EE

, Chief Judge

, FU ENTES and SMITH,

Circuit Judges

(Filed: August 3, 2011 )2 Kim L. Chisholm , Esq. Ishmael A. Meyers , Jr., Esq.
St. Clair Theodore , Esq. Office of United States Attorney 5500 Veterans Building, Suite 260
United States Courth ouse Charlotte Amalie, St. Thomas, VI 00802

John M. Pellettieri , Esq. (argued) United States Department of Justice Appellate Section
Room 1264 950 Pennsylvania Avenue, N.W. Washington, DC 20530 Counsel for Appellee

Leonard B. Francis, Jr. , Esq. (argue d) 4A Dronningens
P.O. Box 8838 Charlotte Amalie, St. Thomas, VI 000801 Counsel for Appellant

_____________________

OPINION

_____________________

SMITH, Circuit Judge.

A jury in the District of the Virgin Islands convicted defendant Shawn Tyson of numerous federal firearms offenses, including twelve counts of transporting a firearm in3 the course of dealing firearms without a license, one count of transporting a firearm with knowledge or reasonable cause to
believe that it would be used to commit a crime, one count of transferring a firearm to an out

- of

- state resident , and one count of conspiring to unlawfully transport firearms

. The jury also found Tyson guilty of ten counts of unauthorized possession of a firearm under Virgin Islands law. Followi ng pronouncement of the verdict , the District Court granted Tyson a judgment of acquittal on each of the federal counts.
S uch relief was denied with respect to the convictions charging viola tion s of the Virgin Islands Code.

We are presented with cross ap peals from the final judgment entered by the District Court. Tyson challenges the sufficiency of the evidence introduced in support o f the

counts arising under local law, while the government contends that we should reinstate the jury‘s verdict on the

fed eral firearms counts. For the reasons set forth below, we conclude that Tyson‘s appeal is without merit. We also
conclude that the District Court was correct to enter judgment of acquittal on the conspiracy count sounding in federal law

. With respect to the remaining federal c ounts, however, w e agree with the government ‘s contention that the District Court erred by granting Tyson Rule 29 relief. Accordingly, we will

reverse the judgment in part and remand the matter with instructions to reinstate the ju ry verdict on each of the federal counts save that charging Tyson with conspir acy to tra nsport
firearms in violation of federal law

.

I

It is not difficult to acquire a firearm legally in the
state of Tennessee. A firearms license is not required to buy

m ost guns. Rather, an interested purchaser need only pass an4 instant background check

, 1 required by state law

, and complete a Form 4473, required by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). 2 Virgin Islands law is more stringent. An i nterested buyer must obtain a firearms license from the Virgin Islands Police Commissioner. 23 V.I.C. § 455. On ly a Virgin Islands
resident may obtain such a license, 23 V.I.C. § 456(a)(2)

, and

t he Commissioner is empowered to deny a license request for

, inter alia

, prior felony conviction, mental incompetence, habitual drunkenness, or for being an ―improper person‖ ( whatever that means ) , 23 V.I.C. § 458(a). Each firearm purchased in or imported into the Virgin Islands must be registered with the police

. 23 V.I.C. § 470.

Tyson apparently looked at the I slands ‘ regulated gun
market and saw a n arbitrage opportunity. To capitalize on this , he began purchas ing a significant quantity of firearms in
his home state of Tennessee , where p rocurement was easy,

a nd t hen transport ing those weapons to the Virgin Islands for
resale. T he scheme began in earnest in late 2007. O n December 1

, Tyson b ought two semiautomatic rifles from a pawn shop near his home in Bristol, Tennessee

. He purchased a semiautomatic pistol from a gun store in neighboring Jonesboro the following day. 3 On December 11,

1 The instant background check ensures the potential purchaser is not a convicted felon and is not the subject of an active restraining
order

. 2 Form 4473 records a purchaser‘s identification information and the firearm‘s make, model, and s erial number. The purchaser must also sign a short affidavit stating that he or she is eligible under federal law to purchase firearms.

3 Tyson acquired these weapons legally; prior to each transaction, he passed the instant background check required by t he state of5 2007, Tyson flew from Tennessee to St. Thomas

—his first of four trips over the course of the next seven months. H e returned to Tennessee on January 10, 2008

. Wit hin three

wee ks, Tyson had purchased eight more semiautomatic

weapons . Two of these were rifles ; six were handguns.

Tyson made a second trip t o the Virgin Islands on February 6

. Delta Airlines ticket ing agent Dudley Breeding assisted Tyson with his luggage and recal led that Tyson
checked a large, black rectangular suitcase that contained
firearms. 4 Tyson told Breeding he was a n antique gun collector and intended to sell the weapons when he reached
St. Thomas. However, Tyson was not licensed to sell or possess firea rms in the Virgin Islands

. 5 Nor was he licensed under federal law to sell or transport firearms for sale in
interstate commerce. 6 Tyson also failed to register the

weapons with the Virgin Islands police when he arrived in St.
Thomas

.

Tennessee and completed Form 4473. Indeed, Tyson complied with these requirements each time he purchased a firearm in

Tennessee.

4 Federal regulations allow airline passengers to transport firearms provided they are checked for in

- flight stor age and packed in a locked, hard

- side container. 49 C.F.R. § 1544.203(f). In addition, a passenger must complete a declaration form at the ticketing counter stating that each firearm contained in his or her baggage is
unloaded. See id. § 1544.203(f)(2)( i). Tyson complied with these requirements each time he flew to the Virgin Islands

. 5 With certain exceptions not applicable here, see 23 V.I.C. § 453, Virgin Islands law makes it unlawful to possess a firearm without a license, 23 V.I.C. § 454; 14 V.I.C. § 2253(a).

6 Federal law states that only a licensed importer, manufacturer, or dealer may import, manufacture, or deal firearms in interstate

commerce. See 18 U.S.C. § 922.6 Tyson returned from the Virgin Islands on February 13, accompanied by an individual named Kelroy Morrell. The following day, Tyson purchased seven semiautomatic
firearms from l ocal merchants in and around Bristol

, Tennessee

. Later that evening, local law enforcement
receiv ed reports that someone was firing a gun from the front porch of Tyson‘s residence. When Bristol police officers arrived, they confronted the owner of the home , Sherry Wagner. She feigned ignorance but a llowed the officers to
enter the home so they could speak with Tyson.

Officers encountered Tyson and Morrell when they
entered the residence . A 9mm pistol sat in plain view atop a nearby coffee table. Wagner and Tyson stated that they were unsure if there were more guns in the house. Officers found

sev eral when they entered Tyson‘s bedroom : two rifles were propped against the wall; several smaller firearms were hidden underneath Tyson‘s mattress; empty boxes, which

once packag ed firearms, littered the bedroom floor. A
consensual search of the premises also produced receipts for multiple firearms purchases, ammunition, magazines for ammunition, and business cards belonging to sundry local gun merchants. Ultimately, however, this incident led to no arrests, for the guns had been purchased legally and non e of
the items discovered in Tyson ‘s home are considered

contraband under state or federal law.

Tyson continued to acquire guns . He bought one semiautomatic rifle and two semiautomatic pistols from Tull‘s Store in Selmer, Tennessee on February 16

. H e

pu rchased an additional semiautomatic pistol from the same
dealer the next day . On February 18, Tyson bought two more pistols from a merchant in Kingsport. He acquired another semiautomatic handgun on February 19. In sum, Tyson7 purchased fourteen semiauto matic firearms between February 13, when he return ed from the Virgin Islands with Morrell

, and February 19.

On February 20, Tyson and Morrell arriv ed at the Tri

Cities Regional Airport

. Each was toting a hard plastic suitcase full of guns. Their destinat ion was St. Thomas. Delta ticketing agent Breeding assisted both men with their luggage. During the course of casual conversation , Tyson again told Breeding that he had a buyer for the weapons in the Virgin Islands. None of the weapons were registered w ith the Virgin Islands police when Tyson arrived at his destination

.
On February 23, Tyson returned to Bristol without
Morrell. He entered active duty service with th e Tennessee Army National Guard three days later

. There Tyson would
remain until July 3, 2008 , when he graduated as a private
second class and was discharged home

.
Tyson was but a few days removed from National Guard training before he was again buying firearms in sizeable quantities . He bought one pistol on July 12, five more on July 24, a nd two on July 28. On July 31, h e set off

on his fourth trip to the Virgin Islands. This time, federal law
enforcement officers were waiting for hi m

. Customs and Border Patrol notified ATF agent Jamie Jenkins that Tyson had checked in for a flight and w as carrying eleven firearms in a hard plastic suitcase . He also had a significant quantity
of ammunition in a separate black duffel bag

. Agent Jenkins then contacted Penny Stricklin, an ATF agent stationed in the Virgin Islands

. He told Stricklin that T yson was destined for
St. Thomas

, firearms in tow. Apparently, Tyson‘s island
visits had not gone unnoticed.8 Stricklin determined that Tyson had neither a license
to possess or distribute firearms in the Virgin Islands nor a federal license to import or deal firearms in the territories of
the United States. She therefore obtained a warrant to search Tyson‘s luggage. She also arranged for federal and local law
enforcement to intercept Tyson when he exit ed the airport.

Morrell and a second individual, Cu rtiss Thomas, were waiting outside the airport in Morrell‘s parked car when Tyson landed. Morrell s tayed in the vehicle for several
minutes before exit ing the car and enter ing the airport. Deputy United States Marshal Brian Biermann, who was watching fro m a nearby vantage point, recalled that Tyson eventually exited the airport and, along with Morrell, ―they had a red cap help[] with some baggage into the trunk of the vehicle.‖ Tyson then closed the trunk and entered the
vehicle‘s back seat.

Once Tyson was inside the car, Morrell began to drive toward the airport exit. He did not get far before Virgin Islands police and federal agents stopped the vehicle

. Stricklin opened Morrell‘s trunk an d seized the hard plastic suitcase and black duffel bag that Ty son had checked in

Tennessee. This baggage contained a total of eleven firearms, 500 rounds of ammunition, and several ammunition magazines. Tyson, Morrell, and Thomas were arrested and Virgin Islands police impounded Morrell‘s car. Morrell later

consen ted to a vehicle search, whereupon agents discovered an additional handgun hidden beneath the passenger seat. 7

7 The handgun belonged to Thomas. He was tried separately on charges of unlawfu lly transporting a firearm in interstate commerce in violation of 18 U.S.C. § 922(n), and unauthorized9 Meanwhile, Tyson told Stricklin that he was visiting St.
Thomas in order to see his mother. When Stricklin asked him about the guns, Tyson stat ed that he intended to register them with the local police. Stricklin told Tyson she thought he was lying. At this point, Tyson decided to say no more

.

II

On October 2, 2008, a grand jury indicted Tyson and Morrell on one count of conspiracy to unlawful ly transport firearms in violation of 18 U.S.C. § 371 (Count One); twelve counts of transporting a firearm in the course of dealing firearms without a license, in violation of 18 U.S.C. § 922(a)(1)(A) (Counts Two through Thirteen); eleven counts
of unautho rized possession of a firearm, in violation of 14 V.I.C. § 2253(a) (Counts Fourteen through Twenty

- Four); one count of transporting a firearm with knowledge or
reasonable cause to believe it would be used to commit a crime, in violation of 18 U.S.C. § 924( b) (Count Twenty

Five); and one count of transferring a firearm to an out

- of

state resident, in violation of 18 U.S.C. § 922(a)(5) (Count Twenty

- Six). Tyson and Morrell were tried jointly on all charges. 8 The District Court had jurisdiction pursuant to 1 8

possession of a firearm under 14 V.I.C. § 2253(a). Thomas was acquitted by a jury of both charges.

8 Tyson filed a pretrial motion to suppress ―all evi dence gathered in this case, starting from the initial contact on February 14, 2008,
in Tennessee.‖ The District Court denied the motion after an evidentiary hearing. In his opening brief, Tyson identifies the Court‘s suppression order as one of three is sues he is contesting on appeal. Tyson does not, however, single out any error in the District Court‘s ruling, nor does he substantively address the search(es) whose constitutionality he now assails. Tyson has therefore waived the issue for purposes of a ppeal. See Kach v.10 U.S.C. § 3231 and 48 U.S.C. § 1612.

During its case

- in

- chief, the government presented evidence that Tyson purchased a total of thirty

- five firearms between December 1, 2007 and July 28, 2008. Only twelve of those weapons were recovered

. E leven were se ized during the July 31 traffic stop in St. Thomas . The twelfth was
recovered o n June 30, 2008 when Virgin Islands police apprehended an individual named Jelani LaTorre

. LaTorre was carrying narcotics and a Hi

- Point 9mm handgun whose
serial number had be en obliterated. Forensics experts traced the firearm and determined that Tys on had purchased the weapon in Tennessee for $139 on February 16, 2008, four days before making his third trip to St. Thomas. Two weeks prior to this acquisition, LaTorre wired T yson $330 from St.

Thomas.

The evidence of firearm trafficking did not end there

. Bristol police searched Tyson‘s residence on e week after his

arrest . Among other items, they recovered a document that appeared to depict a kind of code. At the top of th e document, the following notations were written: ―CARSHOW = GUNSHOW‖; ―RIMS = GUNS‖; ―TIRES =
AMMO.‖ Eleven ―RIMS‖ were then listed on the page

. Beside each ―RIM,‖ a number was written. According to ATF agent Jenkins, t hese numbers correspond ed to the caliber
of a firearm model or a type of ammunition . Thus, for example, beside ―RIM #1909‖ the notation ―9MM‖ wa s written. The number ―.40‖ appear ed adjacent to ―RIM

Hose , 589 F.3d 626, 642 (3d Cir. 2009) (stating that ―a passing reference to an issue will not suffice to bring that issue before th[e] court‖ (citation and internal quotation marks omitted)); United
States v. Demichael , 461 F.3d 414, 4 17 (3d Cir. 2006).11 #1540.‖ Other entries we re even less veiled . ―12ga

– SHOTGUN‖ wa s written next to ―RIM #1112.‖ Another entry read, ―RIM #1762 = 7.62X39

– AK47/SKS.‖

Officers also recovered a notepad containing a
handwritten list of firearms. A number wa s written next to
each firearm. To illustrate: the number ―664.41‖ wa s written
beside ―Glock 40.‖ Age nt Jenkins testified that these numbers appeared to represent each firearm‘s cash value. On another page of the notepad, someone had written the letters
―AK‖ and ―AR.‖ 9 Next to each notation were two columns labeled ―Spent‖ and ―Profit

. ‖ With respect to AK: the number ―500‖ was written below ―Spent,‖ while ―2000‖ was written below ―Profit.‖ With respect to AR: the number ―600‖ appeared under ―Spent‖ and ―1900‖ under ―Profit.‖

At the c lose of the government‘s evidence , Tyson filed
a motion for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(a)

. The District Court reserved ruling on the motion and proceeded with trial. 10 Tyson presented no evidence in his defense; Morrell testified o n his

own behalf . The jury acquitted Morrell on all charges. Tyson, however, was convicted on all counts except one

9 Agent Jenkins explained that the AK

- 47 and the AR

- 15 assault
rifle are well

- known firearms whose names begin with the letters appearing on the notepad.

10 Under Federal Rule of Criminal Procedure 29(b), the district court ―may reserve decision on the motion, proceed with trial (where the motion is made before the close of all the evidence), submit the case to the jury, and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict.‖ Fed. R. Crim. P. 29(b).12 count of unauthorized possession of a fi rearm under local
law. 11

Tyson renewed his motion for judgment of acquittal after the jury returned its verdict. In a written order dated August 12, 2009, the District Court granted Tyson‘s motion as it pertained to each of the federal firearms counts (Counts One through Thirteen and Twenty

- Five through Twenty

- Six). The Court denied the motion with respect to the counts charging unauthorized posse ssion of a firearm under Virgin Islands law (Counts Fourteen through Twenty

- Three).

The parties filed timely cross appeals. We have jurisdiction under 28 U.S.C. § 1291.

III

On a motion filed pursuant to Federal Rule of Criminal
Procedure 29 (a) , the cou rt ―must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.‖ Fed. R. Crim. P. 29(a). The evidence is

insufficient to sustain a conviction if a rational trier of fact could not have found proof of guilt beyond a reasonable
doubt. United States v. Brodie , 403 F.3d 123, 133 (3d Cir. 2005). We review the d istrict c ourt‘s disposition of a Rule 29
motion de novo , applying the same standard the d istrict c ourt was required to apply. United States v. Pen dleton

, 636 F.3d
78

, 83 (3d Cir. 2011)

. We will ―sustain the verdict if there is

11 Tyson was acquitted of Count Twenty

- Four of the indictment. According to special agent Jay Quabius of the ATF, the firearm named in this count, which was one of the eleven seized on July 31, 2008, was inoperable. A conviction for unauthorized possession of a firearm under 14 V.I.C. § 2253(a) requires that the firearm at issue be operable. See 14 V.I.C. § 451(d).13 substantial evidence, viewed in the light most favorable to the government, to uphold the jury‘s decision.‖ United States v.
Flores , 454 F.3d 149, 154 (3d Cir. 2006) (quotin g United
States v. Gambone , 314 F.3d 163, 169

– 70 (3d Cir. 2003)). Under this deferential standard of review, a n appellate court

―  ̳must be ever vigilant . . . not to usurp the role of the jury by weighing credibility and assigning weight to the evidence, o r by substituting [the court‘s] judgment for that of the jury. ‘ ‖
United States v. Boria , 592 F.3d 476, 480 (3d Cir. 2010) (quoting Brodie , 403 F.3d at 133). A finding of insufficiency
should be reserv ed for those situations in which ―the prosecution‘s fa ilure is clear.‖ United States v. Mercado , 610 F.3d 841, 845 (3d Cir. 2010).

T yson moved for Rule 29 relief at the conclusion of the government‘s case

- in

- chief. The District Court reserved decision on the motion and Tyson presented no evidence in
his de fense. Under Rule 29(b), ―[i]f the court reserves decision, it must decide the motion on the basis of the evidence at the time the ruling was reserved.‖ Fed. R. Crim. P. 29(b). Accordingly, our review of the evidence is limited to that which was present ed during the government‘s case

- in

chief, ―including evidence elicited on cross

- examination of the government witnesses.‖ Brodie , 403 F.3d at 134; see also
United States v. Moore , 504 F.3d 1345, 1347 (11th Cir. 2007) (explaining that Rule 29 entitles the defendant ―to a snapshot of the evidence at the point that the court reserves its ruling‖).

Having set forth the appropriate standard of review, we now proceed to the specific counts of conviction

. We begin with the counts charging violation of federal l aw before proceeding to the counts arising under the Virgin Islands
Code.14 A Transporting a Firearm in the Course of Dealing
Firearms Without a License

Tyson was charged and convicted on twelve counts of transporting a firearm in the course of dealing fire arms without a license

— a vio lation of 18 U.S.C. § 922(a)(1)(A). 12
Section 922(a)(1)(A) states tha t it is unlawful for any person

except a licensed importer, licensed manufacturer, or licensed dealer, to engage in the business of importing, manufacturing, o r dealing in firearms, or in the course of such business to ship, transport, or receive any
firearm in interstate or foreign commerce[.]

To obtain a conviction under this provision , the government must show that the defendant (1) engaged in the business of dealing in firearms; (2) was not a federally licensed firearms dealer; and (3) acted willfully. United States v. Palmieri , 21 F.3d 1265, 1268

– 70 & n.4 (3d Cir.)

, vacated on other grounds , 513 U.S. 957 (1994); see also United States v. Sanchez

- Corcino , 85 F.3d 549, 554 (11th Cir. 1996); 18 U.S.C. § 924(a)(1)(D) (providing mens rea requirement).

The District Court held that there was sufficient evidence to prove Tyson was not a federally licensed firearms dealer, but insufficient evidence to demonstrate th at he was ―engaged in the business of dealing in firearms.‖ 13 But what

12 The firearms identified in these twelve counts correspond to the
eleven firea rms seized on July 31, 2008, as well as the firearm seized from Jelani LaTorre on June 30, 2008.

13 The District Court did not address the mens rea requirement because it found the government‘s failure to prove the first element of the crime to be dispositi ve.15 does it mean to be ―engaged in the business of dealing in firearms‖? According to the statute, a person is so engaged when he or she ―devotes time, attention, and labor to dealing

in f irearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms.‖ 18 U.S.C. § 921(a)(21)(C). To conduct business ― ̳with the principal objective of livelihood an d profit‘ means that the intent underlying the sale or disposition of firearms is predominantly one of obtaining livelihood and pecuniary gain, as opposed to other intents, such as improving or liquidating a personal firearms collection

. ‖ 18 U.S.C. § 921( a)(22). In this vein , t he statute explicitly exempts those who ―make[] occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sell[] all or part of [their] personal collection
of firearms. ‖ 18 U.S.C. § 921(a)(21)(C).

By the statute‘s terms, then, a defendant engages in the business of dealing in firearms when his principal motivation
is economic (i.e., ― obtaining livelihood‖ and ―profit‖) and he

pursue s this objective through the repetiti ve purchase and
resale of firearms

. Palmieri , 21 F.3d at 1268 (stating that
―economic interests ‖ a re the ― principal purpose, ‖ and

― repetitiveness ‖ i s ― the modus operandi ‖ ). Although the

q uantity and frequency of sales are obviously a central

concern, so also are (1) the location of the sales, (2) the conditions under which the sales occurred, (3) the defendant‘s behavior before, during, and after the sales, (4) the price charged for the weapons and the characteristics of the firearms sold, and (5) the int ent of the seller at the time of the
sales. Id. (explaining that ―the finder of fact must examine the intent of the actor and all circumstances surrounding the16 acts alleged to constitute engaging in business‖). As is often the case in such analyses, t he importance of any one of these
consideration s is subject to the idiosyncratic nature of the fact pattern presented.

Here, the government presented substantial indirect evidence of repetitive sales . Over the course of approximately seven months, Tyson fle w t o the Virgin
Islands four times. Directly before each of these trips, he purchased several firearms in Tennessee

. Tyson carried some number of these weapons on at least three of his flights and he never registered a single gun with the local police wh en he landed in St. Thomas. In total, Tyson purchased thirty

- five
firearms during the relevant time period . Only twelve were ever recovered; eleven guns were seized on July 31 and one

weapon

— with its serial number obliterated

— was confiscated
from Jelani LaTorre

. A reaso nable jury could conclude from
this evidence that Tyson sold the twenty

- three unrecovered (and unregistered) firearms during hi s first three trips to the Virgin Islands . A jury could further infer that Tyson had
similar intentions for the eleven guns with which he was apprehended on the day of his arrest.

T he re was also evidence that Tyson‘s repetitive sales were driven by a pecuniary motive. In January 2008, LaTorre wired $330 to Tyson in Tennessee . Several weeks later, Tyson purchased a Hi

- Point 9mm handgun for $139. T he jury was free to infer from this evidence that Tyson had not only sold LaTorre the weapon, but that he did so for a sizeable markup. Such profit

- seeking behavior falls squarely within the statutory definition of fire arms dealing. See 18

U.S.C. § 921(a)(22). In addition, t he government introduced a notepad seized from Tyson‘s residence in Tennessee . One page of the pad contained the notations ―AK‖ and ―AR,‖17 along with two columns labeled ―Spent‖ and ―Profit.‖ Agent
Jenkins testified that the AK

- 47 and AR

- 15 assault rifle were
two of the more common semiautomatic firearms available for sale in Tennessee. Tyson bought several of each. On the notepad , t he number ―2000‖ appeared below the ―Profit‖

column next to ―AK‖ ; the number ―1900‖ was written in the
―Profit‖ column corresponding to ―AR.‖ T he jury could well have reasoned that the word ―Profit‖ meant exactly what it

said and that the numbers appearing in this column reflected a positive monetary yield

. What is mo re , the overall timing and condition of the sales strongly suggests a pecuniary motive. Before each trip to St. Thomas, Tyson embarked on a purchasing spree , only to resell his newly

- acquired arsenal when he arrived in the Virgin Islands. This buy

- fly

- re sell pattern of behavior seems susceptible of no other explanation
than one of economic gain.

The government‘s evidence is bolstered by the fact that Tyson himself admitted that he was traveling to the Virgin Islands in order to buy and sell firearms. De lta ticketing agent Breeding testified that she assisted Tyson with his baggage prior to several of his flights . Each time, Tyson told Breeding that he intended to sell the firearms packed in his luggage once he arrived in the Virgin Islands. In one
inst ance, Tyson said ―that he was an antique gun buyer and collector, and that he had a purchaser for all of the guns when he got back to the islands.‖ The District Court discounted these assertions as ―mere puffery.‖ Such a finding was unwarranted in light of the record as a whole. Indeed, t here was ample evidence that Tyson was transporting large numbers of firearms to the Virgin Islands in order to turn a profit from their resale

. Thus , w hen Tyson told Breeding that this was exactly what he was up to , th e jury had every right to18 conclude that he was telling the truth. By minimizing Tyson‘s assertions , the District Court overrode the jury‘s credibility determination and substituted its own. This was

error

. See United States v. McBane , 433 F.3d 344, 348 (3d Cir. 2005) (stating that ―[w]e do not weigh evidence or determine the credibility of witnesses‖ on sufficiency of the evidence review ( citation and internal quotation marks omitted) ).

For the reasons set forth above, w e find that the
government put on substantial proof to show that Tyson was engaged in the bu siness of dealing in firearms. The record
further demonstrates that he did so with a sufficiently culpable state of mind

. A defendant must act willfully to be criminally liable under § 922(a)(1)( A). See 18 U.S.C. § 924(a)(1)(D). A ―willful‖ action is ―one undertaken with a  ̳bad purpose‘‖ or an ―evil

- meaning mind.‖ Bryan v. United

States , 524 U.S. 184, 191 , 193 (1998). P roof of willfulness
therefore requires evidence that ―the defendant acted w ith knowledge that his conduct was unlawful.‖ Id. at 192 (interpreting the term ―willfully‖ in 18 U.S.C. § 924(a)(1)(D)) ( quoting Ratzlaf v. United States , 510 U.S. 135, 137 (1994) )

.
Tyson completed an ATF Form 4473 for each firearm he purchased in Tennes see. Th is form contain s language printed in bold directly above the signature line that stat es, ―I . . . understand that the repetitive purchase of firearms for the purpose of resale for livelihood and profit without a Federal
firearms license is a violat ion of the law.‖ Each time he signed a Form 4473 , Tyson certified his knowledge of the
law. This alone is sufficient to demonstrate willfulness in the circumstances present here

. S ee United States v. Hayden , 64 F.3d 126, 129 (3d Cir. 1995)

. And there w as more.19 Tyson undertook measures to conceal his trafficking activity. He kept coded records. He told others that he was selling ―antique‖ guns, presumably because he knew that ―antique‖ firearms are exempted from the trafficking statute.

See 18 U.S.C. § 921 (a)(1)(3) (defining ―firearm‖ and stating that ―antique‖ firearms are not considered ―firearms‖ for purposes of the trafficking statute). Similarly, Tyson called himself a firearms ―collector,‖ which, if true, would also have
shield ed him from crimin al trafficking liability. See 18
U.S.C. § 921(a)(21)(C) (stating that one who ―makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms‖ is not a ―dealer in firearms‖). These were lies designed to game the
system

. After all, none of the firearms purchased by Tyson were antiques and his behavior was decidedly in consis tent with that of a collector. 14 The jury could reasonably conc lude that by calling himself a ―collector,‖ and by describing his
firearms as ―antiques,‖ Tyson crafted a falsehood with the statute‘s exemptions in mind. Such behavior betrays knowledge of unlawful conduct.

In sum, the District Court committed error when it set aside Tyson‘s conviction on twelve counts of transporting a firearm in the course of dealing firearms without a license. We will vacate the judgment of acquittal with orders to reinstate the jury‘s verdict on each of the twelve counts.

B Transport ing a Firearm in Interstate Commerce with
the Intent to Commit a C rime

14 Nor does Tyson claim that he was a firearms ―collector‖ on appeal.20 The jury convicted Tyson of one count of transporting
a firearm in interstate commerce with knowledge or
reasonable cause to believe that it would be used to commit a crime, a vi olatio n of 18 U.S.C. § 924(b). Th at s ection provides:

Whoever, with intent to commit therewith an offense punishable by imprisonment for a term exceeding one year, or with knowledge or
reasonable cause to believe that an offense punishable by imprisonment for a term exceeding one year is to be committed therewith, ships, transports, or receives a firearm or any ammunition in interstate or foreign commerce shall be fined under this title, or imprisoned not more than ten years, or both.

To be convicted under the s tatute, then, the defendant must (1) transport a firearm in interstate or foreign commerce, and (2) intend to commit a crime with the weapon, have actual knowledge that a crime will be committed with the weapon,
or have reason able cause to believe that a c rime will be committed with the weapon. The indictment alleged that Tyson transported eleven firearms to the Virgin Islands on July 31, 2008, with either knowledge or reason able cause to believe that the weapons would be possessed without a locally issued license. Possession under such circumstances is a crime in the Virgin Islands, punishable by at least one year in prison. 14 V.I.C. § 2253(a).

There is no question that Tyson mov ed the eleven
firearms in interstate commerce. O ur focus thus centers

exc lusively upon § 924(b)‘s mens rea requirement. Proof of a defendant‘s subjective knowl edge can be difficult to21 establish, especially when he or she has reason to obfuscate.

But Tyson was charged with, and convicted of, knowing or having ―reasonable cause to believe‖ that the weapon s would be used to commit the predicate offense. 15 The government contends that even if it did not prove actual knowledge, it at

15 We have yet to address the meaning of ―reasonable cause to believe‖ in the context of § 924(b) or a similar statute. In United

States v. McBane , 433 F.3d 344 (3d Cir. 2005), we wer e asked to review the defendant‘s conviction for selling a stolen firearm in violation of 18 U.S.C. § 922(j). The mens rea requirement in that provision, like the one at issue here, imposes liability upon a
defendant who receives a firearm that he knows o r has reasonable cause to believe is stolen. We recognized that the phrase ―reasonable cause to believe‖ was undefined by statute and that it was the subject of little decisional authority. Indeed, we observed that ―[o]nly the Eighth Circuit has discusse d the language meaningfully.‖ McBane , 433 F.3d at 349 n.9. We then set forth the Eighth Circuit‘s analysis of the phrase:

It may be read as requiring proof only that the defendant [sold] a gun that the so

- called  ̳reasonable person‘ would have believed w as stolen in the circumstances of the case. But the better reading, we believe, requires proof that a defendant [sold] a gun that it would have been reasonable for him or her in particular, to believe was stolen.

Id. (quoting United States v. Iron Eyes

, 367 F.3d 781, 785 (8th Cir. 2004)). In McBane , we held that there was sufficient evidence to support the jury verdict under either interpretation of ―reasonable cause to believe‖; thus, we declined to decide which reading of the phrase was correct. In li ke fashion, we conclude that there was substantial evidence to support Tyson‘s conviction under either reading of the scienter requirement. We therefore leave a more rigorous statutory analysis for another day.22 least established that Tyson had reasonable cause to believe the firearms would be possessed withou t a firearms license. We agree.

Tyson transported as many as thirty

- five firearms to the Virgin Islands over the course of seven months. As we explained above, a reasonable jury could conclude that Tyson sold twenty

- three of these weapons and that he in tended to do
the same with the eleven he imported on July 31. He sold at least one of these weapons at a significant markup , and t here was evidence that Tyson profited from his other sales as well. Furthermore, in four trips to the Virgin Islands, Tyson made no attempt to comply with the local licensing scheme; h e did not register any of the firearms he had imported prior to July
31 , and he never applied for or received a license to carry a
firearm on the island. A reasonable jury could have assess ed
the sum of this evidence

— repetitive b ootleg sales for above

market prices

— and found that Tyson flouted local licensing requirements in order to transact business with individuals
wh o were themselves unlicensed. After all, Tyson‘s customers presumably paid ab ove

- market prices because they were unable to obtain a firearm through legitimate channels. Tyson‘s repeated sales to individuals who were likely to be
unlicensed allowed the jury to reasonably conclude that he acted with a sufficiently culpable state of mind.

The District Court‘s judgment of a cquittal was
therefore in error

. W e will vacate that disposition with instructions to reinstate the jury verdict.

C Transferring a Firearm to a Person the Transferor

Knows or Has R easonable Cause to Believe is a

Res ident of Another State23 The indictment charged Tyson with one count of violating 18 U.S.C. § 922(a)(5), 16 which m akes it unlawful

16 Specifically, Count Twenty

- Six of the indi ctment reads, ―On or about the[sic] July 31, 2008, at St. Thomas, in the District of the Virgin Islands, the defendant, Shawn Tyson, not being a licensed importer, manufacturer, dealer, and collector of firearms, within the meaning of Chapter 44, Title 18, United States Code, did attempt to willfully transfer, transport, and deliver firearms . . . to a person, said person not being a licensed importer, manufacturer, dealer, and collector of firearms, within the meaning of Chapter 44, Title 18, United States Code, and knowing and with reasonable cause to believe that said person was not then residing in the state of Tennessee, the state in which the defendant was residing at the time of the aforesaid transfer, transportation, and delivery of the firearms , in violation of 18 U.S.C. § 922(a)(5) and 924(a)(1)(D).‖ (Emphasis added.) By its terms, § 922(a)(5) does not criminalize the attempt to transfer a firearm to an out

- of

- state resident. But we do not read this count as one charging attempt. Nor do the part ies for that matter. The reason is clear enough. Count Twenty

- Six describes (by model and serial number) the eleven firearms that Tyson placed in Morrell‘s vehicle on July 31, 2008. It cites § 922(a)(5), a provision that criminalizes the actual transfer of firearms. It refers to ―the aforesaid transfer, transportation, and delivery of the firearms,‖ rather than the ―aforesaid attempted transfer, transportation, and delivery.‖ And an earlier count in the indictment alleges that Tyson transported the sam e eleven firearms (also identified by model and serial number) to the Virgin Islands and delivered them into Morrell‘s possession. Thus, Tyson was under no illusion as to the crime with which he was charged: the
unlawful transfer of a firearm to an out

- of

- state resident. See
United States v. Rawlins , 606 F.3d 73, 78

– 79 (3d Cir. 2010) (explaining that an indictment is sufficient if it, inter alia , contains the elements of the offense and sufficiently apprises the defendant of the crime charged); see also U nited States v. Urban , 404 F.3d24 for any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) to transfer, sel l, trade, give, transport, or deliver any firearm to any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) who the transferor knows or has
reasonable cause to believe does not reside in . .
. the State i n which the transferor resides.

P roof that a defendant violated § 922(a)(5) requires
substantial evidence of three elements: (1) neither the defendant nor the recipient of the firearm were licensed importers, manufacturers, dealers, or collectors; (2) the defendant willfully transferred the firearm to another person; and (3) the defendant knew or had reasonable cause to believe that the person to whom he transferred the firearm resided in
a state other than the defendant‘s state of residence. Id. ; 18

U.S.C . § 924(a)(1)(D).

Elements one and three are not in dispute. Nor do the parties challenge the fact that Tyson ―transferred‖ eleven firearms to Morrell on July 31, 2008. 17 The question, again,

754, 771 (3d Cir. 2005) (― ̳We consider an indictment sufficient if, when considered in its entirety, it adequately informs the defendant of the charges against her such that she may prepare a defense and
invoke the double je opardy clause when appropriate.‘‖ (quoting
United States v. Whited , 311 F.3d 259, 262 (3d Cir. 2002))).

17 To ―transfer‖ a firearm under 18 U.S.C. § 922(a)(5) means to deliver possession of the weapon to another person. The District Court instructed the ju ry that ―possession‖ may be ―constructive, sole and joint.‖ Tyson does not question whether there was sufficient evidence to prove Morrell ―possessed‖ the firearms by virtue of their placement into his vehicle.25 is whether Tyson effectuated this transfer with a sufficiently culpable state of mind. The jury answered this query in the affirmative, but the District Court found the evidence insufficient to support such a result. The Court reasoned that in order to show Tyson willfully transferred firearms to Morrell, the gover nment was required to establish that he had actual knowledge of § 922(a)(5)‘s licensing provision

. Finding insufficient evidence of such proof, the Court set aside the jury‘s verdict.

The District Court misinterpreted what it means for a
defendant to act willfully in this context. As we explained above, to establish a willful violation of the federal firearms trafficking statute, the government must ―prove that the defendant acted with knowledge that the conduct was
unlawful.‖ 18 Bryan , 524 U.S. at 19 2 (q uoting Ratzlaf , 510

U.S. at 137). In the context of § 922(a)(5), i t was therefore incumbent upon the government to show, not th at Tyson knew that he was subject to a particular federal licensing
scheme , but that he knew it was unlawful for him to transfer
firearms to a resident of the Virgin Islands . There is sufficient evidence to support such a conclusion. ATF Form

4473 , which Tyson executed each time he purchased a firearm, informed him that the repetitive purchase and resale
of firearms for livelihoo d and profit was a federal crime. He falsely claimed that his firearms were antiques, called himself a firearms ―collector,‖ and coded accounting documents, all
in order to evade detection. Furthermo re, Tyson disregarded Virgin Islands registration and l icensing requirements so that

18 In Bryan v. United States , 524 U.S. 184 (1 998), the Supreme Court explicitly rejected the contention that proof of willful misconduct requires evidence that a defendant knew of the licensing requirements in the federal firearms statutes.26 he could expeditiously traffic guns on the black market. 19
From this evidence, and in light of the record as a whole, the jury could reasonably infer that Tyson acted with an ―evil

meaning mind‖; he knew that it was unlawful t o transport firearms to St. Thomas and deliver those weapons to Morrell,

an out

- of

- state resident

. See Bryan , 524 U.S. at 191

– 93 (explaining that to prove the defendant acted willfully, the government must show that he or she acted with ―bad purpose‖ to d isobey or disregard the law).

The District Court‘s contrary conclusion was in error. Accordingly, we will vacate the judgment of acquittal on this

count with instructions to reinstate the jury verdict.

D Conspiracy to Unlawfully Transport Firearms

In addition to the substantive trafficking counts discussed above, Count One of the indictment charged Tyson
and Morrell , along with persons known and unknown, with conspir acy t o unlawfully tra nsport firearms in violation of 18 U.S.C. § 371. To sustain Tyson ‘s conviction under this count, the evidence must be sufficient to show that (1) the alleged conspirators shared a common goal or purpose, viz. to traffic firearms illegally , (2) Tyson kn ew of that purpose and
intended to achieve it , and (3) Tyson reached an agreement
with his alleged co

- conspirators to achieve the conspiracy‘s

aims

. United States v. Bobb , 471 F.3d 491, 494 (3d Cir.

19 After Tyson‘s arrest, he told ATF Agent Stricklin that he had intended to register the eleven firearms, but was stopped by the police before he could do so. This statement shows that at the time of his arrest, Tyson knew about the registration requirements. The jury could reasonably infer that he knew about t hose requirements throughout the duration of his trafficking scheme.27 2006); United States v. Pressler , 256 F.3d 144, 14 7 (3d Cir. 2001); see also Boria , 592 F.3d at 481 (explaining that the

cons piracy‘s common goal or purpose must be illegal). T his
Court ha s characteriz ed the third factor set forth above

— an agreement between the defendant and another individual

— as ―the essence of the [conspiracy] offense.‖ Pressler , 256 F.3d

at 147. It is, in other words, the sine qua non of the crime
itself. United States v. Gibbs , 190 F.3d 188, 197 (3d Cir. 1999) (stating that ― ̳a conspiracy requires an agreement to commit some other crime beyond the crime constituted by the agreement itself.‘‖ (quoting Unit ed States v. Kozinski , 16 F.3d 795, 808 (7th Cir. 1994))).

When a conspiracy conviction is at issue, we must closely scrutinize the sufficiency of the evidence. United
States v. Schramm , 75 F.3d 156, 159 (3d Cir. 1996) (― ̳[T]he sufficiency of the evidenc e in a conspiracy prosecution requires close scrutiny.‘‖ (quoting United States v. Coleman

, 811 F.2d 804, 807 (3d Cir. 1987))). The reason is self

evident: a defendant‘s guilt must always remain ―individual and personal.‖ Boria , 592 F.3d at 480; United S tates v. Samuels , 741 F.2d 570, 575 (3d Cir. 1984). ― ̳ [S] light
evidence of a defendant‘s connection with a conspiracy is insufficient to support a guilty verdict.‘‖ Brodie , 403 F.3d at 134 (quoting Coleman , 811 F.2d at 808). Further more , a conspira cy ma y not be proved merely ― ̳by piling inference upon inference‘ where those inferences do not logically support the ultimate finding of guilt.‖ Id. (quoting Coleman

, 811 F.2d at 808).

In the insta nt matter, the District Court held that there
was not substan tial evidence t o prove that Tyson entered into an illicit agreement to traffic firearms with at l east one other
individual. The government disputes this finding and28 contends that a reaso nable jury could have inferred that Tyson
and Morrell entered into an illegal agreement based upon their ―unusual and suspicious activity in Tennessee and the Virgin Islands.‖ For his part, Tyson argues that the District Court‘s disposition should be affirmed. Moreover, he claims

that his criminal liability is foreclosed as a matter of law by the jury‘s acquittal of Morrell

— Tyson‘s only alleged co

conspirator . To support this assertion, Tyson invokes the common law ―rule of consistency,‖ which requires the reversal of a conspiracy conviction when all of a defendant‘s

alle ged co

- conspirators are acquitted of the same conspiracy charge in the same trial. We begin by addressing Tyson‘s ―rule of consistency‖ argument before evaluating the sufficiency of the evidence adduced by the government in its

case

- in

- chief.

1 Applicabil ity of the Rule of Consistency

The doctrine known as the ―rule of consistency‖ requires that where all possible co

- conspirators are jointly tried, and all but one are acquitted, the conviction of the remaining co

- conspirator must be set aside. United Sta tes v. Twigg , 588 F.2d 373, 383 n.11 (3d Cir. 1978); United States
v. Gordon , 242 F.2d 122, 125 (3d Cir. 1956); see also Gov’t of the Virgin Islands v. Hoheb , 777 F.2d 138, 143 (3d Cir. 1985) (Garth, J., concurring)

. The idea, as articulated by one
of our sister courts of appeals, is ―that the acquittal of all but one potential conspirator negates the possibility of an agreement between the sole remaining defendant and one of those acquitted of the conspiracy and thereby denies, by definition, the existenc e of any conspiracy at all.‖ United States v. Espinosa

- Cerpa , 630 F.2d 328, 331 (5th Cir. 1980). Applic ation of the rule is narrow : it does not apply when alleged co

- conspirators are tried separately and only one29 defendant is convicted. See Hoheb , 777 F .2d at 140

– 41. Nor
is it appl icable when ―it is alleged and proven that the defendant conspired with persons unknown.‖ 20 Id. (citing cases).

The rule of consistency was at one time uniformly
followed in bot h federal and state courts. Chad W. Coulter,
Co mment, The Unnecessary Rule of Consistency in Conspiracy Trials , 135 U. Pa. L. Rev. 223, 225 (1986). But
the rule ‘s viability was dealt a serious blow in the 1980s, when the Supreme Court issued its unanimous decision in
Powell v. United States , 469 U.S. 57 (1984). Powell, who was tried alone, was found guilty of using a telephone to facilitate the drug conspiracy for which she was acquitted.
The Court held that although this result was inco nsistent, it was not for a judge to go behind the jury‘s decisio n in such
circumstances

. True, the verdict may have been the product of juror error or plain irrationality. But an i nconsisten t verdict may also be the product of juror lenity, which historically has operated ―as a check against arbitrary or oppressive e xercises of power by the Executive Branch.‖ Id.
at 65. The point, according to Powell , is that a reviewing court cannot know why the jury reached its verdict. Rather than task courts with the responsibility to find out, the Powell
Court held that incons istent verdicts are not reviewable merely because the y are inconsist ent

. Id

. at 66.

20 The indictment in this case charged Tyson and Morrell of conspiring with persons known and unknown. However, the record does not contain substantial evidence to support a charge
based on an agreement with unindicted or unknown persons. Furthermore, the government‘s argument on appeal is based exclusively on Tyson‘s purported agreement with Morrell.30 Powell does not directly address inconsistency among jointly tried co

- conspirators, but every court of appeals to consider the question has held that Powell ‘s logic fatal ly
undermines the rule of consistency. See, e.g.

, United States v.

Morton , 412 F.3d 901, 904 (8th Cir. 2005); United States v.
Nichols , 374 F.3d 959, 970

– 71 & n.9 (10th Cir. 2004), vacated on other grounds , 543 U.S. 1113 (2005); United States v. Crayton

, 357 F.3d 560, 566

– 67 (6th Cir. 2004); United States v. Zuniga

- Salinas , 952 F.2d 876, 878 & n.3 (5th Cir. 1992) (en banc); United States v. Bucuvalas , 909 F.2d 593, 595

– 96 (1st Cir. 1990); United States v. Valles

- Valencia

, 823 F.2d 381, 382 (9th Cir. 1987). As the Sixth Circuit has explained, under Powell , ―the acquittal of all but one co

conspirator during the same trial does not necessarily indicate that the jury found no agreement to act.‖ Crayton , 357 F.3d

at 565. Instead, the verdict may represent a manifestation of lenity , which Powell clearly held was not subject to judicial
review

. Id.

We have not had occasion to address the continuing applicability of the rule of consistency in multi

- defendant conspiracy trials. 21 We do so now and hold that the rule is no longer viable in cases such as the one at bar. The jury‘s verdict, even if it is not consistent, may reflect the decision to exercise lenity with respect to one or more defendants. See
Powell , 469 U.S. at 65. To exercise such discretion is th e jury‘s prerogative, which w e will not disturb simply to

21 In a concurring opinion some twenty

- five years ago, our colleague, Judge Garth, charac terized the rule of consistency as a ―vestige of the past,‖ inapplicable in a joint conspiracy trial. Gov’t of the Virgin Islands v. Hoheb , 777 F.2d 138, 143 (3d Cir. 1985) (Garth, J., concurring). Judge Garth was prescient, and his view is
now the view of this Court.31 achieve symmetry of results. See Standefer v. United States

, 477 U.S. 1 0, 25 (1980)

. Tyson‘s invocation of the rule of consistency is thus t o no avail. H is conviction will stand or fall based upo n the sufficiency of the government‘s evidence.

2 Sufficiency of the Evidence

The District Court concluded that the government‘s

evidence was insufficient to show that Tyson and Morrell
reached an agreement to unlawfully traffic firearms in
violation of f

ederal law

. The issue here is not whether Tyson engaged in unilateral trafficking activity ; nor is it whether Morrell knew Tyson was so engaged. Rather, the pertinent inquiry is whether Tyson and Morrell agreed to achieve the conspiracy‘s ends. Conspira tors, of course, rarely leave evidence of an explicit understanding or common goal.
United States v. Perez , 280 F.3d 318, 353 (3d Cir. 2002).

In deed , ―common sense suggests, and experience confirms, that illegal agreements are rarely, if ever, reduced to writing or verbalized with the precision that is characteristic of a
written contract.‖ United States v. McKee , 506 F.3d 225, 238 (3d Cir. 2007). We have therefore recognized that the existence of a conspiratorial agreement may be prove n by
circumstanti al evidence alone. Brodie , 403 F.3d at 134 (stating that ―the very nature of the crime of conspiracy is such that it often may be established only by indirect and circumstantial evidence‖)

. The District Court correctly recognized this point of law, but n onetheless found that ―the
government

. . . failed to show any integration of activities between Tyson and any other individual that could indirectly prove the existence of a preconceived plan or common understanding to traffic firearms.‖

The government a cknowledges that it advanced no32 direct evidence that Tyson and Morrell reached an illicit agreement to traffic firearms. It focuses instead on what it calls a pattern of ―unusual and suspicious activity in Tennessee and the Virgin Islands.‖ Specifical ly: Tyson and Morrell flew from the Virgin Islands to Tennessee on February 13, 2008

. Morrell stayed with Tyson in his Bristol
residence for one week

. Tyson purchased fourteen
semiautomatic firearms in and around Bristol during the week
of Morrell‘s stay

. O n February 20 , Tyson and Morrell traveled back to the Virgin Islands. Both checked luggage containing firearms. Finally, when Tyson flew back to St. Thomas on July 31, Morrell was waiting at the airport to pick him up

. According to the government, th is series of ―unusual

acts, ‖ considered in the context of the record as a whole,
amount to substantial evidence that Tyson and Morrell
entered into the conspiratorial agreement charged in the
indictment

.
We have previously explained that where several alleg ed co

- conspirators engage in coordinated

, ―unusual acts,‖ one may reasonably infer the existence of a tacit
agreement. For instance

, in United States v. Smith , 294 F.3d 473 (3d Cir. 2002)

, five police officers were charged in a criminal conspiracy to viol ate Earl Faison‘s civil rights. The

officers arrested Faison and beat him to death under the
mistaken belief that he had killed one of their colleagues. At trial, the officers argued that while they m ight have be en subject to criminal liability for the u nderlying offense, there was insufficient proof that they had agreed to engage in coordinated illegality. The evidence, however, indicated that during the course of events, the officers jointly contravened a
number of the ir department ‘s operating procedur es govern ing the apprehension and interrogation of criminal suspects. Id.33 at 476. For example, the officers arrested Faison and took

him to the jail for questioning instead of the county prosecutor‘s office

, where suspects were supposed to be taken; the officers entered the jail through the south entrance when protocol dictated that the north entrance was the designated prisoner drop

- off area; Faison was never fingerprinted or photographed, nor was he taken to the booking room; after Faison died from the beating administered by his assailants, several officers submitted consistent but false incident reports. Id. We described this
collective deviation from standard operating procedure as ―unusual‖ and explained, ―The fact that [the officers] . . . engaged as a group in so many unusual acts could certainly lead a reasonable juror to the conclusion that there was at least a tacit agreement between the officers, formed at the scene of the arrest, that Faison was to be assaulted.‖ Id. at
478

– 79.

By character izing the activities of Tyson and Morrell as ―unusual,‖ the government attempts to cast a pall of suspicion over their week

- long interaction. But applying
labels is insufficient . Unfortunately, the government makes little attempt to explain what is so ―u nusual‖ about the

conduct at issue. The government does not argue, for instance, that the behavior of Tyson and Morrell deviated
from some baseline norm. Nor c an they

. Almost all of the facts highlighted by the government focus upon lawful
conduct. Wha t is more, we know almost nothing about Tyson‘s interactions with Morrell or Morrell‘s stay in

Tennessee . What little we do know is for the most part
mundane: Morrell arrived on the same flight as Tyson , he was present when police came to the residence on February 14,34 and he departed after staying one week

. 22 On the day of his departure, Morrell traveled to the a irport along with Tyson

. Both men checked baggage containing firearms. They then appear to have parted ways until July 31, 2008.

It is difficu lt to draw any useful inferences from the
discrete facts set forth above . The evidence certainly does not suggest coordinated action in support of a common goal . To constitute coordinated action, there must be some link
between the co

- conspirators‘ condu ct that suggests integration or unity of purpose. Pressler , 256 F.3d at 155;
Gibbs , 190 F.3d at 200

– 02; United States v. Powell , 113 F.3d 464, 467 (3d Cir. 1994). Co

- conspirator A may serve as a
lookout for co

- conspirator B; two co

- conspirators may

consu lt with one another to fix a sale price; co

- conspirators may communicate in code. Here, there is no link between the

two men, no r any thing to show that one is facilitating the handiwork of the other. True, Tyson and Morrell arrived at the airport on Febr uary 20 together. But this is not evidence
that they were assisting one another. 23 See Pressler , 256 F.3d

22 The evidence does show that Tyson unilaterally

— and legally

— purchased multiple firearms during the week that Morrell was his houseguest. There is no evidence, however, that Morrell assisted Tyson in his endeavors. Several firearms merchan ts from the Bristol area testified; none identified Morrell or testified to seeing him along with Tyson.

23 In addition, the government presented no evidence from which to reasonably infer that either Tyson or Morrell knew that what the other was doing wa s illegal. Both lawfully checked their respective firearms for flight in Tennessee; to infer that Tyson knew Morrell was not licensed to possess a firearm in the Virgin Islands (or vice versa) is to infer the existence of facts from
evidence that simply w as not proffered. See United States v.
Pressler , 256 F.3d 144, 150 n.2 (3d Cir. 2001) (―We may not35 at 153 (finding insufficient evidence of a tacit agreement when alleged co

- conspirators merely traveled to Philadelphia together to purchase narcotic s). It is, at most, proof of parallel conduct

— two individuals attempting to import firearms into the Virgin Islands. A conspiracy prosecution requires more.

Morrell‘s role in the events of July 31 is perhaps t he
sole bit of evidence indicative of ―coordi nated‖ action. Indeed, this is a significant bit of proof , but not enough

. In a sufficiency inquiry, we cannot evaluate evidence in isolation, but must determine ― ̳whether all the pieces of evidence, taken together, make a strong enough case to let a jur y find [the defendant] guilty beyond a reasonable doubt.‘‖ Brodie

, 403 F.3d at 134 (quoting Coleman , 811 F.2d at 807). Here, Tyson was engaged in trafficking activity for some seven
months before he was arrested. Morrell‘s role in this seven

month narra tive spans the length of one week. There is no
evidence that Morrell assisted Tyson during any of his first three trips to the Virgin Islands, much less interacted with
him. Nor is there evidence that the two communicated with each other when Tyson was s tateside. Had the government presented proof of s ome recurrent pattern of coordinated conduct, then perhaps we might rethink our calculus. But the government has offered no such thing and, in the context of the record as a whole, Morrell‘s presence at th e airport is simply too slim a reed upon which to hang a criminal conspiracy conviction.

The government would no doubt claim that we are overlooking crucial circumstantial evidence that tends to

 ̳infer‘ the existence of evidence that was simply never proffered.‖).36 support its position on appeal. In particular, Morrell test ified that Tyson paid at least $800 of the cost for him to fly from

St. Thomas to Tennessee. Morrell also admitted on cross examination that during his stay in Tennessee he (1) accompanied Tyson to at least one gun store, (2) visited a firing range with T yson , and (3) posed for photographs at Tyson‘s residence, guns in hand. But because a ll of this testimony was admitted after the close of the government‘s

evidence

, we cannot consider it. Fed. R. Crim. P. 29(b);
Brodie , 403 F.3d at 134. Under Rule 29, t he government may not rely upon testimony admitted through Morrell‘s cross

examination. Rather, the prosecution must rise or fall solely on the basis of the government‘s proof

. Tyson is , in other words, entitled to a verdict based only upon a snapshot of the evidence as it existed when the government concluded its

case

- in

- chief. Moore , 504 F.3d at 1347.

In sum

, the jury lacked sufficient evidence to find that Tyson and Morrell entered into a tacit agreement to traffic
firearms in violation of federal la w. We have no doubt that Tyson was engaged in unlawful trafficking activity and, viewing the evidence in the light most favorable to the government, it is reasonable to infer that Morrell knew about some of Tyson‘s illicit conduct. But our conspiracy jur isprudence does not sanction guilt by association. United
States v. Terselich , 885 F.2d 1094, 1098 (3d Cir. 1989) (stating that ―the company an individual chooses to keep‖ is

not evidence of a conspiracy). We will therefore affirm the ruling of the Distr ict Court granting judgment of acquittal on the conspiracy count.

E Unauthorized Possession of a Firearm Under the Virgin Islands Code37 The Virgin Islands Code makes it unlawful for any person to have, possess, transport, or carry a firearm without a
local ly

- issued license to do so. 23 V.I.C. § 454; 14 V.I.C. § 2253(a). Tyson was charged with eleven counts of violating this provision

— one count for each of the firearms he transported onto the island on July 31, 2008. The jury convicted Tyson on ten of the se counts, and the District Court denied Tyson‘s motion for judgment of acquittal. Tyson appeals the District Court‘s order, though he acknowledges that the government proved he was in possession of the
eleven firearms without a license. Tyson argues, ho wever, that he had an affirmative defense under two separate licensing provisions of the Virgin Islands Code : 23 V.I.C. § 460 and 23 V.I.C. § 470(b). Section 460 requires authorities

in the Virgin Islands to recognize a firearms license validly issued by another state or territory

. Section 470(b) states that if an individual imports firearms into the Virgin Islands without a license to do so, he or she may avoid criminal liability by ―immediately‖ registering the imported weapons. Tyson argues that eithe r provision furnishes a defense for unauthorized firearm possession.

Tyson did not request a jury instruction for either so

called affirmative defense and the District Court did not provide one. Tyson also did not object to the Court‘s

instructions after they were given. Where a party fails to object to the district court‘s jury instructions, ―he waives the issue on appeal,  ̳unless the error was so fundamental and highly prejudicial as to constitute plain error.‘‖ United States
v. Zehrbach , 47 F.3d 1252 , 1261 n.6 (3d Cir. 1995) (en banc) (quoting Bennis v. Gable , 823 F.2d 723, 727 (3d Cir. 1987));
see also Fed. R. Crim. P. 30(d) (stating that failure to object to the court‘s jury instructions ―precludes appellate review,38 except as permitted under Rule 52 (b) ‖). To find plain error, we must conclude that (1) there was error; (2) the error was clear or obvious; (3) the error affected the defendant‘s substantial rights; and (4) the error seriously affected the fairness, integrity, or public reputation of the legal proceeding. United States v. Lee , 612 F.3d 170, 178 (3d Cir. 2010). If the defendant satisfies this showing, we may, but are not required to, order correction. United States v. Olano

, 507 U.S. 725, 735

– 36 (1993) (explaining that the discretion

co nferred by plain error review ―should be employed in those circumstances in which a miscarriage of justice would otherwise result‖ (internal quotation omitted)).

1 23 V.I.C. § 460: Reciprocal Recognition of Out

- of

State Licenses

Section 460 states, in pert inent part, that the Virgin Islands shall recognize a firearms license validly issued by another state or territory and ―shall allow the [licensee] to exercise all of the privileges in connection therewith.‖ 23 V.I.C. § 460.

Courts have characterized thi s provision as a ―statutory exception to the firearm license requirement‖ and acknowledged, albeit implicitly, that it provides an
affirmative defense to a charge for unauthorized possession of
a firearm. See United States v. McKie , 112 F.3d 626, 631 (3d Cir. 1997); Toussaint v. Gov’t of the Virgin Islands , 301 F. Supp. 2d 420, 423

– 24 (D.V.I. 2004) (holding that § 460 is an affirmative defense to § 2253(a)).

To be entitled to an instruction on an affirmative defense, the defendant must present sufficient evidence from which a jury could find in his or her favor on the defense. See United States v. Bay , 852 F.2d 702, 704 (3d Cir. 1988). Tyson proffered no evidence to suggest that he was licensed39 to possess or deal in firearms anywhere in the United States

. Under such circumstances, it wou ld have served no purpose to instruct the jury on a § 460 defense , untethered as it would
have been to the evidence of record. Accordingly, we detect no plain error and Tyson‘s argument is without merit.

2 23 V.I.C. § 47 0(b): Report of Firearms Purchased Outside or Brought into the Virgin Islands

Pursuant to 23 V.I.C. § 470(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 immediately of his arrival, furnishing a complete description of the firearm or ammunition brought into the Virgin Islands. He shall also furnish his own name, date of birth and occupation.

We have held that this provision sets forth an affirmative
defens e to an unauthorized possession of a firearm charge

. McKie , 112 F.3d at 631

. W e have not , however, meaningfully discussed the contours of such a defense. Nor
need we do so here . Simply put, Tyson did not request an instruction on a § 470(b) defense. P erhaps this was oversight. Perhaps it was strategy. After all, although the evidence arguably would have supported a § 470(b) instruction, Tyson may have reasoned that to present the defense would only serve to highlight his clear guilt under the prima f acie elements of § 2253(a). A defendant‘s strategy is his own. It
is not for the district court to sua sponte determine which40 defenses are appropriate under the circumstances. In short, if Tyson wished to mount a defense under § 470(b), it was
incumbent upon him to take the initiative to do so.

The order of the District Court denying Tyson‘s motion for judgment of acquittal on the basis of § 470(b) will
therefore be affirmed. 24

IV

For the foregoing reasons, we will reverse in part and affirm in part th e final order of the District Court. We will
reverse the order on the following charges: (1) twelve counts of transporting a firearm in the course of dealing firearms without a license (Counts Two through Thirteen) ; (2) one count of transporting a firearm with knowledge or reasonable
cause to believe that it would be used to commit a crime (Count Twenty

- Five) ; and (3) one count of transferring a

24 Chief Judge McKee does not believe that the record here would support the affirmativ e defenses set forth in 23 V.I.C. §§ 460 and 470(b) because Tyson made several trips to the Virgin Islands and not once registered the firearms he was transporting. However, Chief Judge McKee does not agree that those defenses can be
deemed waived because of the unique procedural posture of this appeal. As noted, Tyson moved for a judgment of acquittal at the close of the government‘s case

- in

- chief, and the District Court reserved its ruling on that motion. Accordingly, Chief Judge
McKee notes that we mu st review the Court‘s ultimate denial of the motion as the record stood at the close of the government‘s case, and it would have been premature to request any jury instructions then because the defense had not yet rested. See Fed. R. Crim. P. 29(b). Sinc e the affirmative defenses are not supported by the record, however, Chief Judge McKee agrees that Tyson‘s attempt to rely on those defenses now is meritless.41 firearm to an out

- of

- state resident (Count Twenty

- Six). We will affirm the order of the District Court granting Rule 29 relief on the charge of conspiracy to unlawfully transport firearms (Count One). Finally, we will affirm Tyson‘s conviction on ten counts of unauthorized possession of a firearm under the Virgin Islands Code. This matter is
remanded for further proceedings.