2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-3-2011

USA v. Shawn Tyson

Precedential or Non-Precedential: Precedential

Docket No. 09-3487

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Recommended Citation

"USA v. Shawn Tyson" (2011). 2011 Decisions. Paper 607.

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_____________

No. 09-3487 & 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 United States Virgin Islands

District Court No. 3-08-cr-00049-001

District Judge: The Honorable Curtis V. Gómez 

Argued December 14, 2010

Before: McKEE, Chief Judge, FUENTES 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 Courthouse

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. (argued)

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 in 
3

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. Following 

pronouncement of the verdict, the District Court granted 

Tyson a judgment of acquittal on each of the federal counts. 

Such relief was denied with respect to the convictions 

charging violations of the Virgin Islands Code.

We are presented with cross appeals from the final 

judgment entered by the District Court. Tyson challenges the 

sufficiency of the evidence introduced in support of the 

counts arising under local law, while the government 

contends that we should reinstate the jury‘s verdict on the 

federal 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 counts, however, we 

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 jury verdict on each of the federal

counts save that charging Tyson with conspiracy to transport 

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 

most guns. Rather, an interested purchaser need only pass an 
4

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 interested buyer must obtain a 

firearms license from the Virgin Islands Police 

Commissioner. 23 V.I.C. § 455. Only a Virgin Islands 

resident may obtain such a license, 23 V.I.C. § 456(a)(2), and

the 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 Islands‘ regulated gun 

market and saw an arbitrage opportunity. To capitalize on 

this, he began purchasing a significant quantity of firearms in 

his home state of Tennessee, where procurement was easy,

and then transporting those weapons to the Virgin Islands for 

resale. The scheme began in earnest in late 2007. On 

December 1, Tyson bought 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 serial 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 the state of 
5

2007, Tyson flew from Tennessee to St. Thomas—his first of 

four trips over the course of the next seven months. He

returned to Tennessee on January 10, 2008. Within three 

weeks, Tyson had purchased eight more semiautomatic 

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

Tyson made a second trip to the Virgin Islands on 

February 6. Delta Airlines ticketing agent Dudley Breeding 

assisted Tyson with his luggage and recalled that Tyson

checked a large, black rectangular suitcase that contained 

firearms.4 Tyson told Breeding he was an antique gun

collector and intended to sell the weapons when he reached 

St. Thomas. However, Tyson was not licensed to sell or 

possess firearms 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 storage 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 local merchants in and around Bristol, 

Tennessee. Later that evening, local law enforcement 

received 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 allowed 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 

several 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 packaged 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 none 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. He

purchased 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, Tyson 
7

purchased fourteen semiautomatic firearms between February 

13, when he returned from the Virgin Islands with Morrell, 

and February 19.

On February 20, Tyson and Morrell arrived at the TriCities Regional Airport. Each was toting a hard plastic

suitcase full of guns. Their destination 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 with 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 the 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, and two on July 28. On July 31, he set off 

on his fourth trip to the Virgin Islands. This time, federal law 

enforcement officers were waiting for him. Customs and 

Border Patrol notified ATF agent Jamie Jenkins that Tyson 

had checked in for a flight and was 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 Tyson 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 exited the airport.

Morrell and a second individual, Curtiss Thomas, were 

waiting outside the airport in Morrell‘s parked car when 

Tyson landed. Morrell stayed in the vehicle for several 

minutes before exiting the car and entering the airport. 

Deputy United States Marshal Brian Biermann, who was 

watching from 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 and seized the hard plastic 

suitcase and black duffel bag that Tyson 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

consented 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 unlawfully transporting a firearm in interstate 

commerce in violation of 18 U.S.C. § 922(n), and unauthorized 
9

Meanwhile, Tyson told Stricklin that he was visiting St. 

Thomas in order to see his mother. When Stricklin asked him 

about the guns, Tyson stated 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 unlawfully 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 unauthorized 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 TwentyFive); and one count of transferring a firearm to an out-ofstate 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 18 

 

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 evidence 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 issues 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 appeal. 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. Eleven were seized during 

the July 31 traffic stop in St. Thomas. The twelfth was 

recovered on 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 been obliterated. Forensics experts traced 

the firearm and determined that Tyson 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 Tyson $330 from St. 

Thomas.

The evidence of firearm trafficking did not end there. 

Bristol police searched Tyson‘s residence one week after his 

arrest. Among other items, they recovered a document that 

appeared to depict a kind of code. At the top of the 

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, these numbers corresponded to the caliber 

of a firearm model or a type of ammunition. Thus, for 

example, beside ―RIM #1909‖ the notation ―9MM‖ was 

written. The number ―.40‖ appeared 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, 417 (3d Cir. 2006).
11

#1540.‖ Other entries were even less veiled. ―12ga –

SHOTGUN‖ was 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 was written next to 

each firearm. To illustrate: the number ―664.41‖ was written

beside ―Glock 40.‖ Agent 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 close 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 on 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 firearm 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 possession 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 court ―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 district court‘s disposition of a Rule 29 

motion de novo, applying the same standard the district court 

was required to apply. United States v. Pendleton, 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) (quoting United 

States v. Gambone, 314 F.3d 163, 169–70 (3d Cir. 2003)). 

Under this deferential standard of review, an appellate court 

― ̳must be ever vigilant . . . not to usurp the role of the jury by 

weighing credibility and assigning weight to the evidence, or 

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 reserved for those situations in which ―the 

prosecution‘s failure is clear.‖ United States v. Mercado, 610 

F.3d 841, 845 (3d Cir. 2010).

Tyson 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 defense. 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 presented during the government‘s case-inchief, ―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 law 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 firearms 

without a license—a violation of 18 U.S.C. § 922(a)(1)(A).12 

Section 922(a)(1)(A) states that it is unlawful for any person

except a licensed importer, licensed 

manufacturer, or licensed dealer, to engage in 

the business of importing, manufacturing, or 

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 that 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 firearms 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 dispositive.
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 firearms 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 and 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, the 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 

pursues this objective through the repetitive purchase and 

resale of firearms. Palmieri, 21 F.3d at 1268 (stating that 

―economic interests‖ are the ―principal purpose,‖ and 

―repetitiveness‖ is ―the modus operandi‖). Although the 

quantity 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 intent 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 the 
16

acts alleged to constitute engaging in business‖). As is often 

the case in such analyses, the importance of any one of these

considerations 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 flew to 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 when 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 reasonable jury could conclude from 

this evidence that Tyson sold the twenty-three unrecovered

(and unregistered) firearms during his 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.

There 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. The 

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 firearms dealing. See 18 

U.S.C. § 921(a)(22). In addition, the 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, the number ―2000‖ appeared below the ―Profit‖ 

column next to ―AK‖; the number ―1900‖ was written in the 

―Profit‖ column corresponding to ―AR.‖ The 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 more, 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-resell 

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. Delta 

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 

instance, 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, there 

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, when Tyson told Breeding that 

this was exactly what he was up to, the jury had every right to 
18

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, we find that the 

government put on substantial proof to show that Tyson was 

engaged in the business 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). Proof of willfulness

therefore requires evidence that ―the defendant acted with 

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 Tennessee. This form contains language 

printed in bold directly above the signature line that states, ―I 

. . . understand that the repetitive purchase of firearms for the 

purpose of resale for livelihood and profit without a Federal 

firearms license is a violation 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. See United States v. Hayden, 64 

F.3d 126, 129 (3d Cir. 1995). And there was 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

shielded him from criminal 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 inconsistent 

with that of a collector.14 The jury could reasonably conclude 

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 Transporting a Firearm in Interstate Commerce with 

the Intent to Commit a Crime

 

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 violation of 18 U.S.C. § 924(b). That section

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 statute, 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 reasonable cause to believe that a crime 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 reasonable 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 moved the eleven

firearms in interstate commerce. Our focus thus centers

exclusively upon § 924(b)‘s mens rea requirement. Proof of a 

defendant‘s subjective knowledge can be difficult to 
21

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 weapons 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 were 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 or 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 discussed 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 was 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 like 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 without 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 intended 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 there 

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; he 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 assessed

the sum of this evidence—repetitive bootleg sales for abovemarket prices—and found that Tyson flouted local licensing 

requirements in order to transact business with individuals 

who were themselves unlicensed. After all, Tyson‘s 

customers presumably paid above-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 acquittal was 

therefore in error. We will vacate that disposition with 

instructions to reinstate the jury verdict.

C Transferring a Firearm to a Person the Transferor 

Knows or Has Reasonable Cause to Believe is a 

Resident of Another State
23

The indictment charged Tyson with one count of

violating 18 U.S.C. § 922(a)(5),16 which makes it unlawful

 

16 Specifically, Count Twenty-Six of the indictment 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 parties 

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 same 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 United States v. Urban, 404 F.3d 
24

for any person (other than a licensed importer, 

licensed manufacturer, licensed dealer, or 

licensed collector) to transfer, sell, 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 in which the transferor resides.

Proof 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 jeopardy 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 jury 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 government 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 192 (quoting Ratzlaf, 510 

U.S. at 137). In the context of § 922(a)(5), it was therefore 

incumbent upon the government to show, not that 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 livelihood 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. Furthermore, Tyson disregarded 

Virgin Islands registration and licensing requirements so that 

 

18 In Bryan v. United States, 524 U.S. 184 (1998), 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 ―evilmeaning mind‖; he knew that it was unlawful to 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 disobey 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

conspiracy to unlawfully transport 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 knew 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 those requirements 

throughout the duration of his trafficking scheme.
27

2006); United States v. Pressler, 256 F.3d 144, 147 (3d Cir. 

2001); see also Boria, 592 F.3d at 481 (explaining that the

conspiracy‘s common goal or purpose must be illegal). This 

Court has characterized 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 United 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 evidence in a conspiracy prosecution 

requires close scrutiny.‘‖ (quoting United States v. Coleman, 

811 F.2d 804, 807 (3d Cir. 1987))). The reason is selfevident: a defendant‘s guilt must always remain ―individual 

and personal.‖ Boria, 592 F.3d at 480; United States 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). Furthermore, a 

conspiracy may 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 instant matter, the District Court held that there 

was not substantial evidence to prove that Tyson entered into

an illicit agreement to traffic firearms with at least one other 

individual. The government disputes this finding and 
28

contends that a reasonable 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 coconspirator. 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 

alleged 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 Applicability 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 States 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 existence of any conspiracy at all.‖ United 

States v. Espinosa-Cerpa, 630 F.2d 328, 331 (5th Cir. 1980). 

Application of the rule is narrow: it does not apply when

alleged co-conspirators are tried separately and only one 
29

defendant is convicted. See Hoheb, 777 F.2d at 140–41. Nor 

is it applicable 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 both federal and state courts. Chad W. Coulter, 

Comment, 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 inconsistent, it 

was not for a judge to go behind the jury‘s decision in such 

circumstances. True, the verdict may have been the product 

of juror error or plain irrationality. But an inconsistent 

verdict may also be the product of juror lenity, which 

historically has operated ―as a check against arbitrary or 

oppressive exercises 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 inconsistent verdicts are not reviewable 

merely because they are inconsistent. 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 fatally 

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 coconspirator 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 the 

jury‘s prerogative, which we will not disturb simply to 

 

21 In a concurring opinion some twenty-five years ago, our 

colleague, Judge Garth, characterized 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. 10, 25 (1980). Tyson‘s invocation of the rule of 

consistency is thus to no avail. His conviction will stand or 

fall based upon 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 federal 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. Conspirators, of course, rarely leave 

evidence of an explicit understanding or common goal. 

United States v. Perez, 280 F.3d 318, 353 (3d Cir. 2002). 

Indeed, ―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 proven by 

circumstantial 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 nonetheless 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 acknowledges that it advanced no 
32

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.‖ Specifically: 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. On 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, this 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 

alleged 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 violate 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 might have been

subject to criminal liability for the underlying 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 their department‘s operating procedures governing

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 characterizing 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 ―unusual‖ 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 can they. Almost all of the 

facts highlighted by the government focus upon lawful 

conduct. What 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 airport along with Tyson. 

Both men checked baggage containing firearms. They then 

appear to have parted ways until July 31, 2008. 

It is difficult 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‘ conduct 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 

consult with one another to fix a sale price; co-conspirators 

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

two men, nor anything to show that one is facilitating the 

handiwork of the other. True, Tyson and Morrell arrived at 

the airport on February 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 merchants 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 was 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 was not proffered. See United States v. 

Pressler, 256 F.3d 144, 150 n.2 (3d Cir. 2001) (―We may not 
35

at 153 (finding insufficient evidence of a tacit agreement 

when alleged co-conspirators merely traveled to Philadelphia 

together to purchase narcotics). 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 the 

sole bit of evidence indicative of ―coordinated‖ 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 jury 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 sevenmonth narrative 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 stateside. Had the government 

presented proof of some 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 the 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 testified 

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 Tyson, and (3) posed for photographs at

Tyson‘s residence, guns in hand. But because all 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, the 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 law. 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 

jurisprudence 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 District Court granting judgment of acquittal on 

the conspiracy count.

E Unauthorized Possession of a Firearm Under the

Virgin Islands Code
37

The Virgin Islands Code makes it unlawful for any 

person to have, possess, transport, or carry a firearm without a 

locally-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 these 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, however, 

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 either provision furnishes a defense for 

unauthorized firearm possession.

Tyson did not request a jury instruction for either socalled 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 

conferred 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-ofState Licenses

Section 460 states, in pertinent 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 this 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 licensed 
39

to possess or deal in firearms anywhere in the United States. 

Under such circumstances, it would 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. § 470(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 

defense to an unauthorized possession of a firearm charge. 

McKie, 112 F.3d at 631. We 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. Perhaps 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 facie 

elements of § 2253(a). A defendant‘s strategy is his own. It 

is not for the district court to sua sponte determine which 
40

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 the 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 affirmative 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 must 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). Since 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.