On appeal from the United States District Court of the Western District of Pennsylvania (D.C. Crim. No. 84-00153)
Before: HUNTER, GARTH, and HIGGINBOTHAM, Circuit Judges.
A. LEON HIGGINBOTHAM, JR., Circuit Judge.
Defendant Ernest Rockwell appeals from his conviction and sentence under 18 U.S.C. App. § 1202(a)*fn1 which prohibits the possession of firearms by a convicted felon. For the reasons set forth below, we will reverse.
Viewed in the light most favorable to the government, the facts shown at trial were as follows: On September 5, 1982 at approximately 1:30 a.m., two Braddock Hills, Pennsylvania police officers observed an automobile operated by appellant Ernest Rockwell being driven erratically. The two officer, Randy Weber and Eugene Colletto, stopped the vehicle. Officer Weber approached the vehicle and asked Rockwell to produce his driver's license and car registration. After noticing signs of intoxication, Officer Weber asked Rockwell to exit the vehicle and began to perform certain ield sobriety tests. In administering the finger-to-nose-test, Officer Weber observed a bulge in Rockwell's right front pocket. According to Officer Weber, he then reached into Rockwell's pocket and pulled out a .22 caliber derringer handgun.
Rockwell was arrested and charged with three state offenses -- driving under the influence, carrying a firearm without a permit, and possession of a firearm by "a former convict."*fn2 App. at 109a. At the state court preliminary hearing on the charges held several weeks later, both police officers asked the Magistrate to withdraw the two firearm charges and proceeded only on the drunk driving charge. App. at 110a, 151a. Sometime thereafter, Agent Roger Greenbank of the Federal Bureau of Investigation, upon reviewing Rockwell's offense record, noticed that there was no disposition listed with respect to the state firearms violations. He then contacted Officer Weber for an explanation and also requested that the gun be turned over to federal custody. Subsequently, on August 30, 1984, a little over a year after the state charges were dropped, Rockwell was arrested and charged with violating 18 U.S.C. App. § 1202(a). Trial commenced in federal court on November 26, 1984 and the jury returned a verdict of guilty on November 27, 1984.
Rockwell's principal contention on appeal*fn3 alleges error in the trial court's instruction to the jury. In particular, Rockwell argues that the instruction to the jury that it need not resolve the conflict between the contradictory testimony from Officer Weber and the Mayor of Braddock Hills, Richard Foster, as to the reasons the state firearm charges were dropped, invaded the province and function of the jury to determine the credibility of Officer Weber's testimony, and was therefore reversible error. We agree.
Throughout the trial in this matter, appellant Rockwell asserted as his only defense that he never at any time possessed the firearm in question. Rockwell maintains that the derringer was a "throw down"*fn4 weapon and thus he was the victim of a false charge concocted by Officer Weber. See App. at 154a-163a. To support this contention, Rockwell sought to cause the jury to have a reasonable doubt as to the credibility of Officer Weber, the government's chief witness. Rockwell relied on a variety of facts established by the evidence to create an inference that he did not in fact possess the weapon. First, although Officer Colletto was present and stood approximately one and one half feet from Rockwell during the search and arrest, he testified that he did not actually see Weber remove the gun from Rockwell's pocket. App. at 112a-13a. Colletto saw the gun for the first time at the police station hours after the arrest. App. at 106a. Moreover, on the evening of the arrest, Colletto urged that Rockwell not be charged with the firearm offenses.
Second, although the police report indicated that appellant "had upon his person a four shot .22 Four Aces" derringer, App. at 183a, no mention was made of Officer Weber having seized the weapon at the time of the arrest. In addition, no fingerprints were found on the gun.
Finally, the state firearm charges were mysteriously dropped at the request of Officers Weber and Colletto. Several months after the dismissal of the charges, Officer Weber took possession of the gun from the Allegheny County Crime Lab where it had been sent for testing. When a federal investigation was initiated Officer Weber was originally unable to produce the weapon. He subsequently located the derringer at his home in a box of Christmas decorations.
During the prosecution's case in chief, Officer Weber testified that he had pulled the gun from Rockwell's pocket after noticing a bulge. On cross examination, Weber testified that he had been approached by the Mayor of Braddock Hills, Richard Foster, who requested that the charges be dropped.*fn5 At the close of the prosecution's case, the defense called Mayor Foster as its first witness. Mayor Foster testified that he did not know Rockwell, had no interest in the case, and had never asked Weber or anyone else to withdraw the state firearm charges filed against Rockwell. Foster's testimony, described by the court at sidebar as the "guts" and "power" of appellant's case, put Weber's general credibility in question. Appellant argued that if Weber lied about his reasons for withdrawing charges as serious as those filed against Rockwell, the most likely explanation was that there never ...