On Appeal from the United States District Court for the Western District of Pennsylvania. (D.C. Criminal No. 90-32E)
Before: Greenberg, Alito, and Rosenn, Circuit Judges
GREENBERG, Circuit Judge.
Anthony Paolello was convicted at a jury trial for a single count of violation of 18 U.S.C. § 922(g)(1) as he was a convicted felon in possession of a firearm. He timely appeals from a judgment of conviction and sentence entered on April 29, 1991, sentencing him to a 27-month custodial term to be followed by a three-year term of supervised release. We have jurisdiction under 28 U.S.C. § 1291.*fn1 While the indictment also recited that he had violated 18 U.S.C. § 924(e)(1), and Paolello has an extensive criminal record, the government does not contend that he was subject to the mandatory sentence provided in that section.
Inasmuch as Paolello stipulated at trial that he was a convicted felon subject to the firearms interdiction in 18 U.S.C. § 922(g)(1), we will confine our description of the facts to those immediately surrounding this offense. On October 6, 1989, officers Joseph Kress and Robert Liebel of the Bureau of Police of the City of Erie, Pennsylvania, were on patrol in Erie. According to Kress, the government's principal witness, at approximately 1:30 a.m., they observed a broken-down tractor-trailer truck in the vicinity of 12th and Parade Streets. They stopped their car next to the truck to render assistance and, while engaged in conversation with the truck driver, heard what they believed to be a gunshot.
The officers then exited their vehicle and ran around the front of the truck, where Kress saw two persons fighting on the sidewalk in front of Al's Tavern. Kress noticed a group of people watching the fight, and heard someone yell "he's got a gun," and point in the direction of Paolello, who was also watching the fight. Kress then observed that Paolello had something in his hand, but when Kress looked toward Paolello, Paolello put that hand into his coat pocket.
Kress testified that he then saw Paolello turn and run down an alley. Kress yelled "freeze, police," and drew his weapon, but Paolello continued to run down the alley and at that time Kress observed that Paolello had a pistol in his right hand. Paolello stopped and turned toward Kress but when he saw that Kress had drawn his gun, Paolello threw his weapon to the ground. Kress again yelled "freeze, police," but Paolello ran on.
Kress retrieved the firearm that Paolello had discarded. It had a round chambered in its barrel and its hammer was back, an indication that the gun had been discharged. Eventually, Liebel apprehended Paolello. The officers then found a spent cartridge near the telephone pole on the north side of Al's Tavern, close to where Paolello had first been standing. No scientific tests were performed to determine whether Paolello had recently discharged the weapon. However, various experts called by the government testified that the spent cartridge had been fired from the weapon.
In his defense, Paolello called his stepson, Tyrone Monsey Williams, who testified that, on the evening of October 5, 1989, he and Paolello went to Al's Tavern because Williams wanted to meet a friend there. While in Al's Tavern, Paolello got into an argument with a man. Paolello then left the tavern, and the man with whom Paolello had argued followed him. Williams then exited the bar and witnessed Paolello and the man arguing. Soon a crowd had amassed outside the bar and when Williams turned his head, he was punched in the face. Though Williams was groggy after he was hit, he heard a gunshot and saw his stepfather fighting with the man. Williams testified that he thought they were holding something but could not discern what it was. Williams then saw the officers exit their vehicle but by then the wrestling between Paolello and the man had already taken place.
Paolello testified in his defense. He said that while in Al's a man asked him if he would buy him a drink. Paolello said that he was going to leave and walked toward the doorway but the man followed him as he walked out, demanding that Paolello buy him a drink. Paolello testified that Williams also followed him and left the bar and that once outside Williams was hit by the man. The man then "put his hand in the air with a gun and shot it off one time." In response, Paolello grabbed the man's hand because he believed that the man was aiming the gun at Williams, and the gun fell to the ground.
Paolello testified that he and the man struggled for the gun, but Paolello seized it and ran. As he was running, he heard someone yell "stop," and he turned around and dropped the gun. After Liebel apprehended him, he told Liebel that "that wasn't my gun; it was this other guy's" and "he's the one that had it," but the officers did not arrest the other man. Paolello further testified that he grabbed the gun because he "wasn't going to leave it there for him to shoot me with it. That's what I think he was trying to do, get the gun again because we were both scuffling after it."
On February 22, 1991, the district court held a charge conference at which counsel for Paolello requested that the court instruct the jury with regard to Paolello's justification theory of defense, as there was no question that in a physical sense he had possession of the weapon. The court refused this request and instead instructed the jury that "knowing" possession of a firearm does not ...