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U.S. v. McKie

May 8, 1997

UNITED STATES OF AMERICA; GOVERNMENT OF THE VIRGIN ISLANDS

v.

MICHAEL MCKIE,



Appellant at No. 96-7010

Before: SCIRICA, NYGAARD and McKEE, Circuit Judges

SCIRICA, Circuit Judge.

Filed May 8, 1997

Argued December 9, 1996

OPINION OF THE COURT

In this joint appeal, defendants Michael McKie, Guy Henry and Jermaine Hall challenge their convictions on weapons offenses. We will reverse defendants' convictions for unlawful firearm possession under Virgin Islands law, but we will affirm all other issues raised in this appeal.

I.

On April 14, 1995, at 12:30 a.m. in St. Croix, defendants' car was stopped for a traffic violation. Four police officers ordered the driver, McKie, out of the car. The passengers, Hall, Henry and a juvenile, were also ordered to leave the car after an officer observed them conversing and looking around inside the car. At that point, an officer spotted a .38 caliber revolver on the back seat of the car. Further inspection revealed two more firearms -- a Tec-9 machine gun *fn1 on the front passenger sidefloorboard, and a .45 caliber pistol on the rear driver's side floorboard. *fn2

At trial, Hall testified that he and the other defendants flew to St. Croix from St. Thomas on a chartered airplane. They arrived at 11 a.m. to attend a reggae concert later that evening. Although unemployed, Hall brought with him $700 in cash that he had accumulated by gambling and cock fighting. Upon arrival, they were met by a friend whose car they borrowed.

Hall testified that after arriving in St. Croix, he received a death threat from someone who previously had shot him. He did not report this to the police but instead decided to obtain a firearm. By chance, he ran into an acquaintance who sold him three firearms for $500. Hall testified he concealed the three weapons in the car without telling McKie and Henry about his purchase.

According to Hall, defendants left in the car to attend the concert around 10:30 p.m. McKie was driving. Hall initially sat in the front passenger seat and Henry in the back, but they switched positions when Henry complained about being cramped in the back of the subcompact car (an Isuzu I-Mark). As noted, defendants were stopped by the police around 12:30 a.m.

All three defendants were convicted under Count I of the indictment for possession of a firearm with an obliterated serial number in violation of federal law (18 U.S.C. Section(s) 922(k) and 2) and under Counts II and III for possession of firearms in violation of Virgin Islands law (V.I. Code Ann. tit. 14, Section(s) 2253(a), (b) and 11). McKie was also convicted under Count IV for possession of a firearm by a felon in violation of federal law (18 U.S.C. Section(s) 922(g)(1)). McKie was sentenced to 60 months imprisonment on Count I, 5 years each on Counts II and III, and 72 months on Count IV, all to run concurrently. Hall was sentenced to 36 months on Count I and 30 months each for Counts II and III, with the territorial sentences to run concurrently but consecutive to the federal sentence. Henry was sentenced to 37 months on Count I and 3 years each on Counts II and III, all to run concurrently.

As we have noted, all defendants appeal their firearm convictions under Virgin Islands law. Hall also appeals the district court's denial of his motion to compel performance of a plea agreement. ...


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