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United States of America v. Shawn Tyson

August 3, 2011

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. Gomez

The opinion of the court was delivered by: Smith, Circuit Judge.

PRECEDENTIAL

Argued December 14, 2010

Before: McKEE, Chief Judge, FUENTES and SMITH, Circuit Judges

OPINION

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 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 instant background check,*fn1 required by state law, and complete a Form 4473, required by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).*fn2 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.*fn3 On December 11, 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.*fn4 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.*fn5 Nor was he licensed under federal law to sell or transport firearms for sale in interstate commerce.*fn6 Tyson also failed to register the weapons with the Virgin Islands police when he arrived in St. Thomas.

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 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 Tri- Cities 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.

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.*fn7

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 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.*fn8 The District Court had jurisdiction pursuant to 18 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 #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.‖*fn9 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.*fn10 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 count of unauthorized possession of a firearm under local law.*fn11

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 ...


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