United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR
JUDGMENT OF ACQUITTAL UNDER FEDERAL RULE OF CRIMINAL
CHARLES R. BREYER UNITED STATES DISTRICT JUDGE
April 6, 2017, twelve jurors hit for the cycle. They
acquitted Defendant Charles Burns of possessing a firearm
after previously being convicted of a felony (Count 1),
convicted him of possessing a firearm in a
school zone (Count 3),  and hung on a charge of unlicensed
dealing in firearms (Count 2). Burns timely moved for a judgment
of acquittal on the latter two counts.
for Defendant Charles Burns started in March 2015, when he
befriended a man in the Bayview neighborhood of San
Francisco. Trial Tr. at 212-13. That man turned out
to be a confidential informant (“the CI”) working
undercover for the Bureau of Alcohol, Tobacco, Firearms, and
Explosives (“ATF”). Id. at 211-12.
after they met, the CI told Burns that he wanted to buy a
gun. Id. at 213, 279. Burns responded that he would
try to find one, ultimately offering a .22 caliber Ruger for
$450. Id. at 231, 221-22, 279-80. On March 23, 2015,
the CI called Burns and asked about picking up the
Ex. 4; Trial Tr. at 221. Burns responded that he was
“trying to go get it right now, ” Ex. 4; Trial
Tr. at 221-22, but because ATF could not get a support team
together in time, the sale fell through, id. at
223-24, 316. When the CI tried again the next day, Burns said
that his partner had gotten rid of the gun and offered to
“find something else.” Ex. 8.
over a week later, “something else” came in the
form of a 9mm handgun. Trial Tr. at 230. Burns told the CI
that he was going to “get that in about like an hour,
” but once again things were moving too quickly for
ATF. Ex. 11; Trial Tr. at 232. The CI tried to push off the
sale until the following Monday, though Burns warned him that
the gun might be “gone” by then. Ex. 11. Even
though the CI tried again on April 9, and even though Burns
said that he would “probably have it” soon, the
sale fell through. Ex. 12.
third firearm-a Sig Sauer .45 caliber semiautomatic
handgun-was the charm. Trial Tr. at 233-34. On April 21, the
CI asked Burns if he could buy the gun at a McDonald's.
Ex. 14. Burns told him instead to go to Third Street
“by the gym.” Trial Tr. at 234-35. This time ATF
was ready. After being outfitted with a hidden camera, the CI
drove to the point of sale with another confidential
informant. Id. at 239. When they pulled up, Burns
was crossing Oakdale Avenue-apparently walking away from a
trash can, which itself was down the street from Burns's
car. Ex. 3 (video). The CI got out, walked over to Burns, and
shook his hand. Id. A man in a gray beanie
(affectionately known at trial as “Beanie Guy”)
then approached the CI and said, “Gimme the money,
bruh.” Id. After the CI handed over $800,
Beanie Guy counted the money and pointed to the trash can,
which was feet away from a sign reading: “DRUG FREE
SCHOOL ZONE.” Ex. 3; Ex. 22a.
ran over to the trash can and found a plastic bag containing
a receipt from a shoe store-and the Sig Sauer handgun. Ex. 1;
Ex. 3; Trial Tr. at 242-43. He then put the gun in his car
and returned across the street to thank Burns, saying,
“Yeah I like that.” Ex. 3. Burns shook his hand
and said he should have charged “extra” for
holding onto the gun. Id. The CI asked how much, and
Burns told him “twenty-five.” Id.
trash can, it turns out, was within 1000 feet of Leola Havard
Early Education School. Ex. 19; Ex. 306; Trial Tr. at 151,
452-54. Leola Havard offers preschool classes and
transitional kindergarten (“T-K”), but not
regular kindergarten or other higher grades. Trial Tr. at
164, 432; accord MDV at 12-13. It also offers an
after-school program to older students, a piece of which is
“academic support.” Trial Tr. at 439-40.
trial, the Court decided that whether Leola Havard qualified
as a “school” under § 922(q)(2)(A) was a
question of law but deferred ruling on the matter.
Accordingly, the Court instructed the jury that, during their
deliberations on Count 3, they “should assume that
Leola Havard Early Education School qualifies as a
‘school' under the law.” Jury Instructions
(“Count 3: Firearms-Unlawful Possession-School
Zone”). Also relevant here, the Court gave an aiding
and abetting instruction as to Count 3, but Count 3 only.
Id. (“Aiding and Abetting (Count 3)”).
As to Count 2, it instructed the jury that Burns must be
“a person who 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” to be
convicted. Id. (“Count 2: Firearms-Dealing
Without a License”); see also 18 U.S.C. §
defendant moves under Federal Rule of Criminal Procedure 29,
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). Evidence is
insufficient to sustain a conviction if, viewing the evidence
in the light most favorable to the prosecution, no rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319-20 (1979); United States
v. Nevils, 598 F.3d 1158, 1163-64 (9th Cir. 2010) (en
banc). In doing so, the Court may consider neither how it
would have viewed conflicting evidence, nor whether it itself
believes that guilt was established beyond a reasonable
challenges his conviction on Count 3 for possession of a
firearm in a school zone on essentially two fronts. First, he
argues that Leola Havard, though a school in the colloquial
sense, does not qualify as a “school” in the
legal sense. See MDV at 12-32. Second, he argues
that, even if it does qualify, the evidence at trial was
insufficient to support a conviction. See R29 Mot.
further urges the Court to halt any impending retrial on
Count 2 for want of sufficient evidence that he was engaged
in the business of firearms dealing. See id. at 3-9.
Count 3: Meaning of “School”
first challenge to his conviction on Count 3 has two prongs.
He argues that (1) it was for the jury, not the Court, to
decide whether Leola Havard is a “school” under
the law, and (2) whomever the proper decider, the proper
decision is that this school is no “school” after
all. See MDV at 1-2 & n.1.
The Proper Decider
the federal firearms laws, the term “school”
means “a school which provides elementary or secondary
education, as determined under State law.” 18 U.S.C.
§ 921(a)(26). Although both parties at times urged the
Court to determine the state-law definition of
“elementary education” and give it to the jury,
see Trial Tr. at 20 (government); MDV Reply (dkt.
156) at 5 (Burns), the Court holds that whether Leola Havard
meets those criteria is indeed a question of law.
the Indian Major Crimes Act, which provides for federal
criminal jurisdiction over any “Indian” who
commits certain crimes on tribal land. 18 U.S.C. §
1153(a). Under that statute, the government must prove the
defendant's “membership or affiliation in any
federally acknowledged Indian tribe” beyond a
reasonable doubt. United States v. Zepeda, 792 F.3d
1103, 1110 (9th Cir. 2015) (en banc) (citations omitted).
But, as the Ninth Circuit held in United States v.
Zepeda, 792 F.3d 1103 (9th Cir. 2015) (en banc),
“federal recognition of a tribe” remains a
question of law to be decided based on a list published by
the Bureau of Indian Affairs (“BIA”), as well as
any “other evidence that is judicially noticeable or
otherwise appropriate for consideration.” Id.
at 1114. So in Zepeda it was for the court to decide
whether a particular tribe-there the Gila River Indian
Community-was federally recognized, while it was for the jury
to decide whether the defendant had a sufficient link to that
here. It is for the Court to determine whether a particular
school-here Leola Havard-is federally recognized, while it
was for the jury to decide whether Burns's possession of
a firearm had a sufficient link to that school. And just as
the BIA's list provided an “authoritative”
reference point in Zepeda, California law provides
an authoritative reference point here. That the latter
might not give as readily available an answer makes the
Court's task harder, but it does not take that task
counters that the federal criminal code is littered with
statutory definitions that pose questions of fact and
provides some examples. See MDV Reply at 4; see
also, e.g., United States v. Overton, 573 F.3d
679, 688 (9th Cir. 2009) (observing that, under 18 U.S.C.
§ 2256(2)(A), the jury determines whether images depict
“sexually explicit conduct”). True enough. But
Burns could just as easily have pointed out that this very
statute required the jury to determine whether he
“possessed” a firearm. Neither observation
advances the ball.
The Proper Decision
Leola Havard to qualify as a “school” in the
legal sense, it must both (i) be a “school” in
the colloquial sense and (ii) “provide elementary or
secondary education, as determined under State law.” 18
U.S.C. § 921(a)(26). No one doubts that Leola Havard, as
“an institution for the teaching of children, ”
Merriam-Webster's Collegiate Dictionary (10th ed. 1996),
meets the former criterion. Instead, the parties spill much
of their ink debating whether Leola Havard “provides
elementary or secondary education” within the meaning
of California law. Because the highest grade taught at Leola