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United States v. Burns

United States District Court, N.D. California

June 20, 2017

UNITED STATES, Plaintiff,
v.
CHARLES BURNS, Defendant.

          ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR JUDGMENT OF ACQUITTAL UNDER FEDERAL RULE OF CRIMINAL PROCEDURE 29

          CHARLES R. BREYER UNITED STATES DISTRICT JUDGE

         On 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), [1]convicted him of possessing a firearm in a school zone (Count 3), [2] and hung on a charge of unlicensed dealing in firearms (Count 2).[3] Burns timely moved for a judgment of acquittal on the latter two counts.[4]

         I. BACKGROUND

         Trouble for Defendant Charles Burns started in March 2015, when he befriended a man in the Bayview neighborhood of San Francisco.[5] 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.

         Shortly 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 gun.[6] 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.

         Just 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.

         The 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.

         The CI 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.

         The 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.

         At 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. § 922(a)(21)(C).

         II. LEGAL STANDARD

         When a 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 doubt. Id.

         III. DISCUSSION

         Burns 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. at 9-15.

         Burns 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.

         A. Count 3: Meaning of “School”

         Burns's 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.

         1. The Proper Decider

         Under 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.

         Consider 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 tribe. Id.

         So too 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.[7] That the latter might not give as readily available an answer makes the Court's task harder, but it does not take that task away.[8]

         Burns 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.

         2. The Proper Decision

         For 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 ...


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