CA1: First Circuit partially reverses machine-gun possession conviction

US v. Nieves-Castano, No. 06-1517.  Okay, team, we got two statutes.  First, 18 U.S.C. § 922(o), involves the unlawful possession of a machine gun.  Second, 18 U.S.C. § 922(q)(2)(A) involves the “unlawful possession a firearm in a school zone.”  The defendant – lucky her – was convicted of both.  Keep reading.  Really.  If you look really far down, I got some confused commentary.  You know you want to.

She challenges 18 U.S.C. § 922(q)(2)(A), as “unconstitutionally void for vagueness under the Fifth Amendment's Due Process Clause because it fails to specify how to measure the 1000 foot distance from a school that marks the boundary of a school zone.”  The First rejects this.  It finds that:

Nieves-Castaño's constitutional challenge fails because the statute itself adequately put her on notice that her possession of a firearm was unlawful. By the clear terms of the statute, she could only have been convicted if she knew or reasonably should have known that her possession of the firearm was within a school zone, and this scienter requirement ameliorates any vagueness concerns.

Strangely, the First then says that the construction of the statute (to see if it is vague) must be made “in light of judicial constructions of the statute.”  (Citing Wainwright v. Stone, 414 U.S. 21, 22-23 (1973)).  But, it refers to 21 U.S.C. § 860(a) (drug dealing near schools) and United States v. Soler, 275 F.3d 146 (1st Cir. 2002) which holds that "the government must prove beyond a reasonable doubt that the distance from a school to the actual site of the [prohibited] transaction, not merely to the curtilage or exterior wall of the structure in which the transaction takes place, is 1,000 feet or less."  It also “endorsed a straight-line method of measurement, rather than pedestrian-route measurements.”  This might be somewhat circular.  Is a statute’s constitutionality to be viewed in light of the judiciary’s prior construction of a similar staute?

The First goes a bit out on a limb and concludes that there was evidence of her mental state because “the government's evidence was insufficient to show that the defendant possessed a firearm within 1000 feet of a school's grounds. That claim fails.”  Why?  “three minor children lived with the defendant, and it would be easy for a jury to conclude that she knew there were two schools nearby, within or just outside her housing project and less than 1000 feet away, and that she regularly passed by those schools.”  Oh, I get it.  A jury can properly conclude a question of knowledge of distance by the presence of schoolchildren. 

She also challenges whether there was enough evidence to show that she intended to possess a machine gun in light of 18 U.S.C. § 922(o).  The court notes that “mere possession of the weapon is insufficient. The government must also prove beyond a reasonable doubt that the defendant knew the weapon ‘had the characteristics that brought it within the statutory definition of a machinegun.’” See 26 U.S.C. § 5845(b) (machine guns “are any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.").  Applying Staples v. United States, 511 U.S. 600, 602 (1994), the First frames the issue as “The question is whether the government proved, beyond a reasonable doubt, that she knew this particular AK-47 had the characteristics of an automatic weapon.”  The First looks at the record.

Here the evidence established that a modification had occurred through the alteration of internal parts. The only external evidence on the weapon of this alteration was a small mark or hole.

The government's proof concentrated on expert testimony to the effect that this particular weapon had been modified in order to make it capable of fully automatic fire. This evidence established that the weapon was an automatic weapon, but it did not establish the defendant's mens rea.

Indeed, even the FBI agents had to fire the gun to figure out that it has been altered, and the government didn’t know if the defendant had ever actually used the weapon. 

Finally, even though the defendant tried to hide the gun, the First says this isn’t good enough, because “...knowledge that one is guilty of some crime is not the same as knowledge that one is guilty of the crime.”  And there were other circumstances that explain why she wanted to hide the weapon, beyond simply its status as an automatic weapon. 

Update: I think the 1st screwed something big up here, and I put my thoughts here.