NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT __________
No. 10-1258 __________
UNITED STATES OF AMERICA
v.
DWAYNE BATES, Appellant.
On Appeal from the United States District Court for the Middle District of Pennsylvania (D. C. No. 04-08-cr-245) District Judge: Honorable James F. McClure, Jr.
Submitted under Third Circuit LAR 34.1(a) November 4, 2010
Before: SCIRICA, RENDELL and ROTH, Circuit Judges
(Opinion filed: November 24, 2010)
OPINION
ROTH, Circuit Judge:
Dwayne Bates appeals his conviction for possession of a firearm by a convicted
felon in violation of 18 U.S.C. § 922(g), and receiving and possessing an unregistered
firearm in violation of 26 U.S.C. § 5861(d). He contends that the evidence was
1 insufficient to support his conviction for these offenses.1 We have appellate jurisdiction
pursuant to 28 U.S.C. § 1291. For the reasons that follow, we will affirm.
I. Background
Based on the evidence presented at Bates‟s bench trial, a reasonable trier of fact
could have found the following. On January 19, 2006, Harry William Day, a confidential
informant for the Pennsylvania State Police (PSP), informed his PSP contact, state
trooper Hutson, that Bates was interested in selling Day a sawed-off shotgun. Day had
been an informant for the PSP since 2005 and had received payments totaling
approximately $4,050 from the PSP as compensation for participating in controlled buys
of illegal drugs, usually in installments of $50 or $100 at a time. Day had encountered
Bates on several occasions at an apartment in a duplex in Williamsport, owned by Day
and leased to an associate of Bates, known to Day only as “Slim.” Although the
apartment had been leased to Slim, Bates was a tenant at the apartment and used it to sell
narcotics.
On January 19, Day had come to the apartment to fix the water heater and, en
route to the basement where the water heater was located, encountered Bates holding a
sawed-off shotgun and talking with another person. After fixing the water heater, Day
came back upstairs and asked Bates if the shotgun was for sale. Bates responded that it
was and gave Day a price. Day then called Trooper Hutson and told him that he had
spoken with Bates and that Bates was willing to sell him a sawed-off shotgun
The following day, Hutson and another trooper picked up Day in their squad car 1 Bates does not appeal his sentence.
2 and drove to a store near the apartment. Hutson searched Day and then provided him
with $100 in marked bills to purchase the shotgun. Day did not wear a transmitter or
recording device. Day then went to the apartment, observed by Hutson and another
police officer. Bates let Day in to the apartment, Day gave Bates the $100 in marked
bills, and Bates went upstairs and returned with the sawed-off shotgun. Bates held the
gun around the trigger area before handing it to Day, who took it by the butt, put it under
his coat, and left. Day then walked backed to Hutson‟s car and gave him the gun.
Examination of the shotgun revealed that its serial number had been scratched but
was still visible. Further examination showed that the weapon was operable, i.e., it could
be fired with appropriate ammunition. The butt stock had been sawed off and the end of
the barrel had been cut off, probably with a pipe-cutter. These modifications were
obvious because there were burrs in the metal on the tip of the barrel, the butt stock was
missing a recoil pad, and the nut and bolt connecting the butt to the gun were exposed.
The barrel of the shotgun was 17 and 7/8 inches long, and the shotgun‟s overall length
was 25 and 1/16 inches.2
II. Procedural History
Bates was later arrested and charged in a three-count indictment with (1)
possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g), (2)
altering or obscuring the serial number of a firearm in violation of 18 U.S.C. § 922(k),
2 Shotguns with a total length of less than 26 inches or a barrel of less than 18 inches in length are defined as “firearms” for purposes of federal gun laws, see 26 U.S.C. § 5845(a), and must be registered, see id. § 5841. 26 U.S.C. § 5861(d) makes it a crime to possess or receive an unregistered firearm.
3 and (3) possessing an unregistered firearm in violation of 26 U.S.C. § 5861(d). Bates
pleaded not guilty, waived his right to a jury trial, and the District Court held a two-day
bench trial. The government presented the testimony of Day, Hutson, and three expert
witnesses, who opined that the shotgun had been manufactured outside of Pennsylvania
and that it had been modified to shorten its barrel and butt-stock.
Bates did not present any evidence at the trial. Only Day‟s testimony placed Bates
at the apartment with the shotgun. The marked bills provided to Day, which he used to
purchase the shotgun, were never recovered. Hutson testified that no effort was made to
obtain fingerprints from the shotgun, because in his experience, it was rare that prints
taken from a gun could be identified.
The District Court found Bates guilty on counts one and three. The court
acknowledged that Day‟s testimony was critical, but found Day credible, notwithstanding
the arguments against his credibility. Bates was sentenced to 70 months imprisonment
followed by a three-year term of supervised release. He appealed.
III. Discussion
In reviewing a criminal conviction after a bench trial “we must determine whether
there is substantial supportive evidence for the district court‟s findings on the ultimate
factual question of guilt.” United States v. Gillen, 599 F.2d 541, 546 (3d Cir. 1979)
(citing United States v. Delerme, 457 F.2d 156, 160 (3d Cir. 1972)). Several principles
guide our review: (1) the trial judge‟s determination must be based on evidence “which a
reasonable mind might accept to support a conclusion,” (2) the practical effect of this rule
is that we view “the record in the light most favorable to the government,” and (3)
4 “where the evidence consists largely of oral testimony contradictory in nature, „due
regard [should] be given to the opportunity of the trial court to judge the credibility of the
witnesses.‟” Delerme, 457 F.2d at 160. Bates‟s contentions on appeal boil down to two
arguments: (1) Day‟s testimony alone was insufficient to support Bates‟s convictions, and
(2) there was insufficient evidence that Bates knowingly possessed a “firearm” as defined
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT __________
No. 10-1258 __________
UNITED STATES OF AMERICA
v.
DWAYNE BATES, Appellant.
On Appeal from the United States District Court for the Middle District of Pennsylvania (D. C. No. 04-08-cr-245) District Judge: Honorable James F. McClure, Jr.
Submitted under Third Circuit LAR 34.1(a) November 4, 2010
Before: SCIRICA, RENDELL and ROTH, Circuit Judges
(Opinion filed: November 24, 2010)
OPINION
ROTH, Circuit Judge:
Dwayne Bates appeals his conviction for possession of a firearm by a convicted
felon in violation of 18 U.S.C. § 922(g), and receiving and possessing an unregistered
firearm in violation of 26 U.S.C. § 5861(d). He contends that the evidence was
1 insufficient to support his conviction for these offenses.1 We have appellate jurisdiction
pursuant to 28 U.S.C. § 1291. For the reasons that follow, we will affirm.
I. Background
Based on the evidence presented at Bates‟s bench trial, a reasonable trier of fact
could have found the following. On January 19, 2006, Harry William Day, a confidential
informant for the Pennsylvania State Police (PSP), informed his PSP contact, state
trooper Hutson, that Bates was interested in selling Day a sawed-off shotgun. Day had
been an informant for the PSP since 2005 and had received payments totaling
approximately $4,050 from the PSP as compensation for participating in controlled buys
of illegal drugs, usually in installments of $50 or $100 at a time. Day had encountered
Bates on several occasions at an apartment in a duplex in Williamsport, owned by Day
and leased to an associate of Bates, known to Day only as “Slim.” Although the
apartment had been leased to Slim, Bates was a tenant at the apartment and used it to sell
narcotics.
On January 19, Day had come to the apartment to fix the water heater and, en
route to the basement where the water heater was located, encountered Bates holding a
sawed-off shotgun and talking with another person. After fixing the water heater, Day
came back upstairs and asked Bates if the shotgun was for sale. Bates responded that it
was and gave Day a price. Day then called Trooper Hutson and told him that he had
spoken with Bates and that Bates was willing to sell him a sawed-off shotgun
The following day, Hutson and another trooper picked up Day in their squad car 1 Bates does not appeal his sentence.
2 and drove to a store near the apartment. Hutson searched Day and then provided him
with $100 in marked bills to purchase the shotgun. Day did not wear a transmitter or
recording device. Day then went to the apartment, observed by Hutson and another
police officer. Bates let Day in to the apartment, Day gave Bates the $100 in marked
bills, and Bates went upstairs and returned with the sawed-off shotgun. Bates held the
gun around the trigger area before handing it to Day, who took it by the butt, put it under
his coat, and left. Day then walked backed to Hutson‟s car and gave him the gun.
Examination of the shotgun revealed that its serial number had been scratched but
was still visible. Further examination showed that the weapon was operable, i.e., it could
be fired with appropriate ammunition. The butt stock had been sawed off and the end of
the barrel had been cut off, probably with a pipe-cutter. These modifications were
obvious because there were burrs in the metal on the tip of the barrel, the butt stock was
missing a recoil pad, and the nut and bolt connecting the butt to the gun were exposed.
The barrel of the shotgun was 17 and 7/8 inches long, and the shotgun‟s overall length
was 25 and 1/16 inches.2
II. Procedural History
Bates was later arrested and charged in a three-count indictment with (1)
possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g), (2)
altering or obscuring the serial number of a firearm in violation of 18 U.S.C. § 922(k),
2 Shotguns with a total length of less than 26 inches or a barrel of less than 18 inches in length are defined as “firearms” for purposes of federal gun laws, see 26 U.S.C. § 5845(a), and must be registered, see id. § 5841. 26 U.S.C. § 5861(d) makes it a crime to possess or receive an unregistered firearm.
3 and (3) possessing an unregistered firearm in violation of 26 U.S.C. § 5861(d). Bates
pleaded not guilty, waived his right to a jury trial, and the District Court held a two-day
bench trial. The government presented the testimony of Day, Hutson, and three expert
witnesses, who opined that the shotgun had been manufactured outside of Pennsylvania
and that it had been modified to shorten its barrel and butt-stock.
Bates did not present any evidence at the trial. Only Day‟s testimony placed Bates
at the apartment with the shotgun. The marked bills provided to Day, which he used to
purchase the shotgun, were never recovered. Hutson testified that no effort was made to
obtain fingerprints from the shotgun, because in his experience, it was rare that prints
taken from a gun could be identified.
The District Court found Bates guilty on counts one and three. The court
acknowledged that Day‟s testimony was critical, but found Day credible, notwithstanding
the arguments against his credibility. Bates was sentenced to 70 months imprisonment
followed by a three-year term of supervised release. He appealed.
III. Discussion
In reviewing a criminal conviction after a bench trial “we must determine whether
there is substantial supportive evidence for the district court‟s findings on the ultimate
factual question of guilt.” United States v. Gillen, 599 F.2d 541, 546 (3d Cir. 1979)
(citing United States v. Delerme, 457 F.2d 156, 160 (3d Cir. 1972)). Several principles
guide our review: (1) the trial judge‟s determination must be based on evidence “which a
reasonable mind might accept to support a conclusion,” (2) the practical effect of this rule
is that we view “the record in the light most favorable to the government,” and (3)
4 “where the evidence consists largely of oral testimony contradictory in nature, „due
regard [should] be given to the opportunity of the trial court to judge the credibility of the
witnesses.‟” Delerme, 457 F.2d at 160. Bates‟s contentions on appeal boil down to two
arguments: (1) Day‟s testimony alone was insufficient to support Bates‟s convictions, and
(2) there was insufficient evidence that Bates knowingly possessed a “firearm” as defined
in 26 U.S.C. § 5845(a). We address each contention in turn.
A. Sufficiency of Day’s Testimony
Bates contends that Day‟s testimony is insufficient to establish that he possessed
the sawed-off shotgun – a required element of both his offenses. See 18 U.S.C. § 922(g);
26 U.S.C. § 5861(d). We disagree.
We defer to the District Court‟s superior opportunity to assess Day‟s credibility.
See Delerme, 457 F.2d at 160. We therefore consider only whether Day‟s testimony, if
credited, provides substantial evidence of each element of the offense charged. See
United States v. Kole, 164 F.3d 164, 177 (3d Cir. 1998). Day testified that he saw Bates
holding the shotgun on two occasions, that Bates was willing to sell it to him, and that
Bates did sell him the shotgun the following day. This testimony, if credited, provided
substantial evidence that Bates possessed the shotgun. See United States v. Brown, 3
F.3d 673, 680 (3d Cir. 1993).
B. Evidence of Knowledge
Bates also contends that the evidence was insufficient to establish that he knew
that the shotgun had the characteristics making its possession illegal. To establish a
violation of § 5861(d), the government did not have to show Bates “knew that his
5 possession was unlawful, or that the firearm was unregistered.” Rogers v. United States,
522 U.S. 252, 255 (1998). The government was required to prove beyond a reasonable
doubt that Bates “knew of the features that made what he was making, possessing, or
transferring, a „firearm,‟” United States v. Hull, 456 F.3d 133, 143 (3d Cir. 2006)
(emphasis in original) (citing Staples v. United States, 511 U.S. 600, 619 (1994)), and
more specifically, that Bates knew that the firearm‟s total length was less than 26 inches
or its barrel length was less than 18 inches, see 26 U.S.C. § 5845(a)(1)-(2). Under the
willful blindness doctrine, a defendant has knowledge of a fact if he is “aware of a high
probability” of the fact and “consciously and deliberately tried to avoid learning about
this fact.” United States v. Stadtmauer, 620 F.3d 238, 257 (3d Cir. 2010).
The evidence presented by the government showed that the shotgun‟s total length
was 25 and 1/16ths of an inch. It was obvious from the condition of the muzzle and butt
stock that they had been cut off, and the serial number had been scratched. Day testified
that Bates had been holding the shotgun and the District Court could reasonably infer
from this that Bates was aware of these features of the gun. Viewing this evidence in the
light most favorable to the government, substantial evidence supports the District Court‟s
conclusion that Bates knew or ignored a high probability that the shotgun was less than
26 inches long.
IV. Conclusion
For these reasons, we will affirm the District Court‟s judgment of commitment.