United States v. Richard Paul Spinner, III

152 F.3d 950, 332 U.S. App. D.C. 1
CourtCourt of Appeals for the D.C. Circuit
DecidedSeptember 21, 1998
Docket97-3061
StatusPublished
Cited by67 cases

This text of 152 F.3d 950 (United States v. Richard Paul Spinner, III) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Richard Paul Spinner, III, 152 F.3d 950, 332 U.S. App. D.C. 1 (D.C. Cir. 1998).

Opinions

Opinion for the Court filed by Circuit Judge SENTELLE.

Opinion dissenting in part filed by Circuit Judge GARLAND.

SENTELLE, Circuit Judge:

Appellant Richard Spinner challenges his conviction on four weapons and narcotics charges. We agree with Spinner that the government introduced insufficient evidence to sustain his conviction for possession of a semiautomatic assault weapon, and accordingly reverse that conviction. And because the district court permitted the prosecutor to ask a defense witness a series of inappropriate questions on' cross-examination, we reverse and remand Spinner’s conviction for possession with intent to distribute crack cocaine within 1,000 feet of a school. We affirm the remaining convictions.

L. Background

A. The Offense

On August 8, 1996, at approximately 4:00 p.m., Washington Metropolitan Police Department officers and FBI agents executed a search warrant at 636 46th Place, S.E., in the District of Columbia. Four people were present at the time: Richard Spinner, his mother, his 16-year-old sister, and his 17-year-old cousin.

The officers discovered three loaded guns during the course of their search. Two of them — a .380 caliber Colt semiautomatic pistol and a .45 caliber Sturm-Ruger semiautomatic .pistol — were found under the cushions of a couch in the living room. The third gun, a Colt .223. caliber semiautomatic rifle, was found in the closet of a second-floor bedroom, inside a rifle case. During their search of that closet, the officers also recovered sever[953]*953al .223 caliber magazines of ammunition, a bulletproof vest, and two ski masks. In addition, the officers found 1.279 grams of crack cocaine, packaged in multiple ziplock bags, in the living room and second-floor bedroom.

The officers recovered documents relating to Spinner from the upstairs bedroom, including correspondence addressed to him; receipts bearing his name; his social security card; and a list — handwritten on an envelope bearing Spinner’s fingerprint — of current prices for various quantities of crack cocaine. Spinner’s fingerprints were also found on two other noteworthy items: a .45 caliber bullet, which was inside the .45 caliber pistol; and a box of .44 caliber bullets found in the closet where the semiautomatic rifle was recovered. The officers also found two photographs that depicted Spinner in the upstairs bedroom.

As a result of the officers’ search, a federal grand jury returned a five-count criminal indictment against Spinner. The indictment charged Spinner with two counts of violating 18 U.S.C. § 922(g)(1), which makes it illegal for a convicted felon to possess “any firearm or ammunition.” (Spinner had a 1993 felony conviction for possession of a firearm with a removed, obliterated, or altered serial number in violation of 18 U.S.C. § 922(k).) The indictment also charged Spinner with possession of a semiautomatic assault weapon, 18 U.S.C. § 922(v)(l); possession with intent to distribute cocaine base within 1,000 feet of a school, 21 U.S.C. § 860(a); and possession with intent to distribute cocaine base, 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). No charges were brought against Spinner’s sister or his mother. However, Spinner’s cousin was prosecuted in a separate proceeding in juvenile court.

B. The Trial

The government sought to prove that Spinner constructively possessed the recovered contraband. It argued that Spinner had access to the upstairs bedroom, and the ability to control the contraband that was found there. In support of this position, it introduced into evidence Spinner’s personal papers that were found in the bedroom, as well as the photographs depicting Spinner in the bedroom. To prove that Spinner possessed the contraband intentionally, the government stressed the presence of Spinner’s fingerprints on the .45 caliber bullet, the box of .44 caliber ammunition, and the drug price list. It also introduced evidence of Spinner’s “other crimes” pursuant to Federal Rule of Evidence 404(b) in order to show Spinner’s intent to possess the contraband. In particular, the jury heard evidence that prior to his arrest Spinner had unlawfully possessed a semiautomatic handgun with an obliterated serial number, and that he had sold 25 zi-plock bags of crack to an undercover officer in front of the house at which the search warrant was executed.

To make the case that the weapon recovered from the closet of the upstairs bedroom met the statutory definition of “semiautomatic assault weapon,” the government introduced the testimony of Richard A. Turner, a firearms enforcement officer employed by the Bureau of Alcohol, Tobacco and Firearms. The district court permitted Turner to testify as an expert “concerning firearms, ammunition, identification, operation and design.”

The statutory term “semiautomatic assault weapon” includes:

a semiautomatic rifle that has an ability to accept a detachable magazine and has at least 2 of—
(i) a folding or telescoping stock;
(ii) a pistol grip that protrudes conspicuously beneath the action of the weapon;
(iii) a bayonet mount;
(iv) a flash suppressor or threaded barrel designed to accommodate a flash suppressor; and
(v) a grenade launcher.

18 U.S.C. § 921(a)(30)(B).

In response to the prosecutor’s questions, Turner described the recovered weapon, which is commonly called an AR-15 rifle, as a “semiautomatic rifle which can accept a detachable magazine.... ” This testimony more or less tracks the statutory phrase: “a semiautomatic rifle that has- an ability to accept a detachable magazine.” Next, the prosecutor asked Turner: “And what are the features, just in general, that would turn this [954]*954[particular] weapon into a semiautomatic assault weapon?” Turner responded:

Well, it has a telescoping shoulder stock. So that’s one feature. And then it has a pistol grip that extends beyond the bottom of the receiver.... By having these two features, it would put it into the classification of a semiautomatic assault weapon.

(emphasis added). Here, Turner’s language diverged from the language of the statute, which refers to a “pistol grip that protrudes conspiauously beneath the action of the weapon.” The prosecutor did not ask Turner to explain what he meant by “receiver,” nor did she ask him whether that term was equivalent to the statutory term “action.” Nor indeed did she ask any follow-up questions about Turner’s conclusion.

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Cite This Page — Counsel Stack

Bluebook (online)
152 F.3d 950, 332 U.S. App. D.C. 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-richard-paul-spinner-iii-cadc-1998.