United States of America v.  William Moye

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-4549 
WILLIAM MOYE,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, Senior District Judge.
(CR-03-528)
Argued: May 27, 2005
Decided: September 9, 2005
Before GREGORY and DUNCAN, Circuit Judges,
and HAMILTON, Senior Circuit Judge.
Reversed by published opinion. Judge Gregory wrote the majority
opinion, in which Judge Duncan concurred. Senior Judge Hamilton
wrote a separate dissenting opinion.
COUNSEL
ARGUED: William Scott Little, STARK & LITTLE, Baltimore,
Maryland, for Appellant. George Levi Russell, III, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee. ON BRIEF: Thomas M.
DiBiagio, United States Attorney, Baltimore, Maryland, for Appellee.
Rehearing en banc granted, October 18, 2005

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OPINION
GREGORY, Circuit Judge:
William Moye ("Moye") appeals his convictions for possession of
a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1), and aiding
and abetting, in violation of 18 U.S.C. § 2 (Count I); and possession
of stolen firearms, in violation of 18 U.S.C. § 922(j), and aiding and
abetting, in violation of 18 U.S.C. § 2 (Count II). Specifically, Moye
asserts that the district court erred in giving the jury an aiding and
abetting instruction, in allowing the Government to argue that flight
was evidence of guilt, and in denying his Rule 29 motion challenging
the sufficiency of the evidence. Finding error on each of these
grounds, we reverse.
I.
On August 14, 2003 at 5:30 a.m., an Anne Arundel County Police
Officer responded to a burglar alarm at Bart’s Sporting Goods Store
("Bart’s") in Anne Arundel County, Maryland. When the officer
arrived, he saw a man at the side door of the building trying to get
into a vehicle. This person was later identified as Jackie Briggs
("Briggs"). The officer also saw a person in the vehicle, who was later
identified as Courtney Cooper ("Cooper").
Cooper drove off after he saw the officer, leaving Briggs behind.
The officer engaged Cooper in a high speed chase and apprehended
him. Thirteen firearms were found inside the vehicle. Briggs was later
apprehended with two firearms in his pocket. Moye was seen by
another officer crawling out of the doorway at Bart’s after Cooper
took off. Moye ran but was caught a short time later. No weapons
were found in Moye’s possession and Moye’s fingerprints were not
on the weapons recovered from Briggs and Cooper.
At trial, a Government witness, who was qualified as an expert in
interstate nexus, testified that 14 of the 15 weapons recovered in the
burglary affected interstate commerce.1 The manager of Bart’s testi-
1One of the firearms, a Beretta, was arguably manufactured in Mary-
land and was not charged in the indictment.
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fied that all of the weapons recovered were owned by Bart’s and func-
tioned properly. An Alcohol, Tobacco and Firearms Special Agent
testified that he tested five of the guns and that they each functioned
properly.2 The Government also introduced a Certified Record of
Conviction Under Seal showing that Moye had previously been con-
victed of a felony handgun violation as well as a certificate of the
non-restoration of Moye’s civil rights. The defense objected to the
introduction of the records without a person being present to testify,
but the district court overruled its objection.
During the charge conference, the Government asked for a "flight
as evidence of guilt" instruction but after objection by the defense, the
district court declined to give it, stating that there was only evidence
that Moye fled because of the burglary, not that he fled because of the
federal crimes at issue. However, the district court did allow the Gov-
ernment to argue "flight as evidence of guilt" in its closing argument.
In addition, the district court, also over the defense’s objection,
granted the Government’s request for an aiding and abetting instruc-
tion.
The defense moved for a directed verdict under Fed. R. Crim. P.
29 after the Government’s case. The district court reserved ruling on
it until after the jury’s verdict. After the jury returned a guilty verdict
on both counts, the defense renewed its motion and after the submis-
sion of additional memoranda on several issues by both sides, the dis-
trict court sustained Moye’s convictions. This timely appeal followed.
II.
Moye challenges his convictions on three grounds. He asserts that
the district court erred in giving the jury an aiding and abetting
instruction, in allowing the prosecution to argue that flight was evi-
2For some unknown reason, all of the weapons were returned to Bart’s
eleven days after the burglary, and by the time of trial all but five of the
weapons had been sold and thus were not available as evidence. The dis-
trict court, upon request by the defense, split the verdict form into Count
I-A containing the five guns in evidence and Count I-B containing the
other guns not in evidence. However, the defense does not raise an objec-
tion to the split verdict form on appeal.
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dence of guilt, and in denying his Rule 29 motion based on the suffi-
ciency of the evidence. Because Moye’s first two claims overlap with
his latter sufficiency claim, we address them as part of his sufficiency
claim.
A.
In this case, the indictment charged Moye with being a felon in
possession, Count I, and possessing stolen firearms, Count II, as well
as aiding and abetting in relation to each count. We begin with a
determination of whether sufficient evidence existed to convict Moye
of himself being a felon in possession, or himself possessing stolen
firearms. In reviewing the sufficiency of the evidence, this Court must
determine whether, construing the evidence in the light most favor-
able to the government, any reasonable trier of fact could have found
the defendant guilty beyond a reasonable doubt. United States v. Tres-
vant, 677 F.2d 1018, 1021 (4th Cir. 1982). The Court must "allow the
government the benefit of all reasonable inferences from the facts
proven to those sought to be established" in making this determina-
tion. Id.
Count I charged Moye with a violation of 18 U.S.C. § 922(g)(1),
which makes it unlawful for any person "who has been convicted in
any court of, a crime punishable by imprisonment for a term exceed-
ing one year" to possess a firearm, which has been shipped or trans-
ported in interstate commerce. 18 U.S.C. § 922(g)(1) (2000). Moye
does not challenge his status as a convicted felon.3 Rather, the ques-
tion is whether sufficient evidence existed for the jury to find beyond
a reasonable doubt that Moye possessed one of the weapons charged
in the indictment. Possession may be actual or constructive, United
States v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992), but because the
3Moye does challenge the district court’s admission of the certified
court record of his prior conviction and a fingerprint report comparing
Moye’s fingerprints taken at the time of his arrest to his fingerprints
taken at the time of his prior conviction. His argument is apparently
based on authenticity and hearsay. Because each record is a self-
authenticating public document under Fed. R. Evid. 902(4), and within
the hearsay exceptions of Fed. R. Evid. 803(8) and 803(22), this argu-
ment is meritless.
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Government did not allege that Moye ever actually possessed a
weapon, we consider constructive possession only. Constructive pos-
session is established if it is shown "that the defendant exercised, or
had the power to exercise, dominion and control over the item." Id.
The possession can be shared with others. United States v. Burgos, 94
F.3d 849, 873 (4th Cir. 1996). However, mere presence at the location
where contraband is found is insufficient to establish possession.
United States v. Samad, 754 F.2d 1091, 1096 (4th Cir. 1984). "There
must be some action, some word, or some conduct that links the indi-
vidual to the [contraband items] and indicates that he had some stake
in them, some power over them. There must be something to prove
that the individual was not merely an incidental bystander." United
States v. Pardo, 636 F.2d 535, 549 (D.C. Cir. 1980).
The evidence here, taken in the light most favorable to the Govern-
ment, is insufficient to establish that Moye constructively possessed
any of the weapons. The only evidence the Government presented to
support constructive possession was that Moye was present in the
same location from which the guns were stolen. However, as noted,
mere presence is insufficient to establish possession. No fingerprints
or other physical evidence link Moye to the guns. The Government
did not present testimony that Moye had been seen with any of the
guns. Because no evidence exists that Moye was ever in a position to
exercise dominion and control over the weapons, we conclude that
insufficient evidence existed for the jury to find beyond a reasonable
doubt that Moye was a felon in possession.
Under Count II, to be convicted of possessing stolen firearms per
18 U.S.C. § 922(j), the Government must prove: (1) that the defen-
dant possessed the firearm described in the indictment; (2) that at the
time the defendant possessed it, the firearm was stolen; (3) that the
defendant acted knowingly; and (4) that the firearm had at some time
traveled in interstate commerce. 18 U.S.C. § 922(j) (2000). Given our
finding on Count I, Moye could not be convicted of himself possess-
ing stolen firearms because no evidence existed from which the jury
could infer that Moye was in constructive possession of stolen fire-
arms.
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B.
Thus, we must consider whether the jury could have instead con-
victed Moye of aiding and abetting a felon in possession under Count
I or aiding and abetting the possession of stolen firearms under Count
II. Title 18 U.S.C. § 2(b) provides that "[w]hoever willfully causes an
act to be done which if directly performed by him or another would
be an offense against the United States, is punishable as a principal."
18 U.S.C. § 2(b) (2000). A defendant is guilty of aiding and abetting
if he has "knowingly associated himself with and participated in the
criminal venture." United States v. Burgos, 94 F.3d 849, 873 (4th Cir.
1996) (quoting United States v. Winstead, 708 F.2d 925, 927 (4th Cir.
1983)). To prove association, the Government must establish that the
defendant participated in the principal’s criminal intent, which
requires that a defendant be cognizant of the principal’s criminal
intent and the lawlessness of his activity. Id. "Participation at every
stage of an illegal venture is not required, only participation at some
stage accompanied by knowledge of the result and intent to bring
about that result." Id. (quoting United States v. Arrington, 719 F.2d
701, 705 (4th Cir. 1983)). It is implicit in a charge of aiding and abet-
ting that the underlying crime was committed by someone other than
the defendant. United States v. Samaria, 239 F.3d 228, 234-35 (2d
Cir. 2001). The district court instructed the jury on aiding and abet-
ting after explaining the elements of Counts I and II.4 Specifically, the
court stated:
. . . you may find Mr. Moye guilty of the offenses charged
if you find beyond a reasonable doubt that the Government
has prove[n] that another person actually committed the
offense with which he is charged and that the defendant
aided or abetted that person in the commission of the crime.
4During trial, outside the presence of the jury, Moye’s attorney stated
that he thought the Government’s request for an aiding and abetting
instruction was improper because Moye was the only defendant on trial
and stated "I don’t know how you aid and abet yourself." J.A. 129. The
district court responded that, "Well, I don’t have a problem with that."
Id.
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J.A. 226. During closing arguments, the Government relied heavily
on an aiding and abetting theory, stating that Moye "didn’t go inside
the store at 5:30 in the morning by mistake," id. at 241, and arguing
that the fact that "he was inside this store at the time when the police
arrived is clear evidence and absolutely convincing evidence that he
was part of or certainly aided and abetted in this burglary of this
store," id. at 252.
After the jury returned a verdict of guilty on both counts, the
defense moved for a directed verdict. In discussing the issues to be
addressed in supplemental briefing on the motion for a directed ver-
dict, the district court noted: "Aiding and Abetting doesn’t work. The
joint possession could work to convict your client. . . . Aiding and
abetting requires [ ] somebody else to have committed the crime.
Nobody else committed the crime." Id. at 263.5
Before addressing the sufficiency of the evidence as to aiding and
abetting under Count I, we must decide the preliminary question of
whether it was even proper for the district court to instruct the jury
on aiding and abetting as to Count I. Moye argues that the aiding and
abetting instruction was improper as to Count I because the Govern-
ment presented no evidence that he aided and abetted other convicted
felons in their possession of firearms. The Government responds by
arguing that because aiding and abetting is implicit in all indictments
the district court properly instructed the jury on the charge.
We review the decision of the district court to deliver a particular
jury charge for abuse of discretion. United States v. Russell, 971 F.2d
1098, 1107 (4th Cir. 1992). An aiding and abetting instruction, like
all jury instructions, is proper only "if there is a foundation in evi-
dence to support it." United States v. Schnabel, 939 F.2d 197, 203-04
(4th Cir. 1991).
During oral argument, the AUSA conceded that giving the jury an
aiding and abetting instruction on Count I was error. It is clear that
5The district court also instructed the jury on joint possession stating
that "it’s possible that more than one person may have the power and
intention to exercise control over a firearm. This is called joint posses-
sion." J.A. 223-24.
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no foundation in the evidence supported an aiding and abetting
instruction as to this count because the Government introduced no
evidence that Briggs or Cooper were felons. The district court erred
as a matter of law in giving the instruction on this count as it was a
logical impossibility for the instruction to apply to Count I, felon in
possession.
Finding an abuse of discretion, we must still engage in further
harmless error review per Fed. R. Crim. P. 52. Under such review, an
error will be found harmless if we are able to conclude, "‘with fair
assurance, after pondering all that happened without stripping the
erroneous action from the whole, that the judgment was not substan-
tially swayed by the error.’" United States v. Weaver, 282 F.3d 302,
314 (4th Cir. 2002) (quoting United States v. Brooks, 111 F.3d 365,
371 (4th Cir. 1997)). Because we conclude, supra at 4-5, that the evi-
dence was insufficient to find Moye guilty of himself being a felon
in possession, erroneously giving the jury the aiding and abetting
instruction (the only remaining Government theory of guilt on Count
I) could not be harmless error. Because giving the instruction itself
was improper, sufficient evidence did not exist as to aiding and abet-
ting in Count I.
Finally, we turn to whether sufficient evidence existed for the jury
to find that Moye aided and abetted Briggs and Cooper in their pos-
session of stolen firearms under Count II. To aid and abet, Moye must
have been cognizant of Briggs and/or Cooper’s criminal intent and the
lawlessness of their activity as well as have participated in their crimi-
nal venture to possess stolen firearms. In addition, the evidence must
have supported a finding that Briggs and/or Cooper possessed stolen
firearms (as one cannot aid and abet something that is not a crime).
Moye does not dispute that the evidence was sufficient to support
a finding that Briggs and Cooper possessed stolen firearms. But to be
found guilty, the jury would have had to find that Moye also knew
of Briggs and Cooper’s specific criminal intent to possess stolen fire-
arms and that he in some way participated in this criminal venture.6
6Thus, Moye knowing only that Briggs and/or Cooper had the intent
to steal something in the sporting goods store would be insufficient, he
must have known of their specific intent to possess the stolen firearms.
Indeed, as the AUSA conceded during oral argument, other items besides
firearms were stolen from Bart’s.
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The Government’s theory is that Moye was either helping Briggs and
Cooper steal the guns or that he was serving as a lookout. However,
the Government’s lookout argument is contradicted by its own clos-
ing argument that Moye was not acting as a lookout. See J.A. 236
("He wasn’t standing outside the store looking as a guard or a look-
out."); id. at 240 ("He wasn’t standing outside the door that night.").
The Government’s "help" argument suffers from the same flaw as the
constructive possession argument — absolutely no evidence exists to
demonstrate that Moye was ever in a position to exercise dominion
and control over the guns.
Instead, the basis of the Government’s case against Moye rests
entirely on his presence at Bart’s Sporting Goods that night as well
as his flight from the scene. As for the flight evidence, Moye contends
that the Government’s argument in closing that his flight was evi-
dence of his guilt was improper because the jury could have used the
evidence of his flight from the burglary to convict him on the posses-
sion of stolen firearms charge. The Government stated in closing:
And finally ladies and gentlemen, I ask you to consider what
is it that Mr. Moye did when Officer Walters drove up and
saw him coming out of that door, saw him right there at the
opening getting down there at the entrance to the door?
What is it that he did when he saw Officer Walters? Didn’t
stop. . . . He ran. And I submit to you, ladies and gentlemen,
that you can use that as consciousness of Mr. Moye’s guilt.
He ran, ladies and gentleman.
J.A. 242.
A trial court possesses broad discretion to control closing argu-
ment, and its discretion is not to be overturned absent a showing of
clear abuse. United States v. Grabiec, 563 F.2d 313, 319 (7th Cir.
1977); United States v. Davis, 557 F.2d 1239, 1244-45 (8th Cir.
1977). If a trial court abuses its discretion in addressing an objection
to closing argument, such abuse will justify reversal of a conviction
only if it constitutes prejudicial error. See United States v. Young, 470
U.S. 1, 13 n.10 (1985) (explaining that reviewing court may reverse
otherwise proper conviction only after concluding that error was not
harmless). On the other hand, we review for plain error an issue con-
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cerning closing argument to which no timely objection was made. See
United States v. Adam, 70 F.3d 776, 780 (4th Cir. 1995) (observing
that contentions concerning argument are reviewed for plain error
when defense did not timely object).
The parties dispute which standard of review properly applies here.
Moye’s counsel did not object during the Government’s closing argu-
ment. However, prior to closing argument, the Government requested
a "flight as evidence of guilt" jury instruction and the district court
declined to give it instead allowing the Government to comment on
Moye’s flight in closing. Moye’s counsel did object at this time and
thus we find that he preserved this issue for appeal.
We have noted that, "It cannot be doubted that in appropriate cir-
cumstances, a consciousness of guilt may be deduced from evidence
of flight and that a jury’s finding of guilt may be supported by con-
sciousness of guilt." United States v. Obi, 239 F.3d 662, 665 (4th Cir.
2001). Yet "the jury’s consideration of evidence of flight requires that
it be able, from the evidence, to link such flight to consciousness of
guilt of the crime for which the defendant is charged." Id. Evidence
is required supporting all of the inferences in the causal chain
between flight and guilt. Id. To establish this causal chain, evidence
must be presented that the defendant fled (or attempted to flee) and
which supports inferences that (1) the defendant’s flight was the prod-
uct of consciousness of guilt, and (2) his consciousness of guilt was
in relation to the crime with which he was ultimately charged and
which the evidence is offered.7 Id.
Here, the evidence presented of Moye fleeing from a burglarized
building in the middle of the night certainly supports an inference that
the flight was the product of consciousness of guilt. However, no evi-
dence supports the inference that his consciousness of guilt was the
product of the federal offenses ultimately charged (rather than the
burglary). Indeed, the district court seemingly recognized this when
it declined the Government’s request for a "flight as evidence of guilt"
jury instruction, stating "there’s no evidence, I can’t conceive there’d
7While we established this test in the context of evaluating whether a
district court erred in giving a "flight as evidence of guilt" jury instruc-
tion, it is also instructive in the context of a closing argument.
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ever be evidence that he was fleeing not because he was involved in
a burglary, but because of these federal crimes. So it would just mis-
lead the jury." J.A. 150. Thus, the district court abused its discretion
in allowing the Government to present this same argument in closing.8
As to Moye’s presence at the scene of the crime, mere presence at
the scene of a crime, as repeatedly recognized, is insufficient to sup-
port a conviction for aiding and abetting. See, e.g., United States v.
Spoone, 741 F.2d 680, 686 (4th Cir. 1984); United States v. Paige,
324 F.2d 31 (4th Cir. 1963); United States v. Bonty, 383 F.3d 575,
579 (7th Cir. 2004); United States v. Delgado-Uribe, 363 F.3d 1077,
1084 (10th Cir. 2004); United States v. Sorrells, 145 F.3d 744, 753
(5th Cir. 1998). The district court correctly instructed the jury that
presence alone was insufficient, stating:
The mere presence of a defendant where a crime is being
committed even coupled with knowledge by the defendant
that a crime is being committed or the mere acquiescence by
a defendant in the criminal conduct of others even with
guilty knowledge is not sufficient to establish aiding and
abetting. . . .
J.A. 227.
While presence at the scene of a crime combined with evidence of
participation in the criminal venture could be circumstantial evidence
from which a jury might infer aiding and abetting, such is not the case
here because no evidence was introduced of Moye’s participation in
8Harmless error review also applies to the district court’s decision to
allow this argument in closing. The majority of the Government’s clos-
ing focused on Moye’s presence inside the burglarized store that night.
It argued to the jury that Moye would not be present inside the store in
the middle of the night if he was not assisting Briggs and Cooper. The
flight argument buttressed this argument by contending that Moye would
not have run if he had been present innocently in the store. As we find,
infra at 11, that Moye’s presence in the store alone was insufficient to
sustain his convictions, the improper flight argument could not have been
harmless because we cannot conclude that the flight argument did not
substantially sway the jury’s finding of guilt.
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Briggs’ and/or Cooper’s criminal venture to possess stolen firearms.
The Government introduced no evidence that Moye had been previ-
ously seen with Briggs and/or Cooper or that he even knew them.
Because participation in a criminal venture cannot be inferred from
presence alone, the jury had no evidence to link him to the criminal
venture. Without any circumstantial evidence demonstrating that
Moye participated in the criminal venture, aside from his presence at
the scene, the evidence was not sufficient to support a conviction for
aiding and abetting.
In light of the lack of any other evidence supporting an inference
that Moye aided and abetted the possession of stolen firearms, we find
the conclusion inescapable that a reasonable jury could not have
found Moye guilty of Count II beyond a reasonable doubt.9
III.
In sum, review of the evidence persuades us that the Government
has not carried its burden of proving Moye’s guilt on Counts I and II
beyond a reasonable doubt. Accordingly, we reverse his convictions
on both counts.
REVERSED
HAMILTON, Senior Circuit Judge, dissenting:
Because there is sufficient evidence in the record to support Wil-
liam Moye’s convictions on both Counts One and Two of the indict-
ment, I respectfully dissent from the court’s decision to reverse the
convictions.
I
At 5:30 a.m. on August 14, 2003, Anne Arundel County police
officer Kurt Listman responded to a burglar alarm at Bart’s Sporting
9We find only that the evidence was not sufficient on the federal
crimes of being a felon in possession and possessing stolen firearms.
Whether sufficient evidence existed to convict him under state law is not
the issue before us.
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Goods store at 6814 Richie Highway in Anne Arundel County, Mary-
land. When Officer Listman arrived, he saw a car parked next to the
side door leading into the store. Officer Listman saw a person, who
was later identified as Courtney Cooper, behind the wheel of the car,
and another person, who was later identified as Jackie Briggs, trying
to get into the car.
As Briggs tried to get into the car, Cooper sped off, leaving Briggs
behind. Cooper eventually was apprehended after a high-speed chase.
Briggs, who fled on foot, was also apprehended. The car was found
to contain thirteen firearms and two more were recovered on Briggs’
person.1 The fingerprints of Cooper, Briggs, and Moye were not
found on any of the firearms.
As Officer Listman was "taking off" to chase Cooper, another
Anne Arundel County police officer, Matthew Walters, spotted Moye
crawling out of the store’s side doorway, which was no longer being
used as an entrance. In fact, the doorway was blocked by permanent
shelving divided into cubbyholes that were approximately eighteen
inches by eighteen inches in size. (Government’s Exhibits 2c, 2f).
Directly on the other side of the cubbyholes was a set of side-by-side
doors used to hide, with the use of pegboard and merchandise, the
cubbyholes from the store’s retail space. (Government’s Exhibit 2h).
The distance between the side-by-side doors and the store’s gun dis-
play cabinets, which ran perpendicular to the doors, is approximately
three feet. (Government’s Exhibits 2g, 2h).
Officer Walters saw Moye crawling out of the store through the
cubbyhole below the side door’s knob. This cubbyhole was the only
one that was not cluttered with boxes and/or store equip-
ment/merchandise. (Government’s Exhibits 2c, 2f). After Moye
escaped through the cubbyhole, he fled on foot, but was later appre-
hended.2
1The car was later determined to be stolen.
2The side door had pry marks on it, indicating a forced entry. A screw-
driver was recovered next to the door, and the government presented evi-
dence that the screwdriver could have been used to make the forced
entry.
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II
The majority concludes that there is insufficient evidence in the
record to support Moye’s convictions under both Counts One and
Two. I strongly disagree. In my view, the evidence in the record is
more than sufficient to sustain Moye’s convictions.
Moye’s convictions must be upheld if "there is substantial evi-
dence, taking the view most favorable to the Government," to support
them. Glasser v. United States, 315 U.S. 60, 80 (1942). "[S]ubstantial
evidence is evidence that a reasonable finder of fact could accept as
adequate and sufficient to support a conclusion of a defendant’s guilt
beyond a reasonable doubt." United States v. Burgos, 94 F.3d 849,
862 (4th Cir. 1996) (en banc). Moreover, we can reverse a conviction
on insufficiency grounds only when the "prosecution’s failure is
clear." United States v. Jones, 735 F.2d 785, 791 (4th Cir. 1984) (cita-
tion and internal quotation marks omitted). In evaluating the suffi-
ciency of the evidence to support a criminal conviction, we assume
that the jury resolved all contradictions in the testimony in favor of
the government. United States v. Sun, 278 F.3d 302, 313 (4th Cir.
2002). Finally, where the evidence supports differing reasonable
interpretations, the jury will decide which interpretation to accept.
United States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997).
Count One charged Moye with a violation of 18 U.S.C.
§ 922(g)(1), which makes it unlawful for any person "who has been
convicted in any court of, a crime punishable by imprisonment for a
term exceeding one year" to possess a firearm, which has been
shipped or transported in interstate commerce. 18 U.S.C. § 922(g)(1).
Under Count Two, which charged Moye with possessing stolen fire-
arms in violation of 18 U.S.C. § 922(j), the government had to prove
that: (1) Moye possessed a firearm described in the indictment; (2) at
the time he possessed it, the firearm was stolen; (3) Moye acted
knowingly; and (4) the firearm had at some time traveled in interstate
commerce. 18 U.S.C. § 922(j).
Under our possession jurisprudence, possession can be actual or
constructive. United States v. Rusher, 966 F.2d 868, 878 (4th Cir.
1992). Constructive possession is established if it is shown "that the
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defendant exercised, or had the power to exercise, dominion and con-
trol over the item." Id.
According to the majority, the record evidence falls short of the
sufficiency mark because there is no evidence that Moye construc-
tively possessed any of the weapons recovered. To support this con-
clusion, the majority posits that the "only evidence the Government
presented to support constructive possession was that Moye was pres-
ent in the same location from which the guns were stolen." Ante at 5.
The majority adds that no fingerprints or other physical evidence
linked Moye to the guns. The majority further posits that the "Gov-
ernment did not present testimony that Moye had been seen with any
of the guns." Ante at 5. Finding that there is no evidence of construc-
tive possession, the majority concludes that the evidence is insuffi-
cient to convict on Counts One and Two.
With all due respect to the majority, no leap of faith is necessary
to conclude that Moye possessed these weapons as they made their
way from the store to Briggs’ person and the getaway car. In fact,
when the circumstantial evidence is viewed collectively and in a light
most favorable to the government, Glasser, 315 U.S. at 80, the jury
unquestionably was entitled to conclude that Moye entered the store
through the uncluttered cubbyhole, broke into the cabinets displaying
the firearms, removed the firearms from such cabinets, and then
passed them back through the same cubbyhole to the awaiting Briggs,
who then put thirteen firearms in the car and kept two for himself.3
3During its closing argument to the jury, the government made this
precise argument to the jury:
[C]ircumstantial evidence would indicate that it must have been
him that took the guns out of the store. It had to have been him.
There was nobody else in the store. And clearly, as common
sense indicates, those guns didn’t miraculously jump into the
back of the car or jump into Briggs’ pockets. . . . Someone had
to take those things out, push them through that hole and hand
them off to put them in that car and for Jackie Briggs to have
them in his pocket and the only person in that store was William
Moye.
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The circumstantial evidence begins with the manner in which the
robbery was carried out. The getaway car’s location next to the side
door, the forced entry, and the fact that the store had an alarm all sug-
gest that Cooper, Briggs, and Moye knew this was a race against time.
The next two pieces of circumstantial evidence are the size of the
cubbyholes blocking the doorway and the fact that only one of the
cubbyholes was uncluttered. (Government’s Exhibits 2c, 2f). From
these facts, the jury was entitled to draw the reasonable inference that
only one person, Moye, as opposed to all three individuals, entered
the store to retrieve and then remove the firearms. Indeed, given the
exceedingly small size of the entry space, it would have made little
sense, in terms of efficiency, for Cooper, Briggs, and Moye to enter
the store. Clearly, having one person in the store allowed for quick
and easy access to everything in the store and allowed the items to be
quickly passed through the uncluttered cubbyhole. The jury obviously
was entitled to use its common sense and conclude that this tactic
made eminently more sense than having two, or perhaps three, people
enter the store through the small cubbyhole.4
The final pieces of circumstantial evidence are the time of the
forced entry and Moye’s flight. Given the hour of the forced entry
(5:30 a.m.), the jury was entitled to conclude that Moye was not pres-
ent at the scene for an innocent purpose. In addition, the jury unques-
tionably was entitled to draw the reasonable inference that Moye fled
because he knew he was prohibited under federal law from possessing
firearms. Cf. United States v. Obi, 239 F.3d 662, 665 (4th Cir. 2001)
("It cannot be doubted that in appropriate circumstances, a conscious-
ness of guilt may be deduced from evidence of flight and that a jury’s
finding of guilt may be supported by consciousness of guilt.").
According to the majority, the evidence presented to the jury in this
case suggests, at most, that Moye merely was "present in the same
location from which [the] guns were stolen." Ante at 5. Of course, the
jury was at liberty to reach this same conclusion, but was not required
to do so. As discussed above, a second reasonable interpretation of
4Along a similar vein, the jury was entitled to view Moye as a prime
candidate to be the inside man in the robbery of the firearms. Officer
Walters described Moye as a man with a "small frame, small build."
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the evidence is that Moye was the inside man in a hit-and-run rob-
bery. In the race against time, the firearms had to quickly make their
way from inside the store through the single uncluttered eighteen inch
by eighteen inch cubbyhole to Briggs’ person and the getaway car. A
reasonable interpretation of the record evidence is that Moye crawled
into the store, removed the firearms, and then passed them through
the cubbyhole to the awaiting Briggs.5 With two reasonable interpre-
tations available to the jury, it was for the jury, not this court, to
decide which version was more credible. Wilson, 118 F.3d at 234.
To be sure, as appellate judges, we enjoy no greater vantage point
on appeal than did the jury at trial and we have no right to usurp the
jury’s role to find facts. Glasser, 315 U.S. at 80. If we did otherwise,
we would be doing exactly what the majority has done here—
substituting our judgment for that of the jury. In this case, the jury
was entitled to reach the reasonable and quite unremarkable conclu-
sion that Moye possessed the firearms as they made their way from
the store to Briggs’ person and the getaway car.
The only remaining question in the case concerns the district
court’s aiding and abetting instruction. The majority concedes that the
instruction was permissible under Count Two. With regard to Count
One, the district court’s aiding and abetting instruction was, at most,
harmless error. Through the court’s instructions, the jury could not
have convicted Moye of Count One, which charged him with a felon-
in-possession violation, under an aiding and abetting theory because
there was no evidence that either Cooper and/or Briggs were felons.
Thus, the jury could not have concluded that Moye aided and abetted
either Cooper or Briggs in the commission of a felon-in-possession
violation. The only way the jury could have convicted Moye under
Count One was to conclude that Moye actually or constructively pos-
sessed the firearms at issue. As noted above, the evidence amply sup-
5The majority makes much of the fact that Moye’s fingerprints were
not found on any of the firearms. However, as explained by the govern-
ment’s expert witness, more often than not, fingerprints are not recovered
from firearms. Indeed, the government’s expert noted that firearms are
manufactured to prevent the accumulation of fingerprints. Given this tes-
timony, it is not surprising that the fingerprints of Cooper, Briggs, and
Moye were not found on any of the firearms.
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ports the conclusion that Moye possessed the firearms as they made
their way from the store to Briggs’ person and the getaway car.
For these reasons, I would affirm Moye’s convictions.
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