United States v. Elmowsky ( 2023 )

22-562
United States v. Elmowsky
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 18th day of May, two thousand twenty-three.
PRESENT:
SUSAN L. CARNEY,
RICHARD J. SULLIVAN,
EUNICE C. LEE,
Circuit Judges.
_________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 22-562
PAUL ELMOWSKY,
Defendant-Appellant.
__________________________________________
For Defendant-Appellant: MICHAEL K. BURKE, Hodges Walsh &
Burke, LLP, White Plains, NY.
For Appellee: JEFFREY C. COFFMAN (James F.
McMahon, David Abramowicz, on the
brief), Assistant United States Attorneys,
for Damian Williams, United States
Attorney for the Southern District of
New York, New York, NY.
Appeal from a judgment of the United States District Court for the Southern
District of New York (Nelson S. Román, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Paul Elmowsky appeals from his judgment of conviction following a jury
trial in which he was found guilty of possessing an unregistered short-barreled
rifle (the “Uzi”), in violation of 26 U.S.C. §§ 5845(a)(4) and 5861(d). The district
court thereafter sentenced Elmowsky to a term of three months’ imprisonment, to
be followed by two years’ supervised release, the first nine months of which would
be served on home detention. On appeal, Elmowsky raises four challenges to his
conviction, which we address in turn. We assume the parties’ familiarity with the
underlying facts, procedural history, and issues on appeal.
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First, Elmowsky contends that his prosecution was time-barred, asserting
that the three-year limitations period prescribed by 26 U.S.C. § 6531 began to run
when the Uzi was transferred to him in September 1991, thus expiring decades
before he was indicted on November 9, 2020. We disagree. We review a district
court’s application of a statute of limitations de novo. See United States v. Sampson,
898 F.3d 270, 276 (2d Cir. 2018). Limitations periods “normally begin to run when
a crime is complete,” and for offenses that “involve[] a prolonged course of
conduct,” this means when the “conduct has run its course.” United States v.
Eppolito, 543 F.3d 25, 46 (2d Cir. 2008) (internal quotation marks omitted).
Because section 5861 makes it unlawful “to receive or possess a firearm which is not
registered,” 26 U.S.C. § 5861(d) (emphasis added), it is a continuing offense that
“ceases only when the possession stops,” United States v. Estevez, 961 F.3d 519, 528
(2d Cir. 2020) (internal quotation marks omitted). Thus, the three-year limitations
period did not commence when Elmowsky received the Uzi in September 1991,
but rather when Elmowsky’s possession of it ended on December 31, 2018. As a
result, Elmowsky’s 2020 indictment was clearly timely. 1
1 Although Elmowsky relies extensively on the Tenth Circuit’s vintage decision in Waters v.
United States, 328 F.2d 739, 740–44 (10th Cir. 1964), that case is not to the contrary, as there the
information was filed more than three years after the date of the alleged illegal possession.
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Second, Elmowsky argues that a new trial is warranted because the
government violated Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United
States, 405 U.S. 150 (1972), by failing to timely disclose a certain Bureau of Alcohol,
Tobacco, Firearms and Explosives (“ATF”) form, known as ATF Form 4473, which
documents firearm transfers. Elmowsky does not dispute that the government
produced before trial an ATF Form 4473 documenting the 1991 transfer of the Uzi
from a federally licensed firearms dealer to Elmowsky (the “Uzi 4473”). He
nonetheless asserts that the government suppressed until trial an ATF Form 4473
documenting the transfer of a different gun from the same dealer to a different
customer (the “Glock 4473”), a transfer that just happened to bear the same
transaction number as the Uzi 4473. Having “conduct[ed] an independent
examination of the record,” United States v. Zagari, 111 F.3d 307, 320 (2d Cir. 1997),
we conclude that the government’s late disclosure of the Glock 4473 did not
constitute a Brady or Giglio violation.
To establish such a violation, “a defendant must show that: (1) the
[g]overnment, either willfully or inadvertently, suppressed evidence; (2) the
evidence at issue is favorable to the defendant; and (3) the failure to disclose this
evidence resulted in prejudice.” United States v. Coppa, 267 F.3d 132, 140 (2d Cir.
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2001). Even assuming that the government suppressed the Glock 4473 for some
period of time, Elmowsky cannot explain how the document was favorable to
him – either as exculpatory evidence or as a basis for impeaching the ATF witness.
Nor has Elmowsky explained how the trial’s outcome would have been any
different had the document been disclosed prior to, rather than during, trial. See
id. at 141–42 (“[W]e have never interpreted due process of law as requiring more
than that Brady material must be disclosed in time for its effective use at trial.”);
see also Strickler v. Greene, 527 U.S. 263, 281 (1999) (noting that nondisclosure will
result in a new trial only if the evidence was material, meaning there is “a
reasonable probability that the suppressed evidence would have produced a
different verdict”).
Third, Elmowsky asserts that there was insufficient evidence to prove the
knowledge element of the charged offense. Again, we disagree. A defendant
challenging the sufficiency of the evidence faces an “exceedingly deferential
standard of review.” United States v. Hassan, 578 F.3d 108, 126 (2d Cir. 2008). A
reviewing court must view the evidence “in its totality,” United States v. Cassese,
428 F.3d 92, 98–99 (2d Cir. 2005), drawing “[a]ll permissible inferences . . . in the
government’s favor,” United States v. Guadagna, 183 F.3d 122, 129 (2d Cir. 1999), to
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“determine whether . . . a reasonable mind might fairly conclude guilt beyond a
reasonable doubt,” United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000) (internal
quotation marks omitted). Applying that standard here, we are confident that
ample evidence supported the jury’s finding that Elmowsky satisfied section
5861(d)’s knowledge requirement.
To be convicted under section 5861(d), Elmowsky must have “kn[own] of
the characteristics of his weapon that made it a ‘firearm’” as statutorily defined.
Staples v. United States, 511 U.S. 600, 604 (1994); see also 26 U.S.C. § 5845(a)(4)
(defining a “firearm” to include “a weapon made from a rifle if such weapon as
modified has an overall length of less than 26 inches or a barrel or barrels of less
than 16 inches in length”); id. § 5845(c) (defining rifle). The government
presented more than sufficient evidence on this score, including testimony and
exhibits demonstrating that (1) the Uzi’s total length was approximately twenty-
four inches and its barrel was approximately eight inches, see App’x at 137, 377;
(2) the Uzi was engraved with the word “carbine,” which refers to a type of rifle,
and was cut down from a factory barrel length of more than sixteen inches, id. at
130, 394–400; (3) Elmowsky owned the Uzi for almost three decades, id. at 318, 640;
and (4) Elmowsky was admittedly very familiar with federal firearm statutes, id.
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at 317. Considering the evidence in its totality and drawing all reasonable
inferences in the government’s favor, we have no basis to disturb the jury’s verdict
for insufficiency of evidence.
Fourth, and finally, Elmowsky contends that the district court erred when it
refused to instruct the jury that he could not be convicted if he believed in good
faith that the Uzi was not a firearm as defined by 26 U.S.C. § 5845(a)(4). We
review a challenge to the district court’s jury instructions de novo. See United
States v. Naiman, 211 F.3d 40, 50–51 (2d Cir. 2000). When a defendant claims that
the district court misled the jury by omitting an instruction that he requested, the
defendant must demonstrate that (1) he requested a charge that “accurately
represented the law in every respect,” and (2) the charge delivered instead was
both (i) “erroneous” and (ii) “prejudicial.” United States v. Roy, 783 F.3d 418, 420
(2d Cir. 2015) (internal quotation marks omitted). Simply put, Elmowsky’s
requested charge did not accurately reflect the law, since even a good-faith belief
that the Uzi did not need to be registered is not a defense to the general-intent
crime embodied in section 5861(d). See Staples, 511 U.S. at 604, 609, 619 (requiring
only knowledge of the characteristics of one’s weapon that make it a firearm as
defined by section 5845(a)(4)); id. at 622 n.3 (Ginsburg, J., concurring) (“The mens
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rea presumption requires knowledge only of the facts that make the defendant’s
conduct illegal, lest it conflict with the related presumption . . . that, ordinarily,
ignorance of the law or a mistake of law is no defense to criminal prosecution”
(internal quotation marks omitted)); United States v. Champegnie, 925 F.2d 54, 55 (2d
Cir. 1991) (holding that “good faith or mistaken belief” was not a defense to a
general-intent crime where “[t]he statute contain[ed] no language requiring proof
of a particular mental state”); see also App’x at 612–13 (district court so instructing
the jury).
We have considered Elmowsky’s remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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