United States v. Moye ( 2006 )

ON REHEARING EN BANC
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: March 16, 2006
Decided: July 24, 2006
Before WILKINS, Chief Judge, WIDENER, WILKINSON,
NIEMEYER, LUTTIG,1 WILLIAMS, MICHAEL, MOTZ,
TRAXLER, KING, GREGORY, SHEDD, and DUNCAN,
Circuit Judges, and HAMILTON, Senior Circuit Judge.
Affirmed by published opinion. Senior Judge Hamilton wrote the
opinion for the court, in which Chief Judge Wilkins and Judges Wid-
ener, Wilkinson, Niemeyer, Williams, Traxler, King, Shedd, and
Duncan joined, and in which Judges Michael and Motz joined as to
Parts I and IIA and B. Judge Motz wrote an opinion concurring in part
and concurring in the judgment, in which Judge Michael joined.
Judge Gregory wrote an opinion dissenting in part.
1
Judge Luttig was a member of the original en banc panel but did not
participate in this decision.
2 UNITED STATES v. MOYE
COUNSEL
ARGUED: William Scott Little, STARK & LITTLE, Baltimore,
Maryland, for Appellant. Rod J. Rosenstein, United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee. ON BRIEF: Thomas M. DiBiagio, United
States Attorney, George L. Russell, III, Assistant United States Attor-
ney, Baltimore, Maryland, for Appellee.
OPINION
HAMILTON, Senior Circuit Judge:
William Moye appeals his convictions for being a felon in posses-
sion of firearms, 18 U.S.C. § 922(g)(1), and possession of stolen fire-
arms, id. § 922(j). For the reasons stated below, we affirm.
I
A
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
Goods store at 6814 Richie Highway in Anne Arundel County, Mary-
land. When Officer Listman arrived, he saw a car parked next to a
door on the side of 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 taken from the store. Two more firearms
taken from the store were recovered on Briggs’ person. The finger-
prints of Cooper, Briggs, and Moye were not found on any of the fire-
arms.
UNITED STATES v. MOYE 3
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. The side door to the store
was no longer being used as an entrance because the side doorway
leading into the store was framed with timber which created ten stor-
age cubbyholes, each approximately eighteen inches by eighteen
inches in size. (Government’s Exhibits 2c, 2f). From the store’s inte-
rior, an employee had easy access to the cubbyholes because the cub-
byholes were located directly behind a set of hinged side-by-side
doors used to hide, with the use of pegboard and merchandise, the
cubbyholes from the store’s retail space. Thus, in essence, the side-
by-side doors created a small storage closet where equipment and
merchandise were stored in the cubbyholes. The distance between the
side-by-side doors and the store’s gun display cabinets, which ran
perpendicular to the doors, is approximately three feet. (Govern-
ment’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
B
On April 20, 2004, a federal grand jury sitting in the District of
Maryland returned a two-count superseding indictment against Moye.
In Count One, Moye was charged with being a felon in possession of
firearms, 18 U.S.C. § 922(g)(1). In Count Two, Moye was charged
with possessing stolen firearms, id. § 922(j). Each count also charged
Moye as an aider and abettor under 18 U.S.C. § 2.
At trial, Thomas Love, an ATF agent who was qualified as an
expert in interstate nexus, testified that the firearms set forth in the
2
The 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.
4 UNITED STATES v. MOYE
indictment affected interstate commerce because they were not manu-
factured in the State of Maryland. Alan Koch, the manager of the
store, testified that all of the firearms stolen from the store’s gun dis-
play cabinets functioned properly.
At the conclusion of the trial, a jury convicted Moye on both
counts. On July 19, 2004, Moye was sentenced to thirty months’
imprisonment. He filed a timely notice of appeal.
On September 9, 2005, a panel of this court reversed Moye’s con-
victions. See United States v. Moye, 422 F.3d 207 (4th Cir. 2005). On
October 18, 2005, the panel opinion was vacated, as a majority of
active circuit judges voted to rehear this case en banc. See Fourth Cir-
cuit Local Rule 35(c) ("Granting of rehearing en banc vacates the pre-
vious panel judgment and opinion.").
II
A
Moye contends there is insufficient evidence in the record to sup-
port his convictions. Moye’s convictions must be upheld if "there is
substantial evidence, taking the view most favorable to the Govern-
ment," 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) (citation and internal quotation marks omitted).
In evaluating the sufficiency of the evidence to support a criminal
conviction, we view the evidence in the light most favorable to the
government, drawing all reasonable inferences in its favor. United
States v. Wilkinson, 137 F.3d 214, 220 (4th Cir. 1998). We also
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).
UNITED STATES v. MOYE 5
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. Id. § 922(g)(1). We
have previously explained that the elements required for conviction
under § 922(g)(1) are:
(1) the defendant previously had been convicted of a crime
punishable by a term of imprisonment exceeding one year;
(2) the defendant knowingly possessed, transported,
shipped, or received, the firearm; and (3) the possession was
in or affecting commerce, because the firearm had travelled
in interstate or foreign commerce at some point during its
existence.
United States v. Langley, 62 F.3d 602, 606 (4th Cir. 1995) (en banc).3
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
(1) Moye possessed stolen firearms, (2) which moved or were shipped
in interstate commerce before or after being stolen, and (3) Moye
knew or had reasonable cause to believe the firearms were stolen. Cf.
United States v. Hodges, 315 F.3d 794, 799 (7th Cir. 2003) (setting
forth elements for receiving stolen firearms under § 922(j)).
Under our possession jurisprudence, possession can be actual or
constructive. United States v. Rusher, 966 F.2d 868, 878 (4th Cir.
1992). "Actual possession" is defined as "[p]hysical . . . control over
property." Black’s Law Dictionary 1201 (8th ed. 2004). Constructive
possession is established if it is shown "that the defendant exercised,
or had the power to exercise, dominion and control over the item."
Rusher, 966 F.2d at 878. At its core, this case concerns Moye’s actual
possession of the firearms.
In this case, the jury unquestionably was at liberty to conclude that
Moye possessed the firearms as they made their way from the store
3
Moye does not challenge his status as a convicted felon. Moreover,
he does not challenge the government’s evidence at trial concerning the
firearms’ nexus to interstate commerce.
6 UNITED STATES v. MOYE
to Briggs’ person and the getaway car. In fact, when the circumstan-
tial evidence is viewed collectively and in the light most favorable to
the government, Glasser, 315 U.S. at 80, the jury was entitled to con-
clude that Moye entered the store through the uncluttered cubbyhole
of the side door opening, broke into the cabinets displaying the fire-
arms, 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.4
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.5 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
4
During its closing argument to the jury, the government made this
precise argument:
[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.
5
The positioning of Cooper, Briggs, and Moye as the officers arrived
also supports the reasonable inference that only Moye entered the store.
The jury could reasonably conclude that Moye’s job was to enter the
store and steal the firearms; Briggs’ job was to load the firearms into the
car; and Cooper’s job was to drive the getaway car.
UNITED STATES v. MOYE 7
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.6
The final pieces of circumstantial evidence are the time of the
forced entry and Moye’s flight. Given the hour of the forced entry
(just before 5:30 a.m.), the jury was entitled to conclude that Moye
was not present at the scene for an innocent purpose. In addition, the
jury unquestionably 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 consciousness of guilt may be deduced from evidence of flight and
that a jury’s finding of guilt may be supported by consciousness of
guilt.").7
We recognize, in reaching our decision, that an argument can be
made that Moye was merely present at the same location from which
the firearms were stolen. Moreover, the government’s failure to pro-
duce fingerprint evidence, though understandable, slightly weakens
its case.8 However, it was for the jury, not this court, to decide which
version of the events—the government’s or Moye’s—was more credi-
ble. Wilson, 118 F.3d at 234.
6
Along 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."
7
Because it was reasonable for the jury to draw the inference that
Moye fled because he knew he was prohibited under federal law from
possessing firearms, we find no merit to Moye’s argument that the dis-
trict court erred when it allowed the government to argue in closing that
Moye’s flight was evidence of his consciousness of guilt.
8
As explained by one of the government’s expert witnesses, more often
than not, fingerprints are not recovered from firearms. Indeed, this gov-
ernment expert noted that firearms are manufactured to prevent the accu-
mulation of fingerprints. Given this testimony, it is not surprising that the
fingerprints of neither Cooper, Briggs, nor Moye were not found on any
of the firearms.
8 UNITED STATES v. MOYE
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 substituting our judgment for that of the jury. In this
case, the jury was entitled to reach the reasonable and quite unremark-
able conclusion that Moye possessed the firearms as they made their
way from the store to Briggs’ person and the getaway car. Moye’s
possession of the firearms as they made their way from the store to
Briggs’ person and the getaway car provides substantial evidence sup-
porting both of his convictions.
B
Moye also contends that his separate convictions under § 922(g)(1)
and § 922(j) violate the principles of multiplicity set forth by the
Supreme Court. See Bell v. United States, 349 U.S. 81, 84 (1955)
(holding that if "Congress does not fix the punishment for a federal
offense clearly and without ambiguity, doubt will be resolved against
turning a single transaction into multiple offenses"). Moye’s reliance
on the Bell line of cases is misplaced.
In United States v. Dunford, 148 F.3d 385, 390 (4th Cir. 1998), the
defendant was convicted of seven counts of violating § 922(g)(1)
(which prohibits a felon from possessing any firearm or ammunition)
and seven counts of violating § 922(g)(3) (which prohibits a drug user
from possessing any firearm or ammunition) arising from firearms
and ammunition seized from his house on October 4, 1995. Dunford,
148 F.3d at 387. Applying Bell and its progeny, we held that "a per-
son who is disqualified because of membership in multiple classes [of
§ 922(g)] does not thereby commit separate and multiple offenses."
Dunford, 148 F.3d at 389. To hold otherwise, we opined, would, in
effect, criminalize "the status itself." Id. Consequently, we held that
the firearms and ammunition seized at the defendant’s house only
could support one conviction under § 922(g). Dunford, 148 F.3d at
390.
Moye’s multiplicity argument fails for the simple reason that this
case does not involve charges under different subparts of § 922(g);
rather, this case concerns different subsections of § 922. Unlike the
subparts of § 922(g), there is no question in this case that Congress
UNITED STATES v. MOYE 9
has fixed separate punishments for both § 922(g) and § 922(j). More-
over, the separate sections of § 922 under which Moye was convicted
each require proof of different elements, thereby satisfying the Block-
burger test. See Blockburger v. United States, 284 U.S. 299, 304
(1932) (holding that, where the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one is whether each
statute requires proof of a fact which the other does not). A conviction
under § 922(j) requires proof that the defendant knew the firearm was
stolen, while a conviction under § 922(g)(1) does not. A conviction
under § 922(g)(1) requires proof of felony status, while a conviction
under § 922(j) does not. For these reasons, we reject Moye’s multi-
plicity argument. Cf. United States v. Buchmeier, 255 F.3d 415, 423
(7th Cir. 2001) (holding that the government properly limited the
charges it filed against the defendant for the seven firearms he simul-
taneously acquired and received by listing all seven firearms involved
in the transaction in one § 922(g)(1) count and one § 922(j) count);
United States v. Mansolo, 129 F.3d 749, 750-51 (5th Cir. 1997) (hold-
ing that § 922(k) and § 922(i) are not multiplicitous); United States v.
Nation, 832 F.2d 71 (5th Cir. 1987) (holding that § 922(g)(1) and
§ 922(i) are not multiplicitous).
C
Moye also challenges on several grounds the aiding and abetting
instruction given by the district court. The decision to give or not to
give a jury instruction is reviewed for an abuse of discretion. United
States v. Russell, 971 F.2d 1098, 1107 (4th Cir. 1992). We review a
jury instruction to determine "whether, taken as a whole, the instruc-
tion fairly states the controlling law." United States v. Cobb, 905 F.2d
784, 789 (4th Cir. 1990). By definition, a court "abuses its discretion
when it makes an error of law." United States v. Prince-Oyibo, 320
F.3d 494, 497 (4th Cir. 2003) (citation and internal quotation marks
omitted).
In its instructions to the jury, the district court gave an aiding and
abetting instruction. The court’s aiding and abetting instruction was
a general instruction, in the sense that the court did not specifically
instruct the jury as to which count (or counts) the aiding and abetting
10 UNITED STATES v. MOYE
instruction applied. The instruction told the jury that, to convict Moye
under an aiding and abetting theory, the government had to prove
beyond a reasonable doubt that, one, the crime charged was
in fact committed by someone other than the defendant.
Two, the defendant participated in the crime charged as
something he wished to bring about. Three, he associated
himself with the criminal venture knowingly and voluntarily
and, four, he sought by his actions to make the criminal ven-
ture succeed.
Moye contends that the district court erred when it gave the general
aiding and abetting instruction because it allowed the jury to convict
him based on a finding that he "aid[ed] and abet[ted] himself." Appel-
lant’s Br. at 6. Unfortunately for Moye, the district court’s aiding and
abetting instruction did not allow the jury to convict Moye based on
a finding that he aided and abetted himself. The instruction explicitly
told the jury that it had to find beyond a reasonable doubt that "the
crime charged was in fact committed by someone other than the
defendant." (Emphasis added).
Moye also contends that the district court erred when it gave the
general aiding and abetting instruction because the instruction lacked
an evidentiary basis as to the § 922(g)(1) count. According to Moye,
the instruction lacked an evidentiary basis as to the § 922(g)(1) count
because there was no evidence that either Cooper or Briggs were felons.9
In our view, it was within the district court’s discretion to give a
general aiding and abetting instruction where there was an evidentiary
basis to support the instruction as to the § 922(j) count, but not as to
9
Unquestionably, the evidence in this case warranted an aiding and
abetting instruction as to the § 922(j) count because the evidence sup-
ported a jury finding that Moye aided and abetted Cooper and Briggs’
possession of stolen firearms. Cf. Burgos, 94 F.3d at 873 (holding that
a defendant is "guilty of aiding and abetting if he has knowingly associ-
ated himself with and participated in the criminal venture") (citation and
internal quotation marks omitted). Accordingly, we reject Moye’s sug-
gestion that the aiding and abetting instruction lacked an evidentiary
basis as to the § 922(j) count.
UNITED STATES v. MOYE 11
the § 922(g)(1) count. In so concluding, we recognize that the more
preferable approach would have been for the court to give an instruc-
tion that tailored the aiding and abetting theory exclusively to the
§ 922(j) count. However, we are not prepared to find an abuse of dis-
cretion here. Discretionary judgments of this kind are primarily
entrusted to trial courts, as they inevitably have a superior feel for the
dynamics of the trial and the likely reaction of the jury. Here, the
court acted within its discretion when it declined to further highlight
the aiding and abetting instruction by tailoring it to the § 922(j) count.
Moreover, the district court’s general aiding and abetting instruc-
tion provided the jury with an appropriate means to evaluate the evi-
dence and resolve the issues presented. With regard to the § 922(j)
count, the instruction gave the jury an avenue to find Moye guilty as
an aider and abettor if it concluded that someone other than Moye
possessed stolen firearms and that Moye knowingly associated with
and participated in the criminal venture. With regard to the
§ 922(g)(1) count, the instruction correctly allowed the jury to convict
Moye only as a principal and not as an aider and abettor. As noted
above, the instruction told the jury to first determine if "the crime
charged [felon in possession of firearms] was in fact committed by
someone other than the defendant." Because neither Cooper nor
Briggs were felons, it is obvious that the jury readily determined that
the aiding and abetting instruction applied only to the § 922(j) count
and would not have permitted conviction under § 922(g)(1). Cf.
United States v. Olano, 507 U.S. 725, 740 (1993) (noting that courts
presume that jurors follow instructions from the court).
Even if we were to conclude that the district court’s failure to limit
the aiding and abetting instruction to the § 922(j) count was error,
such error is harmless. In general, an error in a jury instruction will
warrant reversal of the conviction only if "the error is prejudicial
based on a review of the record as a whole." United States v. Ellis,
121 F.3d 908, 923 (4th Cir. 1997).
Through the district court’s instructions, which we presume the
jury followed, Olano, 507 U.S. at 740, the jury could not have con-
victed Moye of the § 922(g)(1) count under an aiding and abetting
theory. The jury was instructed that, to convict Moye under an aiding
and abetting theory, it would have to find beyond a reasonable doubt
12 UNITED STATES v. MOYE
that another person other than Moye actually committed a § 922(g)(1)
violation. Because there was no evidence that either Cooper or Briggs
were felons, the jury could not have concluded that Moye aided and
abetted either Cooper or Briggs in the commission of a § 922(g)(1)
violation. Consequently, the only way the jury could have convicted
Moye under the § 922(g)(1) count was to conclude that Moye pos-
sessed the firearms at issue. As noted above, the evidence amply sup-
ports the conclusion that Moye possessed the firearms as they made
their way from the store to Briggs’ person and the getaway car.
Because the jury necessarily found that Moye himself possessed the
firearms at issue, the district court’s failure to limit the aiding and
abetting instruction to the § 922(j) count, if error, is harmless error.
Our conclusion that any error here was harmless also finds strong
support in the Supreme Court’s decisions in Griffin v. United States,
502 U.S. 46 (1991), and Sochor v. Florida, 504 U.S. 527 (1992). In
Griffin, Griffin was charged with a single count of conspiracy to
defraud the federal government. Griffin, 502 U.S. at 47. The conspir-
acy had the dual objects of hindering the IRS and the DEA in their
official duties. Id. At trial, the government failed to produce any evi-
dence whatsoever to connect Griffin to an effort to interfere with the
DEA. Id. at 48. Over Griffin’s objection, the district court instructed
the jury that Griffin could be convicted of conspiracy if she had par-
ticipated in either of the two objects of the conspiracy. Id. The jury
returned a general guilty verdict against Griffin and her two codefen-
dants. Id. The Supreme Court affirmed the conviction. Id. at 60. In so
doing, the Court found no precedent to support Griffin’s contention
that a general verdict must be set aside where "one of the possible
bases of conviction was neither unconstitutional . . . nor even illegal
. . . but merely unsupported by sufficient evidence." Id. at 56. The
Court concluded that there was a common sense reason to distinguish
between a jury instruction which misstates the law and one which
presents a theory of conviction not supported by the evidence:
Jurors are not generally equipped to determine whether a
particular theory of conviction submitted to them is contrary
to law—whether, for example, the action in question is pro-
tected by the Constitution, is time barred, or fails to come
within the statutory definition of the crime. When, therefore,
jurors have been left the option of relying upon a legally
UNITED STATES v. MOYE 13
inadequate theory, there is no reason to think that their own
intelligence and expertise will save them from that error.
Quite the opposite is true, however, when they have been
left the option of relying upon a factually inadequate theory,
since jurors are well equipped to analyze the evidence.
Id. at 59.10
The Supreme Court reiterated that position in Sochor. In Sochor,
the trial court had instructed a capital jury on four aggravating factors,
one of which was not supported by the evidence. 504 U.S. at 530-31.
If the jury had relied on the unsupported factor, its death sentence rec-
ommendation would have violated the Eighth Amendment. Id. at 532.
However, the Supreme Court refused to presume jury error and noted
that jurors are "indeed likely to disregard an option simply unsup-
ported by evidence." Id. at 538. According to the Court, the lesson of
Griffin is that the Due Process Clause is not violated when "a trial
court instruct[s] a jury on two different legal theories, one supported
by the evidence, the other not." Id.Having reviewed Griffin, Yates, and Sochor, we conclude that a
district court does not commit reversible error when it submits a
legally adequate, although factually unsupported, theory of liability to
the jury along with a factually supported and legally adequate theory
of liability. See Griffin, 502 U.S. at 60 ("What we have said today
does not mean that a district court cannot, in its discretion, give an
instruction of the sort petitioner requested here, eliminating from the
jury’s consideration an alternative basis of liability that does not have
10
The analysis undertaken when reviewing the submission of a factu-
ally unsupported theory of liability must be contrasted with the analysis
undertaken when a legally inadequate theory of liability is presented to
the jury. While the former analysis is conducted under Griffin, the latter
is conducted under Yates v. United States, 354 U.S. 298 (1957). Under
Yates, reversal is required when a case is submitted to a jury on two or
more alternate theories, one of which is legally (as opposed to factually)
inadequate, the jury returns a general verdict, and it is impossible to dis-
cern the basis on which the jury actually rested its verdict. 354 U.S. at
311-12; see also United States v. Hastings, 134 F.3d 235, 242 (4th Cir.
1998) (discussing the application of Yates).
14 UNITED STATES v. MOYE
adequate evidentiary support. Indeed, if the evidence is insufficient to
support an alternative legal theory of liability, it would generally be
preferable for the court to give an instruction removing that theory
from the jury’s consideration. The refusal to do so, however, does not
provide an independent basis for reversing an otherwise valid convic-
tion.").
In this case, it is undisputed that the district court’s aiding and abet-
ting instruction set forth a correct statement of law concerning the law
of aiding and abetting. Moreover, it is not disputed that an aider and
abettor can be convicted under § 922(g)(1). See, e.g., United States v.
Canon, 993 F.2d 1439, 1442 (9th Cir. 1993) (affirming § 922(g)(1)
conviction that was premised on the theory of aiding and abetting).
At most, then, the court’s instructions placed one legally adequate
factually supported basis for liability under § 922(g)(1) before the
jury (Moye acted as a principal) and one legally adequate yet factu-
ally unsupported basis for liability under § 922(g)(1) before the jury
(Moye acted as an aider and abettor). Under these circumstances,
Griffin prevents us from tampering with the jury’s verdict. See United
States v. Ealy, 363 F.3d 292, 298 (4th Cir. 2004) (applying Griffin
and concluding that, where the evidence was sufficient to convict the
defendant as a principal, "whether the evidence sufficed to convict
him on the alternative aiding and abetting theory is irrelevant"); see
also United States v. Chauncey, 420 F.3d 864, 873 (8th Cir. 2005) (in
a case involving the charge of possession with the intent to distribute,
and aiding and abetting the same, court noted that, although it was not
clear from the verdict whether the jury accepted one theory or both
theories of liability, it could not disturb the defendant’s conviction
under Griffin); United States v. Dreamer, 88 F.3d 655, 658 (8th Cir.
1996) ("Even assuming Dreamer is correct that there was insufficient
evidence to support the district court’s aiding and abetting instruction,
the district court also instructed the jury that they could find Dreamer
guilty if they found that he set the fire at his father’s house. There was
sufficient evidence to support this instruction, as Poor Bear testified
that she saw Dreamer enter his father’s house with a can of gasoline
and set the house on fire. There was sufficient evidence to support
one of the grounds for conviction submitted to the jury and to support
the general verdict of guilty."). Accordingly, even assuming that the
aiding and abetting instruction given in this case was erroneous
because it was not supported by evidence demonstrating that either
UNITED STATES v. MOYE 15
Cooper or Briggs were felons, the giving of the instruction is not
reversible error.
Finally, we make these observations concerning the opinion of our
colleague in dissent. The dissent plucks one phrase out of the district
court’s aiding and abetting instruction and concludes that this phrase
hopelessly confused the jury. According to the dissent, the phrase
"physically committed by somebody else," which was used by the
court at the beginning of its aiding and abetting instruction, allowed
the jury to convict Moye for the § 922(g)(1) offense under an aiding
and abetting theory without finding that either Cooper or Briggs were
convicted felons. In other words, according to the dissent, if the jury
found that Moye aided and abetted either Cooper or Briggs’ posses-
sion of firearms, it was free at that point to convict Moye of the
§ 922(g)(1) offense.
The "physically committed by somebody else" phrase was used in
the following sentence of the district court’s aiding and abetting
instruction: "As I will explain more fully, the Government would
have to prove that the crime that was charged was physically commit-
ted by somebody else and further prove that Mr. Moye aided and
abetted the commission of the crime." This sentence told the jury that:
(1) the government, to prove aiding and abetting, was required to
prove that a crime charged against Moye was physically committed
by somebody other than Moye and that Moye aided and abetted the
commission of the crime charged; and (2) the court would explain
more fully the requirements of aiding and abetting.
The dissent suggests that the "physically committed by somebody
else" phrase could have fooled the jury into believing that prohibited
status was "not at issue" or, alternatively, that "prohibited status and
physical possession did not have to reside in the same person." Post
at 20. The dissent’s position rests on the premise that the "physically
committed by somebody else" phrase focused the jury’s attention
solely on the physical act of possession to the exclusion of the other
elements required to convict under § 922(g)(1). In several respects,
the dissent’s reasoning is flawed.
First, when the district court used the "physically committed by
somebody else" phrase as part of its introduction into the concept of
16 UNITED STATES v. MOYE
aiding and abetting, the court told the jury that it would "explain more
fully" the concept. Given the court’s admonition that the concept of
aiding and abetting would be explained in greater detail, it is
extremely doubtful the jury placed much, if any, reliance on the sen-
tence.
Second, as a general statement of aiding and abetting law, the dis-
trict court’s sentence containing the "physically committed by some-
body else" phrase was legally accurate. With regard to the § 922(g)(1)
offense that was charged, to convict Moye as a principal, the govern-
ment was required to prove that Moye previously had been convicted
of a crime punishable by a term of imprisonment exceeding one year
and that he knowingly possessed a firearm that was in or affecting
commerce. To convict Moye as an aider and abettor, the government
was required to prove that another person other than Moye committed
the conduct amounting to a § 922(g)(1) violation and that Moye aided
and abetted the commission of that crime. Meeting this burden would
include proof that either Cooper or Briggs "physically" committed the
conduct that made up a § 922(g)(1) violation. That conduct would
include the commission of an offense that resulted in a conviction in
a court of law of a crime punishable by a term of imprisonment
exceeding one year prior to August 14, 2003.
Third, the "physically committed by somebody else" phrase was
tied to a "crime that was charged" and not solely to the act of posses-
sion of a firearm. Thus, it is highly unlikely that the jury focused
solely on either Cooper or Briggs’ possession of firearms, as the dis-
sent would have us believe. See Post at 20.
To be sure, the district court’s more detailed instructions made it
clear that Moye had to aid and abet a crime that was charged and not
just an element of a crime charged. Following the court’s use of the
"physically committed by somebody else" phrase, the court gave
detailed aiding and abetting instructions with defined elements with-
out making reference to the phrase. The district court told the jury that
"you may find Mr. Moye guilty . . . if you find beyond a reasonable
doubt that the Government has proved that another person actually
committed the offense with which he is charged and that the defen-
dant aided and abetted that person in the commission of the offense."
The court immediately added, "[a]s you can see, the first requirement
UNITED STATES v. MOYE 17
is that you find that another person has committed the crime charged."
Thereafter, the court instructed the jury concerning the four aiding
and abetting elements the government was required to prove beyond
a reasonable doubt, one of those being that "the crime charged was
in fact committed by someone other than the defendant." Considering
the court specifically outlined the aiding and abetting elements the
government had to prove beyond a reasonable doubt, we harbor no
doubt that the introductory "physically committed by somebody else"
phrase played no role in the jury’s consideration of these elements.
III
For the reasons stated herein, the judgment of the district court is
affirmed.
AFFIRMED
DIANA GRIBBON MOTZ, Circuit Judge, concurring in Parts I and
IIA and B and in the judgment:
As Judge Hamilton explains in his excellent opinion for the major-
ity, in this case the Government presented evidence sufficient to sup-
port William Moye’s convictions for being a felon in possession of
firearms and for possession of stolen firearms. I write separately
because I believe that the district court erred in giving a general aid-
ing and abetting instruction. That error, however, was harmless, and
so I agree that we must affirm the judgment of the district court.
A court may only give a requested jury instruction if an evidentiary
foundation for the instruction exists. See United States v. Schnabel,
939 F.2d 197, 203-04 (4th Cir. 1991). Here, the Government con-
cedes that "over the objection of appellant," the district court gave an
aiding and abetting instruction that applied to both counts in the
indictment. See Brief of Appellee at 4. The Government, however,
presented no evidence that either Briggs or Cooper was a felon. Thus,
there was no evidentiary foundation to support an aiding and abetting
instruction on the felon in possession count (Count One); the court
thus erred in giving a general instruction that applied to both counts.
Indeed, the Government conceded error during the panel argument,
18 UNITED STATES v. MOYE
admitting that the district court should not have instructed the jury as
to aiding and abetting on Count One.
Although the aiding and abetting instruction for the felon-in-
possession count was error, the error was harmless. The Government
presented ample evidence to support Moye’s conviction as a principal
on Count One. However, the district court instructed the jurors that
to find Moye "guilty . . . as an aider and abettor," they would have
to find beyond a reasonable doubt that the Government "has proved
that another person actually committed the offense with which he has
been charged." Given the absence of any evidence that Briggs or Coo-
per were felons, the jury could not have found that Moye aided or
abetted "another person" who "actually committed" the offense of
being a felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1) (2000). If the jurors followed the district court’s instruc-
tions, which we must presume that they did, see United States v.
Olano, 507 U.S. 725, 740 (1993), they could not have convicted
Moye on Count One on the basis of an aiding and abetting theory.
Therefore, we must conclude that the jury’s guilty verdict with
respect to Count One relied on the substantial evidence of Moye’s
guilt as a principal and that the district court’s error in giving a gener-
alized aiding and abetting instruction was harmless.
For these reasons, I concur in Parts I and IIA and B of the majority
opinion and in the judgment. Judge Michael joins in this opinion.
GREGORY, Circuit Judge, dissenting in part:
The district court’s aiding and abetting instruction requires vacatur
of Moye’s conviction on the felon-in-possession charge. Clearly, the
district court erred in giving the aiding and abetting instruction for the
felon-in-possession charge because the instruction lacked any founda-
tion in evidence.1 When considered alone, this error might have been
1
An aiding and abetting instruction, like all jury instructions, is proper
only "if there is a foundation in evidence to support it." United States v.
Schnabel, 939 F.2d 197, 203-04 (4th Cir. 1991). Here, there was no foun-
dation in the evidence to support an aiding and abetting instruction
because the government introduced no evidence that Briggs or Cooper
was a felon.
UNITED STATES v. MOYE 19
harmless. In this case, however, the instruction created confusion by
suggesting that Moye could be convicted as an aider and abettor on
the felon-in-possession charge absent proof that Cooper or Briggs was
a felon. Therefore, I dissent from the decision to affirm Moye’s con-
viction as to the felon-in-possession charge.2
At the close of evidence, the district court instructed the jury that
it could convict Moye as a felon in possession of firearms if the gov-
ernment proved
that Mr. Moye had been convicted of a crime punishable by
imprisonment for a term exceeding one year and that the
State has not restored the defendant’s civil rights following
the conviction. Secondly, that he knowingly possessed the
firearm that’s charged and third, that the possession was in
or affecting interstate commerce.
J.A. 221-22. Moments later, the district court instructed the jury that
to convict Moye as an aider and abettor on either count,
the Government would have to prove that the crime that was
charged was physically committed by somebody else and
further prove that Mr. Moye aided and abetted the commis-
sion of the crime.
J.A. 226 (emphasis added).3
2
I would affirm Moye’s conviction on the possession of stolen firearms
charge.
3
During trial, Moye’s counsel objected to the aiding and abetting
instruction with respect to the felon-in-possession charge, stating, "I
don’t know how you aid and abet yourself." J.A. 129. The district court
immediately replied, "Well, I don’t have a problem with that. I don’t
have a problem with that." Id.Only after the verdict did the district court acknowledge that "[a]iding
and abetting doesn’t work. . . . Aiding and abetting requires . . . some-
body else to have committed the crime. Nobody else committed the
crime." J.A. 263.
20 UNITED STATES v. MOYE
These instructions created confusion as to the requisite elements of
the felon-in-possession offense in the aiding and abetting context. The
phrase "physically committed by somebody else" suggested that only
the principal’s physical acts were relevant.4 Although the felon-in-
possession offense has a physical requirement—the act of possessing
firearms—the offense also has an essential nonphysical requirement
—the principal’s prohibited status as a felon. With attention focused
only on the principal’s physical acts, a juror might reasonably have
concluded that the principal’s prohibited status was not at issue.
Alternatively, a juror might have believed that prohibited status and
physical possession did not have to reside in the same person.
In addition, the substantive felon-in-possession instruction and the
lack of evidence concerning Cooper’s or Briggs’s prior felony convic-
tions reinforced the understanding that their status was irrelevant.
First, the felon-in-possession instruction only detailed how Moye
might be convicted of being a felon in possession of firearms. Signifi-
cantly, the district court never expressly instructed the jury that it had
to find that Cooper or Briggs was a felon. Second, the government
presented evidence of Moye’s status as a felon without addressing
that of the other two men. Given this glaring inconsistency, the jury
could have concluded that evidence of the prohibited status of Cooper
or Briggs was unnecessary. Thus, the jury could have believed that
only Moye’s prohibited status was at issue.
Ultimately, the language and context of the instructions did not
make clear that either Cooper or Briggs needed to be a felon in order
to convict Moye on an aiding and abetting theory. Absent a clear
understanding that Cooper or Briggs had to be a felon, jurors could
have convicted Moye as an aider and abettor even if they were aware
that these two men were not felons. Alternatively, the jurors could
have been distracted by the other evidence of criminality—Moye’s
status as a felon, the theft of the firearms, the burglary, and the car
theft—all of which is irrelevant to a conviction for aiding and abetting
a felon in possession.
4
In fact, both the district court in its instructions and the government
during closing argument repeatedly used the word "physically" to refer
to the act of possessing firearms. See, e.g., J.A. 223, 236.
UNITED STATES v. MOYE 21
For these reasons, applying a general presumption that jurors fol-
low instructions cannot cure the error in offering the instruction.
Because the government did not and cannot show that the error was
harmless, I dissent.