United States District Court, W.D. Missouri, Southern Division
REPORT & RECOMMENDATION OF U.S. MAGISTRATE
P. RUSH UNITED STATES MAGISTRATE JUDGE
to 28 U.S.C. § 636(b), the above-styled criminal action
was referred to the undersigned for preliminary review.
Defendant Daniel A. Crawford filed a Motion to Dismiss Count
5 of the Indictment, (Doc. 41), in this case, alleging that
as a matter of law the rifle cited in the Indictment to
charge Defendant with Count 5 fails to satisfy the statutory
definition of a firearm under 18 U.S.C. § 921(a)(3).
(Id.) Alternatively, Defendant argues the rifle
could not have been used in furtherance of the criminal act
alleged under 18 U.S.C. § 924(c) because the rifle was
“broken” and inoperable on the day of the alleged
offense. (Id.) On June 1, 2016, the Court held a
hearing on the Motion. (See Doc. 49.) Defendant was
present with his attorney, John Applequist. The United States
was represented by Josephine Larison. During the hearing, the
Court received and heard testimony from Detective Tycher
Blakely of the Vernon County Sheriff's Office and Task
Force Officer (“TFO”) Jason Schanot of the Joplin
Police Department. For the reasons set forth below, it is
hereby RECOMMENDED that the Motion to Dismiss the Indictment,
(Doc. 41), be DENIED.
Findings of Fact
January 23, 2015, Detective Tycher Blakely and other officers
with the Vernon County Sheriff's Office executed a search
warrant on the Defendant's truck. During the course of
the search, officers discovered a cooler behind the
driver's seat. Inside the cooler was a Mountain Arms .22
rifle and ammunition. At that time, the firearm was in
two-pieces. According to Detective Blakely, the firearm is
typically used in hiking and can be broken and reassembled
quickly. Detective Blakely testified that he was able to
reassemble the gun in less than a minute.
Schanot, a detective with the Joplin Police Department and a
TFO for the Bureau of Alcohol, Tobacco, Firearms and
Explosives, was also involved in the investigation of the
Defendant. Specifically, he conducted the function test on
the Mountain Arms .22 rifle recovered pursuant to the search
warrant executed on January 23, 2015, and wrote up the
necessary paperwork on that firearm. The function test
occurred on October 26, 2015. For the test, the gun, which
was in two-pieces, was reassembled in a matter of seconds.
TFO Schanot then fired 2 rounds to make sure it functioned as
designed, and it did. Though the test was conducted in
October 2015, TFO Schanot's report was not made available
to Defendant until after he filed the instant Motion in April
December 7, 2015, the Government filed a six-count Indictment
alleging in Count 5 that on or about January 22, 2015,
Defendant knowingly possessed a firearm, a Mountain Arms .22
caliber rifle, in furtherance of the offense of conspiracy as
noted in Count 1 and in furtherance of the offense of
possession with intent to distribute meth as noted in Count 4
of the Indictment, in violation of 18 U.S.C. §
924(c)(1)(A). (Doc. 1.) Count 1 of the Indictment alleges
that Defendant, along with a Defendant Marklee Bogart,
knowingly and intentionally conspired to distribute fifty
grams or more of methamphetamine in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(A)(viii). (Id.) Further,
Count 4 alleges on or about January 22, 2015, Defendant
knowingly and intentionally possessed, with intent to
distribute, five grams or more of methamphetamine in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B).
Defendant was arrested for these charges on December 17,
makes two arguments in support of his Motion. First, he
argues the rifle recovered from Defendant's truck was
“broken” on the date of the conduct charged in
the indictment, and fails to meet the statutory definition of
a firearm under § 921(a)(3). (Doc. 41.) Though Defendant
appeared to have abandoned that argument at the hearing, the
Court will address it here nonetheless. In the alternative,
Defendant argues the rifle could not have been used “in
furtherance of” the offenses charged in Counts 1 or 4,
as a matter of law, because the rifle was
“broken” and could not “embolden” or
intimidate anyone. (Id.)
Statutory Definition as a Matter of Law
statutory definition of a firearm is “(A) any weapon
(including a starter gun) which will or is designed to or may
readily be converted to expel a projectile by the action of
an explosive; (B) the frame or receiver of any such weapon;
(C) any firearm muffler or firearm silencer; (D) or any
destructive device.” 18 U.S.C. § 921(a)(3). Prior
to the hearing, Defendant argued the “disassembled
rifle was ‘broken' and would not fire as of the
date of the offense charged in Count 5.” (Doc. 41.)
Therefore, Defendant contended the item was not a firearm
under the statutory definition, and could not be considered
for purposes of a § 924(c) charge.
Court first notes that at the time Defendant filed the Motion
to Dismiss on April 26, 2016, Defendant had not yet received
the report of the test fire for the firearm cited in Count 5.
(Doc. 49.) However, the evidence received by the Court at the
hearing made clear to Defendant and the Court that
Defendant's original argument fails. (Id.) It is
within the jury's purview to decide whether the
prosecution has sufficiently charged the “[e]lements of
a crime” and have proven them “beyond a
reasonable doubt.” United States v.
O'Brien, 560 U.S. 218, 224 (2006). Facts are
elements of the crime that must be submitted to a jury.
Jones v. United States, 526 U.S. 227, 232 (1999).
Whether the firearm meets the statutory definition of under
§ 921(a)(3) is a fact finding question reserved for the
jury, and thus the Court cannot decide that matter.
assuming the Court could rule on the status of the weapon
being classified as a firearm under the statute, the evidence
shows the weapon is likely a firearm. Specifically, the Court
finds the testimony of Detective Blakely and TFO Schanot
regarding their findings of the rifle's condition and
convertibility are persuasive. (See Doc.
49.) TFO Schanot testified he function-tested the
weapon on October 26, 2015, firing “two rounds of the
firearm to make sure that it did function as designed and it
did.” (Id.) Both witnesses testified to the
rifle's quick convertibility and ease of concealment.
(Id.) Courts have consistently held that weapons in
such conditions meet the statutory definition of a firearm
under § 921(a)(3). See United States v. York,
820 F.2d 885, 891 (8th Cir. 1987) (gun that was inoperable
and incapable of firing qualified under § 921(a)(3));
see also United States v. Williams, 577 F.3d 878,
882 (8th Cir. 2009) (reaffirming the holding in
York.). Because Defendant has conceded this issue
and the case law is clear, Defendant's first argument
fails and does not warrant dismissal of Count 5, though the
Court is not making a ruling on the status of the weapon.
“In Furtherance of”
The Defendant also contends the rifle in question could not,
as a matter of law, been used in furtherance of the offenses
alleged in Counts 1 and 4. (Doc. 41.) Specifically, Defendant
argues the weapon, at the time of the offense, could not be
used “in furtherance” of the conspiracy because
the condition of the firearm in its “broken”
state would not “embolden the perpetrator or ...