Appeal from the Superior Court of the District of Columbia (CF2 18675-09) (Hon. Lynn Leibovitz, Trial Judge)
The opinion of the court was delivered by: Glickman, Associate Judge:
Before GLICKMAN and OBERLY, Associate Judges, and BELSON, Senior Judge.
Michael Myers appeals his conviction for unlawful possession of a firearm by a convicted felon ("FIP"), in violation of D.C. Code § 22-4503 (a)(2) (2009). He contends, and the government concedes, that the trial judge erred in responding to the jury's request for clarification of the mens rea element of the offense. We conclude that the error was preserved and not harmless, and that appellant therefore is entitled to relief. We vacate his conviction and remand the case for a new trial.
Appellant was arrested in 2009 at a bus stop in Northeast Washington, D.C., when police found him carrying a garbage bag containing a shotgun that had been disassembled into three parts: a stock and receiver, a barrel, and a barrel nut. He was charged with FIP, which prohibits the knowing possession of a firearm by a felon. Appellant was convicted of a felony in 1993.
At trial, appellant's defense was that he did not knowingly possess a "firearm" within the meaning of the FIP statute. For purposes of that statute, the term "firearm" is defined to mean "any weapon, regardless of operability, which will, or is designed or redesigned, made or remade, readily converted, restored, or repaired, or is intended to, expel a projectile or projectiles by the action of an explosive."*fn2 This definition encompasses a disassembled firearm, provided that it can be reassembled, but not the component parts considered separately. Appellant testified that he had retrieved the bag from the trash at a construction site, and while he knew it contained gun parts of some kind (which he had hoped to pawn), he did not know those parts could be put together to make a "complete" firearm.*fn3
Acknowledging the conceptual validity of appellant's denial of knowledge as a defense, the judge instructed the jury in pertinent part that
The essential elements of this offense [FIP], each of which the Government must prove beyond a reasonable doubt, are: One, that the Defendant possessed a firearm; two, that he did so knowingly and intentionally, this means consciously, voluntarily, and on purpose, not mistakenly, accidentally or inadvertently. And three, that, at the time the Defendant possessed the firearm, the Defendant had been convicted of a felony. The term "firearm" means a weapon, regardless of operability, which will or is designed or is intended, if assembled, to expel a bullet or other projectile by the action of an explosive. . . . The Defendant maintains that he did not know that the parts in the bag could be assembled or could form a complete firearm.
After deliberating for about an hour, the jury sent a note seeking clarification of the mens rea requirement. The note read:
We would like further explanation on elements 1 2 of Count 1 [FIP]. If the defendant was not aware at the time of arrest that the components he was carrying could be assembled to form a complete firearm,* then are the elements 1 and 2 satisfied? *we are assuming that he did know that he had some firearm components
In the ensuing discussion with the judge, the prosecutor agreed with appellant that he would not be guilty if he was "unaware that the parts in the bag could make a firearm." Appellant suggested that the judge respond to the note by telling the jury "that, if you do not believe that the Government has proved beyond a reasonable doubt that [appellant] knew the parts he had could form a complete firearm, then element number two is not satisfied." The prosecutor agreed that this instruction would be "appropriate" and proposed that the judge "use the word firearm" with the definition the judge previously had given the jury (which was a simplification and clarification of the full statutory definition).
At this point, the judge expressed misgivings about using the imprecise word "complete" to modify the word "firearm." Although the judge had used the term "complete firearm" in her initial instructions as a shorthand synonym for the definition of "firearm," she was concerned that the word "complete" could be misleading, as it might suggest the weapon had to be operable. Noting that this was no problem because operability was not in issue in this case, appellant rejoined that, "It does have to be a complete firearm. Otherwise, we're talking about . . . suggesting to the jury that it's a strict liability offense to possess . . . component parts of a firearm. . . . [I]t can be something that is made or remade, designed, or redesigned into a complete firearm but it still has to be a complete firearm."
The judge disagreed. Up until this point, it appears the disagreement was merely semantic, but then the judge cited this court's decision in Rouse v. United States*fn4 as authority for the proposition that "far fewer pieces of a gun were enough to be a gun." The police found the defendant in Rouse holding the frame of a .32 caliber revolver, and they located the firing pin and the cylinder on the ground near him. He was charged with carrying a pistol without a license ("CPWL") and convicted of that offense. Concluding that a "disassembled gun" is within the "proscription" of the CPWL statute,*fn5 we held that "a conviction for carrying a pistol without a license can be sustained when all of the parts of a disassembled pistol are shown to have been conveniently accessible to ...