United States of America, Appellee, v. Ronald Michael Goerlich, Jr., Appellant, 729 F.2d 1168 (8th Cir. 1984)

Ronald M. Goerlich appeals his conviction following a jury trial of being a convicted felon in receipt of a firearm, a violation of 18 U.S.C. § 922(h) (1) (1968).

Appellant went to the residence of his ex-wife, Judy Lee, on the evening of January 20, 1983. Ms. Lee lived in the lower half of a duplex with her two sons, Robert and Russell. She went out drinking with a friend, Michelle Lanning, at about 10:00 p.m., prior to appellant's arrival. When she returned to her house at approximately 1:00 a.m., January 21, appellant confronted her with a rifle. Shortly thereafter, a St. Paul police officer arrived at the address and found appellant standing over his ex-wife and pointing the rifle at her as she lay in the snow. Appellant dropped the rifle and ran. He was soon arrested close by.

The gun in question was a Marlin .22 caliber rifle. It belonged to Ms. Lee's son, Robert, who received it from his maternal grandfather. Robert always kept the gun in his bedroom under the bed. He testified that he had last seen the gun three days before the night of the incident. An employee of the Marlin Firearms Company of New Haven, Connecticut, testified at trial that Marlin Company has always manufactured firearms in Connecticut and has never done so in Minnesota. The company customarily ships guns from Connecticut by truck or train.

It is undisputed that in 1979, appellant was convicted in Minnesota state court of theft, a felony punishable by imprisonment for more than one year.

The jury convicted appellant of receiving a firearm which had been shipped and transported in interstate commerce in violation of 18 U.S.C. §§ 922(h) (1) and 924(a). He was sentenced to three years in prison. For reversal, appellant argues (1) there was insufficient evidence of "receipt" within the meaning of the statute, and (2) the government failed to prove that the firearm was transported in interstate commerce.

Evidence of Receipt

Appellant argues that the government failed to prove beyond a reasonable doubt that he had received a firearm. He concedes that the government proved that he possessed the gun, but contends that a showing of receipt requires more than mere proof of possession. While appellant's contention is correct in that receipt and possession of a firearm are not synonymous, the government correctly argues that to prove receipt, the prosecution need only show that the defendant obtained the gun in the district of Minnesota, United States v. Black Cloud, 590 F.2d 270 (8th Cir. 1979), and the approximate time the gun was obtained, United States v. Winer, 519 F.2d 256 (8th Cir. 1975).¹ 

The evidence in this case, viewed in the light most favorable to the jury verdict and accepting as established all reasonable inferences therefrom which support the verdict, United States v. Verdoorn, 528 F.2d 103, 105 (8th Cir. 1976), is clearly sufficient to prove that appellant received the firearm. Robert Anderson testified that he last saw the gun three days before the incident. A neighbor, Ms. LaFountaine, saw appellant with the rifle twice on the night of the incident; he came to her apartment with it at 10:00 p.m. and told her he had stolen it. The second time, she saw him standing outside the building with it. Several people, including the police officer at the scene, saw appellant holding the gun over his ex-wife. Finally, during interrogation appellant told a police sergeant that he took the rifle from under Robert's bed. This evidence was sufficient to prove approximate time and place of receipt.

Interstate Commerce

18 U.S.C. § 922(h) (1) states that the prosecution must prove that the gun appellant received "has been shipped or transported in interstate or foreign commerce." Appellant argues 1) the government did not prove whether the firearm travelled before or after the effective date of the statute; 2) the court's jury instruction created an irrebutable presumption that the firearm travelled in interstate commerce; and 3) interstate travel must be proved by direct evidence.

Appellant's first contention has no support in either the statute or the cases construing it. The government is not required to prove whether interstate movement occurred before or after 1968, when the Gun Control Act went into effect. See United States v. Montoya, 676 F.2d 428 (10th Cir.), cert. denied, --- U.S. ----, 103 S. Ct. 124, 74 L. Ed. 2d 108 (1982).

Appellant contends that the court's jury instruction on this issue created an irrebutable presumption that the gun travelled in interstate commerce. The instruction given in the instant case was the same as the one approved by the Supreme Court in Barrett v. United States, 423 U.S. 212, 215 n. 4, 96 S. Ct. 498, 500 n. 4, 46 L. Ed. 2d 450 (1976). There the Court upheld the conviction of a felon based on the intrastate purchase of a firearm that had been previously transported in interstate commerce. Finally, appellant's complaints regarding the use of circumstantial evidence are meritless. It is well settled that circumstantial evidence may be used to prove a case. See United States v. Wynde, 579 F.2d 1088, 1094 (8th Cir.), cert. denied, 439 U.S. 871, 99 S. Ct. 204, 58 L. Ed. 2d 184 (1978).

Accordingly, we affirm the jury verdict.