Unpublished Disposition, 915 F.2d 1581 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 915 F.2d 1581 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Frederick Louis RUNSTROM, Defendant-Appellant.

No. 90-30019.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 10, 1990.Decided Sept. 25, 1990.

Before EUGENE A. WRIGHT, SCHROEDER and WILLIAM A. NORRIS, Circuit Judges.


MEMORANDUM* 

Frederick Runstrom appeals from his conviction of possession and manufacture of a sawed-off shotgun. He challenges the sufficiency of the evidence, the denial of his post-verdict motion to contact jurors, and the district court's upward departure from the sentencing guidelines. We affirm.

* Runstrom argues that the evidence was insufficient to support his conviction. In reviewing the sufficiency of the evidence on appeal, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979).

The jury was instructed that to find a violation of the manufacturing count,1  it had to find that (1) Runstrom actually altered or produced the firearm, and (2) it had an overall length of less than 26 inches or a barrel of less than 18 inches in length. On the possession count,2  the jury had to find that (1) Runstrom possessed the firearm, and (2) it was not registered to him in the National Firearms Registration and Transfer Record. The defendant does not challenge these instructions.

An expert testified that the gun worked and was of an illegal length, and documentation showed that the gun was not registered in Runstrom's name. Runstrom testified that he sawed off the gun barrel but claimed that he did not leave the barrel in its present smooth condition. A witness, Dan Bourne, contradicted Runstrom, testifying that he did nothing to the barrel of the gun after he received it from Runstrom. This evidence was sufficient to convict on both counts.3 

Runstrom argues that Bourne was not a credible witness because he had been convicted of murder and had a history of other felony convictions, including one for possession of a sawed-off shotgun. This court has noted, however, that " [t]he credibility of witnesses and the weight accorded the evidence are questions for the jury that are not reviewable." United States v. Vaccaro, 816 F.2d 443, 454 (9th Cir.), cert. denied, 484 U.S. 928 (1987). Although Bourne's testimony conflicted with Runstrom's, it was for the jury to decide whom to believe.

II

After trial, Runstrom filed a motion to contact jurors so that he could inquire whether they considered extraneous prejudicial information in reaching their verdict. He argued that the jurors had been exposed to prejudicial information arising out of a prior state murder trial in which he was acquitted.

We review the court's denial of the motion to contact jurors for abuse of discretion. See McElroy v. Firestone Tire & Rubber Co., 894 F.2d 1504, 1511 (11th Cir. 1990) (citing United States v. Barshov, 733 F.2d 842, 851 (11th Cir. 1984), cert. denied, 469 U.S. 1158 (1985)).

This court has said that lawyers should "seek leave of the court to approach the jury." Hard v. Burlington N.R.R., 812 F.2d 482, 485 n. 3 (9th Cir. 1987). Although this circuit has not yet discussed in detail the standards for reviewing a district court's ruling on such a motion, other circuits have required "an adequate showing of extrinsic influence to overcome the presumption of jury impartiality." United States v. Ianniello, 866 F.2d 540, 543 (2d Cir. 1989) (quoting United States v. Barshov, 733 F.2d at 851); see also United States v. Clardy, 540 F.2d 439, 447 (9th Cir.) (finding a request for the addresses of jurors to be frivolous when there was no showing made that any of them had seen extraneous prejudicial material), cert. denied, 429 U.S. 963 (1976).

Runstrom did not make an adequate showing of extrinsic influence. He presented no evidence of prejudice. He argued, instead, that the jury must have been influenced by outside factors because there was no evidence to support the verdict against him. This argument lacks merit because the evidence presented was sufficient to convict him. The district court had inquired extensively into the potential jurors' knowledge of the defendant at voir dire, and dismissed several who indicated that they were familiar with him. The court did not abuse its discretion.4 

III

Runstrom challenges the district court's decision to depart from the sentencing guidelines and impose a sentence of 27 months. We review such departures according to a five step process. United States v. Lira-Barraza, 897 F.2d 981, 983-86 (9th Cir. 1990).

Step One. The district court must identify the specific aggravating and mitigating circumstances present, and make a clear finding that the Commission did not adequately consider them. Id. at 983. It did so here. The transcript at sentencing indicates that the court departed from the guidelines because Runstrom told Bourne to use the gun to kill a woman. The court specifically found that this circumstance was not contemplated when the guidelines were drafted.

Step Two. This court reviews for clear error whether the circumstance identified by the district court as the basis for departure actually exists. Id. at 984. Leo Gallagher, a deputy county attorney, testified that Bourne told him that Runstrom gave Bourne the gun for the purpose of killing Sharon Jarvis. The judge believed this testimony, and his finding that the aggravating circumstance existed was not clearly erroneous.

Step Three. If step two is met, this court reviews de novo whether the circumstance was of a kind not adequately taken into consideration by the Commission. Id. at 984-85. The guidelines in effect when Runstrom was sentenced, at Sec. 2K2.2(a), applied a base offense level of 12 in the case of receipt, possession or transportation of firearms. Section 2K2.2(c) (1) provided that " [i]f the defendant used the firearm in committing or attempting another offense, apply the guideline for such other offense or Sec. 2X1.1 (Attempt or Conspiracy)." See United States Sentencing Commission, Guideline Manual, App. C.104-05 (Nov. 1989). Runstrom did not "use" the firearm, nor did he commit or attempt another offense.

The fact that the Commission amended the guidelines to include acts such as Runstrom's effective November 1, 1989, supports a conclusion that they did not consider this circumstance under the prior version of the guidelines. Section 2K2.3 now provides penalties for transferring a firearm with knowledge that it will be used in committing another offense. Runstrom's act of telling someone else to kill Jarvis was not adequately considered by the Commission under the guidelines which applied to him.5 

Step Four. This court then reviews for abuse of discretion whether the identified circumstance should, in the absence of statutory guidance, be a basis for departure from the Guidelines. Lira-Barraza, 897 F.2d at 985. The district court did not abuse its discretion in finding this specific circumstance was a basis for departure.

Step Five. This court then determines whether the court adequately stated its reasons for the discretion and degree of departure, and whether the departure was "unreasonable", applying an abuse of discretion standard. Id. at 986. Because Runstrom does not argue this issue in his brief, any argument related to step five was waived.

The district court did not abuse its discretion in departing from the sentencing guidelines.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

26 U.S.C. § 5861(f) provides in relevant part:

It shall be unlawful for any person--

(f) to make a firearm in violation of the provisions of this chapter; ...

 2

26 U.S.C. § 5861(d) provides in relevant part:

It shall be unlawful for any person--

(d) to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record; or

 3

Runstrom also indicates that he expressly denied cutting the stock of the weapon. This is irrelevant because cutting the stock is not an element of the crime of which he was convicted

 4

Relying on the Seventh Circuit's decision in Owen v. Duckworth, 727 F.2d 643 (7th Cir. 1984), Runstrom argues that the court should have (1) determined the nature, content and extent of the extrajudicial information, and (2) made a factual determination of whether the information likely affected the jurors' impartiality. There is no question in Owen, however, that the defendant made a colorable showing of extrinsic influence. Without that showing, this court will not reach the test promulgated in Owen

 5

Guideline Sec. 5K2.9 supports this conclusion. It states:

If the defendant committed the offense in order to facilitate or conceal the commission of another offense, the court may increase the sentence above the guideline range to reflect the actual seriousness of the defendant's conduct.

Runstrom's acts may be construed as facilitating the commission of another crime.