Appeal from the United States District Court for the Western District of Wisconsin - No. 72 CR 28 James E. Doyle, Judge.
Sprecher and Tone, Circuit Judges, and Perry, Senior District Judge.*fn*
The question here is whether the government can appeal the district court's granting of defendant's motion for judgment of acquittal following a jury's guilty verdict where the government failed to prove an essential element of the crime, which was judicially noticeable but not called to the court's attention.
The defendant, Dennis M. Sorenson, was indicted for wilfully and knowingly making a false statement in order to acquire a firearm from a licensed dealer, in that he denied that he had ever been convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. §§ 922(a)(6), 924(a).*fn1
Upon a trial before a jury the government introduced a Form 4473 (Firearms Transaction Record) signed by defendant and showing the negative response to the question of whether he had been convicted of a crime punishable by imprisonment for a term exceeding one year. The government also introduced a certificate of conviction and other documents showing that defendant was convicted in the Dane County, Wisconsin Court on July 3, 1968 of "aiding and abetting in a commission of a felony (burglary) in violation of [Wisconsin statutes] sections 943.10(1)(a) and 939.05(1)," for which he was sentenced to prison for a term of not more than one year. The government did not prove nor attempt to prove that a person convicted under the sections of the Wisconsin statutes described in the documents introduced in evidence could be sentenced to imprisonment for a term exceeding one year and for as long as not to exceed ten years.
When the government rested its case in chief and before the defendant commenced his defense, his counsel made several motions, to which the court responded:
I will reserve a ruling on the motion for the judgment of acquittal.
However, it is an essential element of this case which the Government must prove that the defendant was on one occasion convicted of a crime punishable by a term of more than one year.
Despite the clear warning from the court, the government did not at that point seek to reopen its case, did not in its cross examination of the defendant elicit any proof of the potential punishment for defendant's prior crime, and offered no rebuttal evidence.
The court commented when later passing upon the defendant's motion for acquittal:
No evidence was received that the crime for which the defendant had been convicted was punishable by imprisonment for a term exceeding one year. In truth, it is clear that at the time of defendant's earlier conviction of burglary, the Wisconsin Statutes did provide for punishment not to exceed ten years. During the trial, the court was not requested to take judicial notice of the Wisconsin Statute providing for this maximum penalty; the court did not do ...