Appeal from the United States District Court for the Eastern District of Wisconsin. No. 81-CR-23 -- John W. Reynolds, Judge.
Cummings, Chief Judge, Gibson, Senior Circuit Judge,*fn** and Cudahy, Circuit Judge.
GIBSON, Senior Circuit Judge.
David Michael Marshall was convicted on two counts of violating 18 U.S.C. §§ 922(g)(1), (h)(1) (1976) which prohibit the transportation of firearms in interstate commerce and the receipt of firearms so transported by a person convicted of a crime punishable by more than one year in prison.*fn1 Marshall was charged with receiving a rifle in Wisconsin which had moved in interstate commerce, and with transporting the rifle from Wisconsin to Illinois. The district court, 519 F. Supp. 751, sentenced Marshall to the maximum imprisonment under 18 U.S.C. § 924(a) (1976) of five years on each count, to be served concurrently. Marshall appeals his conviction for transporting the rifle, arguing that there was insufficient evidence that he was the person who transported the rifle. He also appeals his sentence, arguing that the sentencing judge improperly considered inflammatory hearsay statements that Marshall was a murderer and a member of a motorcycle gang death squad. We affirm Marshall's conviction and sentence.
Marshall was convicted of attempted burglary in New York in 1965, an offense punishable by more than one year in prison, bringing him within the prohibitions of §§ 922(g)(1), (h)(1) relating to the receipt and transportation of firearms. A drinking companion of Marshall testified that on April 3, 1978, Marshall accompanied him to a sporting goods store and had him buy a rifle for Marshall. The companion also testified that Marshall paid for the weapon and put it in the trunk of his girlfriend's car. Marshall denied that the rifle was bought on his behalf or that he put it in his girlfriend's car. The companion's testimony was the basis of Marshall's conviction for receipt of the firearm, which Marshall does not appeal. Marshall was acquitted on a charge that he bought a shotgun on April 21, 1978, in a similar way.
On August 5, 1978, police found the rifle in Illinois, in the closet of the apartment of another friend of Marshall, Deborah R. Cannon. Marshall was at the apartment when the rifle was found. Cannon testified that Marshall was the only person, other than herself and her two-year-old daughter, who was in and out of her apartment at will. Marshall admitted keeping personal belongings at Cannon's apartment and that he sometimes stayed there twice a week. Cannon testified that she had not put the rifle in the closet and did not know how the rifle got there.
Marshall was tried and convicted in May 1981 and sentenced in July 1981. At Marshall's sentencing hearing, the Government offered an explanation of why it prosecuted Marshall, acknowledging that it does not prosecute every felon who is found with a gun. The Government said its inquiries to other law enforcement officers indicated that Marshall had been a hit man in a motorcycle gang. The Government said it was told that a 1978 Canadian Broadcasting Company documentary identified Marshall as a member of the Outlaws motorcycle gang and contained an interview with a former member of that gang who admitted he had been a hit man and said Marshall was sent to Montreal in 1978 to avenge the death of another gang member at the hands of the Hell's Angels motorcycle gang. The Government also read a teletype from an Ontario detective, Terry Hall, which stated that Marshall had been arrested for weapons and immigration offenses along with other Outlaws. Hall interviewed Marshall after the arrest. Hall later met Marshall in Daytona Beach, Florida, during "Bike Week." The teletype stated that Marshall told Hall he had killed before and would kill Hall if he had the chance. The teletype also said that reliable sources had told Hall that Marshall was an enforcer for the Outlaws and had carried out contract killings for other organized crime people.
Finally, the Government reported that an Illinois law enforcement investigator said an informant had told him that Marshall was an enforcer for the Outlaws.
Marshall chose not to respond to the Government's evidence. When the court sentenced Marshall, it stated that it was satisfied that the hearsay information presented by the Government was reliable and that the information, coupled with Marshall's felony record, justified a substantial period of incarceration.
Marshall appeals his conviction on the count charging him with transportation of a firearm. He argues that the evidence was insufficient to sustain his conviction, and therefore the trial court erred in denying his two motions for judgment of acquittal pursuant to Fed. R. Crim. P. 29.*fn2 There was no direct evidence as to how the rifle was moved from Wisconsin to Illinois. Marshall argues that he did not have actual possession of the rifle in Illinois, nor did the time he spent at Cannon's apartment establish that he had constructive possession of the rifle at Cannon's apartment. Marshall moved for judgment of acquittal at the close of the Government's case and again at the close of all evidence. Marshall admits that the rifle moved in interstate commerce, but asserts that the jury could only speculate as to whether Marshall was the one who transported the rifle.
The standard of review in deciding whether the trial court should have granted Marshall's motions for judgment of acquittal under Fed. R. Crim. P. 29 is
whether at the time of the motion there was relevant evidence from which the jury could reasonably find [the defendant] guilty beyond a reasonable doubt, viewing the evidence in the light most favorable to the Government . . . bear[ing] in mind that "it is the exclusive function of the jury to determine the ...