US v. Moye: Moye was convicted of being a felon in possession of a firearm and possession of stolen firearms. The counts in which he was charged with those offenses also charged him with aiding and abetting those offenses.
The convictions stemmed from the robbery of a sporting goods store. When police arrived, they spotted Moye crawling out of a side door to the store while two companions fled (the getaway driver took off without waiting for anyone else, while another guy took off on foot). Moye tried to run, but was quickly caught. Lots of guns were found in the vehicle driven by one of Moye's companions when it was stopped. Moye had no weapons on him when he was arrested and none of the weapons recovered in the car had his fingerprints on them.
Nonetheless, he was convicted after a jury trial. The district court gave a "flight as evidence of guilt" instruction as well as an aiding and abetting instruction.
A panel of the Fourth Circuit, 2-1, reversed both of Moye's convictions. First, the court held that there was insufficient evidence to conclude that Moye possessed, even constructively, the firearms in question. Second, the court found that there was insufficient evidence to support giving an aiding and abetting instruction on the felon in possession charge and insufficient evidence to sustain a conviction on the possession of stolen firearms by aiding and abetting charge.
The court vacated its original panel opinion and reheard Moye's case en banc. In an opinion by Senior Circuit Judge Hamilton (the dissenter on the original panel), the court changed course and upheld Moye's convictions. Diving deeply into the facts, the court held that there was sufficient evidence to support the jury's conclusion that Moye actually possessed firearms during the robbery (specifically, the court speculated that Moye was the person inside the store who handed the guns out to his accomplices). While "an argument can be made that Moye was merely present at the same location from which the firearms were stolen . . . it was for the jury, not this court, to determine which version of the events - the government's or Moye's - was more credible."
The court also held that Moye's multiple convictions for possession of the same weapons did not violate the multiplicity principle of Bell v. United States, 349 U.S. 81 (1955), because the charges involved difference subsections of 18 USC 922.
Finally, the court held that the district court did not err in giving an aiding and abetting instruction, even though it was not supported by the facts, because it was a correct statement of law and another theory of liability was presented to the jury in the instructions that was both legally and factually supported.
Judge Motz concurred (along with Judge Michael), agreeing with the majority opinion in all aspects of the case except for the aiding and abetting instruction. Giving the instruction in this case was error, Motz argued, but was harmless because there was sufficient evidence to convict Moye on another theory.
Judge Gregory (who wrote the panel majority opinion) dissented, arguing that the aiding and abetting instruction was erroneous and was not harmless error because it was too confusing to the jury on the elements of being a felon in possession and aiding and abetting. Gregory would have vacated Moye's felon in possession conviction, but upheld the stolen firearms conviction.
It's interesting to note that both Judge Duncan and Judge Gregory (who voted with the majority on the rehearing) changed their positions from the original panel opinion in this case.
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