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                                                                                  [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 11-15724
                               ________________________

                      D.C. Docket No. 4:11-cr-00022-RH-WCS-1

UNITED STATES OF AMERICA,

                             Plaintiff - Appellee,

versus

THEODORE STEWART FRIES,

                             Defendant - Appellant.
                              ________________________

                      Appeal from the United States District Court
                          for the Northern District of Florida
                            ________________________

                                     (August 6, 2013)

Before CARNES, Chief Judge, WILSON and EBEL,* Circuit Judges.

WILSON, Circuit Judge:

         Theodore Stewart Fries appeals his conviction for transferring a firearm to

an out-of-state resident when neither he nor the buyer was a licensed firearms

         *
         Honorable David M. Ebel, United States Circuit Judge for the Tenth Circuit, sitting by
designation.
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dealer, in violation of 18 U.S.C. § 922(a)(5). He argues (1) that his conviction

should be reversed because the evidence presented at trial was insufficient to prove

that he sold a weapon to a person who was not a licensed firearms dealer, which is

an essential element of the crime, and (2) that in the alternative, he should be

granted a new trial because the jury instructions issued by the district court shifted

the burden of proof away from the government as to the licensure status of the

buyer. Because we agree that the record is devoid of evidence as to an essential

element of the crime for which Fries was convicted, we reverse.

                                          I.

      In December 2009, Special Agents Donald Williams and William Lee

Visnovske of the Bureau of Alcohol, Tobacco, and Firearms (ATF) went to the

Tallahassee Gun and Knife Show in Florida for the purpose of conducting an

undercover investigation of illegal gun sales. At the show, Williams asked

Visnovske to purchase a firearm from Fries. Visnovske was a Georgia resident,

and the sale was to take place in Florida, so it would therefore be illegal for Fries

to knowingly sell a weapon to Visnovske, a nonresident of Florida, if neither the

buyer nor the seller was a licensed dealer at the time of the transaction. 18 U.S.C.

§ 922(a)(5).

      Posing as a character named “Peebo,” Visnovske approached Fries and

identified himself as a “Georgia boy.” Visnovske further related that his younger

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brother was a student at the University of Florida and that he came from Georgia,

where he lived, to visit his younger brother in Gainesville about once per month.

Upon learning that Visnovske was from Georgia, Fries balked at the sale,

explaining “[t]hat he couldn’t sell to an out-of-state resident; that [Visnovske]

needed to be from Florida.” Agent Williams, who was standing next to Visnovske,

then volunteered that he was a Florida resident, to which Fries responded that he

could sell the gun to Williams, and “what you do with it, I don’t care.” Neither

Visnovske nor Williams made any mention of whether they possessed a federal

firearms license (FFL).

      Because Fries had refused to sell a gun to the nonresident Visnovske the first

time around, the agents tried again in April 2010. Visnovske (still posing as

Peebo) and Williams again showed up at a Tallahassee gun show, and Visnovske

again attempted to purchase a firearm. This time Fries took the bait. Fries told

Visnovske that he had just received a Kimber handgun as a trade-in, but that he

was willing to sell it to Visnovske for $1,200. Visnovske agreed to buy the gun,

counted out $1,200 in cash in front of Fries, and took possession of the weapon.

At no time did Fries ask Visnovske for identification, nor was there any discussion

regarding Visnovske’s licensure status.

      On April 6, 2011, a federal grand jury returned a two-count indictment

charging Fries with: (1) engaging in the business of dealing firearms without a

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license, in violation of 18 U.S.C. §§ 922(a)(1)(A), 923(a), and 924(a)(1)(D) (Count

I); and (2) selling, while not being a licensed dealer, a Kimber pistol to a

nonresident of the State of Florida who was also not a licensed firearms dealer, in

violation of 18 U.S.C. §§ 922(a)(5) and 924(a)(1)(D) (Count II). 1

       The case was tried to a jury, which returned a verdict of not guilty as to

Count I and of guilty as to Count II on July 27, 2011.2 The district court accepted

the verdict, adjudged Fries guilty of Count II, and sentenced him to two years’

probation. Section 922(a)(5), under which Fries was charged and convicted in

Count II of the indictment, provides that it shall be unlawful

       for any person (other than a licensed importer, licensed manufacturer,
       licensed dealer, or licensed collector) to transfer, sell, trade, give,
       transport, or deliver any firearm to any person (other than a licensed
       importer, licensed manufacturer, licensed dealer, or licensed collector)
       who the transferor knows or has reasonable cause to believe does not
       reside in (or if the person is a corporation or other business entity,
       does not maintain a place of business in) the State in which the
       transferor resides; except that this paragraph shall not apply to (A) the
       transfer, transportation, or delivery of a firearm made to carry out a
       bequest of a firearm to, or an acquisition by intestate succession of a
       firearm by, a person who is permitted to acquire or possess a firearm
       under the laws of the State of his residence, and (B) the loan or rental
       of a firearm to any person for temporary use for lawful sporting
       purposes.




       1
        Section 924(a)(1)(D) provides the possible penalties for the substantive offenses
enumerated in the indictment.
       2
         Because Fries was acquitted of Count I, only Count II is at issue in this appeal, and we
therefore set forth only those facts relevant to Count II here.
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      Prior to trial, Fries had asked the district court to modify the applicable

Eleventh Circuit Pattern Jury Instruction to include the defense that a person “may

be a resident of more than one state if he maintains a home in more than one state.”

Apparently, Fries wished to present evidence that at the time he sold the gun, he

believed Visnovske to be a resident of Georgia and Florida because of Visnovske’s

story about visiting his younger brother once per month at the University of

Florida. During argument on this issue, the district judge commented, “I take it in

this case the only claim is that Mr. Fries knew he was unlicensed and knew he was

selling to somebody that was a nonresident. There is no claim about speeding or

anything like that.” Fries’s counsel later responded, “That’s all I’m asking the

court to do, is to instruct the jury accurately about this dual citizenship law, and I

think that’s what I propose.” No mention was ever made—by the government, by

Fries, or by the court—of the fact that § 922(a)(5) might include as an element that

the buyer of the weapon be unlicensed.

      After discussing the jury instructions with the parties at a charge conference,

the district court ultimately issued the following jury instruction as to the Count II:

      [A] sale or transfer by an unlicensed person can only be made to a
      person who resides in the same state. Thus, a Florida resident who
      does not have a federal license cannot legally sell or transfer a firearm
      to a person who does not reside in Florida. There are exceptions—for
      a transfer to a licensed dealer, for a firearm that [is] passing through
      inheritance, and for a firearm that is being loaned or rented for
      sporting purposes—but the exceptions are not involved in this case.

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      The defendant can be found guilty on Count Two if, and only if, all
      the following facts have been proved beyond a reasonable doubt:

               First, the defendant did not have a Federal Firearms License[;]

             Second, the defendant sold or transferred the firearm described
      in the indictment in Florida;

             Third, the defendant knew or had reasonable cause to believe
      that the person who was acquiring the firearm through the sale or
      transfer did not reside in Florida; and,

               Fourth, the defendant acted willfully.

      Fries did not object to the proposed jury instruction, either at the charge

conference or at trial, on the ground that it did not require the government to prove

that the buyer of the firearm did not possess an FFL. Nor did Fries file a motion

for judgment of acquittal at the close of the government’s case, at the close of all

the evidence, or in a post-trial motion.

      Fries filed a notice of appeal, but soon thereafter his attorney filed a motion

to withdraw as counsel and an Anders3 brief, contending that a review of the record

revealed no arguable issue of merit upon which he could proceed in good faith. A

member of this Court subsequently denied the motion to withdraw and ordered

further briefing on the following two issues:

      (1) whether the district court effectively removed the burden of proof
      regarding an element of the 18 U.S.C. § 922(a)(5) offense by
      instructing the jury that the sale of a firearm to a licensed dealer was
      an exception to the prohibition on sales to non-residents that did not

      3
          Anders v. California, 

, 

(1967).
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       apply in the case; and (2) whether the evidence was insufficient to
       convict when no evidence was presented as to whether the buyer of
       the firearm was a licensed dealer.

In keeping with that directive, Fries now argues that because there is insufficient

evidence to support a finding that Visnovske did not have an FFL when Fries sold

him the firearm at issue in Count II, his conviction should be reversed. He also

argues in the alternative that because the trial judge instructed the jury that

transferee’s licensure status was an exception to criminal liability under

§ 922(a)(5) rather than an essential element of the crime, the jury instructions

erroneously relieved the government of its burden to prove beyond a reasonable

doubt that the person to whom Fries allegedly sold the Kimber firearm charged in

Count II of the indictment (Visnovske) did not possess an FFL.

                                                II.

       We begin with Fries’s argument that insufficient evidence supports his

conviction for violating 18 U.S.C. § 922(a)(5).4 Ordinarily, we review de novo



       4
          Because we reverse Fries’s conviction based upon the insufficiency of the evidence, we
have no occasion to reach his argument regarding the propriety of the jury instructions given by
the district court. Although the two issues overlap somewhat, we would have to reach the
sufficiency of the evidence question regardless of the result we reached with regard to the jury
instructions. That is because double jeopardy attaches and requires that we reverse a conviction
and remand for judgment of acquittal upon a finding that there was insufficient evidence to
convict a defendant of an offense, whereas a finding of plain error as to jury instructions merely
requires vacatur of the conviction and remand for a new trial. United States v. Mount, 

, 678 (11th Cir. 1998). Therefore, “[o]nly if the evidence is sufficient for a properly
instructed jury to have convicted [the defendant of the crime charged] . . . do we have to
determine whether the district court’s erroneous jury instruction constituted plain error requiring
reversal and remand for a new trial.” 

       Date Filed: 08/06/2013       Page: 8 of 17


whether sufficient evidence supports a conviction, viewing the evidence and taking

all reasonable inferences in favor of the jury’s verdict. United States v. Farley, 

, 1333 (11th Cir. 2010). But where a defendant does not move for

acquittal or otherwise preserve an argument regarding the sufficiency of the

evidence in the court below, the defendant “must shoulder a somewhat heavier

burden: we will reverse the conviction only where doing so is necessary to prevent

a manifest miscarriage of justice.” United States v. Greer, 

, 1271

(11th Cir. 2006). 5 This standard requires us to find either that the record is devoid

of evidence of an essential element of the crime or “that the evidence on a key


       5
          The parties both suggest that we should review the sufficiency of the evidence in this
case for plain error, but where a defendant fails to preserve an argument as to the sufficiency of
the evidence in the trial court, the predominant rule in this circuit—established by a long and
unchallenged line of cases—is better stated as requiring that we uphold the conviction unless to
do so would work a “manifest miscarriage of justice.” See United States v. Perez, 

,
573–74 (11th Cir. 2011) (per curiam), cert. denied, 

(2012); United States v.
Thompson, 

, 1338 (11th Cir. 2010) (per curiam) (applying manifest miscarriage of
justice standard where defendant never moved for judgment of acquittal on certain counts at
issue on appeal); United States v. Tagg, 

, 1323 (11th Cir. 2009) (reviewing for
manifest miscarriage of justice where “[a]t no time did the defense move for a judgment of
acquittal”); United States v. Edwards, 

, 756 (11th Cir. 2008); United States v.
Milkintas, 

, 1343 (11th Cir. 2006) (per curiam); United States v. Schier, 

, 1107 (11th Cir. 2006); United States v. Bender, 

, 1284 (11th Cir. 2002);
United States v. Burston, 

, 1332 n.5 (11th Cir. 1998); United States v. Bichsel, 

, 1150 (11th Cir. 1998) (per curiam) (applying manifest miscarriage of justice standard
where defendants “waived any objection to the sufficiency of the evidence” by failing to renew
their motion for judgment of acquittal at the close of all the evidence); United States v. Adams,

, 116 (11th Cir. 1996) (per curiam); United States v. Horsley, 

, 52 (11th
Cir. 1995) (per curiam); United States v. Hamblin, 

, 556–57 (11th Cir. 1990);
United States v. Pate, 

, 1150 (5th Cir. 1976); Thomas v. United States, 

, 430 (5th Cir. 1951) (per curiam); Moore v. United States, 

, 933 (5th Cir. 1947)
(per curiam) (“Here on a record which contains neither motion for a directed verdict nor any
objections or exceptions taken in the course of the trial, appellant seeks a reversal on the ground
that the record shows that a manifest miscarriage of justice has occurred.”).
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element of the offense is so tenuous that a conviction would be shocking.”

(internal quotation marks omitted); see United States v.

Wright, 

, 1072 (11th Cir. 1995).

                                          A.

      To prove that a defendant violated § 922(a)(5), the government must offer

evidence of four essential elements: (1) the defendant was not a licensed firearms

importer, manufacturer, dealer, or collector; (2) the defendant transferred, sold,

traded, gave, transported, or delivered a firearm to another person; (3) the person to

whom the defendant transferred the firearm was not a licensed importer,

manufacturer, dealer, or collector; and (4) the defendant knew or had reasonable

cause to believe that the person to whom the firearm was transferred did not reside

in the defendant’s state of residence. § 922(a)(5); see United States v. Tyson, 

, 205 (3d Cir. 2011); United States v. James, 

, 593 (8th Cir.

1999) (“In section 922(a)(5), Congress created the single offense of transferring

(by any one of several different means) a firearm by an unlicensed person to any

other unlicensed person who resides in a different state than the state in which the

defendant resides.”). Therefore, and insofar as the parties and the district court at

trial believed the transferee’s licensure status to be an exception to § 922(a)(5)

rather than an essential element of the same, they were wrong. See 

; 

; see also United States v. Lain, 

,

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1139 (10th Cir. 2011) (“The Government argues it presented the testimony of six

witnesses, two firearm exhibits, and verification that neither Defendant nor [the

transferee] possessed the necessary license.”); United States v. Lopez, 

,

1356 (5th Cir. 1993) (explaining that § 922(a)(5) “prohibit[s] non-licensee

transfers of firearms to other non-licensees residing in a state other than that of the

transferor’s residence”), aff’d, 

, 

(1995).6 Our view in

this regard is fortified by the fact that the Eleventh Circuit Pattern Jury

Instructions—which, although not binding, are “generally considered a valuable



       6
          Although the government half-heartedly submits in its response brief that “it can be
argued that both parties are not federal firearms license holders is not an element of proof
necessary to obtain a conviction for a violation” of § 922(a)(5), the plain language of the statute
clearly requires that both the defendant and the person to whom the defendant transfers the
firearm be persons “other than a licensed importer, licensed manufacturer, licensed dealer, or
licensed collector.” § 922(a)(5). The government apparently reads the statute as we do, too,
because the indictment charges in Count II that

       Theodore Stewart Fries, a resident of the State of Florida, not being a licensed
       importer, manufacturer, dealer, and collector of firearms, within the meaning of
       Chapter 44, Title 18, United States Code, did willfully transfer and sell a firearm,
       that is, a Kimber, Model Warrior, .45 caliber pistol, to a person not being a
       licensed importer, manufacturer, dealer, and collector of firearms, within the
       meaning of Chapter 44, Title 18, United States Code, knowing and with
       reasonable cause to believe that said person was not then residing in the State of
       Florida at the time of the aforesaid transfer and sale of the firearm.

         Further, it would be an absurd reading of the statute to construe the words “(other than a
licensed importer, licensed manufacturer, licensed dealer, or licensed collector)” as an essential
element where they apply to the defendant, but to interpret that very same parenthetical
statement not to be an essential element when it appears later in the same sentence as a modifier
of the transferee of the weapon. See § 922(a)(5) (rendering it unlawful “for any person (other
than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) to transfer,
sell, trade, give, transport, or deliver any firearm to any person (other than a licensed importer,
licensed manufacturer, licensed dealer, or licensed collector)” whom the transferor knows to be a
nonresident).
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resource, reflecting the collective research of a panel of distinguished judges,”

United States v. Dohan, 

, 994 (11th Cir. 2007) (per curiam) (internal

quotation marks omitted)—include as an essential element to § 922(a)(5) that

“neither the Defendant nor the person who received the firearm was a licensed

firearms dealer, importer, manufacturer, or collector” at the time of alleged

transfer. Eleventh Circuit Pattern Jury Instructions (Criminal), Offense

Instruction No. 34.2 (2010); see also Manual of Model Criminal Jury Instructions

for the District Courts of the Ninth Circuit, No. 8.57 (including, as an element of

§ 922(a)(5), that “neither the defendant nor [name of unlicensed dealer] was

licensed as a firearm [dealer] [importer] [manufacturer] [collector]” at the time of

the offense). The plain language of § 922(a)(5) clearly requires the government to

prove, as an essential element of the offense, that neither the defendant nor the

nonresident to whom the defendant allegedly transferred the weapon possessed an

FFL at the time of the transfer.

                                            B.

      Having determined that § 922(a)(5) requires proof that the defendant sold a

firearm to an unlicensed person as part of the government’s prima facie case, we

turn to whether there is evidence in the record sufficient to salvage Fries’s

conviction. Because Fries failed to move for acquittal at trial, we comb the entire

record and will affirm so long as we find some paucity of evidence that could have

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supported the jury’s finding that the person to whom Fries sold a firearm—

Visnovske—did not possess an FFL at the time of the transfer. See 

(explaining that the manifest miscarriage of justice standard “requires

the appellate court to find that the evidence on a key element of the offense is so

tenuous that a conviction would be shocking” (internal quotation marks omitted)).

The problem for the government is that we find none.

      The government concedes that the record contains no direct evidence of

Visnovske’s licensure status, such as Visnovske’s own testimony that he lacked an

FFL or the testimony of a custodian of records to that effect. The government

contends, however, that a jury could have found that Visnovske was unlicensed

from testimony between Fries and various ATF agents in which Fries apparently

demonstrated knowledge that it would be illegal sell a gun to a nonresident of

Florida unless that person held an FFL. That fact, plus Fries’s attempts to

circumvent the law, says the government, can be relied upon to prove that

Visnovske was actually unlicensed at the time of the sale. Put another way, the

government argues that Fries’s subjective belief that he was breaking the law by

selling the weapon to Visnovske is evidence of the objective fact that Visnovske

was unlicensed. We are unpersuaded. As we see it, because Fries lacked personal

knowledge of Visnovske’s licensure status, his subjective belief that he was

executing a transaction with an unlicensed person simply does not bear upon the

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objective state of affairs as they actually were at the time of the sale. In light of the

government’s concession that the record contains no other evidence on this front,

the record is completely bereft of any evidence that Visnovske was, as a matter of

objective fact, unlicensed at the time of sale. That being so, our inquiry is at its

end—Fries’s conviction cannot stand: “To uphold a conviction, in the absence of

any evidence as to an essential element, would be a miscarriage of justice.” United

States v. Tapia, 

, 1492 (11th Cir. 1985) (per curiam) (internal

quotation marks omitted); see 

(“Under the manifest

miscarriage of justice standard, reversal is required only if the record is devoid of

evidence pointing to [the defendant’s] guilt or the evidence of a key element is so

tenuous that a conviction would be shocking.”); 

(“The

record is otherwise devoid of evidence to support the jury’s verdict, and intuition

cannot substitute for admissible evidence when a defendant is on trial.”).

      The government next argues that any error in not submitting evidence of

Visnovske’s licensure status was harmless because, had Fries objected at trial, the

government could have proved Visnovske was unlicensed. But on appeal, we are

confined to the record before us. And our searching review of the record in this

case simply reveals no evidence whatsoever that Visnovske—the person to whom

Fries allegedly sold a firearm—did not possess a license at the time of the sale. In

every criminal case, the government must be put to its proof, and though the failure

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to make a contemporaneous objection or motion at trial may affect our standard of

review, permitting a conviction to stand where not a whit of evidence supports an

essential element of the crime charged would do great damage to the

considerations of due process that serve as a fundamental bulwark of our criminal

justice system. Cf. In re Winship, 

, 364, 

, 1073 (1970)

(“[W]e explicitly hold that the Due Process Clause protects the accused against

conviction except upon proof beyond a reasonable doubt of every fact necessary to

constitute the crime with which he is charged.”); United States v. Vuitch, 

, 72 n.7, 

, 1299 n.7 (1961) (explaining that “a court should

always set aside a jury verdict of guilt when there is not evidence from which a

jury could find a defendant guilty beyond a reasonable doubt”); Clyatt v. United

States, 

, 222, 

, 433 (1905) (“[I]t is the imperative duty of

a court to see that all the elements of [a] crime are proved, or at least that testimony

is offered which justifies a jury in finding those elements.”). The government’s

harmlessness argument therefore does little to cure the key defect in this case,

which is that it failed to offer any evidence of an essential element of the crime for

which Fries stands convicted.

      It is no answer to say that the particular element at issue here—the licensure

status of the transferee for purposes of § 922(a)(5)—is unimportant or somehow a

technicality: our charge as arbiters of the law does not turn upon the potential for

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intrigue presented by the particular plot or cast of characters of a given case. Even

where the defendant fails to move for acquittal and our review of the record is at its

most charitable, in the end the responsibility to provide some scintilla of evidence

regarding each element of a crime falls squarely on the government. Because the

government failed to make that minimal showing, Fries’s conviction must fall.

                                         III.

      The judgment of the district court is reversed, and the case remanded to the

district court with instructions to enter judgment of acquittal on Fries’s behalf as to

Count II of the indictment.

      REVERSED AND REMANDED.




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CARNES, Chief Judge, concurring:

      During the charge conference held at the end of the first day of trial, Fries

went along with an instruction, suggested by the court, containing language that

while there are exceptions to 18 U.S.C. § 922(a)(5)’s licensing requirement,

including one “for a transfer to a licensed dealer, . . . the exceptions are not

involved in this case.” That instruction was eventually given, without objection.

The quoted statement sounds somewhat like a proposed stipulation. One might

argue that by not objecting to that statement Fries stipulated to the fact that his

transfer to undercover agent Visnovske was not a transfer to a licensed dealer. But

the government did not argue that to us, at least not as to the sufficiency of the

evidence issue, which is the only one that this Court reaches.

      Nor can it be said that by not objecting to that jury instruction at the charge

conference Fries lulled the government into failing to ask Visnovske if he was a

licensed dealer. Visnovske testified during the first day of the trial, before the

charge conference was conducted. The government’s failure to ask him if he was a

licensed dealer occurred before it knew what Fries’ position might be on that

factual issue. Fries did not sucker punch the government. Instead, it knocked itself

out of a valid conviction by not asking its witness a simple question the importance

of which is obvious from the indictment’s allegation that Fries had transferred the

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firearm “to a person not being a licensed importer, manufacturer, dealer, and

collector of firearms.” It is not asking too much to expect a prosecutor, before a

trial ends, to look at the indictment to ensure that all of the elements alleged in it

have been proven. The prosecutor in this case failed to do that.




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