United States Court of Appeals
                     For the First Circuit

No. 09-2669

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                         HAZEN D. SHAW,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF MAINE

        [Hon. John A. Woodcock, Jr., U.S. District Judge]



                             Before

                    Boudin, Lipez and Howard,
                         Circuit Judges.



     Jonathan G. Mermim, with whom Preti, Flaherty, Beliveau &
Pachios, LLP was on brief, for appellant.
     Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellee.



                        February 29, 2012
              HOWARD, Circuit Judge.           A jury convicted the defendant,

Hazen Shaw, on one count of possessing an unregistered short-

barreled shotgun in violation of the National Firearms Act.                          26

U.S.C. §§ 5861(d), 5871.             At trial, he moved for a judgment of

acquittal, Fed. R. Crim. P. 29, contending that the Government

failed to present sufficient evidence that he knew the shotgun's

barrel was shorter than 18 inches, the statutory characteristic

subjecting the weapon to the Act.               See 26 U.S.C. § 5845(a).            The

trial court denied the motion, and Shaw now appeals his conviction.

                                   I. BACKGROUND

              The   question    on    appeal    is   one    of    sufficing    of   the

evidence, so we recite the relevant factual background in the light

most   favorable       to    the      verdict.        See        United    States    v.

Gonzalez-Ramirez, 

, 24 (1st Cir. 2009).                        On a Sunday

afternoon in November 2008, state law enforcement officers received

a complaint about gunshots being fired in a wooded residential area

in Springfield, Maine.               Upon responding, State Trooper Barry

Meserve was informed by a resident that the suspected vehicle had

just   sped    away   from     the    scene;    Trooper     Meserve       pursued   the

departing taillights.          The vehicle took flight down the dirt road,

and a chase ensued. With considerable effort, including the aid of

other officers and two road blocks, the police finally stopped the

vehicle.      Still not dissuaded, the driver rammed his sedan into a

police vehicle parked behind him.              Two officers rapidly approached


                                         -2-
the sedan on foot with weapons drawn, demanding that the driver

show his hands.    Maine Warden Service Sergeant Ronald Dunham heard

"the action of a gun" like a "pump-action gun being operated" and

saw the driver "rifling the action of [the] gun."              Shaw, the

automobile's driver, then put his hands out the window and was

immediately apprehended.    He was the only person in the car, and a

12 gauge sawed-off "Mossberg 500A" shotgun was found lying near him

within   ready   reach.   The   sound   heard   by   Dunham   was   later

attributed to the weapon being unloaded.

           Shaw was arrested for eluding a police officer and for

reckless conduct.    A subsequent search of the automobile revealed

various items, including two knives and a hatchet, as well as a 20

gauge shotgun with a sawed-off stock in the trunk.              A single

expelled or spent 12 gauge shotgun round was found between the

driver and passenger seats.     Shaw himself was carrying, in a pack

and on his hunting belt, different types of ammunition, some boxed

and some loose.    Additional evidence suggested that Shaw had been

engaging in some type of hunting activity while seated in his car,

by shooting at game from his open car window.

           State Trooper Michael Johnston, an evidence technician,

arrived at the scene and quickly noticed that the 12 gauge shotgun

appeared to be too short for federal guidelines.              He further

observed that the stock of the weapon had been cut off and covered

with duct tape, the gun's barrel "look[ed] like it also had been


                                  -3-
cut," and "a homemade sling" was attached "in the form of a yellow-

like nylon rope."       The outside of the gun barrel still bore

printing indicating that the original barrel length had been 28

inches. While the weapon's overall length was about 29 inches, the

barrel   itself,   measured   internally,    was   sixteen-and-a-quarter

inches in length.    Because the length of the shortened barrel of

the 12 gauge was less than 18 inches, the weapon was subject to

federal registration requirements.          See 26 U.S.C. §§ 5845(a),

5861(d).    Shaw was subsequently charged with possession of an

unregistered firearm.    See 26 U.S.C. §§ 5861(d), 5871.      As noted,

the trial court rejected Shaw's Rule 29 motion for judgment of

acquittal on that charge, and the jury rendered a guilty verdict.

This timely appeal followed.

                        II. STANDARD OF REVIEW

           We review de novo the denial of a Rule 29 motion to

determine whether the body of proof as a whole, including direct

and circumstantial evidence, was sufficient for a rational jury to

conclude beyond a reasonable doubt that the government established

each element of the crime.      United States v. Pérez Meléndez, 

, 40 (1st Cir. 2010). In so doing, we consider the evidence,

including all reasonable inferences drawn therefrom, in the light

most favorable to the jury's verdict.        

of

evidence viewed in isolation may be insufficient in themselves to

prove a point, but in cumulation may indeed meet the mark.        United


                                  -4-
States v. Spinney, 

, 234 (1st Cir. 1995).                               Further,

"[a]ll credibility disputes are to be resolved in the verdict's

favor, and this court need not believe that no verdict other than

a guilty verdict could sensibly be reached, but must only satisfy

itself that      the    guilty    verdict        finds    support      in    a    plausible

rendition of the record."             United States v. Hatch, 

, 4

(1st Cir. 2006) (internal quotations omitted).

           In this case, the question is whether there was enough

evidence to permit a rational jury to conclude beyond a reasonable

doubt that the defendant knew that the length of the barrel of the

shotgun was less than 18 inches.            See 26 U.S.C. §§ 5845(a)(1)-(2),

5861(d).

                       III. GOVERNING LAW AND ANALYSIS

           The      National     Firearms        Act,    26   U.S.C.    §§       5801-5872,

imposes    strict      regulations         on     certain      statutorily          defined

"firearms."      Pertinent here, Congress has deemed it unlawful for

any   person   "[t]o      receive     or   possess       a    firearm   which       is   not

registered     to   him    in   the    National         Firearms    Registration         and

Transfer Record."         26 U.S.C. § 5861(d).                A "firearm" generally

constitutes certain shotguns and rifles, machineguns, silencers and

destructive devices; firearm feature terminology is further defined

by statute.     See 26 U.S.C. § 5845.             In the context of this appeal,

a "firearm" means "a weapon made from a shotgun if such weapon as

modified has . . . a barrel . . . of less than 18 inches in


                                           -5-
length."      26 U.S.C. § 5845(a)(2).           Failure to comply with the

registration requirement is punishable by a fine of $10,000 and up

to ten years of imprisonment.            26 U.S.C. § 5871.

              While the defendant's knowledge is at the heart of this

appeal, the statute itself does not expressly contain a mens rea

requirement.        The United States Supreme Court addressed this

statutory silence in Staples v. United States, 

(1994).

There,     the    defendant      had   been    convicted    of   possessing     an

unregistered "machinegun" firearm in violation of section 

. The firearm, a semiautomatic AR-15 rifle had been

modified to render it capable of fully automatic firing; the

modified      firing   feature     subjected      the   weapon   to    the    Act's

registration requirement as a machinegun.                See id.; see also 26

U.S.C. § 5845(a)(6), (b) (defining "machinegun" firearm).                      The

trial court had not required the jury to find that the defendant

knew that the weapon possessed the characteristic (which resulted

largely by an internal modification) rendering it a machinegun

under the statute.          

).             Overturning

Staples' conviction, the Court held that the government "should

have   been      required   to   prove   beyond    a    reasonable    doubt   that

[Staples] knew the weapon he possessed had the characteristics that

brought it within the statutory definition of a machinegun,"

reasoning that Congress had not clearly dispensed with the common

law mens rea requirement.          

616-20.


                                         -6-
           The government assumes that Staples' scienter requirement

applies in this case involving a sawed-off weapon. For purposes of

our analysis, so will we.1

           The defendant contends that the record contains "no

evidence that he knew the barrel of the shotgun was less than 18

inches."    According   to   Shaw,    the   one-and-three-quarters   inch

difference between the barrel's actual length, measured internally,

and the prescribed length cannot support the proposition that he

could have determined its length just by looking at it.        Thus, he

argues, establishing knowledge required evidence that he was the

person who actually shortened the barrel from its original length,


     1
      Prior to Staples, we had held, in assessing a conviction for
aiding the transfer of a "firearm" under the National Firearms Act,
that proof of knowledge that a sawed-off shotgun barrel measured
less than 18 inches was not required. United States v. DeBartolo,

(1st Cir. 1973).     Since Staples, however, we have
applied Staples' mens rea requirement when reviewing a conviction
for unlawful possession of a combination shotgun and rifle under
section 5861(d), United States v. Giambro, 

, 29 (1st
Cir. 2008), and for unlawful possession of a machinegun under 18
U.S.C. § 922(o), United States v. Nieves-Castaño, 

,
599-600 (1st Cir. 2007).
     Several courts have read Staples to require proof that a
defendant knew that an unregistered sawed-off weapon or its barrel
was shorter than the statutorily prescribed length. See United
States v. Michel, 

, 1129-30 (10th Cir. 2006); United
States v. Miller, 

, 1286-87 (11th Cir. 2001); United
States v. Gergen, 

, 723-24 (9th Cir. 1999); United
States v. Reyna, 

, 108-09, n.3 (5th Cir. 1997); United
States v. Edwards, 

, 205 (7th Cir. 1996); United States
v. Starkes, 

, 101 (4th Cir. 1994)(per curiam). At least
one circuit, however, has held that in the context of a "quasi-
suspect" weapon (such as "a hand grenade, sawed-off shotgun or
Molotov cocktail"), the government need only prove that the
defendant knowingly possessed the item. United States v. Dukes,

, 915-16 (8th Cir.), cert. denied 

(2006).

                                     -7-
or that he owned the gun long enough "to become sufficiently well

acquainted with its characteristics to have ascertained its length

with the precise degree of accuracy (a margin of error of less than

10 percent)" for him to have visually discerned that the barrel was

shorter than 18 inches.          He also discounts the evidence of flight

as   readily    susceptible       to   explanations        other   than      culpable

knowledge of gun barrel length.

             After carefully examining the record, we conclude that it

contains sufficient evidence to support the jury's finding beyond

a reasonable doubt that Shaw knew that the barrel of the 12 gauge

sawed-off shotgun was shorter than 18 inches.                    His acquaintance

with   the     particular       weapon,    his     familiarity     with      firearms

generally,     and   the   external       and    readily   observable     shortened

feature of the gun's sawed-off barrel permitted the jury to infer

Shaw's knowledge relative to barrel length.                We explain below.

             First, the evidence allowed the jury to rationally infer

that Shaw was well acquainted with this particular shotgun, which

had a shortened stock covered with duct tape and an immediately

apparent sawed-off barrel.          See United States v. Giambro, 

, 30 (1st Cir. 2008) (sufficient evidence of scienter based in

part on defendant's familiarity with the particular weapon). There

was evidence that he was engaging in some type of hunting excursion

and that he fired the 12 gauge from inside the confines of his

automobile     through     an   open   window.       Indeed,     the   gun    bore   a


                                          -8-
"homemade sling" of "yellow-like nylon rope," apparently for ease

of use.   Also, there was evidence that Shaw deftly unloaded the

shotgun while seated in a constricted area, the driver's seat of

his vehicle, while law enforcement officers descended upon him with

guns drawn amidst an intense effort to secure his custody.

           Maneuvering the shotgun inside the close confines of his

car during his sport and during the highly charged circumstances of

his apprehension provides ample factual foundation for the jury to

rationally conclude that he was quite familiar with this particular

weapon and appreciated its smaller stature -- including the short

barrel feature.       See 

n.11 (noting that

defendant's     use     of     the   weapon    can   make     its   regulated

characteristics immediately apparent); United States v. Jones, 

, 352 (7th Cir. 2000) (noting that evidence defendant

observed and handled the sawed-off shotgun can be sufficient for

jury to reasonably infer his knowledge of the weapon's statutory

characteristic relative to length of gun or length of barrel); cf.

United States v. Michel, 

, 1131 (10th Cir. 2006)

(collecting cases on same, but holding that where "government

presented absolutely no evidence that [defendant] ever observed or

handled   the   gun,"    the    record   was   insufficient    to   establish

defendant's mens rea relative to barrel length); United States v.

Nieves-Castaño, 

, 601-02 (1st Cir. 2007) (finding

scienter evidence insufficient where defendant had not observed the


                                      -9-
relevant external feature of the weapon, observation of weapon

would not alert a layman to such relevant feature, and defendant

had not used the gun to know that it operated as a machinegun).

            Second, the evidence allowed the jury to rationally infer

that Shaw was familiar with firearms, more so than an average

layman, and thus able to meaningfully distinguish between the

physical    characteristics       and    capabilities    of    different    guns,

including the Mossberg.           See 

(court's

holding on sufficiency of scienter evidence was based in part on

defendant's heightened knowledge and interest in firearms).                     For

example, he was wearing a pack of ammunition suitable to different

shotguns and different hunting purposes, and had more of such

ammunition in a hunting-style belt holder and strewn inside his

vehicle.     Also, he chose to use his 12 gauge shotgun in his

sporting activity that day, with its crude strap apparently for

ease of use and with its shortened stock and barrel, rather than

using the 20-gauge found in the trunk, which had a shortened stock

but   a   much-longer    intact    barrel.      Shaw's    possession       of   two

different shotguns of distinctly different barrel lengths and with

varying    ammunition,    and     his   apparent   hunting     propensity       and

peculiar use of the short-barrel gun allowed the jury to conclude

that he was an experienced hunter who understood the desirability

of different weapons in different circumstances.                 This evidence

allowed    the   jury    to   infer     that   Shaw     knew   about   distinct


                                        -10-
characteristics of different guns generally, and particularly those

of his Mossberg pump.       See 

.        And again,

Shaw's aptitude in maneuvering the 12 gauge inside his vehicle for

sport and during the charged interaction with law enforcement

further displayed his knowledge about and experience with shotguns.

          Third, the shortened nature of the shotgun's barrel is an

external characteristic, and the evidence permitted the jury to

infer that the barrel length of less than 18 inches was readily

observable to the defendant. See 

(scienter

evidence found sufficient based in part on the visual appearance of

short barrel, which revealed that the statutory characteristics

were "evident from looking at the weapon").             Trooper Johnston

testified that the barrel looked like a portion had been cut off,

and its outside still bore printing indicating that the barrel's

original length had been 28 inches, a significant stretch lengthier

than the sixteen-and-a-quarter inches.        See 

n.11 (noting that defendant's knowledge of the regulated

characteristic   can   be   inferred   from   "any   external   indicators

signaling the nature of the weapon").           Moreover, Johnston had

immediately noticed the short stature of the 12-gauge barrel when

he arrived at the scene, raising his concern about whether it

measured the requisite 18 inches.        See 

(noting testimony that police detective recognized the weapon to be




                                  -11-
a firearm subject to federal regulation due to its short barrels

"as soon as he saw it").

           Evidence relating to how the gun barrel was measured also

is telling.    Special Agent Kenneth Stengel of the Bureau of

Alcohol,   Tobacco,   Firearms   and   Explosives    testified   that   he

followed standard procedure when measuring the barrel's length,

which involved closing the bolt of the shotgun, inserting a wooden

dowel, and measuring the dowel mark to the bolt face.            Stengel

testified that this process, which is performed on the inside of

the barrel, resulted in "measur[ing] to the furthest point on the

barrel" as a "way of giving the benefit of the doubt to the

defendant."   This testimony gives rise to a reasonable inference

that the shotgun barrel when viewed externally appeared to be even

shorter than the internally measured sixteen-and-a-quarter inches.2

Moreover, the weapon's barrel was in fact one-and-three-quarters

inches shorter than the prescribed minimum.         See United States v.

Green, 

, 1273 (10th Cir. 2006) (holding that evidence

of knowledge about barrel length was sufficient in part because

shotgun barrel was 16.5 inches; witness testified that the barrel

appeared short and "anyone who looked quickly at the gun would

notice it was short or that the barrel had been sawed off");


     2
      The record suggests that when measured externally, the length
of the shotgun barrel was fifteen-and-a-half inches, further
supporting that the jury could have rationally concluded the
barrel's visual appearance alerted the defendant to the fact that
it was shorter than 18 inches.

                                 -12-


(evidence that shotgun barrel was fifteen-

and-one-half inches permitted jury to infer that defendant knew

barrel was shorter than eighteen inches); 

(the jury could have reasonably inferred defendant's knowledge that

rifle was shorter than 16 inches by observing the weapon, which was

thirteen-and-one-sixteenth inches long).

             Other evidentiary details provided the jury with indicia

that, from looking at the weapon, the defendant would have known

that the barrel was shorter than 18 inches.            Photographs of the

scene were displayed to the jury, including one depicting the

interior of the front seat of the vehicle where the 12-gauge was

resting     pointed   toward    the   floorboard.     Another     photograph

displayed the shotgun on the vehicle's hood beside a tape measure

showing the overall gun length.         These pictures gave the jury the

opportunity to see the weapon -- and its barrel -- in proportion to

other real life objects, and even juxtaposed with a tape measure.

Moreover, the gun was admitted into evidence, allowing jurors to

see   the   weapon    for   themselves.      Thus,   the   jury   had   ample

opportunity to reach its own determination as to whether the

statutorily prescribed short barrel length was clear from simply

looking at the shotgun.        See 

(noting that

"[t]he jury saw the weapon and therefore could reach its own

determination of whether the characteristics were clear from simply

looking at the [weapon]"); United States v. Ortiz, 

,


                                      -13-
712 (1st Cir. 1992) (noting that "jurors are neither required to

divorce themselves from their common sense nor to abandon the

dictates of mature experience"); see also United States v. Sanders,

, 701 (7th Cir. 2008) (noting that jury could infer

that defendant knew barrel length was shorter than 18 inches from

evidence that defendant handled the shotgun if its appearance would

have   revealed   that   characteristic);   

(upholding conviction for possession of unregistered firearm under

section 5861(d) where testimony established that sawed-off shotgun

with barrel of 16.5 inches obviously appeared short and "jurors

were permitted to examine the shotgun firsthand, allowing them to

make their own conclusions as to whether it was apparent the gun

was sawed-off").

           Despite this record panoply on scienter, Shaw contends

that his case fails to reach the quantum of sufficient evidence set

forth in Giambro.        Seeking to negate any inference that he is

knowledgeable about guns and their distinguishing characteristics,

Shaw asserts that the evidence against him cannot compare to

Giambro's extensive gun collection (more than 200 weapons) and

ready discernment that two had been seized -- the evidentiary

display of his "specialized knowledge and interest in firearms."

.        That there may have been extensive

evidence in Giambro, however, does not diminish the meaningful




                                  -14-
evidence here that Shaw was well acquainted with the particular 12

gauge shotgun at issue, and with shotguns in general.

           Shaw also relies on the fact that the discrepancy between

the actual barrel length and the required eighteen inches amounts

to only one-and-three-quarters inches.        We disagree that evidence

of a special ability to calculate length based purely on visual

inspection was necessary for the jury to reasonably conclude that

the defendant knew that the Mossberg's barrel was shorter than 18

inches. As we observed earlier, the evidence permitted the jury to

conclude that the barrel's length visually appeared to be some

stretch shorter than the actual internal measurement of sixteen-

and-a-quarter inches.   In any event, the totality of the evidence

permitted the jury to conclude for itself that the barrel appeared

shorter than 18 inches.

           Finally, Shaw urges us to discount the flight evidence.

He contends that his motivation for giving chase could have been

premised on sundry culpable reasons independent of his knowledge on

gun barrel length, ranging from unlawful hunting on a Sunday to

unlawful   possession   of   a     loaded   firearm   in   the   passenger

compartment of a car.   Rather than parsing Shaw's motivations for

his conduct, the jury rationally could have concluded that he was

a   knowledgeable   hunter   who    flagrantly   disregarded     the   law,

including knowingly possessing a shotgun with a barrel of less than

18 inches in length.      Likewise, we are unmoved by the lack of


                                    -15-
evidence showing that he attempted to conceal the weapon; another

plausible read by the jury was simply that Shaw lacked the time,

opportunity or aforethought to try to hide the weapon.                    See United

States v. Rodríguez-Durán, 

, 758, 759 (1st Cir. 2007)

(observing that "[t]he government need not succeed in eliminating

every possible theory consistent with the defendant's innocence" to

secure   a    conviction,    and    that    the      jury   "may    reject   even   a

reasonable hypothesis inconsistent with guilt, so long as the

evidence also reasonably supports culpablity" (internal quotations

and citation omitted)).            In any event, even putting aside the

flight evidence, the government satisfied its evidentiary burden to

prove beyond a reasonable doubt that Shaw knew that his 12 gauge

shotgun had a barrel shorter than 18 inches.

              One brief matter remains.           When charging the jury, the

district court instructed on the meaning of "knowingly" and also

informed the jury that it "may infer" knowledge in the event that

it found the necessary predicate components of willful blindness.

See   Pérez    

    (noting     that   "[w]illful

blindness serves as an alternate theory on which the government may

prove knowledge"); United States v. Azubike, 

, (1st Cir.

2009) (discussing when a case warrants willful blindness charge);

United States v. Brandon, 

, 451-54 (1st Cir. 1994)

(discussing boundaries of willful blindness charge). In its brief,

the   government    argued    in     support      of    the   willful      blindness


                                      -16-
instruction and the evidence supporting a willful blindness jury

finding as a basis to affirm.       We note that the defendant did not

challenge the jury instruction either at trial or in the opening

brief.    Nevertheless, given our conclusion that the evidence

supports a finding of actual knowledge, we see no need to address

whether the evidence also permitted the jury to find scienter

premised on willful blindness.

                              IV. CONCLUSION

           That a different jury could have rendered a different

verdict   does    not   undermine   the    legal   sufficiency      of   Shaw's

conviction.      See 

.         We do not shy away from

overturning jury verdicts for lack of sufficient evidence when the

record demands it, see O'Laughlin v. O'Brien, 

, 301

(1st Cir. 2009) (collecting cases), and we have done so in the

context of the scienter element for unlawful conduct involving a

"firearm," see 

.                 After taking a

hard look at the record in this case, we are satisfied that the

jury's verdict is not based on sheer speculation, pure conjecture

or   improperly    stacked   inferences,    but    is   fully    supported   by

sufficient evidence.

           The judgment is affirmed.



           - Concurring and Dissenting Opinions Follow -




                                    -17-
           BOUDIN, Circuit Judge, concurring.     We can assume that

under Staples v. United States, 

, 619 (1994), Shaw had

to know that his shotgun's barrel was less than 18 inches long,

although not that it was unlawful to possess an unregistered weapon

of that length.3    This juxtaposition may seem perverse; but a

defendant's ignorance of facts may often defeat a criminal charge

while ignorance of the law does so only rarely.     Courts sometimes

say that knowledge of the law is imputed to a defendant, yet this

is not a factual proposition but legal shorthand for saying that

ignorance of the law does not usually excuse a violation.

           Nevertheless, relevant to what Shaw knew about the length

of his shotgun is the likelihood that Shaw gave any attention to

the length of the weapon.   One might be handed a fork and use it to

eat pie without being aware whether the fork had three tines or

four.    By contrast, Shaw had to know that he possessed a short-

barreled sawed-off shotgun that was significantly shorter than an

ordinary shotgun used for hunting.     See Laycock, The Shotgunnner's

Bible 48 (rev. ed. 1987) ("The modern shotgun barrels offered

across the counters commonly come in three sizes--twenty-six,

twenty-eight, or thirty inches.").


     3
      There is now a circuit split as to whether under Staples the
knowledge of length requirement applies to short-barreled shotguns,
compare, e.g., United States v. Erhart, 

, 969 & n.4
(8th Cir. 2005), cert. denied, 

(2006), with United
States v. Reyna, 

, 107-09 (5th Cir. 1997), cert.
denied, 

; but the government does not argue that
Staples intended an exception for shotguns.

                                -18-
            The jurors were from Maine, a largely rural state with

many forests     and   fields, where    hunting     is a   common    pastime.

Whatever the average Boston resident may know about hunting, Maine

hunters--or at least those who use shotguns--are quite likely to

know that shotguns used in hunting are long-barreled weapons.4            And

the jury knew that Shaw was no stranger to shotguns; he was found

in possession of two--for which he had three different kinds of

ammunition--and was observed by law enforcement manipulating and

unloading one of the weapons in a manner suggesting familiarity

with its operation.

            Sawed-off shotguns are notoriously associated not with

hunting   but   with   crime.5   Even    a   city    dweller   who    watches

television or reads newspapers would know the reputation of the

weapon.     The shotgun in this case was not only short but visibly

shortened in both its stock and its barrel, both of which had been

cut down.    A hunter like Shaw almost certainly had to know that his




     4
      District of Columbia v. Heller, 

, 625 (2008)
("[T]he Second Amendment does not protect those weapons not
typically possessed by law-abiding citizens for lawful purposes,
such as short-barreled shotguns."); Demko v. United States, 

, 1051 (Fed. Cir. 2000) (noting that the ATF has
designated short-barreled shotguns as "destructive devices").
     5
      E.g., 10 The New Encyclopaedia Britannica 765 (15th ed. 1994)
("The sawed-off shotgun, with truncated barrels, is easily
concealed and is notorious as a criminal weapon."); Conf. Rep. No.
90-1956 (1968), reprinted in 1968 U.S.C.C.A.N. 4426, 4434 ("The
present National Firearms Act covers gangster-type weapons such as
. . . sawed-off shotguns . . . .").

                                 -19-
weapon was not a typical shotgun used in ordinary hunting but a

visibly and substantially shortened weapon.

          Thus, Shaw almost certainly knew that the barrel was

considerably less than its ordinary length--here, the original

barrel length was marked as 28 inches--and that it was not an

ordinary hunting weapon. In fact, the visible length was only 15.5

inches.   And once his awareness of its peculiar shortness is

posited, the remaining inference as to what he knew about its

length involves a far shorter jump.            All the jury needed to

conclude was that Shaw, conscious of its shortened length, would

realize that the barrel was less than a foot and a half long.

          An ordinary 12-inch ruler is a familiar item at school

and at home.   Shaw's shotgun had a visible barrel length only 3.5

inches more than a ruler.       A jury, looking at the shotgun and

reasonably   believing   that   Shaw   would   himself   appreciate   its

aberrant shortness, could conclude that the barrel looked somewhat

longer than a ruler but not as long as a foot and a half, and that

Shaw therefore knew that it was less than 18 inches.        Shaw did not

have to know that its precise visible length was 15.5 inches.

          We cannot be certain how much jurors who sat on this jury

knew about hunting and typical shotgun lengths, for the background

facts that juries use in drawing inferences are not commonly

"proved" but assumed to be within their ken.         United States. v.

Amado–Núñez, 

, 121-22 (1st Cir.), cert. denied, 542


                                 -20-
U.S. 914 (2004).   But Maine jurors, exercising common sense, could

gauge that a hunter would know his weapons as well as a carpenter

knows his tools--unless circumstances (e.g., a novice hunter)

suggested otherwise.

           The question on appeal is not whether the particular

appeals court panel would vote to convict on this evidence; it is

whether a reasonable jury, entitled to considerable deference in

weighing this evidence, could find that Shaw was aware that his

shotgun barrel was less than a foot and a half long.    As in most

cases of inference, the issue turns on real-world probabilities and

the jury's estimation of them in light of general knowledge and

experience.   In this, as with credibility determinations, the jury

enjoys considerable latitude.

           A great judge warned about the danger of "appellate

judges . . . whetting their appetite for dealing with facts" rather

than leaving them to the jury or judge who saw the witnesses and

heard the evidence.    Chem. Transporter Inc. v. Reading Co., 

, 439 (2d Cir. 1970) (Friendly, J., dissenting).    A jury

verdict starts with a very strong presumption in its favor, and

that presumption is not overcome where, as here, one can imagine

how a reasoning jury might have arrived at the conclusion that this

one did.




                                -21-
           LIPEZ, Circuit Judge, dissenting. The majority concludes

that the government's evidence was sufficient to allow a jury to

determine beyond a reasonable doubt that Shaw had knowledge of the

specific fact that the barrel of his shotgun was less than 18

inches in length.       I disagree.        The jury's verdict required

impermissible speculation.

                                    I.

           The government bears a difficult burden of proof in this

case because of the specific mens rea requirement imposed by the

Supreme Court in Staples v. United States, 

(1994).              As

the   majority   observes,   the   Court   held   in   Staples   that   in    a

prosecution under the National Firearms Act (the "Act"), 26 U.S.C.

§§ 5801-5872, "the Government should [be] required to prove that

[the defendant] knew of the features of his [weapon] that brought

it within the scope of the Act," 

.          In this

case, Staples required that the government prove that Shaw knew

that the barrel of his 12-gauge shotgun was less than 18 inches in

length.6   See 26 U.S.C. § 5845(a)(1).       The probative force of the


      6
       The concurrence begins by referring to United States v.
Erhart, 

(8th Cir. 2005), which reiterated the Eighth
Circuit's holding in United States v. Barr, 

(8th Cir.
1994), that the knowledge requirement imposed by Staples does not
apply to short-barreled shotguns.    However, these cases remain
outliers; no other circuit has adopted this position and several,
directly addressing Barr, have explained in detail why that
approach is a misreading of Staples. See, e.g., United States v.
Gergen, 

, 723-34 (9th Cir. 1999); United States v.
Reyna, 

, 107-09 (5th Cir. 1997); United States v.
Edwards, 

, 203-05 (7th Cir. 1996). The majority does

                                   -22-
circumstantial evidence relied upon by the majority to support the

jury's verdict must be measured against this specific mens rea

requirement.

          The majority finds that Shaw's "acquaintance with the

particular weapon, his familiarity with firearms generally, and the

external and readily observable shortened feature of the gun's

sawed-off barrel permitted the jury to infer Shaw's knowledge

relative to barrel length."       These factors reflect the majority's

reliance on our decision in United States v. Giambro, 

(1st Cir. 2008).        In that case, the weapon at issue was a 1914

Marble Game Getter.       As described by the court,

          [i]t has two barrels - a rifle barrel which is
          on top of a shotgun barrel. Each barrel is
          between twelve and eighteen inches long. The
          gun has a folding stock that allows the user
          to fire the gun like a pistol. It also has a
          lock on the loading end of the barrels that
          allows the user to fire a shot from either the
          top or bottom barrel without reloading.

     The Act requires that owners register "weapons with

combination shotgun and rifle barrels 12 inches or more, less than

18 inches in length, from which only a single discharge can be made

from either barrel without manual reloading." 26 U.S.C. § 5845(e);

    The defendant in Giambro argued that the evidence was

insufficient to establish his knowledge of the characteristics of

the   firearm    that    placed   it   within   the   Act's   registration


not rely on Barr's reasoning and neither, ultimately, does the
concurrence.

                                   -23-
requirement.    We held that the evidence was sufficient because the

defendant 1) was familiar with the specific firearm at issue, 2)

was unusually knowledgeable about firearms in general, and 3) the

relevant characteristics of the firearm were externally visible.

.    None of these factors support the verdict

here.

A.   Familiarity with the Shotgun

           In   Giambro,   officers   seized   204   firearms    from   the

defendant.      When the defendant went to the police station to

retrieve the guns, which were laid out in front of him, he noticed

that the gun covered by the Act was missing.          

that "[t]he jury could reasonably infer that [the defendant] was

well aware of the [gun's] particular characteristics.           After all,

he specifically asked for it when it was not among the weapons

returned to him at the police station."        

the government presented no evidence of

Shaw's history or familiarity with the shotgun at issue here, aside

from the fact that he was arrested with it.           Nothing about the

exercise of preparing a gun for hunting requires awareness of the

precise length of the barrel of the gun.         If the government had

presented evidence that Shaw himself had modified the shotgun, the

argument that he was aware that the barrel measured less than 18

inches would make more sense.     See United States v. Sanders, 

, 701 (7th Cir. 2008) (noting that fact that defendant


                                 -24-
personally modified shotgun was "compelling" evidence that he was

aware that the barrel was shorter than 18 inches in length).   There

is no such evidence in this case.      There is also no evidence that

Shaw had any particular reason or need to know the length of the

shotgun's barrel.

B.   Knowledge of Firearms Generally

           In Giambro, we also relied on the fact that the defendant

owned such a large number of guns - more than two hundred - that

the jury could infer that "he was a gun collector or had at least

a specialized knowledge and interest in 

.

This expertise supported the inference that he was aware of the

specific characteristics of the "Game Getter" weapon.

           There is no similar evidence of expertise in this case.

Shaw was found with two guns in his possession, not two hundred,

some ammunition, and other items useful for hunting.     Although the

evidence might support an inference that Shaw was an experienced

hunter, there was no evidence that an experienced hunter, unlike an

ordinary person, would be aware of the specific fact required by

the mens rea in this case - that the barrel of the shotgun being

used for hunting was less than 18 inches in length.      While it is

true that one wishing to hunt illegally from within a vehicle may

be sensitive to the need for a weapon with a shorter barrel, this

need does not require an awareness of the precise length of a

weapon's barrel. In fact, for such an exercise, the overall length


                                -25-
of the weapon is its more relevant characteristic, not the length

of its barrel.

C.   The Visibility of the Shotgun's Relevant Characteristic

           Perhaps most significantly, the majority relies on the

conclusion that "the evidence permitted the jury to infer that the

barrel length of less than 18 inches was readily observable to the

defendant."      It   is   true   that   it   may   be   reasonable   in   some

circumstances to infer that merely observing a weapon or handling

it on one occasion is sufficient to provide an awareness of its

relevant characteristics.         See 

n.11

(noting that, upon observation, knowledge may be inferred based on

"any external indications signaling the nature of the weapon").

For example, in Giambro, we noted that the Game Getter was a very

unusual weapon with "distinctive 

.    In

particular, its vertically stacked rifle and shotgun barrels, along

with the lock that allowed the user to fire from either barrel

without   reloading,       were   "external     indications"     that      were

"sufficient to put even a layperson on notice that the Game Getter

had the characteristics required by the statute."               

(internal quotation mark omitted); cf. United States v. Nieves-

Castaño, 

, 601-02 (1st Cir. 2007) (reversing conviction

where relevant characteristics of firearm were not externally

visible and no other material evidence supported conviction).




                                    -26-
            The Model Penal Code defines "knowledge" of an attendant

circumstance as an "aware[ness] that . . . such circumstances

exist."7    Model Penal Code § 2.02(b)(i).       Here, the government has

produced no evidence indicating that, given the relatively small

discrepancy between the barrel's actual length of 15.5 inches and

the statutory length of 18 inches, Shaw was able to visually judge

the barrel of his shotgun to be impermissibly short.               Yet this

capacity is a requisite premise of the government's case.           One may

not be charged with awareness of a fact on the basis of observation

alone    without   proof   of   the   capacity   to   apprehend   that   fact

visually.     That is the inevitable logic of the specific mens rea

requirement imposed by Staples.8


     7
       This nearly tautological definition leaves unanswered the
question of whether a defendant must consciously consider the fact
in question to be deemed to have knowledge of the fact.
Alternatively stated, this is the problem of whether latent
knowledge - an ability to provide the requisite information if
prompted - would suffice to satisfy a mens rea requirement. While
I have found no decision addressing the issue, most commentators
appear to assume that latent knowledge is knowledge for the purpose
of establishing criminal liability. See, e.g., Kenneth W. Simons,
Should the Model Penal Code's Mens Rea Provisions Be Amended?, 1
Oh. St. J. Crim. L. 179, 194-95 (2003); Joanne Klineberg, Anger and
Intent for Murder: The Supreme Court Decision in R. v. Parent, 41
Osgoode Hall L.J. 37, 57-58 (2003). However, even if we accept
this proposition, a defendant must at least have the capacity to be
aware of a given fact before being charged with knowledge, actual
or latent.
     8
       I am aware that other circuits dealing with these gun
registration cases have shown a more relaxed approach to similar
sufficiency of the evidence challenges. See, e.g., United States
v. Michel, 

, 1131 (10th Cir. 2006) ("[E]vidence a
defendant observed and handled [a] sawed-off shotgun is sufficient
for a jury reasonably to infer that the defendant knew that the

                                      -27-
          Emphasizing that the gun itself was introduced into

evidence, along with photographs of the gun at the scene of the

arrest, the majority asserts that the jury, relying on "common

sense" and the "dictates of mature experience," could determine

that Shaw's observation of this particular weapon was sufficient to

convey knowledge that its barrel was under 18 inches.   Strikingly,

one of the photographs introduced by the government showed the

shotgun next to an extended tape measure showing the overall length

of the gun (not solely the barrel's length).    It is difficult to


weapon was shorter than twenty-six inches overall or had a barrel
length of less than eighteen inches."       (second alteration in
original) (internal quotation marks omitted)); United States v.
Miller, 

, 1287 (11th Cir. 2001) ("[T]he length of the
barrel is a patently obvious characteristic, readily apparent to
anyone, including [defendant], who observes the gun. . . . The
shotgun was admitted as evidence and published to the jury. This
evidence permitted the jury to infer that [defendant] knew the
barrel's [15.5-inch] length was under 18 inches.").             The
assumption, oft unexamined, that mere observation is sufficient, in
every case, to convey knowledge that the length of a shotgun barrel
is under 18 inches is reflective of the "precedential cascade"
phenomenon, which leads courts to uncritically follow one another.
See Cass R. Sunstein, Why Societies Need Dissent 59-60 (2003);
Adrian Vermeule, Common Law Constitutionalism and the Limits of
Reason, 107 Colum. L. Rev. 1482, 1497 (2007) ("[A] line of
precedents may represent little more than a rational decision by
later judges to ignore their private information in favor of what
earlier courts have said. Where this occurs, later decisions in
the line of precedent are not independent contributions that add to
the informational value of the whole . . . ."). In most cases,
courts have taken for granted the proposition that observation
alone is sufficient to infer knowledge of the barrel's length.
Undoubtedly, there are many cases in which the discrepancy between
actual length and statutory length is large enough that this
observational approach makes sense. However, this will not always
be the case, and I respectfully disagree with my colleagues in
other circuits who have found that observation alone is always
sufficient, no matter how small the discrepancy.

                               -28-
understand how a demonstration for the jury of comparative length

reliant on a tape measure supports the majority's assertion that

the "common sense" of the jurors permitted them to infer that Shaw,

simply by looking at the shotgun, knew its barrel measured less

than 18 inches. Indeed, that tape measure demonstration hopelessly

tainted the appeal to common sense.9

            The majority also notes that there was testimony that one

of the arresting officers "quickly noted that the gun . . .

appeared     to   be   too   short   for    federal   guidelines."   The

observational capacity of a seven-year veteran of the Maine State

Police whose job requires him to make visual judgments about the

barrel length of guns is an odd proxy for the "mature experience"

of jurors whose roles in life, so far as we know, do not require

them to make precise judgments about the length of objects.10

Certainly, the atypical experiences of the law enforcement officer



     9
          Apparently, no objection to this evidence was lodged at
trial.     That was a mistake.
     10
       Offering a romanticized view of Maine as a rural state of
forest and field, where everyone knows their guns, the concurrence
assumes that the "background facts" available to Maine jurors give
them a special capacity to draw inferences about Shaw's awareness
of his shotgun's length. In fact, as of 2006, only 14% of Maine's
population self-identified as hunters.     United States Fish and
Wildlife Service, 2006 National Survey of Fishing, Hunting, and
Wildlife-Associated Recreation 102 (2006), available at
http://wsfrprograms.fws.gov/Subpages/NationalSurvey/nat_survey200
6_final.pdf.     This disparity between fact and assumption
illustrates the dangers of relying on stereotypes to defend a
jury's work. That reliance also highlights the conjecture at the
core of the majority's decision.

                                     -29-
could not rationally inform the judgment of the jurors about Shaw's

capacity to judge the barrel length of the shotgun simply from

looking at it.

          In trying to build its circumstantial case against Shaw,

the issue for the government was Shaw's particular capacity to

calculate the length of the gun barrel through observation.     See

-31 (relying on experience, knowledge and

awareness of particular defendant); see generally 

("[I]f Congress had intended to make outlaws of gun owners

who were wholly ignorant of the offending characteristics of their

weapons, . . . it would have spoken more clearly to that effect.").

In this case, the overall length of the weapon at issue was

approximately 29 inches.   There is no support in the record for the

proposition that Shaw's mere observation of a 29-inch long weapon

made him aware of the fact that its 15.5-inch barrel was less than

18 inches in length.11   In evaluating a similar case, the Seventh

Circuit has observed that "[t]here may be situations where a person

could honestly believe that their possession of the weapon was

entirely innocent.    For example, it is not hard to conceive of a

person reasonably believing a 17.5 inch shotgun is over 18 inches

and therefore perfectly legal."    

.   While


     11
       The government points out that the shotgun's barrel carried
a notation indicating that it was originally 28 inches long. This
fact simply confirms that Shaw was aware that the barrel had been
shortened - a point that he does not dispute. It is not probative
of his knowledge of the extent to which the barrel was shortened.

                                -30-
there are certainly some discrepancies that are so large that a

jury    may   readily   infer   the   capacity   to   determine,   by   mere

observation, that the length of a barrel is under 18 inches, a 2.5-

inch discrepancy is too small to establish beyond a reasonable

doubt Shaw's knowledge by observation.12

D.   Consciousness of Guilt

              The majority also relies on Shaw's flight as evidence of

his consciousness of guilt regarding the barrel length of his

unregistered shotgun.     However, Shaw was flaunting several laws on

the day of his arrest.     As he outlines in his brief, "[h]unting on

Sunday is illegal.      Shooting a gun from a car is illegal, as is

shooting a gun within 100 yards of a residence, and hunting without

a license.      It is also illegal to have a loaded firearm in the

passenger compartment of a car." Indeed, Shaw's conduct upon being

arrested - ejecting ammunition from the shotgun, rather than

endeavoring to conceal it - is inconsistent with the government's

theory that he fled because he knew the barrel of the shotgun was

less than 18 inches long.




       12
       For instance, in Sanders, the Seventh Circuit found that the
fact that the defendant handled the gun and had it in his
possession when he was arrested was sufficient to allow inference
of the requisite 

. However, in that
case, the gun at issue had a barrel of less than 12 inches in
length, making it more than one-third shorter than the statutory
length. While a jury may be entitled to infer that such a dramatic
difference is readily apparent, such an inference becomes more
speculative the smaller the discrepancy in length.

                                      -31-
           Given the range of Shaw's illegal conduct on that day,

Shaw's flight says nothing about his awareness of the length of his

shotgun barrel.    As we stated in Nieves-Castano, "knowledge that

one is guilty of some crime is not the same as knowledge that one

is guilty of the crime 

(emphasis in

original); see also O'Laughlin v. O'Brien, 

, 303 (1st

Cir.   2009)   ("Although   [defendant's]   behavior   could   indicate

consciousness of guilt for some crime, . . . it is an impermissible

inferential leap for a jury to find this behavior significantly

probative of whether [defendant] committed [the crime charged].").

                                  II.

           Because it finds that there was sufficient evidence to

permit the jury to find that Shaw had actual knowledge of the

length of his shotgun's barrel, the majority does not address the

issue of willful blindness.    Since I do not find the evidence to be

sufficient to prove actual knowledge, I now do so.

           As we have previously explained, "[w]illful blindness

serves as an alternate theory on which the government may prove

knowledge."    United States v. Pérez-Meléndez, 

, 41 (1st

Cir. 2010).    In order to establish willful blindness, a jury must

make two findings:   "First, that the defendant was aware of a high

probability of the fact in question; second, that the defendant

consciously and deliberately avoided learning of that fact."

United States v. Lizardo, 

, 85 n.7 (1st Cir. 2006)


                                 -32-
(finding no error in quoted instruction).          Willful blindness is

determined using a subjective standard, and thus "[t]he focus of

the   willful   blindness   instruction   must   be   on   the    particular

defendant and not on the hypothetical reasonable person."             United

States v. Griffin, 

, 80 (1st Cir. 2008).

             Although willful blindness is not the same as actual

knowledge, it is not a lesser standard.          United States v. Cunan,

, 40 (1st Cir. 1998) (stating that jury must find

willful blindness beyond a reasonable doubt); United States v.

Whittington, 

, 462 (4th Cir. 1994) (stating that willful

blindness instruction does not alter requirement that knowledge be

proved beyond a reasonable doubt).        Negligence, carelessness, or

mistake in apprehending a fact are insufficient to establish

willful blindness.    See 

.            In fact, we

have cautioned that "[t]he danger of an improper willful blindness

instruction is 'the possibility that the jury will be led to employ

a negligence standard and convict a defendant on the impermissible

ground that he should have known [an illegal act] was taking

place.'"13    United States v. Brandon, 

, 453 (1st Cir.


      13
       For this reason, we limit the circumstances in which willful
blindness instructions are given, and we are often faced with the
issue of whether the instruction was appropriate given the facts of
a particular case.    We have held that "'[a] willful blindness
instruction is appropriate if (1) a defendant claims a lack of
knowledge, (2) the facts suggest a conscious course of deliberate
ignorance, and (3) the instruction, taken as a whole, cannot be
misunderstood as mandating an inference of knowledge.'"      United
States v. Mitrano, 

, 123 (1st Cir. 2011) (quoting

                                  -33-
1994) (quoting United States v. Littlefield, 

, 148 n.3

(1st Cir. 1988)(alteration in original)(internal quotation mark

omitted)).

          Ultimately, a willful blindness instruction "'allows the

jury to impute knowledge to [a defendant] of what should be obvious

to him, if it f[inds], beyond a reasonable doubt, a conscious

purpose to avoid enlightenment.'"      Pérez-

(quoting United States v. St. Michael's Credit Union, 

,

585 (1st Cir. 1989)).     Thus, the willful blindness instruction

permits conviction on the basis of imputed knowledge, as opposed to

actual knowledge.   However, whether relying on inferred or imputed

knowledge, the quantum of evidence required remains the same --

sufficient evidence to permit a fact-finder to make a determination

beyond a reasonable doubt.    

(stating that

jury must find willful blindness beyond a reasonable doubt).

          As explained, "[t]he focus of the willful blindness

instruction must be on the particular defendant and not on the



United States v. Azubike, 

, 66 (1st Cir. 2009)). In
evaluating the second element, we have noted that "[i]n determining
whether the facts suggest the type of deliberate avoidance
warranting a willful blindness instruction, we must consider
whether the record evidence reveals flags of suspicion that,
uninvestigated, suggest willful blindness."          

marks omitted). In this appeal, Shaw does not challenge
the court's decision to give the willful blindness instruction, but
argues that, once given, there was insufficient evidence for the
jury to conclude, beyond a reasonable doubt, that he was willfully
blind to the length of his shotgun's barrel.


                                -34-
hypothetical reasonable person."                    

.       I have

already    explained     that       the    government's           evidence   of    Shaw's

familiarity    with    the    shotgun          he    was    using,   his   knowledge     of

firearms    generally,       the    shotgun's          observable    length,      and   his

consciousness of guilt was insufficient to establish beyond a

reasonable doubt that he knew that the barrel of the shotgun was

less than 18 inches in length.                      Admittedly, the fact of Shaw's

observation and handling of the gun gets the government closer to

the mark, even pursuant to the beyond a reasonable doubt standard,

when it must prove only that Shaw was aware of a "high probability"

that the barrel was less than 18 inches long, and not his actual

knowledge of that fact.              However, it is unnecessary to decide

whether    Shaw's   observation           of    the    shotgun's     15.5-inch     barrel

conveyed an awareness of a "high probability" that it was under 18

inches in length.      That is so because the government has failed to

present any evidence that would permit the jury to find that the

second prong of the willful blindness analysis has been met.

            To meet the second prong of the analysis, the government

must   prove   that    Shaw        "consciously            and   deliberately     avoided

learning" of the barrel's length. 

n.7.                           If

the government had introduced some evidence indicating that Shaw

had a reason or need to know of the barrel's length, it might have

provided a basis for the jury to find that Shaw deliberately

avoided learning of this fact. Without this evidence, or any other


                                           -35-
evidence indicating a conscious and deliberate decision by Shaw,

there is nothing to permit the jury to infer that Shaw deliberately

closed his eyes to the barrel's length.                     Thus, even if I found the

evidence sufficient            to   permit        the   jury   to conclude        beyond a

reasonable       doubt   that       Shaw    was     aware     that   there   was   a    high

probability that the barrel was less than 18 inches long - and I do

not - I would still conclude that the government's evidence was

insufficient       to    support      conviction         on    the   basis   of    willful

blindness.

                                                III.

             The burden imposed by Staples in a case such as this is

heavy.     It can be difficult to prove beyond a reasonable doubt

knowledge of a fact as specific as the length of a gun barrel.14

Nevertheless, we may not ease the government's burden by allowing

the   jury   to     draw   inferences            that   inescapably      require       undue

speculation, see 

("[A] reviewing court

should     not    give   credence          to    evidentiary     interpretations         and

illations        that    are    unreasonable,            insupportable,       or    overly

speculative." (quoting Leftwich v. Maloney, 

, 23 (1st

Cir. 2008)(internal quotation marks omitted)), and "[g]uilt beyond


      14
       This burden is neither inevitable nor unintended. As the
Court noted in Staples, "if Congress . . . intended to make outlaws
of gun owners who were wholly ignorant of the offending
characteristics of their weapons, . . . it would have spoken more
clearly to that 

. After Staples, Congress
had the opportunity to amend the Act to eliminate the mens rea
requirement and it has declined to do so.

                                                -36-
a reasonable doubt cannot be premised on pure conjecture," Stewart

v. Coalter, 

, 615 (1st Cir. 1995).

              The majority's decision endorses just such conjecture.

It impermissibly dilutes the beyond a reasonable doubt standard.

As the Seventh Circuit observed in Edwards,

              although the government may face a tougher
              burden in the close cases, we believe this is
              exactly what the Supreme Court held Congress
              intended - because the close case is exactly
              when you run the highest risk of convicting
              someone "whose conduct would not even alert
              them   to    the   probability    of   strict
              

(quoting 

).                   As the

appellant forcefully argues, if we affirm the conviction here, we

will   have     adopted   the   legal   fiction   at   the   heart   of   the

government's case - namely, that upon mere observation it is

obvious to a person of ordinary perceptive powers that an object

15.5 inches in length does not measure 18 inches. Regrettably, the

majority has done so.           That fiction is incompatible with the

exacting mens rea requirement imposed by Staples.

              Therefore, I respectfully dissent.




                                    -37-