from the United States District Court for the Northern
District of Texas
SMITH, OWEN, and HIGGINSON, Circuit Judges.
E. SMITH, Circuit Judge
Smith pleaded guilty of interstate communications with intent
to extort in violation of 18 U.S.C. § 875(b). A jury
found him guilty of possession of firearms in furtherance of
a crime of violence ("COV"), 18 U.S.C. §
924(c). He appeals the district court's inclusion of the
government's requested jury instruction and challenges
the sufficiency of the evidence. We affirm.
decided to extort money from the Boardmans, a local wealthy
family. Smith called Boardman, told Boardman he was being
watched, and directed him to a note on his door, instructing
him to place $525, 000 in cash or gold coins in a duffel bag
and await further instructions. The note warned that
Boardman, his wife, and his granddaughter were being watched
and that someone would be taken should he try to contact the
police. Boardman informed his friend, a retired state
trooper, who contacted law enforcement.
days later, Smith called again, graphically threatening
Boardman's granddaughter. That evening, Smith made two
more threatening phone calls. Later, during the fourth call
of the day, Smith directed Boardman to leave the duffel bag
filled with money on the east side of a barn. The final call
confirmed that Boardman had received the instructions and
threatened that "there would be hell to pay" should
there be a GPS tracker or a dye pack in the bag.
evening, officers drove Boardman's car to the drop site
and placed the duffel bag at the barn per Smith's
instructions. Six officers patrolled the area while others
conducted aerial surveillance. Smith approached the barn in
his vehicle and, exiting with his fourteen-year-old son,
shined a spotlight in the area of the drop location,
whereupon the officers arrested them.
informed the officers that he was armed, and they found a
Glock, Model 23, .40 caliber semi-automatic pistol on his
person. A Rock River Arms .223 caliber semi-automatic rifle
and a Ruger .22 caliber rifle were in Smith's truck.
Although Smith told the officers he was hunting coyotes and
an owl with his son, he later confessed to the extortion and
that he was at the barn to see whether Boardman had left the
money. He stated, however, that his son did not know of the
extortion and that he did not plan to retrieve the bag at
federal indictment charged Smith under 18 U.S.C. §
875(b) for making threatening interstate communications with
the intent to extort (Count One) and under 18 U.S.C. §
924(c) for possession of a firearm in furtherance of a COV
(Count Two). Smith pleaded guilty to Count One and proceeded
to trial on Count Two. After the government's case in
chief, the court denied Smith's motion for judgment of
acquittal under Federal Rule of Criminal Procedure 29(a) that
claimed there was no evidence demonstrating the firearms were
used in furtherance of the extortion.
presented evidence that he frequently carried the Glock when
he left the house and that he used it for personal
protection, not for hunting. He did not renew his motion for
acquittal at the close of all the evidence.
prosecution requested that a sentence be added to the end of
the Fifth Circuit pattern jury instruction stating, "It
is not necessary to prove that the defendant intended to
possess the firearm in furtherance of the defendant's
commission of the crime charged in Count One." The
prosecution stated that that would clarify that the scienter
requirement was knowledge, not intent. Smith objected that
the government must show specific intent that the weapons
further the crime, but the court included the sentence. The
jury found Smith guilty on Count Two.
court charged the jury using the Fifth Circuit pattern jury
instruction with the government's requested additional
sentence. To prove the possession was "in furtherance,
" the instructions directed the jury that "the
government must prove that the defendant possessed a firearm
that furthers, advances, or helps forward the crime of
violence." That was followed by the government's
requested sentence: "It is not necessary ...