Appeal from the United States District Court for the District of Columbia (No. 05cr00139-02).
The opinion of the court was delivered by: Karen Lecraft Henderson, Circuit Judge
Before: HENDERSON, RANDOLPH, and GARLAND, Circuit Judges.
Timothy McCrae Walker appeals his convictions on one count of violating 26 U.S.C. § 5861(d) (possession of unregistered firearm) and one count of violating 18 U.S.C. § 922(g)(1) (felon in possession of firearm). Walker argues that (1) he was not afforded a speedy trial under the Speedy Trial Act, 18 U.S.C. § 3161; (2) the jury was improperly instructed on the elements of constructive possession; (3) both convictions were based on insufficient evidence; and (4) his jury venire did not represent a "fair cross section of the community." Because our holding in United States v. Bryant, 523 F.3d 349 (D.C. Cir. 2008), requires the reversal of the section 5861(d) conviction, we remand the section 5861(d) count for dismissal with or without prejudice at the district court's option. Id. at 361. We reject Walker's Speedy Trial Act challenge to the section 922(g)(1) conviction and affirm that conviction as against the other challenges as well.
At about 3:00 a.m. on February 9, 2005, Officer Charles Monk, an off-duty Metropolitan Police Department (MPD) patrolman working as a part-time security guard, observed the driver of a black Land Rover sport utility vehicle (SUV) illegally park in a bus zone in the 800 block of 5th Street, N.W. Bryant, 523 F.3d at 351. Monk saw two young black males exit the vehicle. They were both wearing ski masks and, although the weather was "unusually mild" that night, both wore "heavy black winter coats." Id. Monk watched as the driver (later identified as Walker) reached into the SUV, retrieved a bulky item and slid it into his coat. Id. The driver walked, "kind of limping," across the street and motioned to the passenger to join him. Id. at 352; see also Transcript of Trial at 50, United States v. Walker, Cr. No. 05-139 (D.D.C. Mar. 21, 2006) (Tr.). They walked up to a charter bus parked in the 500 block of H Street, N.W. but the bus driver would not let them on the bus. Bryant, 523 F.3d at 352. The two then walked back towards the SUV, passed it and continued into a nearby alley where they stopped and looked around. Id.; Tr. at 53-54. They then returned to the SUV and Walker took the item out of his coat, put it back into the vehicle and the two drove away. Bryant, 523 F.3d at 352. Not more than five minutes later, however, they returned and this time Walker parked the SUV legally. Id. They exited the vehicle, Walker again retrieved the item and put it inside his coat, pulled a ski mask down over his face (as did his passenger, later identified as William Bryant), and both he and Bryant started walking across the street. Id.
Given this suspicious activity, Monk called for back-up to investigate the two men. Id. Both men were "looking around nervously." Id. When a marked FBI vehicle drove by them, the two men lifted their ski masks. Id. Then two marked MPD vehicles arrived at the scene, one driven by Officer James Burgess. Id. Burgess's partner, Officer Steven Greene, testified that once the two men saw the MPD patrol car, they began to walk away from it and, on turning the corner, began to walk at a faster than normal pace. Id. Walker walked stiff legged, with a limp, as if trying to conceal the item inside his coat. Id. Burgess and Greene pulled their patrol car up behind the two men and got out to approach them. Id. Walker began running away and Greene followed him. Id. When Walker was finally cornered, he was ordered to lie down and, as he was lowering himself to the ground, Greene saw him drop what he was carrying under his coat into an exterior window basin. Id. Another MPD officer later retrieved a sawed-off Stevens .12-gauge shotgun loaded with one .12-gauge shotgun shell from the basin. Id. at 352-53. An MPD officer, examining the SUV, looked in the passenger window and saw a sawed-off shotgun on the passenger side floorboard partially covered by some objects. Id.; Tr. at 210. The shotgun was later identified as a sawed-off Harrington & Richardson .20-gauge shotgun. Bryant, 523 F.3d at 352-53. The Harrington & Richardson shotgun had been modified such that it was required to be registered in the National Firearms Registration and Transfer Record but was not so registered. Id. at 353.
Both men were arrested at the scene and appeared before a magistrate judge the next day, February 10, 2005. On that day, the government filed a complaint against Walker and Bryant charging each with a violation of 26 U.S.C. § 5861(d) for possessing both sawed-off shotguns without having registered the weapons. On March 16, 2005, pursuant to Federal Rule of Criminal Procedure 48(a),*fn1 the government moved to dismiss the complaint without prejudice. The district court granted the motion but the record does not reveal the reason therefor. On April 21, 2005, the grand jury indicted Walker and Bryant on one count of unlawful possession of two unregistered firearms in violation of 26 U.S.C. § 5861(d).*fn2 Walker was arraigned on June 10, 2005. On September 1, 2005, Walker moved to sever his case from Bryant's, which motion was denied on October 7, 2005.
On February 16, 2006, the government filed a superseding indictment charging both Walker and Bryant with one count of possessing an unregistered firearm (the Harrington & Richardson shotgun) in violation of section 5861(d) and one count of felon in possession (of both shotguns) in violation of section 922(g)(1). Arraignment on the superseding indictment occurred on February 17, 2006, at which time Walker moved to dismiss it, alleging the violation of his right to a speedy trial. The district court denied the motion on March 14, 2006. Following the trial, which commenced on March 20, 2006, Walker was convicted on both counts and, on August 29, 2006, was sentenced to 60 months' imprisonment. Walker now appeals.
We first address Walker's claim that both his section 5861(d) and section 922(g)(1) convictions should be reversed because over 70 non-excludable days elapsed between the original indictment and his trial in violation of the Speedy Trial Act, 18 U.S.C. § 3161 (STA).*fn3 We review a STA challenge "de novo on matters of law and for clear error as to findings of fact." United States v. Sanders, 485 F.3d 654, 656 (D.C. Cir. 2007) (citations omitted). The parties agree that our decision in United States v. Bryant, 523 F.3d 349 (D.C. Cir. 2008), controls Walker's section 5861(d) conviction. In that case, we reversed Bryant's section 5861(d) conviction because "both parties agree that at least 32 days had accrued on the speedy trial clock as of August 8,  and it is clear that at least 39 additional, non-excludable days accrued between November 27, 2005 and February 16, 2006." Id. at 361.
Because "[a]ll defendants who are joined for trial generally fall within the speedy trial computation of the latest co-defendant," Henderson v. United States, 476 U.S. 321, 323 n.2 (1986), Walker's section 5861(d) conviction must also be reversed.
Unlike Bryant, however, Walker challenges the section 922(g)(1) count on the ground that his conviction thereon violates the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.*fn4 He argues that the section 922(g)(1) count in the superseding indictment is an "offense required to be joined" with the section 5861(d) count charged in the original indictment pursuant to 18 U.S.C. § 3161(h)(5), which excludes from speedy trial calculation "any period of delay from the date the [original] charge was dismissed to the date the time limitation would commence to run as to the subsequent charge had there been no previous charge" so long as "the information or indictment is dismissed upon motion [by the government] and thereafter a charge is filed against the defendant for the same offense, or any offense required to be joined with that offense." Walker claims the section 922(g)(1) count was required to be ...