Firearms - Miscellaneous

McDonald v. Chicago, 130 S. Ct. 3020 (2010)

The Second Amendment, which provides the right to bear arms, applies to the states through the Fourteenth Amendment (according to four Justices) and applies to the states through the Privileges and Immunities Clause (according to Justice Thomas).

Abramski v. United States, 134 S. Ct. 2259 (2014)

Prosecuting a “straw purchaser” – someone who buys a gun for someone else, while stating on the form that the gun is being purchased for himself – is permissible. 18 U.S.C. § 922(a)(6). A prosecution is appropriate, even if the person for whom the gun is actually being purchased could have legally purchased the gun.

United States v. Fries, 725 F.3d 1286 (11th Cir. 2013)

The defendant was charged with violating 18 U.S.C. §922(a)(5), which makes it a crime to sell a firearm to a person in another state unless either the seller or purchaser is a licensed firearms dealer. The purchaser in this case was an undercover ATF agent. There was no evidence at trial that the agent was not a licensed firearms dealer. Because this is an essential element of the offense, the conviction was set aside, even though the defendant did not move for a directed verdict.

United States v. Baird, 712 F.3d 623 (1st Cir. 2013)

The defendant purchased a firearm from another person. Several days later, he determined that the gun was stolen and returned it to the seller shortly thereafter. He requested an instruction on the defense of “innocent possession.” Because the evidence was sufficient to support this requested instruction and the content of the instruction was integral to his defense (and not covered by other instructions), the the trial court’s refusal to give the instruction was reversible error.

United States v. Haile, 685 F.3d 1211 (11th Cir. 2012)

Two firearms statutes were involved in this case: possessing a firearm with an obliterated serial number and possession of a machine gun in connection with a drug offense. The Eleventh Circuit held that the machine gun offense did not require proof that the defendant knew that the weapon was a machine gun (thus, he could receive a mandatory 30 year sentence, even if he only knew it was a weapon, but did not know it had automatic capability). With regard to the obliterated serial number offense, however, the court held that knowledge that the serial number is obliterated or altered is an essential element of the offense.

United States v. Crooker, 608 F.3d 94 (1st Cir. 2010)

A silencer that was made for an air gun is not a “firearm.”

United States v. Ayala-Garcia, 574 F.3d 5 (1st Cir. 2009)

The defendant was charged with possession of a stolen firearm. 18 U.S.C. § 922(j). There was no evidence relating to the method by which the defendant acquired the gun. He was seen giving it to another conspirator, and the circumstances of that transaction were suspicious, but this did not satisfy the government’s burden of proving that he knowingly possessed a stolen weapon.

United States v. Zalapa, 509 F.3d 1060 (9th Cir. 2007)

The possession of a short-barreled machine gun violates two separate provisions of the registration act, 26 U.S.C. §5861. However, only one conviction and one sentence can be imposed for the possession of one weapon, regardless of the number of ways in which its possession if a violation of the registration law.

United States v. Introcaso, 506 F.3d 260 (3rd Cir. 2007)

Firearms, such as short-barreled shotguns, that were manufactured prior to 1900, are not covered by the registration act, if the ammunition designed for that weapon is not being manufactured, nor is readily available. The government argued in this case that the ammunition designed for that weapon is not being manufactured, but regular (and easily available) twelve-gauge shells worked with this particular gun. The Third Circuit held that the statute was ambiguous – it was not clear if the exemption only applied if the ammunition originally designed for the weapon was not available, or if any ammunition that could be used with the weapon was not available. Applying the Rule of Lenity, the court held that the conviction could not be sustained.

United States v. Nieves-Castanos, 480 F.3d 597 (1st Cir. 2007)

Though the defendant was obviously in possession of a machine gun that was in a golf bag in her apartment, and that she knew a weapon was in the golf bag, the government failed to prove that she knew the gun was a machine gun, that is, that the weapon had the characteristics that brought the gun within the statutory definition of a machine gun. The defendant exhibited a guilty knowledge that regarding her possession of the weapon, but this guilty knowledge, itself, was not sufficient to establish that she knew it was a machine gun.

United States v. Michel, 446 F.3d 1122 (10th Cir. 2006)

The defendant had a shotgun in his car that was 17 ½ inches long. A sawed-off shotgun is one with a barrel that is less than 18 inches long. Though the evidence was sufficient to prove that the defendant knowingly possessed the firearm, it was not sufficient to prove that he knowingly possessed a sawed-off shotgun. The defendant was a passenger in a car and the shotgun was in the backseat. There was no evidence that he ever personally touched the gun.

United States v. Johnson, 381 F.3d 506 (5th Cir. 2004)

The defendant was charged with possession of a firearm with an obliterated serial number. The Fifth Circuit held that the evidence was insufficient to prove that the defendant was aware that the gun had this characteristic.

United States v. Hammond, 371 F.3d 776 (11th Cir. 2004)

The defendant was charged with manufacturing a firearm without obtaining a license. A firearm is defined as a destructive device, including any explosive device. However, only explosive devices that are designed for use as a weapon, qualify. 26 U.S.C. § 5845(f). Thus a device that explodes is not necessarily a destructive device. The device in this case was made of cardboard and there were no projectiles that would have been expelled had the device been detonated. Nor was there any other evidence that the device could be used as a weapon. Rather, the device was more akin to a firecracker. The district court properly granted a judgment of acquittal.

United States v. Haywood, 363 F.3d 200 (3rd Cir. 2004)

A charge that the defendant possessed a firearm with an obliterated serial number (18 U.S.C. § 922(k)), requires proof that that the firearm had an obliterated serial number and proof that the defendant knew the firearm had an obliterated serial number. The trial court erred in this case by instructing the jury that the defendant need only have been shown to know that he was in possession of the firearm. The defendant was also charged with possessing a firearm in or near a school zone (18 U.S.C. § 922(q)(2)(A)). This charge, too, requires proof that the defendant knew that he was in a school zone.

United States v. Batterjee, 361 F.3d 1210 (9th Cir. 2004)

The defendant was not a citizen and, pursuant to 18 U.S.C. § 922(g)(5)(B) was not permitted to possess a firearm. When he went to a store to buy a gun, the dealer asked certain questions, each of which the defendant answered accurately – including the fact that he was not a citizen – and filled out the required forms accurately, as well. The dealer followed up with certain questions relating to his citizenship answer and then sold him the gun. The dealer did not specifically ask, however, whether the defendant was in the United States on a work visa (which was what disqualified him for possessing a firearm). The Ninth Circuit held that the prosecution was barred under the theory of entrapment by estoppel.

United States v. Collins, 350 F.3d 773 (8th Cir. 2003)

The defendant was charged under 18 U.S.C. § 922(d)(3) with disposing a firearm to a person that was known to be an unlawful user of controlled substances. The trial court instructed the jury that the offense could be proven if the defendant knew or had reasonable cause to believe there was a risk that the recipient would unlawfully use a controlled substance while in possession of the firearms. This amounted to an improper amendment of the indictment. The government is required to prove that the defendant knew or had reasonable cause to believe that the recipient was an unlawful user of a controlled substance.

United States v. McCullough, 348 F.3d 620 (7th Cir. 2003)

Defendant was charged with willfully selling firearms without recording the name, age, and residence of the buyer. 18 U.S.C. § 922(b)(5). At trial, he requested a jury instruction on the lesser record keeping offense. 18 U.S.C. § 922(m). Because it is impossible to violate § 922(b)(5) without also violating § 922(m), the trial court should have given the lesser included instruction. The fact that it is possible to commit record keeping violation without committing the greater offense (for example, by making some other false entry that does not relate to the buyer’s name, age or residence) does not mean that the record keeping offense is not a lesser included offense. Moreover, the lesser offense requires proof that the defendant acted knowingly, while the greater offense requires proof that the defendant acted willfully. This does not preclude the record keeping offense from being characterized as a lesser offense of the false recording offense. The failure to instruct the jury on the lesser offense was reversible error.

United States v. Jackson, 124 F.3d 607 (4th Cir. 1997)

The trial court erred in failing to instruct the jury that the defendant, charged with possessing an unregistered firearm, had to be shown to have known the characteristics of his sawed-off shotgun that made it a firearm subject to the requirements of the Firearm Act. See Staples v. United States, 511 U.S. 600 (1994). The failure to instruct the jury consistent with Staples, however, was not plain error.

United States v. Polk, 118 F.3d 286 (5th Cir. 1997)

18 U.S.C. § 922(a)(6) makes it a federal crime to provide false information to a licensed firearm dealer in connection with the purchase of a weapon, in an attempt to deceive the dealer with respect to any fact material to the lawfulness of the sale. The Fifth Circuit has previously held that a straw purchaser who buys a weapon on behalf of someone who may not legally purchase the weapon violates this law. United States v. Ortiz-Loya, 777 F.2d 973 (5th Cir. 1985). Here, however, the "straw" purchaser was not purchasing the gun for someone who was not legally allowed to purchase the gun. Rather, he was buying it for the other person simply because the other person did not want it known that he was the actual purchaser. Thus, the "false statement" was not material to the lawfulness of the sale, because the actual purchaser could lawfully purchase the weapon. The § 922(a)(6) conviction was reversed. NOTE: This decision was overruled in Abramski v. United States, 134 S. Ct. 2259 (2014).

United States v. Spinner, 152 F.3d 950 (D.C. Cir. 1998)

The evidence did not support a conviction for possessing a semi-automatic assault weapon. 18 U.S.C. § 921(a)(30)(B), because the expert who described the weapon that was seized from the defendant did not describe it in the terms of the statute. The fact that the jury could look at the weapon and determine that it had the necessary characteristics did not convince the court to uphold the verdict, because there was no “testimonial guidance” about what feature of the gun the jury should consider and the definition of an assault weapon in the jury instructions would not have provided sufficient information to the jury to determine whether the weapon qualified. Finally, the D.C. Circuit also concluded that there was insufficient evidence to prove that the defendant knew the characteristic of the gun that brought it within the definition of an assault weapon. Staples v. United States, 511 U.S. 600 (1994).