Firearms - Possession by Prohibited Person

Dixon v. United States, 548 U.S. 1 (2006)

Assuming that duress is a defense to possession of a firearm by a convicted felon, or by a person under indictment, it is not unconstitutional to place the burden of proving duress on the defendant.

United States v. Castleman, 134 S. Ct. 1405 (2014)

18 U.S.C. § 922(g)(9), applies to misdemeanor offenses of domestic violence that require an element of force. However, the force need include nothing more than an offensive touching and does not require injury, or violent coduct.

Small v. United States, 544 U.S. 385 (2005)

A felony conviction from a foreign country may not serve as the predicate for a conviction for possession by a convicted felon.

Old Chief v. United States, 519 U.S. 172 (1997)

In a prosecution for being a felon in possession of a firearm, though the nature of the defendant’s prior offense is relevant pursuant to the definition of relevance under Rule 401, the defendant’s willingness to stipulate that he was a convicted felon obviates the need for this evidence and the trial court, pursuant to Rule 403, should accept the stipulation and bar evidence relating to the nature of the prior offense.

Beecham v. United States, 511 U.S. 368 (1994)

If a person has been convicted of a federal offense, in order to have his civil rights restored for purposes of Section 921(a)(20), it is not sufficient that the state in which the crime was committed restore the defendant’s rights. Rather, the civil rights must have been restored by the federal government.

Caron v. United States, 118 S.Ct. 2007 (1998)

In order to be found guilty of being a felon in possession of a firearm – 18 U.S.C. §922(g)(1) – the defendant must have been previously convicted of an offense carrying a sentence of more than one year imprisonment. However, if the predicate conviction was from a state court, then the defendant may defend on the basis that, under that state’s law, he has had his civil rights restored, unless such restoration of civil rights expressly provides that the person may not possess firearms. 18 U.S.C. §921(a)(20). In this case, the defendant’s right to possess firearms had been partially restored: he was allowed to possess rifles, but not handguns. The trial court held that this still was a restoration of rights and that the defendant could not be convicted of being a felon in possession of a firearm. The Supreme Court disagreed. The restriction on the defendant’s use of handguns “triggered” the “unless” clause in §921(a)(20) – “unless such restoration of civil rights expressly provides that the person may not possess firearms.” Thus, he could be convicted of being a felon in possession of a firearm, even though the firearm he possessed was a rifle.

United States v. Hayes, 555 U.S. 1079 (1999)

It is not necessary that the domestic relationship between the defendant and the victim be an essential element of an offense under state law in order to qualify under 18 U.S.C. § 922(g)(9). That relationship must be proven at trial, but is not required to be an essential element of the offense.

United States v. Carter, 752 F.3d 8 (1st Cir. 2014)

This case considers whether a prior conviction of simple assault under Maine law qualifies as a prior misdemeanor offense of domestic violence according to 18 U.S.C. §922(g)(9). In particular, because the state assault offense can be accomplished through reckless conduct, the court considered whether a “reckless” assault can qualify as a prior crime that involves the “use of force.” The First Circuit then considered what documents associated with the prior offense may be considered in deciding whether the prior crime was committed through the use of force, or recklessly. A remand was necessary to further develop the record.

United States v. Bloch, 718 F.3d 638 (7th Cir. 2013)

The simultaneous possession of more than one firearm only supports one count of possession of a firearm by a convicted felon, even if more than one firearm is possessed and even if there is more than one prior conviction, or reason that the defendant is prohibited from possessing the firearm. Charging the defendant with two counts under 18 U.S.C. § 922(g) was multiplicitous.

United States v. Benjamin, 711 F.3d 371 (3rd Cir. 2013)

The defendant was twice found in possession of a firearm. He was a convicted felon. He was charged (and convicted) of two counts of possession of a firearm by a convicted felon The Third Circuit, joining the decisions of various other Circuits, held that possession of a firearm is a continuing offense and cannot be prosecuted in several counts, unless there is proof that the possession was not continuous, including constructively.

United States v. Griffin, 684 F.3d 691 (7th Cir. 2012)

The defendant was released from prison and went to live with his parents. His father, an avid hunter, had numerous firearms, including revolvers and shotguns in the house. While executing a search warrant that was designed to locate the defendant’s brother, the police found the guns. The defendant was convicted of possession by a convicted felon. The Seventh Circuit reversed the conviction: there was insufficient evidence that the defendant actually or constructively possessed any of the firearms in the house. The court cited decisions from numerous Circuits that require proof of a substantial connection between a defendant and the contraband when the proof is limited to the defendant’s occupancy of a house that contains the contraband and others live in the same house.

United States v. Mahin, 668 F.3d 119 (4th Cir. 2012)

A defendant may not be convicted and sentenced for the simultaneous possession of ammunition and a firearm under § 922(g)(8).

United States v. Rehlander, 666 F.3d 45 (1st Cir. 2012) The law that makes is a crime for a person who has been committed to a mental institution to possess a firearm (18 U.S.C. § 922(g0(4)) does not apply to a person who was subject to a temporary involuntary emergency hospitalization attended only by an ex parte hearing.

United States v. Sanchez, 639 F.3d 1201 (9th Cir. 2011)

A prior restraining order must explicitly must do more than simply state “no contact” in order to trigger the prohibition on possession of firearm pursuant to 18 U.S.C. § 922(g)(8). The court order must restrain the defendant from the threatened use of physical force against the intimate partner or child.

United States v. Sistrunk, 622 F.3d 1328 (11th Cir. 2010)

The defense of entrapment is available in a case of being a felon in possession of a firearm. The fact that the offense is essentially strict liability does not contradict the notion that the government may have entrapped the defendant to commit the offense. The evidence in this case, however, was not sufficient to establish an entrapment defense.

Gov’t of Virgin Islands v. Lewis, 620 F.3d 359 (3rd Cir. 2010)

A defendant is entitled to an instruction on the defense of justification in a case involving possession of a firearm by a conviction felon if he can show an imminent threat to the life of the defendant; the defendant did not place himself in the position where his life would be endangered; the absence of reasonable legal alterntiave to the threat; and that the possession of the firearm did not last longer than necessary. In this case, the defendant satisfied the first three tests, but he kept the gun longer than necessary, so the trial court properly refused to instruct the jury on the law of justification.

United States v. Coleman, 609 F.3d 699 (5th Cir. 2010)

Certain offenses do not qualify as predicate offenses under the felon in possession of a firearm statute, specifically, offenses involving antitrust violations, unfair trade practices, and “other similar offenses relating to the regulation of business practices.” 18 U.S.C. § 921 (a)(20)(A). In evaluating the defendant’s prior offense in this case, the trial judge viewed a § 371 conspiracy conviction as categorically not included within the definition of “similar offenses relating to the regulation of business practices.” This was incorrect, when the prior offense involves a § 371 conspiracy, the focus must be on the underlying object of the conspiracy.

United States v. Katz, 582 F.3d 749 (7th Cir. 2009)

The evidence was insufficient to prove that the defendant was in possession (either actually, or constructively) of the firearm that he was alleged to have possessed after having been convicted of a felony.

United States v. Dooley, 580 F.3d 682 (8th Cir. 2009)

The police found a gun in the vehicle that the defendant was driving. The defendant denied knowing the gun was in the car. The court, at the request of the government, instructed the jury that “A person who, although not in actual possession, has both the power and the intention at a given time to exercise dominion or control over a firearm, orover a vehicle inwhich the firearm is located, is then in constructive possession of the firearm.” This was reversible error. Being in possession of the vehicle (actually, or constructively) does not automatically equate to possession of all the contents of the vehicle.

United States v. Ricks, 573 F.3d 198 (4th Cir. 2009)

The defendant was entitled to rely on a justification defense in this § 922(g) prosecution. The defendant’s roommate came home, armed with a gun, and was acting erratically. The defendant removed the gun from the roomate’s possession and placed the gun out of his reach. The trial court’s failure to instruct the jury on the justification defense was reversible error.

United States v. Coleman, 552 F.3d 853 (D.C.Cir. 2009)

The defendant was charged with being a felon in possession of a firearm. He offered to stipulate that he was a felon. During voir dire, the judge read the indictment to the jury, including the portion that alleged that defendant had a prior conviction for a crime of violence, that is, robbery with a deadly weapon. Though the defendant did not object, this amounted to plain error and required setting aside the verdict.

United States v. Tann, 577 F.3d 533 (3rd Cir. 2009)

Convictions for both possession of a firearm and possession of ammunition for that firearm violate the double jeopardy clause. See Bell v. United States, 349 U.S. 81 (1955) (transporting two women across state lines in violation of Mann Act is only one offense).

United States v. White, 552 F.3d 240 (2d Cir. 2009)

The Second Circuit – like other Circuits – has not yet decided whether “necessity” or “fleeting possession” or “innocent possession” are defenses to a charge under § 922(g). (The court does indicate that “fleeting possession” is a recognized defense, though it can only “imagine” scenarios in which it would be a successful defense). The court reviews the body of law that has developed in other Circuits and concludes that even if there were such defenses, the defendant did not qualify in this case for an instruction on any of these defenses.

United States v. Bailey, 553 F.3d 940 (6th Cir. 2009)

There was insufficient evidence to prove that the defendant had constructive possession of a firearm found beneath his seat in the car he was driving. Even when the prosecution relies on a theory of constructive possession, there must be proof that the defendant knew of the presence of the gun. Though he attempted to elude the police when they tried to apprehend him, this could be explained by the fact that he had drugs in his pocket and did not prove that he knew the gun was in the car.

United States v. Hope, 545 F.3d 293 (5th Cir. 2008)

The defendant was arrested in possession of a firearm. It was determined that the same firearm had been used by the defendant the previous day to commit a robbery. There was no evidence that he ever relinquished control of the firearm. This evidence could not support two counts of possession of a firearm by a convicted felon.

United States v. Howell, 531 F.3d 621 (8th Cir. 2008)

The defendant’s prior state “third degree assault” conviction did not qualify as a “misdemeanor crime of domestic violence” because the state law did not require as an element either the use or attempted use of physical force, or the threatened use of a deadly weapon.

United States v. Baker, 523 F.3d 1141 (10th Cir. 2008) (McConnell, dissenting from denial of rehearing en banc)

Judge McConnell makes a compelling case why “transitory possession” should be viewed as a defense to a charge of unlawfully possessing a firearm or ammunition. For example, if a convicted felon sees some ammunition on a playground full of children and he picks up the ammunition and brings it immediately to the nearest police station, his conduct should be beyond the scope of the criminal law, perhaps through the invocation of a justification defense. However, Judge McConnell’s view is limited to his dissent from the denial of the defendant’s petition for rehearing en banc. Apparently, only the D.C. Circuit has adopted this view. United States v. Mason, 233 F.3d 619 (D.C. Cir. 2000).

United States v. Hays, 526 F.3d 674 (10th Cir. 2008)

A prior conviction for a domestic battery does not invoke § 922(g)(n) unless the offense requires more than a de minimus touching. There must be more than a simple rude touching in order to qualify. (Note that the Eleventh Circuit, among others, disagrees with this position. United States v. Griffith, 455 F.3d 1339 (11th Cir. 2006)).

United States v. Parker, 508 F.3d 434 (7th Cir. 2007)

A defendant who possesses one firearm may not be convicted of both being a felon in possession of a firearm and being a drug user in possession of a firearm. Two convictions for this one offense are multiplicitous.

United States v. Hollis, 506 F.3d 415 (5th Cir. 2007)

A defendant may not be convicted of both being a felon in possession of a firearm and for being a fugitive in possession of a firearm. This would be multiplicitious.

United States v. Grubbs, 506 F.3d 434 (6th Cir. 2007)

A gun was found in a house where the defendant was a transient occupant. The evidence was insufficient to find him guilty of possessing the weapon. Though another witness testified that the defendant was seen in possession of a weapon that “looked like the gun” that was found in the house, this testimony was not sufficient to sustain the conviction.

Parker v. Renico, 506 F.3d 444 (6th Cir. 2007)

The evidence was insufficient to sustain a state court conviction of the defendant of the offense of possessing a firearm by a convicted felon. The defendant was a passenger in a car occupied by three others. Guns were found in the car after a high-speed chase, but no gun was found in the immediate proximity of the defendant.

United States v. Baker, 508 F.3d 1321 (10th Cir. 2007)

The Tenth Circuit ultimately rejects the notion that a defendant’s explanation of why he possessed a weapon is a defense to a charge of possession by a convicted felon. Absent a viable necessity defense (no legal option), a defendant’s decision to possess a weapon, even if only briefly, cannot be defended on the basis that the defendant had a good explanation for possessing the weapon briefly. A dissenting opinion suggested that the law should provide for a justification defense.

United States v. Mooney, 497 F.3d 397 (4th Cir. 2007)

Trial counsel was ineffective in advising the defendant that he should plead guilty in this felon-in-possession case, because there was no justification defense available. The defendant seized the gun from his wife, who was threatening him, and promptly went to the police who were at his place of employment and gave them the weapon.

United States v. Ankeny, 502 F.3d 829 (9th Cir. 2007)

The possession of several weapons by a convicted felon only amounts to one offense of possession of a weapon by a convicted felon unless the government proves that the weapons were acquired or stored at different times and places. The failure to prove this during the entry of the guilty plea required that the counts merged and all but one count should have been dismissed.

United States v. Nobriga, 474 F.3d 561 (9th Cir. 2006)

The defendant was charged with violating 18 U.S.C. § 921(a)(33)(A)(ii) – possession of a weapon by a person with a conviction for domestic violence. The Ninth Circuit held that the defendant’s conviction for domestic violence may have involved the reckless use of force which cannot qualify as the use of force under federal law and therefore cannot serve as the predicate offense for a domestic violence misdemeanant in possession prosecution.

United States v. Gardner, 488 F.3d 700 (6th Cir. 2007)

Though intuition might lead one to conclude that to be prosecuted as an aider and abettor, the defendant is not required to have as much of a culpable state of mind as the principal, in certain situations, just the opposite is true. Consider the offense of possession of a firearm by a convicted felon. If one is charged with being a felon in possession of a firearm, the defendant may not defend on the basis that he did not know that he was a felon. An aider and abettor, however, must be proven to have actually known that the person who he aided in the possession was a felon. See also United States v. Xavier, 2 F.3d 1281 (3d Cir. 1993).

United States v. Groves, 470 F.3d 311 (7th Cir. 2006)

The defendant was convicted of being a felon in possession of a firearm (a shotgun). The police never recovered the shotgun, but a neighbor testified that he saw the defendant with the weapon. At trial, in order to prove that the gun had traveled in interstate commerce, the prosecutor asked the expert whether any major shotgun manufacturers were located in Indiana. There are not, and, consequently, the expert opined that if the defendant possessed a shotgun in Indiana, it had to have traveled in interstate commerce. The Seventh Circuit reversed. There was no definition of what a “major manufacturer” of shotguns was, and consequently, there was insufficient proof that the defendant’s shotgun did, in fact, travel in interstate commerce.

United States v. Johnson, 459 F.3d 990 (9th Cir. 2006)

The Ninth Circuit considers – and rejects – the concept of “innocent” and “transitory possession” defense to a charge of being a felon in possession of a firearm. The court canvasses the law around the country, noting that in at least one Circuit, the defense is available: United States v. Mason, 233 F.3d 619 (D.C.Cir. 2004).

United States v. Chenowith, 459 F.3d 635 (5th Cir. 2006)

The defendant’s restoration of civil rights under Ohio law was sufficient to restore to him the right to possess a firearm. The determination of whether a restoration of civil rights is sufficient, the court first determines whether § 921(a)(20) is satisfied (essentially all civil rights were restored); and whether the restoration order specifically exempted guns from its restoration.

United States v. Allen, 449 F.3d 1121 (10th Cir. 2006)

Insanity is a viable defense to a charge of being a felon in possession of a firearm, even though the offense is a general intent crime.

United States v. Simpson, 442 F.3d 737 (9th Cir. 2006)

Because the defendant had his civil rights restored and was not classified as a convicted felon under Arizona state law, he could not be convicted under § 922(g)(1).

United States v. Richardson, 439 F.3d 421 (8th Cir. 2006)(en banc)

A defendant who satisfies more than one criterion that disqualifies him from possessing a weapon, but who only possesses one weapon, is only guilty of one offense. In this case, the defendant was a convicted felon and a drug user. Though it is a crime for a felon to possess a weapon and a crime for a drug user to possess a firearm, because he only possessed one weapon, he was only guilty of one offense.

United States v. Weiland, 420 F.3d 1062 (9th Cir. 2005)

The trial court erred in permitting the government to introduce four prior felony convictions in this prosecution for felon in possession of a firearm. Though there was no stipulation of the defendant’s status, it was prejudicial to introduce four priors, including the nature of the specific offenses.

United States v. Jones, 403 F.3d 604 (8th Cir. 2005)

Trial counsel was ineffective in failing to challenge the indictment as multiplicitious. The defendant was charged in one count of the indictment with being a felon in possession of a firearm in August and another count of being a felon in possession of the same firearm in October. The crime, however, outlaws the continued possession of the weapon and this cannot multiplied by however many days, or hours, the gun is possessed as a separate crime.

United States v. Chambers, 408 F.3d 237 (5th Cir. 2005)

The indictment alleged that the defendant possessed “rounds” (i.e., bullets) that had traveled in interstate commerce. The rounds were actually manufactured in the same state where they were found in possession of the defendant. The government argued that components of the rounds had traveled in interstate commerce prior to the manufacture of the completed rounds. This amounted to an amendment of the indictment. The evidence was insufficient to support a conviction on these counts of the indictment and the conviction was reversed.

United States v. Gunn, 369 F.3d 1229 (11th Cir. 2004)

Though the convictions of other defendants for using a gun during a violent crime and possessing a gun by a convicted felon were supported by the evidence, with respect to one defendant, though he was aware of other participants’ possession of firearms, he was not in constructive possession of any gun and his conviction of possession by a convicted felon, therefore, could not be sustained. The § 924(c) counts could be sustained on the basis that a co-conspirator possessed a gun during the violent crime. A felon-in-possession prosecution, however, requires proof of actual or constructive possession.

United States v. Allen, 383 F.3d 644 (7th Cir. 2004)

Proof that is limited to offering an abstract of judgment (i.e., a prior conviction) that names a person with the same name as the defendant does not establish that the defendant has a prior felony conviction. There must be some other identifying proof that establishes that the defendant is the person with the felony conviction.

United States v. Walters, 359 F.3d 340 (4th Cir. 2004)

A juvenile conviction is not a conviction under Virginia state law and cannot be the predicate for a felon in possession of a firearm offense.

United States v. Gayle, 342 F.3d 89 (2d Cir. 2003)

A felony record in a foreign country does not qualify under 18 U.S.C. § 922(g)(1) as a qualifying felony conviction. Other Circuits, including the Third, Fourth and Sixth have held that foreign felony convictions do qualify.

United States v. Jackson, 368 F.3d 59 (2d Cir. 2004)

A certified copy of a conviction of a person with the same name as the defendant is not sufficient proof, alone, to establish that the defendant is a convicted felon. The defendant did not dispute that he was the person named in the record during the evidentiary portion of the trial, but he did raise the question during the closing argument and again on appeal. The Second Circuit held that the evidence was insufficient to support his conviction.

United States v. Rawlings, 341 F.3d 657 (7th Cir. 2003)

The defendant was the driver for a couple armed bank robbers. He was aware that they possessed guns when the other two exited the car to rob the bank, though there was no evidence that he was aware of their possession of the guns before that time. The trial court instructed the jury that possession had to be “knowing” but did not instruct the jury on the concept of constructive possession, or Pinkerton. In a decision by Judge Posner, the court held that the evidence was insufficient to prove the defendant’s conviction of possession of a firearm by a convicted felon. The problem, according to Judge Posner was not the instructional error, there was simply insufficient proof that the defendant was, in fact, in either actual or constructive possession of the firearms that his co-defendants possessed. There was no evidence that he purchased the guns, gave them to the conspirators, or encouraged them to be armed. No other evidence suggested that he exercised dominion or control over the guns. With regard to Pinkerton, that concept enables a person to be convicted of an offense committed by someone else in the conspiracy, but it does not authorize the finding of specific elements of some other offense (such as the possession of a weapon) based on a conspirator’s conduct. Thus, the defendant, on a Pinkerton theory, could be found guilty of other offenses of the conspirators, but not, on that theory, of their possession of a firearm.

United States v. Belless, 338 F.3d 1063 (9th Cir. 2003)

18 U.S.C. § 922(g)(9) makes it a crime to possess a firearm if one has a misdemeanor conviction involving domestic violence. The term is defined at 18 U.S.C. § 921(a)(33)(A)(ii). The prior conviction in this case did not qualify. The state statute only required the unlawful touching in a rude, insolent or angry manner, whereas the federal statute requires that the statute involve the use or attempted use of physical force. The court noted that President Nixon’s behavior when confronting Krushchev would qualify as “rude and insolent” and this did not amount to the type of behavior Congress sought to make a predicate offense (even if committed by spouses upon one another). This decision was later overruled in United States v. Castleman, 134 S. Ct. 1405 (2014).

United States v. Daniel, 134 F.3d 1259 (6th Cir. 1998)

The trial court erred, but it was harmless error, in permitting the government to introduce evidence relating to the nature of the defendant's prior conviction, despite the defendant's willingness to stipulate that he was a convicted felon. The court also erred in failing to strike the allegations of the prior specific crimes from the indictment.

United States v. Cunningham, 133 F.3d 1070 (8th Cir. 1998)

The trial court erred when it permitted the government to offer evidence of the nature of three prior felonies after he had offered to stipulate to his status as a felon for purposes of the felon-in-possession-of-a-firearm count. The error, however, was harmless.

United States v. Gonzalez, 122 F.3d 1383 (11th Cir. 1997)

The defendant was indicted in Puerto Rico on drug charges, and was later found in possession of a firearm when arrested in Florida. There was no evidence presented by the government that the defendant committed the indicted offense while physically in Puerto Rico, or that he fled Puerto Rico. The evidence established nothing more than that the defendant had a pending charge in Puerto Rico, and he was located in Florida. This does not establish that he was a fugitive. His conviction under 18 U.S.C. § 922(g)(2) was reversed.

United States v. Dunford, 148 F.3d 385 (4th Cir. 1998)

A person who is disqualified from possessing a firearm by more than one subsection of 18 U.S.C. § 922(g) (e.g., felon, drug user, fugitive, illegal alien), may only be convicted of one offense for each possession of a weapon. Moreover, a person who simultaneously possessed more than one gun, as well as ammunition, may only be prosecuted for one count of possessing a firearm by a convicted felon (and drug user). This rule applies unless the government proves that he weapons were stored in different places or acquired at different times.