|
Gun Control Cites & Code
18 U.S.C. § 921 - Firearms
(a) As used in this chapter--
(1) The term "person" and the term "whoever" include any individual, corporation, company, association, firm, partnership, society, or joint stock company.
(2) The term "interstate or foreign commerce" includes commerce between any place in a State and any place outside of that State, or within any possession of the United States (not including the Canal Zone) or the District of Columbia, but such term does not include commerce between places within the same State but through any place outside of that State. The term "State" includes the District of Columbia, the Commonwealth of Puerto Rico, and the possessions of the United States (not including the Canal Zone).
(3) The term "firearm" means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.
(4) The term "destructive device" means--
(A) any explosive, incendiary, or poison gas--
(i) bomb,
(ii) grenade,
(iii) rocket having a propellant charge of more than four ounces,
(iv) missile having an explosive or incendiary charge of more than one-quarter ounce,
(v) mine, or
(vi) device similar to any of the devices described in the preceding clauses;
(B) any type of weapon (other than a shotgun or a shotgun shell which the Attorney General finds is generally recognized as particularly suitable for sporting purposes) by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, and which has any barrel with a bore of more than one-half inch in diameter; and
(C) any combination of parts either designed or intended for use in converting any device into any destructive device described in subparagraph (A) or (B) and from which a destructive device may be readily assembled.
The term "destructive device" shall not include any device which is neither designed nor redesigned for use as a weapon; any device, although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line throwing, safety, or similar device; surplus ordnance sold, loaned, or given by the Secretary of the Army pursuant to the provisions of section 4684(2), 4685, or 4686 of title 10; or any other device which the Attorney General finds is not likely to be used as a weapon, is an antique, or is a rifle which the owner intends to use solely for sporting, recreational or cultural purposes.
(5) The term "shotgun" means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of an explosive to fire through a smooth bore either a number of ball shot or a single projectile for each single pull of the trigger.
(6) The term "short-barreled shotgun" means a shotgun having one or more barrels less than eighteen inches in length and any weapon made from a shotgun (whether by alteration, modification or otherwise) if such a weapon as modified has an overall length of less than twenty-six inches.
(7) The term "rifle" means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of an explosive to fire only a single projectile through a rifled bore for each single pull of the trigger.
(8) The term "short-barreled rifle" means a rifle having one or more barrels less than sixteen inches in length and any weapon made from a rifle (whether by alteration, modification, or otherwise) if such weapon, as modified, has an overall length of less than twenty-six inches.
(9) The term "importer" means any person engaged in the business of importing or bringing firearms or ammunition into the United States for purposes of sale or distribution; and the term "licensed importer" means any such person licensed under the provisions of this chapter.
(10) The term "manufacturer" means any person engaged in the business of manufacturing firearms or ammunition for purposes of sale or distribution; and the term "licensed manufacturer" means any such person licensed under the provisions of this chapter.
(11) The term "dealer" means (A) any person engaged in the business of selling firearms at wholesale or retail, (B) any person engaged in the business of repairing firearms or of making or fitting special barrels, stocks, or trigger mechanisms to firearms, or (C) any person who is a pawnbroker. The term "licensed dealer" means any dealer who is licensed under the provisions of this chapter.
(12) The term "pawnbroker" means any person whose business or occupation includes the taking or receiving, by way of pledge or pawn, of any firearm as security for the payment or repayment of money.
(13) The term "collector" means any person who acquires, holds, or disposes of firearms as curios or relics, as the Attorney General shall by regulation define, and the term "licensed collector" means any such person licensed under the provisions of this chapter.
(14) The term "indictment" includes an indictment or information in any court under which a crime punishable by imprisonment for a term exceeding one year may be prosecuted.
(15) The term "fugitive from justice" means any person who has fled from any State to avoid prosecution for a crime or to avoid giving testimony in any criminal proceeding.
(16) The term "antique firearm" means--
(A) any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system) manufactured in or before 1898; or
(B) any replica of any firearm described in subparagraph (A) if such replica--
(i) is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition, or
(ii) uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade; or
(C) any muzzle loading rifle, muzzle loading shotgun, or muzzle loading pistol, which is designed to use black powder, or a black powder substitute, and which cannot use fixed ammunition. For purposes of this subparagraph, the term "antique firearm" shall not include any weapon which incorporates a firearm frame or receiver, any firearm which is converted into a muzzle loading weapon, or any muzzle loading weapon which can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof.
(17)(A) The term "ammunition" means ammunition or cartridge cases, primers, bullets, or propellent powder designed for use in any firearm.
(B) The term "armor piercing ammunition" means--
(i) a projectile or projectile core which may be used in a handgun and which is constructed entirely (excluding the presence of traces of other substances) from one or a combination of tungsten alloys, steel, iron, brass, bronze, beryllium copper, or depleted uranium; or
(ii) a full jacketed projectile larger than .22 caliber designed and intended for use in a handgun and whose jacket has a weight of more than 25 percent of the total weight of the projectile.
(C) The term "armor piercing ammunition" does not include shotgun shot required by Federal or State environmental or game regulations for hunting purposes, a frangible projectile designed for target shooting, a projectile which the Attorney General finds is primarily intended to be used for sporting purposes, or any other projectile or projectile core which the Attorney General finds is intended to be used for industrial purposes, including a charge used in an oil and gas well perforating device.
(18) The term "Attorney General" means the Attorney General of the United States";
(19) The term "published ordinance" means a published law of any political subdivision of a State which the Attorney General determines to be relevant to the enforcement of this chapter and which is contained on a list compiled by the Attorney General, which list shall be published in the Federal Register, revised annually, and furnished to each licensee under this chapter.
(20) The term "crime punishable by imprisonment for a term exceeding one year" does not include--
(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or
(B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.
What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
(21) The term "engaged in the business" means--
(A) as applied to a manufacturer of firearms, a person who devotes time, attention, and labor to manufacturing firearms as a regular course of trade or business with the principal objective of livelihood and profit through the sale or distribution of the firearms manufactured;
(B) as applied to a manufacturer of ammunition, a person who devotes time, attention, and labor to manufacturing ammunition as a regular course of trade or business with the principal objective of livelihood and profit through the sale or distribution of the ammunition manufactured;
(C) as applied to a dealer in firearms, as defined in section 921(a)(11)(A), a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms;
(D) as applied to a dealer in firearms, as defined in section 921(a)(11)(B), a person who devotes time, attention, and labor to engaging in such activity as a regular course of trade or business with the principal objective of livelihood and profit, but such term shall not include a person who makes occasional repairs of firearms, or who occasionally fits special barrels, stocks, or trigger mechanisms to firearms;
(E) as applied to an importer of firearms, a person who devotes time, attention, and labor to importing firearms as a regular course of trade or business with the principal objective of livelihood and profit through the sale or distribution of the firearms imported; and
(F) as applied to an importer of ammunition, a person who devotes time, attention, and labor to importing ammunition as a regular course of trade or business with the principal objective of livelihood and profit through the sale or distribution of the ammunition imported.
(22) The term "with the principal objective of livelihood and profit" means that the intent underlying the sale or disposition of firearms is predominantly one of obtaining livelihood and pecuniary gain, as opposed to other intents, such as improving or liquidating a personal firearms collection: Provided, That proof of profit shall not be required as to a person who engages in the regular and repetitive purchase and disposition of firearms for criminal purposes or terrorism. For purposes of this paragraph, the term "terrorism" means activity, directed against United States persons, which--
(A) is committed by an individual who is not a national or permanent resident alien of the United States;
(B) involves violent acts or acts dangerous to human life which would be a criminal violation if committed within the jurisdiction of the United States; and
(C) is intended--
(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or coercion; or
(iii) to affect the conduct of a government by assassination or kidnapping.
(23) The term "machinegun" has the meaning given such term in section 5845(b) of the National Firearms Act (26 U.S.C. 5845(b)).
(24) The terms "firearm silencer" and "firearm muffler" mean any device for silencing, muffling, or diminishing the report of a portable firearm, including any combination of parts, designed or redesigned, and intended for use in assembling or fabricating a firearm silencer or firearm muffler, and any part intended only for use in such assembly or fabrication.
(25) The term "school zone" means--
(A) in, or on the grounds of, a public, parochial or private school; or
(B) within a distance of 1,000 feet from the grounds of a public, parochial or private school.
(26) The term "school" means a school which provides elementary or secondary education, as determined under State law.
(27) The term "motor vehicle" has the meaning given such term in section 13102 of title 49, United States Code.
(28) The term "semiautomatic rifle" means any repeating rifle which utilizes a portion of the energy of a firing cartridge to extract the fired cartridge case and chamber the next round, and which requires a separate pull of the trigger to fire each cartridge.
(29) The term "handgun" means--
(A) a firearm which has a short stock and is designed to be held and fired by the use of a single hand; and
(B) any combination of parts from which a firearm described in subparagraph (A) can be assembled.
(30) The term "semiautomatic assault weapon" means--
(A) any of the firearms, or copies or duplicates of the firearms in any caliber, known as--
(i) Norinco, Mitchell, and Poly Technologies Avtomat Kalashnikovs (all models);
(ii) Action Arms Israeli Military Industries UZI and Galil;
(iii) Beretta Ar70 (SC-70);
(iv) Colt AR-15;
(v) Fabrique National FN/FAL, FN/LAR, and FNC;
(vi) SWD M-10, M-11, M-11/9, and M-12;
(vii) Steyr AUG;
(viii) INTRATEC TEC-9, TEC-DC9 and TEC-22; and
(ix) revolving cylinder shotguns, such as (or similar to) the Street Sweeper and Striker 12;
(B) a semiautomatic rifle that has an ability to accept a detachable magazine and has at least 2 of--
(i) a folding or telescoping stock;
(ii) a pistol grip that protrudes conspicuously beneath the action of the weapon;
(iii) a bayonet mount;
(iv) a flash suppressor or threaded barrel designed to accommodate a flash suppressor; and
(v) a grenade launcher;
(C) a semiautomatic pistol that has an ability to accept a detachable magazine and has at least 2 of--
(i) an ammunition magazine that attaches to the pistol outside of the pistol grip;
(ii) a threaded barrel capable of accepting a barrel extender, flash suppressor, forward handgrip, or silencer;
(iii) a shroud that is attached to, or partially or completely encircles, the barrel and that permits the shooter to hold the firearm with the nontrigger hand without being burned;
(iv) a manufactured weight of 50 ounces or more when the pistol is unloaded; and
(v) a semiautomatic version of an automatic firearm; and
(D) a semiautomatic shotgun that has at least 2 of--
(i) a folding or telescoping stock;
(ii) a pistol grip that protrudes conspicuously beneath the action of the weapon;
(iii) a fixed magazine capacity in excess of 5 rounds; and
(iv) an ability to accept a detachable magazine.
(31) The term "large capacity ammunition feeding device"--
(A) means a magazine, belt, drum, feed strip, or similar device manufactured after the date of enactment of the Violent Crime Control and Law Enforcement Act of 1994 that has a capacity of, or that can be readily restored or converted to accept, more than 10 rounds of ammunition; but
(B) does not include an attached tubular device designed to accept, and capable of operating only with, .22 caliber rimfire ammunition.
(32) The term "intimate partner" means, with respect to a person, the spouse of the person, a former spouse of the person, an individual who is a parent of a child of the person, and an individual who cohabitates or has cohabited with the person.
(33)(A) Except as provided in subparagraph (C), [FN1] the term "misdemeanor crime of domestic violence" means an offense that--
(i) is a misdemeanor under Federal or State law; and
(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim
(B)(i) A person shall not be considered to have been convicted of such an offense for purposes of this chapter, unless--
(I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and
(II) in the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either
(aa) the case was tried by a jury, or
(bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.
(ii) A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
(34) The term "secure gun storage or safety device" means--
(A) a device that, when installed on a firearm, is designed to prevent the firearm from being operated without first deactivating the device;
(B) a device incorporated into the design of the firearm that is designed to prevent the operation of the firearm by anyone not having access to the device; or
(C) a safe, gun safe, gun case, lock box, or other device that is designed to be or can be used to store a firearm and that is designed to be unlocked only by means of a key, a combination, or other similar means.
(35) The term "body armor" means any product sold or offered for sale, in interstate or foreign commerce, as personal protective body covering intended to protect against gunfire, regardless of whether the product is to be worn alone or is sold as a complement to another product or garment.
(b) For the purposes of this chapter, a member of the Armed Forces on active duty is a resident of the State in which his permanent duty station is located.
----------- Cites -----------------
NOTES OF DECISIONS
Antique firearm 5
Automatic restoration, civil rights restored 20
Business offenses, prior convictions 16
Civil rights restored 19-27
Civil rights restored - Generally 19
Civil rights restored - Automatic restoration 20
Civil rights restored - Federal conviction 21
Civil rights restored - Federal relief 22
Civil rights restored - Partial restoration 23
Civil rights restored - Restricted restoration 24
Civil rights restored - Right to possess firearm 25
Civil rights restored - State laws 27
Civil rights restored - State of conviction 26
Constitutionality 1
Construction with other laws 2
Dealer 6
Destructive device 7
Engaged in business 8
Federal conviction, civil rights restored 21
Federal relief, civil rights restored 22
Firearm 9
Fugitive from justice 10, 11
Fugitive from justice - Generally 10
Fugitive from justice - Particular cases 11
Indictment 12
Interstate or foreign commerce 13
Misdemeanor crime of domestic violence 14
Nolo contendere, prior convictions 18
Partial restoration, civil rights restored 23
Particular cases, fugitive from justice 11
Prior convictions 15-18
Prior convictions - Generally 15
Prior convictions - Business offenses 16
Prior convictions - Nolo contendere 18
Prior convictions - Unfair trade practices 17
Repeals 4
Restricted restoration, civil rights restored 24
Retroactive effect 3
Right to possess firearm, civil rights restored 25
Short-barreled shotgun 28
Silencers 29
State laws, civil rights restored 27
State of conviction, civil rights restored 26
Unfair trade practices, prior convictions 17
1. Constitutionality
Construing statutory definition of misdemeanor crime of domestic violence, for purpose of statute prohibiting possession of firearms by persons convicted of such misdemeanors, as not requiring that underlying misdemeanor have domestic relationship as element of offense did not render definition unconstitutionally vague as applied to federal prison guard who was terminated for loss of qualification for his position based on his inability to possess firearms, even though Virginia law had alternate assault misdemeanor that specifically incorporated domestic relationship element, where guard was only terminated based on conviction for assault that did not require domestic relationship as element of offense. White v. Department of Justice, C.A.Fed.2003, 328 F.3d 1361. Weapons 3
Statute setting forth offense of possession of a firearm by someone who has previously been convicted of a misdemeanor crime of domestic violence is not void for vagueness on ground that it does not make clear whether the predicate offense must have as an element a domestic relationship between the victim and the assailant. U.S. v. Kavoukian, C.A.2 (N.Y.) 2002, 315 F.3d 139. Weapons 3
Statutory exemption permitting felon to possess firearm if his only predicate offenses were antitrust violations, unfair trade practices, or similar offenses relating to regulation of business practices did not violate equal protection by distinguishing between certain nonviolent offenders and other felons; it was reasonable for Congress to assume that violent felons posed higher risk of endangering public with firearm than exempted nonviolent offenders. U.S. v. Jester, C.A.7 (Ind.) 1998, 139 F.3d 1168. Constitutional Law 250.1(2); Weapons 3
Statute providing that sentence for possession of weapon by convicted felon, would be enhanced if defendant had been convicted of three prior crimes of violence, was rationally related to legitimate governmental purpose and did not violate defendant's equal protection rights, even though statute contained provision that convictions which had been expunged, set aside or for which civil rights had been restored would not count for enhancement purposes, and some states had such restoration of statutes and others did not. U.S. v. Phelps, C.A.10 (Kan.) 1994, 17 F.3d 1334, certiorari denied 115 S.Ct. 135, 513 U.S. 844, 130 L.Ed.2d 77. Constitutional Law 250.3(1); Sentencing And Punishment 1210
Unfair trade practices found their origin in common law and even today are usually treated as civil offenses; thus, exclusion of offenses relating to unfair trade practices from prohibition against felons convicted of crime punishable by term exceeding more than one year receiving firearms did not create unconstitutional irrational classification on ground that other nonviolent offenses were not excluded. U.S. v. Meldish, C.A.2 (N.Y.) 1983, 722 F.2d 26, certiorari denied 104 S.Ct. 1597, 465 U.S. 1101, 80 L.Ed.2d 128. Weapons 3
While this chapter making it unlawful for any person except licensed dealer to engage in the business of firearms requires no minimal number of sales, dollar volume of sales, or number of employees to constitute "engaging in business", this chapter is not too vague and indefinite to constitute a valid criminal statute, where there could be no doubt in the minds of men of common intelligence that "dealer" means one that is engaged in any business of selling firearms, and that "business" is that which occupies the time, attention and labor of men for the purpose of livelihood or profit. U. S. v. Williams, C.A.8 (Mo.) 1974, 502 F.2d 581. Criminal Law 13.1(10)
Inclusion of sawed-off rifles in this chapter without a requirement of scienter does not constitute an irrational classification in violation of due process clause of U.S.C.A.Const. Amend. 5. U. S. v. Eggebrecht, C.A.8 (Neb.) 1973, 486 F.2d 136. Constitutional Law 258(3.1); Internal Revenue 4306
This section's definition of "destructive device" was not unconstitutionally vague. U. S. v. Morningstar, C.A.4 (W.Va.) 1972, 456 F.2d 278, certiorari denied 93 S.Ct. 135, 409 U.S. 896, 34 L.Ed.2d 153. Explosives 2; Constitutional Law 258(3.1)
This chapter is not unconstitutionally vague. U. S. v. Decker, C.A.8 (Mo.) 1971, 446 F.2d 164. Criminal Law 13.1(2.5)
This section defining firearm as any weapon (including a starter gun) which may readily be converted to expel a projectile by the action of an explosive was not unconstitutionally vague as applied to starter guns which could be converted to shoot live ammunition within 3 to 12 minutes. U. S. v. 16,179 Molso Italian .22 Caliber Winlee Derringer Convertibel Starter Guns, C.A.2 (N.Y.) 1971, 443 F.2d 463. Criminal Law 13.1(2.5)
The test to be applied in determining whether this section is unconstitutionally vague is whether language conveys sufficiently definite warning as to proscribed conduct when measured by common understanding and practices. U. S. v. 16,179 Molso Italian .22 Caliber Winlee Derringer Convertibel Starter Guns, C.A.2 (N.Y.) 1971, 443 F.2d 463. Criminal Law 13.1(1)
This chapter is not unconstitutional. U. S. v. Cabbler, C.A.4 (Va.) 1970, 429 F.2d 577, certiorari denied 91 S.Ct. 138, 400 U.S. 901, 27 L.Ed.2d 138. Weapons 3
Amendment to Colorado law to prohibit all convicted felons from possessing firearms did not violate Ex Post Facto law when applied to defendant who was serving his sentence at time of amendment, notwithstanding that his conviction predated passage of amendment; any prospective right to possession firearms existing at time of conviction could not vested until defendant's civil rights were restored upon completion of sentence. U.S. v. Petersen, D.Colo.2003, 277 F.Supp.2d 1089. Weapons 3
Provision of statute defining semiautomatic assault weapon as rifle that has "pistol grip that protrudes conspicuously beneath the action of the weapon" was not unconstitutionally vague as applied to defendant in prosecution for knowingly and unlawfully manufacturing and possessing semiautomatic assault weapon where grip on weapon found in defendant's possession was clearly separate from stock of rifle and was large enough for one to place his entire hand around it. U.S. v. Starr, M.D.Ga.1996, 945 F.Supp. 257, affirmed 144 F.3d 56, rehearing and suggestion for rehearing en banc denied 156 F.3d 188. Weapons 3
2. Construction with other laws
Massachusetts law expressly prohibited paroled felon from possessing firearms, so that federal statute prohibiting felon's possession of firearm applied despite restoration of felon's other civil rights, though Massachusetts law permitted ex-felons released from custody for more than five years to possess firearms under restricted conditions, with identification card; Massachusetts' ban on handgun possession by ex-felons outside home or business was substantial enough limit on firearms rights to preserve federal ban. U.S. v. Estrella, C.A.1 (N.H.) 1997, 104 F.3d 3, certiorari denied 117 S.Ct. 2494, 521 U.S. 1110, 138 L.Ed.2d 1001. Weapons 4
3. Retroactive effect
Defendant who was charged with being felon in possession of firearm prior to enactment of Firearm Owners Protection Act (FOPA) but was sentenced after FOPA's effective date was not entitled to FOPA's amended definition of "conviction," for enhancement purposes. Martin v. U.S., C.A.8 (Minn.) 1993, 989 F.2d 271, rehearing denied, certiorari denied 114 S.Ct. 475, 510 U.S. 979, 126 L.Ed.2d 426. Sentencing And Punishment 1217
Federal savings clause barred retroactive application of provision of Firearms Owners' Protection Act amending and clarifying Gun Control Act to substitute narrower definition of "dealer" by further defining term "engaged in the business" as applied to dealer in firearms. U.S. v. Schumann, C.A.11 (Fla.) 1988, 861 F.2d 1234. Weapons 3
Absent statutory directive or legislative history indicating that Congress intended legislation redefining phrase "convicted felon" not to apply to pending cases, it did so apply as of its effective date. U.S. v. Kolter, C.A.11 (Ga.) 1988, 849 F.2d 541. Weapons 3
Section 907 of Pub.L. 90-351 [set out as a note under this section], establishing a period of 180 days during which Federal Firearms Act, former § 901 et seq. of Title 15, was to remain effective and this chapter ineffective, was designed to ease implementation of this chapter, and Congress did not intend that an offense committed on 179th day after enactment of this chapter would not be indictable thereafter under either this section or former § 902 of Title 15. U. S. v. Smith, C.A.4 (N.C.) 1970, 433 F.2d 341, certiorari denied 91 S.Ct. 949, 401 U.S. 942, 28 L.Ed.2d 223. Weapons 3
Firearms importer was not deprived of property without due process of law because Secretary of Treasury did not permit, after effective date of this chapter, the importer to import surplus military firearms which had been ordered pursuant to licenses issued by munitions control office prior to effective date of this chapter. Century Arms, Inc. v. Kennedy, D.C.Vt.1971, 323 F.Supp. 1002, affirmed 449 F.2d 1306, certiorari denied 92 S.Ct. 1494, 405 U.S. 1065, 31 L.Ed.2d 794. Constitutional Law 286
Where Congress could delineate general standards for grant or denial of license under a prior federal regulatory scheme, and could permit commission to find facts and apply law to those facts, Congress itself could determine the facts, and could write more stringent standards into regulatory scheme set up by this chapter. Century Arms, Inc. v. Kennedy, D.C.Vt.1971, 323 F.Supp. 1002, affirmed 449 F.2d 1306, certiorari denied 92 S.Ct. 1494, 405 U.S. 1065, 31 L.Ed.2d 794. Licenses 4
That Congress divested Secretary of Treasury of discretion to honor firearms import licenses issued prior to effective date of this chapter did not deny procedural due process to importer. Century Arms, Inc. v. Kennedy, D.C.Vt.1971, 323 F.Supp. 1002, affirmed 449 F.2d 1306, certiorari denied 92 S.Ct. 1494, 405 U.S. 1065, 31 L.Ed.2d 794. Constitutional Law 286
4. Repeals
After former § 902 of Title 15 making it unlawful for any person convicted of crime of violence to transport a firearm in interstate commerce was repealed by this chapter government had right to indict defendant and press his prosecution for conduct which was in clear violation of that section and which was committed before effective date of its repeal. U. S. v. Smith, C.A.4 (N.C.) 1970, 433 F.2d 341, certiorari denied 91 S.Ct. 949, 401 U.S. 942, 28 L.Ed.2d 223. Weapons 3
5. Antique firearm
Government only needs to prove beyond reasonable doubt that firearm is not antique firearm once defendant charged with possession of firearm by felon who seeks acquittal on ground that firearm he possessed was antique firearm produces evidence sufficient to raise genuine dispute about whether firearm is antique. U.S. v. Washington, C.A.8 (Mo.) 1994, 17 F.3d 230, rehearing and suggestion for rehearing en banc denied, certiorari denied 115 S.Ct. 153, 513 U.S. 852, 130 L.Ed.2d 92. Weapons 17(4)
"Antique firearm" exception, under which weapon employed cannot form basis for firearms conviction, is affirmative defense which must be raised by criminal defendant. U.S. v. Smith, C.A.6 (Ohio) 1992, 981 F.2d 887. Weapons 17(2)
"Antique weapons" exception under this chapter does not establish an affirmative defense or create an additional element which imposes on government burden of initially disproving its applicability in order to establish a violation of this chapter. U.S. v. Laroche, C.A.11 (Ga.) 1984, 723 F.2d 1541, certiorari denied 104 S.Ct. 3521, 467 U.S. 1245, 82 L.Ed.2d 829. Weapons 4
Bureau of Alcohol, Tobacco and Firearms' (ATF) determination that allegedly antique replica rifle was not exempt from regulation under Gun Control Act (GCA) was not arbitrary and capricious, given that rifle's primer ignition system was not similar to those used by exempted firearms, and that ATF was presumably better able than District Court to make technical distinctions between firearm ignition systems. Modern Muzzleloading, Inc. v. Magaw, D.D.C.1998, 18 F.Supp.2d 29. Weapons 2
Government failed to establish that weapon was not an antique, as required to support conviction of knowingly receiving and possessing one or more firearms which had been shipped in interstate commerce after having previously been convicted of felony and being fugitive from justice. U.S. v. Smith, D.Or.1988, 685 F.Supp. 1523, affirmed in part, reversed in part 876 F.2d 898, certiorari denied 110 S.Ct. 194, 493 U.S. 869, 107 L.Ed.2d 149. Weapons 17(4)
6. Dealer
Absent showing of conduct inconsistent with professed intent to export firearms, defendant, who was lawfully registered exporter of firearms, could not be found to be a "dealer" under this chapter and could not be convicted of dealing in firearms without a license. U. S. v. Mowad, C.A.2 (Conn.) 1981, 641 F.2d 1067, certiorari denied 102 S.Ct. 94, 454 U.S. 817, 70 L.Ed.2d 86. Weapons 4
Anyone is engaged in business of dealing in firearms if they have guns on hand or are ready and able to procure them, in either case for purpose of selling some or all of them to such persons as they might from time to time conclude to accept as customers. U. S. v. Shirling, C.A.5 (Ga.) 1978, 572 F.2d 532. Weapons 3
Section 922 of this title relating to making false statements in connection with acquisition or disposition of firearm prohibit false statements in connection with redemption of firearms from pawnbroker who is a dealer under this section. U. S. v. Huddleston, C.A.9 (Cal.) 1973, 472 F.2d 592, certiorari granted 93 S.Ct. 1898, 411 U.S. 930, 36 L.Ed.2d 389, affirmed 94 S.Ct. 1262, 415 U.S. 814, 39 L.Ed.2d 782. Weapons 4
Defendant's sale of 11 separate weapons within a reasonably short space of time clearly made him a "dealer", under definition of that term. U. S. v. Gross, C.A.7 (Ind.) 1971, 451 F.2d 1355. Weapons 3
Evidence supported finding that defendants were engaged in business of selling firearms and were to that extent "dealers" within § 922 of this title making it crime for any unlicensed dealer to transport any firearm in foreign commerce. Kaneshiro v. U. S., C.A.9 (Hawai'i) 1971, 445 F.2d 1266, certiorari denied 92 S.Ct. 537, 404 U.S. 992, 30 L.Ed.2d 543. Weapons 17(4)
Under this chapter making it a crime to intentionally engage in business of dealing in firearm and ammunition without a license, term "dealer" means one that is engaged in any business of selling firearms and "business" is that which occupies the time, attention and labor of men for purpose of livelihood or profit. U. S. v. Baker, E.D.Mo.1975, 397 F.Supp. 1122, affirmed 526 F.2d 804. Weapons 3
Evidence showing, inter alia, multiple sales of firearms conducted regularly at gun shows on a continuing basis, display of numerous long guns and handguns which were not curios or relics, taking of orders for firearms, and making of profit from the sale of such firearms warranted conviction for knowingly engaging in the business of a dealer in firearms without being licensed to do so, despite defendant's contention that he was a collector. U. S. v. Jackson, S.D.Ohio 1972, 352 F.Supp. 672, affirmed 480 F.2d 927. Weapons 17(4)
7. Destructive device
Evidence supported finding homemade napalm firebombs were "destructive device" for purposes of statute providing mandatory five-year prison sentence for anyone using firearm during and in relation to any crime of violence or drug trafficking crime, with term "firearm" including "destructive device," although defendants claimed device could not constitute destructive device unless it were capable of being thrown, aimed, or wielded. U.S. v. Hedgcorth, C.A.9 (Cal.) 1989, 873 F.2d 1307, certiorari denied 110 S.Ct. 164, 493 U.S. 857, 107 L.Ed.2d 122, denial of habeas corpus affirmed 977 F.2d 587. Weapons 17(4)
Devices excluded from definition of "destructive device" in this section and section 5845(f) of Title 26 are not designed or redesigned or used or intended for use as a weapon, e.g., construction tools using explosives when used for such purposes. U. S. v. Greer, C.A.6 (Mich.) 1978, 588 F.2d 1151, certiorari denied 99 S.Ct. 1794, 440 U.S. 983, 60 L.Ed.2d 244. Internal Revenue 5265; Weapons 4
Four sticks of black powder pellet explosive fastened together with electrical tape, together with unattached blasting caps, could constitute "destructive device" as combination of parts intended for use as bomb and from which bomb could be readily assembled, within definition of this section and § 5845 of Title 26. U. S. v. Morningstar, C.A.4 (W.Va.) 1972, 456 F.2d 278, certiorari denied 93 S.Ct. 135, 409 U.S. 896, 34 L.Ed.2d 153. Explosives 4
In definition of "destructive device" in this section statutory exception of devices not designed or redesigned or used or intended for use as weapons provides affirmative defense which, if asserted, must be negated beyond reasonable doubt by prosecution; guilty plea, however, relieves government of such prosecutorial burden. U. S. v. Oba, C.A.9 (Or.) 1971, 448 F.2d 892, certiorari denied 92 S.Ct. 979, 405 U.S. 935, 30 L.Ed.2d 811. Criminal Law 273.2(2); Internal Revenue 5295
Device which consisted of seven sticks of dynamite wrapped in copper wire and equipped with fuse and blasting caps and which defendant intended to use for bombing and destroying property of others was "destructive device" within this section and was "weapon" within meaning of exclusion of devices not designed or redesigned or used or intended for use as weapons. U. S. v. Oba, C.A.9 (Or.) 1971, 448 F.2d 892, certiorari denied 92 S.Ct. 979, 405 U.S. 935, 30 L.Ed.2d 811. Internal Revenue 5265
8. Engaged in business
Expectations of profit were not determinative of whether defendant, in prosecution for engaging in business as firearms dealer without license, was engaged in business of selling firearms; other factors, such as continuing or repeated nature of sales, or representations made to prospective buyers could suffice to prove engagement in business even in absence of profit motive. U. S. v. Shirling, C.A.5 (Ga.) 1978, 572 F.2d 532. Weapons 3
9. Firearm
Evidence supported conviction of being a felon in possession of firearm, despite defendant's claim that revolver was not operable; police firearms expert testified that revolver was operable and functioned as designed, and even if firearm was not operable, statute did not require that firearm was operable. U.S. v. Maddix, C.A.8 (Mo.) 1996, 96 F.3d 311, dismissal of habeas corpus affirmed 62 Fed.Appx. 215, 2003 WL 1232591. Weapons 4; Weapons 17(4)
Definitions of "firearm" and "ammunition" applicable to statute prohibiting possession by a felon include some components. U.S. v. Mosby, C.A.8 (Minn.) 1995, 60 F.3d 454, rehearing and suggestion for rehearing en banc denied, certiorari denied 116 S.Ct. 938, 516 U.S. 1125, 133 L.Ed.2d 864. Weapons 4
That sawed-off shotgun possessed by defendant had broken firing pin did not so alter the weapon's design that it no longer served the purpose for which it was originally designed and thus did not preclude conviction for possession of firearm by convicted felon and possession of unregistered firearm. U.S. v. Yannott, C.A.6 (Mich.) 1994, 42 F.3d 999, certiorari denied 115 S.Ct. 1172, 513 U.S. 1182, 130 L.Ed.2d 1125, denial of post-conviction relief affirmed 86 F.3d 1157. Internal Revenue 5265; Weapons 4
Evidence supported finding that weapon, i.e., 20-gauge shotgun, that defendant possessed was "firearm," thus supporting his conviction for possessing firearm when he had been convicted of felony; government's witness testified that he purchased and received "shotgun" from defendant and that defendant then informed him that it worked, shotgun itself was identified by witness and introduced into evidence, prosecution and defense stipulated that firearm was "in and affecting interstate commerce," and there was no evidence that shotgun was not designed to (or would not or could not readily be converted to) expel projectile by action of explosive. U.S. v. Munoz, C.A.5 (Tex.) 1994, 15 F.3d 395, certiorari denied 114 S.Ct. 2149, 511 U.S. 1134, 128 L.Ed.2d 876. Weapons 17(4)
Filing down of a gun's hammer merely temporarily altered the gun's capability to accomplish the purpose for which it was designed, but did not change the fact that the gun was designed to "expel a projectile" under statutory definition of firearm; revolver was functional in every other respect, and could be converted to be made operable. U.S. v. Ruiz, C.A.5 (Tex.) 1993, 986 F.2d 905, certiorari denied 114 S.Ct. 145, 510 U.S. 848, 126 L.Ed.2d 107. Weapons 4
Although unloaded, "Star" nine millimeter handgun satisfied statutory requirement that weapon be designed to expel a projectile by means of an explosive and thus was "firearm" for purpose of enhanced sentence for use of firearm in commission of drug trafficking offense. U.S. v. Gutierrez-Silva, C.A.8 (Minn.) 1993, 983 F.2d 123. Weapons 4
Testimony of employees of licensed gun dealer that they sold defendant two shotguns, and two pistols, was sufficient to establish that the items were "firearms" for purposes of statute prohibiting possession of a firearm by convicted felon; moreover, employees testified that they handled and sold guns regularly, and a rational jury could have concluded that they were sufficiently knowledgeable about guns sold in store to identify items that defendant purchased as "firearms." U.S. v. Hayes, C.A.7 (Ill.) 1990, 919 F.2d 1262. Weapons 17(4)
Derringer pistol in defendant's possession was a "firearm" under federal weapons statute. U.S. v. Morris, C.A.9 (Mont.) 1990, 904 F.2d 518. Weapons 4
Statute outlawing use of firearm to commit felony does not require that weapon be operable. U.S. v. Harris, C.A.9 (Wash.) 1986, 792 F.2d 866; U.S. v. York, C.A.8 (Minn.) 1987, 830 F.2d 885, certiorari denied 108 S.Ct. 1047, 484 U.S. 1074, 98 L.Ed.2d 1010. Weapons 4
Where guns which defendant purchased fell squarely within definition of weapon which would expel projectile by action of explosive, defendant was not entitled to claim benefit of sporting use exception contained in this section on ground Congress intended to regulate only firearms that conformed to definition of destructive devices. U.S. v. Meldish, C.A.2 (N.Y.) 1983, 722 F.2d 26, certiorari denied 104 S.Ct. 1597, 465 U.S. 1101, 80 L.Ed.2d 128. Weapons 4
Starter guns which could be converted to shoot live ammunition within 3 to 12 minutes were "readily convertible" within this section defining firearm as any weapon (including a starter gun) which may readily be converted to expel a projectile by the action of an explosive, and unlicensed dealer in firearms could not lawfully import them and they were subject to forfeiture. U. S. v. 16,179 Molso Italian .22 Caliber Winlee Derringer Convertibel Starter Guns, C.A.2 (N.Y.) 1971, 443 F.2d 463. Weapons 16
Inoperative pistol, taken from drug suspect, was "firearm," for purposes of charging suspect with weapons possession in connection with drug activities; statute defined "firearm" to include weapon which could be converted to expel projectile by action of explosive. U.S. v. Morales, S.D.N.Y.2003, 280 F.Supp.2d 262. Weapons 4
Machine gun conversion kits are "firearms" under Gun Control Act, which prohibits engaging in unlicensed dealing in firearms. U.S. v. Hunter, E.D.Mich.1994, 863 F.Supp. 462. Weapons 4
Pistol which was a replica of 1859 Remington model black powder percussion pistol, which fell within statutory definition of "antique firearm," but which would expel projectile by explosion and was originally designed to be fired by use of a single hand, was both a "firearm" and a "handgun" under plain language of section 1202 of the Appendix to this title which prohibits receipt, possession or transportation in commerce of any firearm by any person who has been convicted of a felony, notwithstanding Bureau of Alcohol, Tobacco and Firearms' interpretation that such statute does not apply to antique firearms, which do not utilize fixed ammunition. U. S. v. Green, D.C.Md.1981, 515 F.Supp. 517. Weapons 4
10. Fugitive from justice--Generally
In prosecutions for being fugitive from justice in possession of firearm, person is "fugitive from justice" if that person, knowing that charges are pending, purposefully leaves jurisdiction of prosecution and refuses to answer those charges by way of appearance before prosecuting tribunal; it is unnecessary to show that defendant left state with intent to avoid facing charges pending against him. U.S. v. Spillane, C.A.4 (Va.) 1990, 913 F.2d 1079, rehearing denied. Weapons 4
11. ---- Particular cases, fugitive from justice
Defendant who fled from Illinois with intent to avoid prosecution remained "fugitive," for purposes of statute prohibiting being fugitive from justice in possession of firearm, even after he returned to Illinois, as he took affirmative steps to avoid arrest and prosecution after returning. U.S. v. Collins, C.A.9 (Mont.) 1995, 61 F.3d 1379, certiorari denied 116 S.Ct. 543, 516 U.S. 1000, 133 L.Ed.2d 446. Weapons 4
For purposes of prosecution for receiving and possessing firearm shipped interstate while being fugitive from justice, defendant's failure to answer charges pending against him in New York City before leaving state justified conclusion that he purposefully absented himself in hopes of avoiding prosecution; fact that he may not have been aware that his failure to appear on charges stemming from his first arrest led to issuance of warrant for his arrest was not impediment to such prosecution, as defendant's reckless disregard for truth satisfied scienter requirement. U.S. v. Spillane, C.A.4 (Va.) 1990, 913 F.2d 1079, rehearing denied. Weapons 4
12. Indictment
State "complaint/information" was "indictment" within meaning of statute that prohibits person under indictment for crime punishable by imprisonment for term exceeding one year from receiving any firearm or ammunition which has been shipped or transported in interstate commerce. U.S. v. Williams, D.Kan.1997, 986 F.Supp. 1445. Weapons 4
Defendant who was charged with felony by complaint or information was under "indictment" for felony within meaning of statute prohibiting such person from shipping or transporting any explosive in interstate or foreign commerce, despite fact that indictment was not defined in statute, where related statute governing firearms defined indictment to include information. U.S. v. Fillman, D.Kan.1997, 986 F.Supp. 1358, affirmed 162 F.3d 1055. Explosives 4
13. Interstate or foreign commerce
Commerce in component parts of ammunition may be relevant "commerce" for purposes of determining whether ammunition possessed by felon is in or affecting commerce. U.S. v. Mosby, C.A.8 (Minn.) 1995, 60 F.3d 454, rehearing and suggestion for rehearing en banc denied, certiorari denied 116 S.Ct. 938, 516 U.S. 1125, 133 L.Ed.2d 864. Commerce 82.50; Weapons 4
This chapter proscribing use of firearm, including a bomb, to commit federal felony makes use of destructive bomb to commit a federal felony a crime irrespective of any nexus between bomb and interstate or foreign commerce. U. S. v. Melville, S.D.N.Y.1970, 309 F.Supp. 774. Weapons 4
14. Misdemeanor crime of domestic violence
Statute prohibiting possession of a firearm by one who has prior misdemeanor conviction for domestic violence did not require underlying statute to require, as an element, domestic relationship between misdemeanant and victim. U.S. v. Belless, C.A.9 (Mont.) 2003, 338 F.3d 1063. Weapons 4
Statutory definition of misdemeanor crime of domestic violence, for purpose of statute prohibiting possession of firearms by persons convicted of such misdemeanors, requires only that the use or attempted use of physical force, or the threatened use of a deadly weapon, be an element of the predicate misdemeanor offense, and the existence of a domestic relationship need not be an element. White v. Department of Justice, C.A.Fed.2003, 328 F.3d 1361. Weapons 4
Offense of possession of a firearm by someone who has previously been convicted of a misdemeanor crime of domestic violence requires proof that (1) the defendant was previously convicted of a misdemeanor that has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, (2) subsequent to that conviction, defendant possessed certain firearms, and (3) the victim of the defendant's prior offense was in a domestic relationship with him. U.S. v. Kavoukian, C.A.2 (N.Y.) 2002, 315 F.3d 139. Weapons 4
Upon successful completion of Michigan probationary sentence for misdemeanor domestic violence, defendant was no longer considered ineligible to possess firearm under federal statute prohibiting possession of firearm after previously being convicted for misdemeanor crime of domestic violence, in light of federal statute's exception for persons whose civil rights have been restored, and Michigan law which stripped from misdemeanants their core civil right to vote while confined in correctional facility. U.S. v. Wegrzyn, C.A.6 (Mich.) 2002, 305 F.3d 593, rehearing denied. Weapons 4
While "misdemeanor crime of domestic violence" must have use or attempted use of force or threatened use of a deadly weapon as an element, for purpose of statute prohibiting possession of firearms and ammunition by persons convicted of such misdemeanors, misdemeanor crime need not also have element requiring domestic relationship specified in statutory definition of underlying misdemeanor, although government still must prove such domestic relationship in order to obtain conviction for unlawful possession. U.S. v. Barnes, C.A.D.C.2002, 295 F.3d 1354, 353 U.S.App.D.C. 87, rehearing and rehearing en banc denied. Weapons 4
Defendant charged with federal offense of possession of firearm by person with misdemeanor conviction for crime of domestic violence could not introduce evidence at trial concerning alleged involuntariness of his waivers of right to counsel and right to jury trial in underlying misdemeanor prosecution; question of voluntariness of waivers under applicable federal definitional statute was question of law for court, not element of federal offense to be proved beyond reasonable doubt. U.S. v. Hartsock, D.Me.2003, 253 F.Supp.2d 24, reversed 347 F.3d 1. Weapons 17(3)
South Dakota disorderly conduct conviction satisfied requirements of federal statute prohibiting possessing firearms after being convicted of a misdemeanor crime of violence, and therefore dismissal of indictment for federal offense was not warranted; that disorderly conduct conviction was a misdemeanor crime of domestic violence was shown by arresting officer's affidavit of probable cause, which alleged that defendant struck victim, and by defendant's acknowledgement, in his factual basis statement in state court, that he hit victim. U.S. v. Medicine Eagle, D.S.D.2003, 266 F.Supp.2d 1039. Weapons 4
Federal statute defining "misdemeanor crime of domestic violence," for purposes of statute prohibiting person convicted of such crime from possessing firearms, did not require predicate offense to have domestic relationship element; accordingly, defendant's past conviction, under Massachusetts law, for assault and battery upon his wife qualified as a misdemeanor crime of domestic violence, even though Massachusetts statute did not require familial relationship between parties as element of the state crime. U.S. v. Meade, D.Mass.1997, 986 F.Supp. 66, affirmed 175 F.3d 215. Weapons 4
15. Prior convictions--Generally
Although the offense of possession of a firearm by someone who has previously been convicted of a misdemeanor crime of domestic violence requires proof that the victim of defendant's prior misdemeanor was in a domestic relationship with defendant, it does not require that the predicate offense have as an element a domestic relationship between the victim and the assailant. U.S. v. Kavoukian, C.A.2 (N.Y.) 2002, 315 F.3d 139. Weapons 4
Fact that defendant had been convicted of prior felony at time he allegedly possessed firearm and ammunition supported conviction for being felon in possession of firearm and ammunition, even though predicate prior felony was subsequently set aside; statutory definition of "crime punishable by imprisonment for a term exceeding one year" which excluded conviction that has been set aside meant only that, after conviction has been set aside, it is no longer disabling circumstance unless remaining requirements were met. U.S. v. Kahoe, C.A.4 (Va.) 1998, 134 F.3d 1230. Weapons 4
Prior Indiana felony was "conviction" for purposes of defendant's prosecution for being felon in possession of firearm, notwithstanding defendant's claims that under Indiana law convicted felon enjoyed fairly substantial restoration of civil rights upon completion of sentence and that, inasmuch as Indiana law did not prohibit him from possessing firearm, possession could not have been illegal for purposes of federal prosecution. U.S. v. Thompson, C.A.7 (Ind.) 1997, 117 F.3d 1033, rehearing and suggestion for rehearing en banc denied, certiorari denied 118 S.Ct. 1844, 523 U.S. 1139, 140 L.Ed.2d 1094. Weapons 4
For purpose of enhanced sentencing under Armed Career Criminal Act (ACCA) which permits enhanced sentence for person who commits offense of possession of firearm by convicted felon and who has three previous convictions for violent felony or serious drug offense, choice-of-law clause requires that law of jurisdiction in which prior proceeding was held determines whether an offense constitutes a "previous conviction." U.S. v. Jefferson, C.A.3 (Pa.) 1996, 88 F.3d 240, certiorari denied 117 S.Ct. 536, 519 U.S. 1019, 136 L.Ed.2d 421. Sentencing And Punishment 1270
Statute stating what term "crime punishable by imprisonment for term exceeding one year" does not include is a legal definition and because statute is definitional, it is trial judge's responsibility to determine as a matter of law whether prior conviction is admissible as a predicate conviction in felon in possession of firearm case; any motions, arguments or factual presentations related to this issue should be heard and considered outside presence of jury. U.S. v. Flower, C.A.10 (Utah) 1994, 29 F.3d 530, certiorari denied 115 S.Ct. 939, 513 U.S. 1129, 130 L.Ed.2d 884. Weapons 17(3)
Defendant's Army court-martial conviction was sufficient basis for felon in possession element of federal firearms provision prohibiting possession of firearm by person convicted in any court of crime punishable by imprisonment for term exceeding one year. U.S. v. MacDonald, C.A.9 (Cal.) 1993, 992 F.2d 967. Weapons 4
Even if amended statute prohibiting conviction for which defendant has had civil rights restored from being considered a prior conviction applied to defendant's sentencing under statute prohibiting possession of a firearm by a felon, defendant's 1964 Nebraska breaking and entering conviction was properly counted for sentence enhancement purposes, although defendant had his civil rights restored with regard to that conviction; Nebraska Law denied felons right to possess short-barrelled firearms at time of defendant's conviction. Davis v. U.S., C.A.8 (Iowa) 1992, 972 F.2d 227, certiorari denied 113 S.Ct. 1360, 507 U.S. 950, 122 L.Ed.2d 740. Weapons 4
Rule promulgated by Bureau of Alcohol, Tobacco and Firearms providing that pardoning or restoring jurisdiction's actions could serve to nullify conviction for purposes of federal firearms law was not interpretation of statute providing that any conviction for which person has had civil rights restored shall not be considered conviction for purposes of offense of possession of firearm by convicted felon; rule contained no additional substantive limitations but merely directed reader to look to very provision that was in dispute; Government's effort to interpret disputed statutory provision by reference to rule that did no more than refer court to statute was classic example of tautological reasoning. U.S. v. Geyler, C.A.9 (Ariz.) 1991, 949 F.2d 280. Courts 85(3); Weapons 4
Nolo contendere pleas which were followed either by prison sentences or suspended sentences were "convictions" which could be considered by the district court sentencing the defendant as an armed career criminal. U.S. v. Patrone, C.A.1 (R.I.) 1991, 948 F.2d 813, certiorari denied 112 S.Ct. 2953, 504 U.S. 978, 119 L.Ed.2d 575, denial of post-conviction relief affirmed 2 F.3d 1148. Sentencing And Punishment 1289
Defendant who had been convicted in Illinois and served his sentence and, upon expiration, returned to his civil rights by statute was not allowed by state law to possess guns and could be convicted under federal law of possession of a firearm by a felon. U.S. v. Erwin, C.A.7 (Ill.) 1990, 902 F.2d 510, certiorari denied 111 S.Ct. 161, 498 U.S. 859, 112 L.Ed.2d 127, denial of habeas corpus affirmed 30 F.3d 136. Weapons 4
Sentence of three years imposed upon defendant convicted of federal firearms violations, after a previous conviction had been expunged, was not "cruel and unusual," despite statutory amendments prohibiting conviction which has been expunged from being considered conviction for purpose of federal firearms statutes. U.S. v. Holley, C.A.5 (Tex.) 1987, 818 F.2d 351. Sentencing And Punishment 1506
Guilty plea to first-degree residential burglary alone was "conviction" under California law, for purposes of subsequent federal prosecution for being felon in possession of firearm, for which existence of prior felony conviction was element of offense; it did not matter that defendant was not sentenced on burglary charge, and that therefore no judgment of conviction was entered on offense. U.S. v. Tankersley, D.Neb.2003, 269 F.Supp.2d 1178. Weapons 4
Whether a prior conviction meets statutory definition set forth in statute prohibiting use of conviction for which civil rights have been restored to support charge of possession of a firearm by a convicted felon is determined by law of the jurisdiction in which the prior conviction occurred; this inquiry requires analysis of whether and to what extent the jurisdiction in which the prior conviction occurred restores civil rights of ex-felons. U.S. v. Scales, E.D.Va.2002, 231 F.Supp.2d 437, appeal dismissed 60 Fed.Appx. 977, 2003 WL 1920984, certiorari denied 124 S.Ct. 289, 2003 WL 21714084. Weapons 4
Conviction for felon in possession of firearm does not require that defendant have been sentenced to any period of incarceration, but only that prior crime have been punishable by imprisonment exceeding one year. U.S. v. Scarberry, S.D.Ohio 1998, 999 F.Supp. 1055. Weapons 4
Possession of single bullet was possession of "ammunition," in violation of statute barring felon from possessing in or affecting commerce any firearm or ammunition, in view of statutory definition of "ammunition" to include propellant powder designed for use in any firearm. U.S. v. Cardoza, D.Mass.1996, 914 F.Supp. 683, affirmed 129 F.3d 6. Weapons 4
Armed Career Criminal Act (ACCA) required reduction of federal sentence which had been enhanced based on later-overturned state conviction, despite government's contention that, because legislative history of ACCA referred repeatedly to "three time losers," Congress must have intended for enhancement to be unalterable; invalidation of conviction for constitutional error immediately transformed the convicted person into a two time loser. U.S. v. Payne, D.Mass.1995, 894 F.Supp. 534. Sentencing And Punishment 1339
To render prior conviction unavailable for consideration in prosecution for being a felon in possession of a firearm in accordance with civil rights restoration provision of statute precluding such conviction if defendant's civil rights have been restored, restoration of rights need not be complete, but it must be substantial. Berger v. U.S., S.D.W.Va.1994, 867 F.Supp. 424. Weapons 4
Suspended imposition of sentence, regardless of determination of guilt, does not result in "conviction" for purposes of offense of possession of weapon by one previously convicted of offense punishable by imprisonment for more than a year; felony guilty plea followed by suspended imposition of sentence was not conviction under law of Missouri for purposes of collateral prosecution. U.S. v. Solomon, E.D.Mo.1993, 826 F.Supp. 1221. Weapons 4
Statute stating that conviction which has been expunged or set aside or for which person has been pardoned or has had civil rights restored is not "conviction" for purposes of weapons chapter, unless pardon, expungement, or restoration of civil rights expressly provides that person may not ship, transport, possess, or receive firearms, only becomes operational when state official issues written document granting pardon, expungement, or restoration of rights or when there has been some other affirmative action by state authorities. U.S. v. Hammonds, E.D.Mich.1992, 786 F.Supp. 650. Weapons 4
Prior felony conviction for which defendant's civil rights had been restored could be considered by court, in imposing enhanced sentence on subsequent felony firearm conviction, as discharge certificate was intended merely to restore defendant to right to vote and did not relieve him of prohibition against possessing gun, and as defendant could not have been "mouse trapped" by receipt of discharge certificate into thinking he was no longer barred from possessing or acquiring firearms, especially in light of intervening conviction for which his civil rights had not been restored. U.S. v. Ziegenhagen, W.D.Wis.1991, 776 F.Supp. 441, affirmed 996 F.2d 1220, certiorari denied 114 S.Ct. 474, 510 U.S. 979, 126 L.Ed.2d 426. Weapons 4
Convictions which have been expunged or set aside, or for which person has been pardoned or had his civil rights restored, cannot be predicate offense for statute forbidding possession of firearms by those who have been convicted of crime punishable by more than one-year imprisonment. U.S. v. Edwards, D.Minn.1990, 745 F.Supp. 1477, affirmed 946 F.2d 1347, rehearing denied. Weapons 4
16. ---- Business offenses, prior convictions
Under business offenses exception, which permits some former convicted felons to carry firearms, plain meaning of term "offenses" is charged violation of law, not facts underlying violation of law. Dreher v. U.S. on Behalf of U.S. Bureau of Alcohol, Tobacco and Firearms, C.A.5 (La.) 1997, 115 F.3d 330. Weapons 11(.5)
17. ---- Unfair trade practices, prior convictions
Defendant's prior conviction for falsifying customs declaration for $9,000 watch was not a conviction for an offense pertaining to "unfair trade practice" within meaning of subsec. (a)(20) of this section which excludes from category of crimes punishable by imprisonment for terms exceeding one year any offense pertaining to unfair trade practices. U.S. v. Meldish, C.A.2 (N.Y.) 1983, 722 F.2d 26, certiorari denied 104 S.Ct. 1597, 465 U.S. 1101, 80 L.Ed.2d 128. Weapons 4
For purposes of exception to Gun Control Act prohibition of convicted felon's right to possess or ship firearms for crimes relating to regulation of business, "unfair trade practices," sometimes referred to as "unfair competition," occurs when one entity passes off its products as those of another, thereby harming consumers and other businesses. Dreher v. U.S. Bureau of Alcohol, Tobacco and Firearms, W.D.La.1996, 943 F.Supp. 680, affirmed 115 F.3d 330. Weapons 4
18. ---- Nolo contendere, prior convictions
Defendant's prior plea of nolo contendere to alleged predicate offense in Florida state court was not a "conviction" under Florida law, and thus defendant could not be convicted of possession of firearm by convicted felon. U.S. v. Willis, C.A.11 (Ala.) 1997, 106 F.3d 966. Weapons 4
19. Civil rights restored--Generally
Defendant who was convicted of a misdemeanor crime of domestic violence (MCDV) but who never had his civil rights taken away could not have had them "restored" so as to exempt him from prosecution for offense of possessing a firearm after conviction of an MCDV. U.S. v. Jennings, C.A.4 (S.C.) 2003, 323 F.3d 263, certiorari denied 2003 WL 21693480. Weapons 4
Statute providing that any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered conviction for purposes of statutory chapter on firearm crimes did not mean that only past offenses vacated prior to federal proceeding could be discounted by the court in determining criminal history; statute also applied to convictions expunged subsequent to the federal sentencing. U.S. v. Pettiford, C.A.1 (Mass.) 1996, 101 F.3d 199. Sentencing And Punishment 1341
Defendant's civil rights were "restored" within meaning of statute defining "crime punishable by imprisonment for term exceeding one year" to exclude conviction which has been expunged or set aside or for which defendant has been pardoned or has had civil rights restored, even though predicate offenses for charge of being felon-in-possession of firearms were misdemeanors for which civil rights were never lost; since individualized action was not required, it was hard to see why Congress would wish to distinguish between those whose civil rights were never taken away and those whose civil rights were mechanically taken away and mechanically restored. U.S. v. Indelicato, C.A.1 (Mass.) 1996, 97 F.3d 627, certiorari denied 117 S.Ct. 1013, 519 U.S. 1140, 136 L.Ed.2d 890, habeas corpus denied 106 F.Supp.2d 151. Weapons 4
Defendant's right to possess firearms had been restored under Ohio law, and thus defendant did not violate federal felon-in-possession statute by possessing firearm; defendant's right to vote had been restored by state statute, his rights to hold office and serve on juries had been restored by certificate, and neither statute nor certificate imposed any restriction on his right to possess firearms. U.S. v. Bost, C.A.D.C.1996, 87 F.3d 1333, 318 U.S.App.D.C. 324. Weapons 4
Civil rights may be restored, that were lost as result of criminal conviction, as would preclude consideration of prior conviction as predicate crime for determining whether defendant is subject to sentence enhancement as career criminal, by laws of general application. U.S. v. Caron, C.A.1 (Mass.) 1996, 77 F.3d 1, on remand 941 F.Supp. 238. Sentencing And Punishment 1343
Defendant's civil rights had not been "restored" within plain meaning of Firearms Owners' Protection Act (FOPA) as required to qualify for exemption from prosecution as felon in possession of firearm, in light of fact that defendant had received suspended sentence on state felony and thus never lost any of his civil rights under state law. McGrath v. U.S., C.A.2 (Vt.) 1995, 60 F.3d 1005, certiorari denied 116 S.Ct. 929, 516 U.S. 1121, 133 L.Ed.2d 857. Weapons 4
Where, due to overlap of firearms prohibition caused by his multiple offenses, defendant had continuously been prohibited from possessing firearms since he was first sentenced, his right to possess firearms was never restored by state law even though more than the required number of years may have elapsed with respect to a single offense, so that all of those offenses could be considered in determining mandatory minimum sentence upon firearms conviction, notwithstanding defendant's claim that court should look to each offense in isolation to determine whether his right to possess firearms had actually been restored with respect to that particular offense. U.S. v. Dockter, C.A.8 (N.D.) 1995, 58 F.3d 1284, rehearing and suggestion for rehearing en banc denied, certiorari denied 116 S.Ct. 932, 516 U.S. 1122, 133 L.Ed.2d 859. Sentencing And Punishment 1343
Notwithstanding that defendant may have violated state law by possessing a pistol, defendant, whose civil rights lost by reason of a burglary conviction had been restored could not be convicted of being felon in possession of firearm, where his restoration document did not expressly prohibit him from carrying firearms. U.S. v. Herron, C.A.9 (Wash.) 1995, 45 F.3d 340. Weapons 4
Convicted felon had not had his civil rights restored for his Oklahoma felony convictions where he was prohibited from serving on jury in Oklahoma because of those convictions and, thus, felon could not possess ammunition under federal law. U.S. v. Fisher, C.A.10 (Okla.) 1994, 38 F.3d 1144. Weapons 4
West Virginia order discharging convicted felon from probation and stating "all his rights and privileges are hereby restored" was not the functional equivalent of an order allowing firearm possession under West Virginia law after felon petitions circuit court and court finds by clear and convincing evidence that felon is capable of exercising responsibility concomitant with possession of firearm and thus, West Virginia order did not restore felon's firearms privileges for purposes of federal statutory prohibition against former felon's possession of firearm; West Virginia order was standard probation discharge order which said nothing about felon's firearms privileges and procedures enumerated in West Virginia law for allowing firearm possession were not followed. U.S. v. Herron, C.A.4 (W.Va.) 1994, 38 F.3d 115. Weapons 4
Defense counsel's acknowledgment that, under Utah law, defendant had not had restored his right to sit on jury was acknowledgement that his civil rights had not adequately been restored to disqualify use of his prior convictions as predicate convictions for felon in possession of firearm charge. U.S. v. Flower, C.A.10 (Utah) 1994, 29 F.3d 530, certiorari denied 115 S.Ct. 939, 513 U.S. 1129, 130 L.Ed.2d 884. Weapons 4
Fact that defendant had served his entire sentence on previous Florida convictions did not preclude his conviction for possession of firearm by convicted felon, despite his claim that his civil rights had been restored to him under Florida law upon completion of his sentence, rendering his conviction void; Florida law provides that restoration of civil rights to prisoner upon release from state custody is neither automatic or pro forma, but is solely within province of Governor's discretionary function, and defendant failed to provide any evidence that restoration of his rights had already occurred. U.S. v. Owens, C.A.11 (Fla.) 1994, 15 F.3d 995. Weapons 4
Minnesota written notices given to defendant upon his releases from state custody for prior Minnesota burglary offenses did not notify defendant that his right to possess firearm was restricted so as to render defendant subject to sentence applicable to certain three-time felons possessing firearms, despite statement in one certificate that certificate did not relieve defendant of disabilities imposed by "Federal Gun Control Act"; nothing in certificates told defendant that Minnesota placed restrictions on his possession of firearms. U.S. v. Glaser, C.A.7 (Wis.) 1994, 14 F.3d 1213. Weapons 4
Firearms' Owners Protective Act's prohibition against possession of firearm by person convicted of state crime punishable by term of imprisonment of more than two years or federal crime punishable by term of imprisonment of more than one year is disability that is not removed unless convicting state has restored all "civil rights," which include right to vote, right to seek and hold public office, and right to sit on jury. U.S. v. Essig, C.A.3 (Pa.) 1993, 10 F.3d 968, rehearing denied. Weapons 4
Rule of lenity applies only where ambiguity remains after resort to legislative history fails to disclose intent of drafters. U.S. v. Jones, C.A.4 (W.Va.) 1993, 993 F.2d 1131, certiorari granted 114 S.Ct. 466, 510 U.S. 975, 126 L.Ed.2d 418, affirmed 114 S.Ct. 1669, 511 U.S. 368, 128 L.Ed.2d 383. Statutes 241(1)
While defendant's right to possess firearms would have been automatically restored under North Carolina law five years after his discharge in connection with conviction for breaking and entering, he never in fact stayed out of custody long enough for that right to be restored and, thus, conviction was not excluded from consideration for purpose of sentencing defendant as armed career criminal. U.S. v. Clark, C.A.4 (N.C.) 1993, 993 F.2d 402. Sentencing And Punishment 1343
"Discharge" paper informing discharged Wisconsin inmate that "any civil rights lost as result of conviction" were restored after service of sentence for conviction, did not preclude conviction from counting toward later sentence enhancement, as form was routinely issued upon satisfaction of sentence, and contained no reasonable implication that one who received such form would be treated as if no longer convicted. Roehl v. U.S., C.A.7 (Wis.) 1992, 977 F.2d 375, rehearing denied, certiorari denied 114 S.Ct. 88, 510 U.S. 825, 126 L.Ed.2d 56. Sentencing And Punishment 1343
Amended statute prohibiting conviction for which defendant has had civil rights restored from being considered a prior conviction did not apply to sentencing under provision of Armed Career Criminal Act prohibiting possession of a firearm by a felon. Davis v. U.S., C.A.8 (Iowa) 1992, 972 F.2d 227, certiorari denied 113 S.Ct. 1360, 507 U.S. 950, 122 L.Ed.2d 740. Weapons 4
Certificate signed by Governor of Iowa restoring defendant's civil rights with regard to prior state conviction precluded use of that conviction for enhancement purposes following defendant's federal conviction for being a felon in possession of a firearm, although certificate did not expressly authorize defendant to possess firearms. Bell v. U.S., C.A.8 (Iowa) 1992, 970 F.2d 428, rehearing denied. Sentencing And Punishment 1343
Civil rights of defendant with Massachusetts misdemeanor conviction had not been "restored" within meaning of exception to federal firearms possession statute, although defendant had never lost any of his civil rights under Massachusetts law except, temporarily, for period he served his probation term. U.S. v. Ramos, C.A.1 (Mass.) 1992, 961 F.2d 1003, certiorari denied 113 S.Ct. 364, 506 U.S. 934, 121 L.Ed.2d 277. Weapons 4
Conviction for manslaughter could not form basis of indictment for shipping or receiving firearm following conviction of crime punishable by imprisonment for term exceeding one year where certificate granting restoration of civil and political rights from state Board of Pardons and Paroles restored all civil and political rights resulting from conviction of petit larceny and "any prior disqualifying convictions," and where certificate did not contain express provision restricting firearms privileges as required by statute. U.S. v. Swanson, C.A.11 (Ala.) 1991, 947 F.2d 914. Weapons 4
Minnesota statute purporting to restore felon's civil rights upon expiration of sentence applied to exempt federal felon from federal statute proscribing possession of firearm by felon; federal firearms law did not provide exclusive means by which federal felons could be exempted from federal firearms laws. U.S. v. Edwards, C.A.8 (Minn.) 1991, 946 F.2d 1347, rehearing denied. Weapons 4
Fact that former felon may be impeached at trial under Idaho law and that a prior felony conviction may be taken into account for purposes of sentencing for another crime or for setting bail or for determining that one is a persistent violator does not overcome the effect of Idaho's broad restoration of rights provision, so that the restoration of rights under Idaho law allows convicted felon to possess a firearm under federal law. U.S. v. Gomez, C.A.9 (Idaho) 1990, 911 F.2d 219. Weapons 4
Defendant convicted of felony had "restoration of civil rights" for purposes of statute removing federal firearms disabilities from convicted felons who have their civil rights restored, where defendant's rights to vote, to serve on jury and to seek and hold public office were restored to him upon his release from prison. U.S. v. Cassidy, C.A.6 (Ohio) 1990, 899 F.2d 543. Weapons 4
Certificate of good conduct which convicted felon received from New Jersey Parole Commission did not effect a "restoration of civil rights," and thus New Jersey conviction subjected defendant to federal criminal sanctions for possessing a firearm; certificate did not purport to convey right to vote, to serve on jury or to seek and hold public office. U.S. v. Breckenridge, C.A.6 (Ky.) 1990, 899 F.2d 540, certiorari denied 111 S.Ct. 119, 498 U.S. 841, 112 L.Ed.2d 88. Weapons 4
Former felon, who had completed his sentence, but who was still prohibited under Missouri law from serving as juror and from certain law enforcement duties, did not have civil rights substantially preserved or restored, within meaning of statute permitting possession of firearm by convicted person who has had civil rights restored. Presley v. U.S., C.A.8 (Mo.) 1988, 851 F.2d 1052. Weapons 4
Whether a prior conviction meets statutory definition set forth in statute prohibiting use of conviction for which civil rights have been restored to support charge of possession of a firearm by a convicted felon is determined by law of the jurisdiction in which the prior conviction occurred; this inquiry requires analysis of whether and to what extent the jurisdiction in which the prior conviction occurred restores civil rights of ex-felons. U.S. v. Scales, E.D.Va.2002, 231 F.Supp.2d 437, appeal dismissed 60 Fed.Appx. 977, 2003 WL 1920984, certiorari denied 124 S.Ct. 289, 2003 WL 21714084. Weapons 4
Defendant, as resident alien, did not establish that he was denied equal protection by application of federal statute that excluded conviction of person for being felon in possession of firearm if that person's civil rights have been restored, though resident aliens were ineligible for restoration of rights under Utah law, where restoration of rights was only one method for lawful possession of firearm by convicted felon, federal statute also afforded relief in alternative circumstances if defendant received pardon or his conviction was expunged, and defendant failed to pursue these other available avenues of relief under Utah law. U.S. v. Phetchanphone, D.Utah 1994, 863 F.Supp. 1543. Constitutional Law 250.1(2); Weapons 3
Convicted felon's rights under Colorado law to vote, hold public office and serve on jury after he had been released from prison amounted to "restoration of civil rights" and, therefore, felon was not prohibited under federal law from possessing firearm. U.S. v. Sanders, D.Colo.1994, 844 F.Supp. 1407. Convicts 1; Weapons 4
In determining whether defendant is "convicted felon" prohibited by federal law from possessing firearm, court must first determine whether defendant's civil rights to vote, to seek and hold public office, and to serve on jury have been restored and, if so, whether state has expressly limited defendant's firearms privileges; if civil rights have not been restored, or if there is any limitation on defendant's right to possess any type of firearm because of his conviction, he is subject to federal firearms disabilities. U.S. v. White, M.D.Tenn.1992, 808 F.Supp. 586. Weapons 4
Restoration of rights to vote, to seek and hold public office, and to serve on jury after felony conviction did not automatically restore firearms privileges and did not exempt defendant from statutory prohibition against being felon in possession of firearm; restoration of these rights was unrelated to fitness to own firearm, defendant never received written document evidencing full restoration of civil rights, and no affirmative action was ever taken by any state official. U.S. v. Hammonds, E.D.Mich.1992, 786 F.Supp. 650. Convicts 1; Weapons 4
West Virginia's action in 1989 making it a misdemeanor for a convicted felon to possess a firearm could not resurrect the conviction of a defendant whose civil rights were restored in 1984, for purposes of a federal prosecution for violation of statute prohibiting convicted felon from knowingly possessing firearm. U.S. v. Stump, N.D.W.Va.1992, 784 F.Supp. 326. Weapons 4
Under Michigan law, convicted felon's civil rights were restored after he served required term of imprisonment, thus excluding defendant from Federal Gun Control Act's definition of "conviction." U.S. v. Gilliam, E.D.Mich.1991, 778 F.Supp. 935, reversed 979 F.2d 436, certiorari denied 113 S.Ct. 1856, 507 U.S. 1034, 123 L.Ed.2d 478. Convicts 1; Weapons 4
Under Massachusetts law, possession of firearms is not civil right, and, thus, issuance of Massachusetts firearm identification card after defendant's conviction for a crime punishable by imprisonment for more than one year was not restoration of civil right and did not preclude use of conviction as predicate offense under federal statute prohibiting possessions of firearms by felons. U.S. v. Nazzaro, D.Mass.1991, 778 F.Supp. 1, affirmed 985 F.2d 552. Weapons 1; Weapons 4
Conviction in federal court of crime punishable by more than one-year imprisonment, for which all of defendant's civil rights had been restored under Minnesota law upon discharge, could not serve as predicate offense for violation of statute forbidding possession of firearms by those who have been convicted of such crimes. U.S. v. Edwards, D.Minn.1990, 745 F.Supp. 1477, affirmed 946 F.2d 1347, rehearing denied. Weapons 4
20. ---- Automatic restoration, civil rights restored
Automatic restoration of civil rights, without any affirmative act by state, is effective to prevent use of prior offense as predicate for conviction of possession of firearm by felon. U.S. v. Hall, C.A.10 (Colo.) 1994, 20 F.3d 1066. Weapons 4
Defendant's prior Colorado convictions did not qualify as crimes punishable by imprisonment for term exceeding one year, such that they could serve as predicate for conviction of possession of firearm by felon, as defendant's civil rights had been automatically restored upon service of sentence and his privilege to possess firearms had been restored ten years after completion of sentence for burglary. U.S. v. Hall, C.A.10 (Colo.) 1994, 20 F.3d 1066. Weapons 4
If, upon release from prison, suspension of convicted felon's rights to vote, hold public office, and sit on jury evaporates ipso facto, simply because he or she ceases to be in custody or on probation, felon's civil rights have been restored for purposes of federal law prohibiting possession of firearm by convicted felon unless felon has had his civil rights restored; simply because these civil rights are reinstated automatically by operation of law, they are no less restored than those that have been resurrected by affirmative act of state. U.S. v. Thomas, C.A.5 (Tex.) 1993, 991 F.2d 206, rehearing denied, certiorari denied 114 S.Ct. 607, 510 U.S. 1014, 126 L.Ed.2d 572. Weapons 4
Under Minnesota law, statute restoring all civil rights to person convicted of crime and thereafter discharged operated automatically on expiration of convicted felon's sentence to restore civil rights. U.S. v. Traxel, C.A.8 (Minn.) 1990, 914 F.2d 119. Convicts 1
Automatic "restoration" of defendant's civil rights under Indiana law upon completion of his sentences for state court convictions did not prevent use of state court convictions as predicate offenses for enhancement purposes under Firearm Owner's Protection Act, which prohibits use of convictions when civil rights have been restored; Act otherwise would be rendered moot in Indiana as to any state conviction for which defendant had served sentence. U.S. v. Landaw, N.D.Ind.1989, 727 F.Supp. 481. Sentencing And Punishment 94
21. ---- Federal conviction, civil rights restored
State's restoration of convicted felon's civil rights does not remove disability of firearm possession imposed by federal law as a result of federal conviction; accordingly, convicted felon can take advantage of exemption from proscription on possession of firearm by felon only if his civil rights had been restored under federal law, the law of the jurisdiction where the earlier proceedings were held. Beecham v. U.S., U.S.N.C.1994, 114 S.Ct. 1669, 511 U.S. 368, 128 L.Ed.2d 383. Weapons 4
State restoration of civil rights cannot undo federal disability flowing from federal conviction as law of convicting jurisdiction determines both whether conviction is qualifying conviction to be considered for purposes of sentencing as armed career criminal and whether conviction is exempt from consideration because that person has had civil rights restored. U.S. v. Lowe, C.A.8 (Minn.) 1995, 50 F.3d 604, certiorari denied 116 S.Ct. 260, 516 U.S. 900, 133 L.Ed.2d 183. Convicts 1; Sentencing And Punishment 1343
Federal felon whose civil rights are restored pursuant to state law, as well as state felon whose rights are so restored, is no longer considered as having been "convicted" for purposes of federal firearms laws, notwithstanding reference in statute to "law of the jurisdiction" in which proceedings were held. U.S. v. Geyler, C.A.9 (Ariz.) 1991, 932 F.2d 1330, 117 A.L.R. Fed. 665, rehearing denied 949 F.2d 280. Convicts 1; Weapons 4
22. ---- Federal relief, civil rights restored
Federal provision for relief of federal firearms disabilities was not equivalent of state procedure for restoration of civil rights for purposes of federal firearms law providing that any conviction for which person has had civil rights restored shall not be considered conviction for purposes of possession of firearms by convicted felon; existence of federal provision for relief of federal firearms disability merely provided alternate route by which convicted felon could have his right to carry firearm restored. U.S. v. Geyler, C.A.9 (Ariz.) 1991, 949 F.2d 280. Weapons 4
23. ---- Partial restoration, civil rights restored
Missouri statute automatically restoring felon's civil rights upon completion of sentence did not restore civil rights sufficiently to satisfy statute which provides that prior conviction may not be used to enhance sentence as Armed Career Criminal if sentencing jurisdiction has restored defendant's civil rights; Missouri had at least two statutes in effect when defendant was convicted and released that prohibited convicted felons from holding public office. U.S. v. Williams, C.A.7 (Ill.) 1997, 128 F.3d 1128. Sentencing And Punishment 1343
Massachusetts law did not restore convicted felon's civil rights so that he could legally possess firearms, even though Massachusetts law restored right to sit on jury within seven years and right to hold office after release from confinement, where felon could not be appointed to numerous state positions, could not obtain certain licenses from the state, could be excluded from venire without examination, and could be excused for cause from jury. U.S. v. Oman, C.A.9 (Ariz.) 1996, 91 F.3d 1320. Weapons 4
Defendant's civil rights were not substantially restored under state law, so that he remained subject to offense of being felon in possession of firearm, though he could vote and hold public office, where his right to serve on jury was not restored. U.S. v. Horodner, C.A.9 (Cal.) 1996, 91 F.3d 1317, certiorari denied 117 S.Ct. 997, 519 U.S. 1133, 136 L.Ed.2d 877. Weapons 4
Defendant was not "convicted felon" for purposes of federal statutes prohibiting possession of weapon by felon, even though Louisiana did not restore defendant's voting rights upon release from prison on prior state felony conviction, given that all other civil rights were restored and Louisiana's restriction on defendant's right to possess firearm terminated before current offense was committed. U.S. v. Dupaquier, C.A.5 (La.) 1996, 74 F.3d 615. Weapons 4
Defendant's civil rights had not been substantially restored upon completion of his sentence for prior West Virginia felony conviction, absent issuance of certificate of discharge, and thus, conviction could be used as predicate offense to support sentencing of defendant as armed career criminal; although right to vote had been restored upon defendant's completion of his sentence for prior conviction, West Virginia statute barred convicted felons from serving on juries in absence of certificates of discharge. U.S. v. Morrell, C.A.4 (W.Va.) 1995, 61 F.3d 279. Sentencing And Punishment 1343
For purposes of determining eligibility for federal prosecution as convicted felon in possession of firearm, convicted felon's civil rights are not substantially restored under Indiana law on conclusion of incarceration, even though right to vote is restored; Indiana law prohibits convicted felon from holding elective office or serving on a jury. U.S. v. McKinley, C.A.7 (Ind.) 1994, 23 F.3d 181. Weapons 4
Defendant's prior Texas burglary conviction qualified as a "violent felony," for purposes of statute permitting sentencing enhancement for defendant who has three previous violent felony convictions, although defendant's right to vote and right to possess firearms had been restored by operation of Texas law when his sentence was discharged, where defendant's rights to hold public office and to serve on a jury had not been restored. U.S. v. Maines, C.A.10 (Okla.) 1994, 20 F.3d 1102. Sentencing And Punishment 1343
Restoration of felon's civil rights, so as to be exempt from federal firearms disabilities, need not be complete; however, there must be more than a de minimis quantity of civil rights restored. U.S. v. Hassan El, C.A.4 (Md.) 1993, 5 F.3d 726, certiorari denied 114 S.Ct. 1374, 511 U.S. 1006, 128 L.Ed.2d 50. Convicts 1; Weapons 4
Restoration of right to vote and hold office, but not to serve on jury or as law enforcement officer upon completion of sentence for burglary conviction, was not substantial restoration of civil rights under Missouri law, and, thus, burglary conviction could serve as predicate for being felon in possession of firearm and receiving 15-year mandatory minimum sentence. U.S. v. Meeks, C.A.9 (Wash.) 1993, 987 F.2d 575, certiorari denied 114 S.Ct. 314, 510 U.S. 919, 126 L.Ed.2d 261. Weapons 4
Defendant's prior conviction of third-degree criminal sexual assault could be used as predicate offense for charging defendant as felon in possession of firearm even though defendant had completed his sentence prior to date that he allegedly was in possession of firearm; although under Michigan law, defendant's right to vote and hold public office had been restored or substantially restored, defendant's right to sit on jury was not fully or even substantially restored. U.S. v. Butler, E.D.Mich.1991, 788 F.Supp. 944. Weapons 4
24. ---- Restricted restoration, civil rights restored
Massachusetts law that permitted convicted felon whose civil rights had been restored to possess rifles but which restricted his right to carry handguns activated the "unless" clause of federal statute excluding previous conviction as predicate offense for sentence enhancement for a three-time violent felon who violates federal weapons possession statute, if the offender's civil rights have been restored, "unless such ... restoration of civil rights expressly provides that the person may not ... possess ... firearms," even though case involved rifles and shotguns. Caron v. U.S., U.S.Mass.1998, 118 S.Ct. 2007, 524 U.S. 308, 141 L.Ed.2d 303. Sentencing And Punishment 1343
Fact that defendant's civil rights were restored under state law following previous state breaking and entering conviction did not preclude use of that conviction as predicate offense for purpose of sentence enhancement under Armed Career Criminal Act (ACCA), in view of state's limitations on felons' right to own firearms. U.S. v. Blodgett, C.A.1 (Me.) 1997, 130 F.3d 1, certiorari denied 118 S.Ct. 2374, 524 U.S. 955, 141 L.Ed.2d 742, post-conviction relief denied 1999 WL 33117129. Sentencing And Punishment 1343
Even though Massachusetts had restored defendant's right to possess firearm in his home, to hold public office, and to serve on jury following his prior felony convictions, Massachusetts law continued to prohibit him from carrying or receiving firearm, and therefore convictions did not fall within statute that excepted, as predicate felony for armed career criminal enhancement, conviction for which person has had civil rights restored but expressly excluded from exception restoration of civil rights under which person was barred from shipping, transporting, possessing, or receiving firearm. U.S. v. Palazzi, C.A.11 (Fla.) 1997, 115 F.3d 906. Sentencing And Punishment 1343
Prior burglary convictions of defendant, who, as felon, was restricted from possessing firearms, under Maine law, could serve as predicate offenses under Armed Career Criminal Act (ACCA), notwithstanding any restoration of his civil rights in connection with those convictions. U.S. v. Sullivan, C.A.1 (Me.) 1996, 98 F.3d 686, certiorari denied 117 S.Ct. 1344, 520 U.S. 1160, 137 L.Ed.2d 502. Sentencing And Punishment 1343
Defendant, whose civil rights were restored by operation of Michigan law three years after he fulfilled the conditions of his parole, was subject to prosecution under federal felon-in-possession statute since Michigan law imposed firearm restrictions upon defendant's restoration of civil rights, thus triggering "unless" clause of federal statute providing that any conviction for which a person has had civil rights restored could not be considered a conviction for purposes of federal felon-in-possession statute, unless the restoration expressly provides that the person may not possess firearms. U.S. v. Brown, E.D.Mich.1999, 69 F.Supp.2d 925. Weapons 4
Conviction for being a felon in possession of a firearm cannot be predicated on previous felony conviction for which person's civil rights have been restored, unless restoration expressly provides that person may not ship, transport, possess or receive firearms; in other words, felony convictions for which defendant has had civil rights restored are excluded from consideration if, in addition, defendant's firearm privileges are not restricted. Berger v. U.S., S.D.W.Va.1994, 867 F.Supp. 424. Weapons 4
25. ---- Right to possess firearm, civil rights restored
State statute permitting convicted felon to possess firearm, and thus ammunition, in his home did not amount to restoration of defendant's civil rights, under statute providing that convictions for which civil rights had been restored were not counted under felon-in-possession statute, and state statute thus did not preclude defendant's conviction for being felon in possession of ammunition. U.S. v. King, C.A.4 (N.C.) 1997, 119 F.3d 290, appeal from denial of post-conviction relief dismissed 213 F.3d 633, certiorari denied 121 S.Ct. 1193, 531 U.S. 1193, 149 L.Ed.2d 108, appeal from denial of post-conviction relief dismissed 30 Fed.Appx. 135, 2002 WL 312875. Weapons 4
Showing that right to carry firearm has not been restored was not element of possession of firearm by convicted felon. U.S. v. Bartelho, C.A.1 (Me.) 1995, 71 F.3d 436, post-conviction relief denied 2000 WL 761787, affirmed 13 Fed.Appx. 12, 2001 WL 800077, certiorari denied 122 S.Ct. 1580, 535 U.S. 1006, 152 L.Ed.2d 499. Weapons 4
In determining whether defendant is convicted felon prohibited from possessing firearms under federal law, if Court of Appeals finds that state which obtained underlying felony conviction revives essentially all civil rights of convicted felons, whether affirmatively with individualized certification or passively with automatic reinstatement, Court of Appeals shall then determine whether defendant was nevertheless expressly deprived of right to possess firearm by some provision of restoration law or procedure of state which obtained underlying conviction. U.S. v. Thomas, C.A.5 (Tex.) 1993, 991 F.2d 206, rehearing denied, certiorari denied 114 S.Ct. 607, 510 U.S. 1014, 126 L.Ed.2d 572. Criminal Law 1134(3)
After effective date of 1986 amendments to statute permitting sentence enhancement for defendant who has three prior violent felony convictions is in possession of weapon, if state restores felon's civil rights, that person will not be subject to federal prohibition against firearm possession nor can that prior violent felony conviction be used for purposes of sentence enhancement unless state expressly excludes possession of firearms from restoration of civil rights. U.S. v. Wind, C.A.8 (Minn.) 1993, 986 F.2d 1248. Sentencing And Punishment 77; Weapons 4
Illinois discharge order following convictions for violent felonies did not restore civil right to possess firearms, and, thus, convictions could be considered conviction within meaning of statute mandating minimum sentence for being felon in possession of firearm if defendant had three convictions for violent felonies; even though order restored rights to vote and administer estates and Illinois statute permits ex-felon to apply for firearm owner's identification card, right to possess firearm was not restored. U.S. v. Gipson, C.A.8 (N.D.) 1993, 985 F.2d 412, certiorari denied 114 S.Ct. 81, 510 U.S. 823, 126 L.Ed.2d 50. Weapons 4
Defendant's right under Kentucky law to bear arms following felony convictions did not "restore" civil rights, within meaning of statutory exception from definition of convictions punishable by imprisonment for term exceeding one year, and, therefore, did not prevent convictions from being used for sentencing under Armed Career Criminal Act. U.S. v. Warren, C.A.6 (Ky.) 1992, 973 F.2d 1304, denial of post-conviction relief affirmed 27 F.3d 568. Sentencing And Punishment 1343
North Carolina statute providing that rights of citizenship forfeited on conviction are restored with exception of right to own firearms is intended as warning by state that federal firearms law at time certificate restoring defendant's civil rights was issued was not affected by state's action, and restoration did not expressly provide that defendant could not possess firearms within meaning of federal statute prohibiting possession of firearms by convicted felons. U.S. v. McBryde, C.A.4 (S.C.) 1991, 938 F.2d 533. Weapons 4
Under Kansas law, defendant was subject to firearms disability following his felony burglary convictions, despite certificate of discharge purporting to restore his civil rights and, thus, those convictions qualified as "violent felonies" sufficient to support enhancement of defendant's sentence for possessing firearm after former felony conviction. U.S. v. Burns, C.A.10 (Okla.) 1991, 934 F.2d 1157, certiorari denied 112 S.Ct. 1246, 502 U.S. 1124, 117 L.Ed.2d 478. Sentencing And Punishment 1285
Former felon's alleged possession of handgun within five years of release from prison and restoration of citizenship rights would violate North Carolina Felony Firearms Act and, therefore, violated federal, statutory prohibition against former felon's possession of firearm, even if certificate of unconditional discharge was construed merely as warning that firearm possession could constitute violation of federal law; Felony Firearms Act expressly provided that felon could not possess handgun. U.S. v. McLean, C.A.4 (N.C.) 1990, 904 F.2d 216, certiorari denied 111 S.Ct. 203, 498 U.S. 875, 112 L.Ed.2d 164. Weapons 4
Voter registration card issued in defendant's name by the Commonwealth of Virginia, and certificate of discharge issued by the Virginia Parole Board did not show that defendant's civil rights had been restored under Virginia law in connection with his prior felony conviction, so as to preclude conviction for possession of a firearm by a convicted felon; defendant never took affirmative action to have his civil rights restored by the Governor or other appropriate authority. U.S. v. Scales, E.D.Va.2002, 231 F.Supp.2d 437, appeal dismissed 60 Fed.Appx. 977, 2003 WL 1920984, certiorari denied 124 S.Ct. 289, 2003 WL 21714084. Weapons 4
Prior felony convictions for which civil rights had been restored by operation of Massachusetts law because they were more than 15 years old could be considered as predicate offenses for purpose of sentence enhancement under the Armed Career Criminal Act (ACCA), where Massachusetts law materially restricted defendant's right to carry and traffic in firearms regardless of passage of time. Jewell v. U.S., D.Mass.1997, 982 F.Supp. 81. Sentencing And Punishment 1343
Defendant could not be convicted of being a felon in possession of a firearm based on prior Tennessee felony conviction for fraudulent use of automobile, where, under Tennessee law, his right to bear arms was restored to him upon termination of probation, in that the offense was not infamous crime and was not committed through use of force or violence. Harris v. U.S., M.D.Tenn.1992, 793 F.Supp. 754. Weapons 4
Michigan statute restricting pistol ownership to citizens who had not been incarcerated due to felony convictions over previous eight years did not subject defendant to Federal Gun Control Act provisions where defendant had been out of prison on predicate offense for over eight years and defendant was alleged to have possessed semiautomatic rifle, not pistol. U.S. v. Gilliam, E.D.Mich.1991, 778 F.Supp. 935, reversed 979 F.2d 436, certiorari denied 113 S.Ct. 1856, 507 U.S. 1034, 123 L.Ed.2d 478. Weapons 4
Statute, which states that felony conviction prior to restoration of civil rights is not conviction under statutory prohibition against possession of firearm by convicted felon, unless restoration expressly provides that person may not ship, transport, possess, or receive arms, immunized defendant after Alabama Board of Pardons and Paroles' restoration of civil rights without express limitation, even though Alabama statute prohibited ownership and possession of pistol by person convicted of crime of violence. U.S. v. Swanson, N.D.Ala.1990, 753 F.Supp. 338, affirmed 947 F.2d 914. Weapons 4
"Civil rights," for purposes of federal criminal statute providing that crime with respect to which defendant's civil rights had been restored cannot serve as predicate offense for federal crime of possession of firearms by person convicted of crime punishable by imprisonment for term exceeding one year, meant restoration of right to possess firearms. U.S. v. Erwin, C.D.Ill.1989, 723 F.Supp. 1285, affirmed 902 F.2d 510, certiorari denied 111 S.Ct. 161, 498 U.S. 859, 112 L.Ed.2d 127, denial of habeas corpus affirmed 30 F.3d 136. Weapons 4
26. ---- State of conviction, civil rights restored
Only convicting jurisdiction can restore civil rights to convicted felon for purposes of sentencing as armed career criminal. U.S. v. Lowe, C.A.8 (Minn.) 1995, 50 F.3d 604, certiorari denied 116 S.Ct. 260, 516 U.S. 900, 133 L.Ed.2d 183. Convicts 1; Sentencing And Punishment 1343
Restoration of civil rights, following conviction for felony in North Dakota, would be determined in accordance with laws of that state, and conviction would be deemed still in existence for purposes of statute criminalizing transaction in firearms by convicted felon, even though during probationary phase of defendant's sentence he had moved to Montana and under laws of that state civil rights would have been deemed restored prior to commission of gun transaction. U.S. v. Eaton, C.A.9 (Mont.) 1994, 31 F.3d 789. Convicts 1
Even if defendant were South Dakota resident at time of his arrest for possession of firearm, South Dakota's civil rights restoration statutes did not apply where defendant's initial felony conviction was not in South Dakota; thus, defendant did not present fair and just reasons f |
