Charged for NFA Violation

[DMF13]

Here's a part of the Kent decision:

Turning to the instant case, we find that § 5861(d), as applied to Kent under the facts of this case, also is not vague. While there is no direct evidence that Kent had assembled the rifle using the short-barreled upper receiver unit before, there was sufficient evidence, as outlined above, that Kent did not have the short-barreled upper receiver unit for parts, but for use with the lower receiver unit, which would constitute possession of a "firearm" required to be registered under § 5861(d) of the NFA.

They don't call it constructive possession, they call it straight up possession.

Edit: whatever they call it, it still seems like what "constructive" possession is all about.

Sorry, but you are reading that out of context. Kent did not dispute possession. Kent admitted possession, but disputes whether the items he admits to possessing "constitute possession of a "firearm" required to be registered."

[DMF13]

For those that are still having trouble understanding this, I will try to explain it in a way that makes it clear.

For criminal cases involving possession of contraband there are always two elements that must be proven, but there can be more.

Those elements are:
1- did the suspect possess the item?
2- is the item contraband?

For an example of needing to prove additional elements, a federal felon in possession case would require proof of the following elements:
1- did the person possess the item (firearm)?
2- is it a firearm as defined in the US Code (18USC921)? (contraband for a felon)
3- did the firearm travel in or affect interstate or foreign commerce?
4- was the defendent convicted of a crime punishable by more than a year in prison (aka felony) prior to possessing the firearm?

Again, though the two elements common to all possession of contraband cases are:
1- did the suspect possess the item?
2- is the item contraband?

There are two ways of proving possession (vcdgrips gave an excellent explanation, but here is quick review):
1- Physical (aka actual) possession: is the person exercising direct control over an item (for example they have it in their hands, in their pocket, carrying it in a backpack on the their person)
2- Constructive possession: the person is not exercising direct control over an item, but has has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons. (for example, you lock your gun in the trunk and go into the Post Office)

vcdgrips also graciously explained that more than one person can possess an item (joint v. sole possession).

So let's look at a hypothetical example that I hope will make this abundantly clear.

Let's pretend in this hypothetical gold is contraband. Theoretically a person can manufacture gold in a particle accelerator, but for all practical purposes a person cannot manufacture gold. So in our hypothetical a person cannot "construct" gold.

Let's say Joe BAGGODONUTS is suspected of illegally possessing gold, and after an investigation the local PD Detectives and the FBI Special Agents establish probable cause to believe BAGGODONUTS has contraband gold in his residence, and obtain a federal search warrant for BAGGODONUTS' residence.

The officers/agents contact and detain BAGGODONUTS as he's leaving the residence, and execute the warrant. In the house the officers/agents find 8oz of suspected gold.

BAGGODONUTS is not in physical (aka actual) possession of the suspected gold (remember they did not find it on his person, but hidden in the residence), but instead is in constructive possession of the suspected gold.

BAGGODONUTS admits the suspected gold is his, but claims it's not really gold.

The FBI has experts testify at trial that they tested the suspected gold and determined it is actually gold. BAGGODONUTS disputes that testimony, and says the government didn't actually prove that what he admitted to possessing is actually gold.

BAGGODONUTS possession of the item is not disputed, but he does dispute whether it is actually gold.

At the trial BAGGODONUTS makes a motion to the District Court (the judge) to give a directed verdict of acquittal, rather than letting the jury decide, and the District Court denies that motion, and BAGGODONUTS is convicted.

BAGGODONUTS appeals to the Circuit Court claiming the government failed to prove the item in question was actually gold, but admits he possessed that item (and that's him admitting constructive possession), and that the District Court erred by letting the jury decide whether it was gold. The government of course argues the evidence presented was sufficient to allow the jury to decide whether the 8oz item was gold. In our hypothetical Circuit Court determines the District Court did not err, and upholds the conviction.

The case had BAGGODONUTS admitting to being in (Constructive) Possession of the 8oz item, but BAGGODONUTS disputes whether the item is actually gold.

Now substitute Kent for BAGGODONUTS, ATF for FBI, and "firearm" (short-barreled rifle) for gold, and essentially you have the Kent case cited earlier.

Kent was not in physical possession of the complete lower, and the two complete uppers, but they were found in his residence during the search warrant. Therefore Kent was in constructive possession of the items (1st element to be proven), and admits to that possession.

The government provided evidence at trial to establish those items constituted a firearm required to be registered (short barreled rifle) (second element to be proven). However, Kent disputes whether the evidence proved the items constituted a firearm required to be registered.

[donlapalma]

After reading that..... Now I want a donut! Happy National Donut Day!

Seriously though, thanks for writing that out. Certainly helps me understand better.

Maple bar mmmmmmmmmm

Sent from my SM-T700 using Tapatalk

[Dagga Boy]

Now you went and threw in actual elements of the crime. You know that is how you break the internet and I suggest you stop it.......

[joshs]

You are so off base about what the term means, and the facts in dispute in the Kent case, I am finding it hard to believe your claims of being a "Research Attorney."

You chose to cite US v. Kent, and it absolutely does not say what you claimed earlier. Further Kent admitted he possessed the items (one complete lower receiver, and two complete upper receivers) and the facts as cited in Kent show Kent did not have physical possession of the items. Therefore Kent admitted he was in constructive possession of those items, not physical possession. What Kent disputed was whether the items met the definition of a "short-barreled rifle" because they were not assembled in that configuration. The issue of possession, constructive or physical, was not disputed.

I agree that I misread Kent, but after rereading Kent and TC, I think the problem is that TC was a making case and Kent is a possession case. Applying the plurality reasoning of TC to a possession case actually results in the court adding a scienter element to the definition that is not present in the statute. "[The government] demonstrated that Kent's intent was to use the short-barreled upper receiver unit as an intact unit as opposed to using the unit for parts." United States v. Kent, 175 F.3d 870, 873 (11th Cir. 1999). The element is not present in the definition of "rifle." See 26 U.S.C.A. § 5845(c).

[Gadfly]

Seriously, any good, slimy defense attorney will attack the arresting LEO's integrity when their client has not other valid defense to use. I've seen it happen and have had it happen to me before.

JR1572

If the law is on your side, you argue the law.

If the facts are on your side, you argue the facts.

If neither the law nor the facts are on your side, you attack the integrity of the arresting officer.

I did not like getting torn into on the stand. But when it happened, I knew it was because the defendant was screwed and the defense was grasping at straws by bad mouthing me...

[joshs]

I agree that I misread Kent, but after rereading Kent and TC, I think the problem is that TC was a making case and Kent is a possession case. Applying the plurality reasoning of TC to a possession case actually results in the court adding a scienter element to the definition that is not present in the statute. "[The government] demonstrated that Kent's intent was to use the short-barreled upper receiver unit as an intact unit as opposed to using the unit for parts." United States v. Kent, 175 F.3d 870, 873 (11th Cir. 1999). The element is not present in the definition of "rifle." See 26 U.S.C.A. § 5845(c).

Also, my point in defending people who use "constructive possession" in this sense is that in determining whether the thing possessed is actually an SBR, SBS, or AoW, the test that the court applies is a lot like the reasoning for why constructive possession is also considered possession. In Kent, the court reasoned that because the government put on sufficient evidence to show that the defendant actually intended to possess a "firearm", then the court was satisfied that the factfinder could have concluded that possessing the separate upper and lower actually met the requisite definitions in 26 U.S.C.A. § 5845(a) and (c). I understand that this has nothing to do with proving the element of possession in the offense, but in determining if the thing possessed is actually a "firearm" the court looked to whether the defendant intended to possess a "firearm."

[Hambo]

United States v. Kent, 175 F.3d 870 (11th Cir. 1999).

The key to the holding is TC is that the pistols sold with rifle kits could be assembled into a non-NFA "firearm," where no legal configuration is possible, TC doesn't apply.

And that decision only applied to TC kits, not TC's sold in one configuration. Without going into the whole TC story, just don't apply any TC rulings to anything else.

[joshs]

And that decision only applied to TC kits, not TC's sold in one configuration. Without going into the whole TC story, just don't apply any TC rulings to anything else.

ATF does have a later ruling saying that pistol to rifle to pistol is ok, but rifle to pistol is not ok because it would be a weapon made from a rifle.

[DMF13]

I agree that I misread Kent, but after rereading Kent and TC, I think the problem is that TC was a making case and Kent is a possession case. Applying the plurality reasoning of TC to a possession case actually results in the court adding a scienter element to the definition that is not present in the statute. "[The government] demonstrated that Kent's intent was to use the short-barreled upper receiver unit as an intact unit as opposed to using the unit for parts." United States v. Kent, 175 F.3d 870, 873 (11th Cir. 1999). The element is not present in the definition of "rifle." See 26 U.S.C.A. § 5845(c).

Also, my point in defending people who use "constructive possession" in this sense is that in determining whether the thing possessed is actually an SBR, SBS, or AoW, the test that the court applies is a lot like the reasoning for why constructive possession is also considered possession. In Kent, the court reasoned that because the government put on sufficient evidence to show that the defendant actually intended to possess a "firearm", then the court was satisfied that the factfinder could have concluded that possessing the separate upper and lower actually met the requisite definitions in 26 U.S.C.A. § 5845(a) and (c). I understand that this has nothing to do with proving the element of possession in the offense, but in determining if the thing possessed is actually a "firearm" the court looked to whether the defendant intended to possess a "firearm."

You just couldn't let it go, could you?

I was willing to let you have the last word with your, new and interesting analysis of Kent, which you decided to post after originally claiming the Kent decision said something it absolutely did not. By the way, no one is impressed with your use of the Latin "scienter," rather than the more common "knowingly."

However, stop clinging to your totally nonsensical idea that "constructive possession" should be used in the manner in which you originally tried, and falsely claimed was backed up by case law, and are again claiming is proper in this post.

"Constructive possession" is a term with a very well established meaning, and it has nothing, nada, zero, to with the ability to construct an object, whether that object is a firearm, a bar of gold, or methamphetamine. The way it was originally used in this thread, and originally presented by you, and that you are still defending, is flat out wrong, and would get you laughed at by any judge (and most likely by his or her still wet behind the ears clerk) if you trotted that notion out in court.

But hey, maybe I'm wrong (although I seriously doubt it after dealing with this topic every day for over a decade). So fire up WestLaw, or whatever other system you use for your research, and find us a US Supreme Court decision, or a Circuit Court of Appeals decision that uses "constructive possession" in the manner which you originally claimed, and now wish to "defend." Find that case law that supports your stance you were writing about a few days ago, and I'll eagerly read, just like Kent.