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9.34 Firearms—Possession of Unregistered Firearm

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The Committee will be reviewing this instruction in light of United States v. Montoya-Gaxiola, No. 14-10255, ___ F.3d ___, 2015 WL 4716903 (9th Cir. Aug. 10, 2015).


(26 U.S.C. § 5861(d)) 

The defendant is charged in [Count _______ of] the indictment with [possession] [receipt] of an unregistered firearm in violation of Section 5861(d) of Title 26 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant knowingly [[possessed] [received]] [specify firearm]; and

Second, the [specify firearm] was not registered to the defendant in the National Firearms Registration and Transfer Record.


For a definition of "firearm," see 26 U.S.C. § 5845(a).

The government must prove that the defendant knew of those features which brought the firearm within the scope of the statute. See Staples v. United States, 511 U.S. 600, 619 (1994) ("to obtain a conviction, the Government should have been required to prove that petitioner knew of the features of his AR-15 that brought it within the scope of the Act"). See also United States v. Gergen, 172 F.3d 719, 724 (9th Cir.1999) (mens rea requirement that the defendant know of the particular characteristics of the firearm which bring it within the scope of the statute). The government need not prove that the defendant knew that possessing the firearm was illegal. United States v. Summers, 268 F.3d 683, 688 (9th Cir.2001).