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9.34 Firearms—Possession of Unregistered Firearm

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9.34 FIREARMS—POSSESSION OF UNREGISTERED FIREARM

(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 defendant was aware that the [specify firearm] was [specify statutory features or characteristics of the firearm that bring it within the statute]; and

Third, the defendant had not registered the [specify firearm] with the National Firearms Registration and Transfer Record.

The government need not prove that the defendant knew that possessing the firearm was illegal.

Comment

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) ("[T]o 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"); United States v. Montoya-Gaxiola, ___F.3d___, 2015 WL 4716903, *3 (9th Cir. August 10, 2015) ("The law then is clear that, in order to convict under § 5861(d) . . . the Government must prove that the defendant knew the specific characteristics that made it a firearm within the Act"). 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). 

Approved 9/2015