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8.64 Firearms—Unlawful Shipment or Transportation

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8.64 FIREARMS—UNLAWFUL SHIPMENT OR TRANSPORTATION (18 U.S.C. § 922(g))

The defendant is charged in [Count _______ of] the indictment with [[shipping] [transporting]] [[a firearm] [ammunition]] in violation of Section 922(g) of Title 18 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 [[shipped] [transported]] [[specify firearm] [specify ammunition]] [[from one state to another] [between a foreign nation and the United States]]; and

Second, at the time of [shipment] [transportation] the defendant was [specify applicable prohibited status from 18 U.S.C. § 922(g)(1)-(9)].

Comment

See Comment in 8.51 (Firearms).

Under 18 U.S.C. § 922(g), to establish "knowingly" under the first element, the government need not prove the defendant’s knowledge of the law, only "that the defendant consciously possessed what he knew to be a firearm." United States v. Beasley, 346 F.3d 930, 934 (9th Cir.2003), cert. denied, 542 U.S. 921 (2004).

The second element refers to prohibited statuses found in 18 U.S.C. § 922(g), which sets forth the categories of individuals prohibited from receiving, transporting, or possessing firearms and ammunition. Those categories are: (1) individuals who have been convicted of a felony; (2) individuals who are fugitives from justice; (3) individuals who are unlawful users and addicts of controlled substances defined in 21 U.S.C. § 802; (4) individuals who have been adjudicated as mentally ill or who have been committed to a mental institution; (5) aliens without authorization to be in the United States, and (subject to certain exceptions set forth at 18 U.S.C. § 922(y)(2)) aliens lawfully in the United States but with non-immigrant visas; (6) individuals who have been dishonorably discharged from the Armed Forces; (7) individuals who have renounced their citizenship; (8) individuals who are subject to certain restraining orders issued after the individual has been provided notice and opportunity to be heard and supported by a specific factual finding that the individual represents a credible threat to his or her intimate partner or child; (9) individuals who have been convicted in any court of a misdemeanor crime of domestic violence.

For a definition of "fugitive from justice" as used in 18 U.S.C. § 922(g)(2), see Instruction 8.52 (Firearms—Fugitive From Justice Defined).

Despite some indication in the case law that aliens who have been released on bail pending deportation or pending a removal hearing, but who have filed applications to legalize their immigration status, are not subject to the prohibition of § 922(g)(5), such a conclusion is not valid under current versions of removability statutes. See United States v. Latu, 479 F.3d 1153, 1158 (9th Cir.2007), noting that although United States v. Bravo-Muzquiz, 412 F.3d 1052, 1055 & n.1 (9th Cir.2005), implicitly recognized that had the defendant applied for legal status prior to possession of the firearm, he would not have been illegally and unlawfully in the United States, that was not correct under more recent removability statutes.

The underlying offense need not have a domestic relationship as an element of the offense in order to qualify as a misdemeanor domestic violence violation under 18 U.S.C. § 922(g)(9). In United States v. Hayes, __ U.S. __, 129 S. Ct. 1079 (2009), interpreting the phrase "misdemeanor crime of domestic violence," the United States Supreme Court noted two requisite parts of an underlying offense that give rise to the prohibited status set forth in § 922(g)(9): First, "the use or attempted use of physical force, or the threatened use of a deadly weapon," and second, the victim of the offense must have been in a specified domestic relationship with the defendant. Id. at 1084 (citing 18 U.S.C. § 921(a)(33)(A), which defines "misdemeanor crime of violence"). The Court concluded that the first part, the use or attempted use of force, or threatened use of a deadly weapon, must be an element of the underlying offense. Id. at 1084. Conversely, the Court rejected the argument that the second part, the domestic relationship, must also be an element of the underlying offense; instead, the Court held that the second part of this prohibited status may be established by proof that the prior conviction was "an offense . . . committed by the defendant against a spouse or other domestic victim." Id. (internal quotation marks omitted).