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8.65 Firearms—Unlawful Possession—Convicted Felon

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8.65 FIREARMS—UNLAWFUL POSSESSIONCONVICTED FELON (18 U.S.C. § 922(g)(1))

The defendant is charged in [Count _______ of] the indictment with the possession of [a firearm] [ammunition] in violation of Section 922(g)(1) 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 possessed [specify firearm] [specify ammunition];

Second, the [specify firearm] [specify ammunition] had been [[shipped] [transported]] [[from one state to another] [between a foreign nation and the United States]]; and

[Third, at the time the defendant possessed the [specify firearm] [specify ammunition], the defendant had been convicted of a crime punishable by imprisonment for a term exceeding one year. The defendant stipulates that on [date], the defendant was convicted of a crime punishable by imprisonment for a term exceeding one year.]

or

[Third, at the time the defendant possessed the [specify firearm] [specify ammunition], the defendant had been convicted of a crime punishable by imprisonment for a term exceeding one year. [[Specify prior felony] is a crime punishable by imprisonment for a term exceeding one year.]

Comment

For a definition of "possession," see Instruction 3.17 (Possession—Defined).

Defendants frequently stipulate to the third element of the offense rather than have evidence of the prior convictions presented to the jury. See Old Chief v. United States, 519 U.S. 172, 189 (1997) (reversible error to allow government to prove nature of prior conviction when defendant offers to stipulate to the prior conviction).

Depending on the facts in evidence, it may be appropriate to amend this instruction with language requiring specific jury unanimity as to when the possession occurred. See Instruction 7.9 (Specific Issue Unanimity) and United States v. Garcia-Rivera, 353 F.3d 788, 792 (9th Cir.2003). For instance, an indictment may allege that the possession occurred at some point within an imprecise time frame. In such a case, and if there was evidence that the defendant possessed the weapon or ammunition on more than one occasion during the interval, the jury should be instructed to find unanimously as follows: "You must unanimously agree that the possession occurred on or about a particular date." In such a case, it is advisable to require the jurors to answer a special interrogatory specifying the date(s) upon which all agreed that the possession occurred.

The Ninth Circuit does not recognize an "innocent possession" affirmative defense. See United States v. Johnson, 459 F.3d 990, 995-98 (9th Cir.2006).

To establish that a defendant "knowingly" possessed the firearm or ammunition, 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). In a prosecution under 18 U.S.C. § 922(g)(1), there was sufficient evidence that a sleeping defendant had knowing possession of the firearms, where at the time police entered an apartment the weapons were lying on or against his body, he initially reached toward his lap when officers awakened him, and there was evidence tying him to the apartment. United States v. Nevils, 598 F.3d 1158, 1168-70 (9th Cir.2010) (en banc).

Although brief handling of a weapon does not always satisfy the element of possession, a short length of possession does not preclude conviction. Compare United States v. Teemer, 394 F.3d 59, 63 (9th Cir.2005), with United States v. Kearns, 61 F.3d 1422, 1425 (9th Cir.1995).

Constructive or joint possession may satisfy the possession element. To show constructive possession, the government must prove a connection between the defendant and the firearm or ammunition sufficient "to support the inference that the defendant exercised dominion and control over" it. United States v. Carrasco, 257 F.3d 1045, 1049 (9th Cir.2001) (internal quotation marks and citation omitted). See generally, United States v. Tucker, 641 F.3d 1110 (9th Cir.2011). Similarly, joint control of the premises where the firearm or ammunition was found may be sufficient to establish possession where a defendant "has knowledge of the weapon and both the power and the intention to exercise dominion and control over it." Carrasco, 257 F.3d at 1049 (internal quotation marks and citation omitted).

The knowledge element is limited to knowing possession. A defendant need not be aware of his or her felon status or that the firearm or ammunition traveled in interstate commerce. United States v. Stone, 706 F.3d 1145, 1147 (9th Cir. 2013)(defendant’s "knowledge of ammunition’s [or firearm’s] interstate connection is irrelevant"); United States v. Miller, 105 F.3d 552, 555 (9th Cir.1997) ("We agree with the decisions from other circuits that the § 924(a) knowledge requirement applies only to the possession element of § 922(g)(1), not to the interstate nexus or to felon status."); United States v. Montero-Camargo, 177 F.3d 1118, 1120, amended on other grounds by 183 F.3d 1172 (9th Cir.1999) ("[K]nowledge of one’s felon status is not an element of the crime of being a felon in possession of a firearm or ammunition under 18 U.S.C. § 922(g)(1).").

A conviction in a foreign court does not satisfy the element of prior conviction. Small v. United States, 544 U.S. 385, 387 (2005).

Approved 4/2013