US v. Benamor, No. 17-50308 (6-6-19)(Graber w/Bybee & Harpool). Who has the burden to prove a firearm was manufactured after 1898? Not the government! It is an affirmative defense carried by the defendant.

The defendant is a prohibited possessor.  He was found with a shotgun and ammo. At trial, on 922(g)(1), the prosecution proved that the defendant was (1) a felon; (2) he knowingly possessed a firearm; and (3) the firearm affected interstate commerce.  At the close of evidence, the defendant moved for acquittal and also asked for a jury instruction. The defendant argued that the 921(a)(3) exception defining a firearm – does not include an antique firearm manufactured before 1898 – was an element of the offense. The prosecution did not present evidence that the shotgun was manufactured after 1898. The court denied the motion and declined the jury instruction.

On appeal, the 9th affirmed.  The defendant first focused on a categorical defense and a mens rea defense.  The defendant argued that under a categorical approach, the statute was overbroad; however, the categorical approach does not apply here in this criminal prosecution, where the elements are set out. A conviction can establish certain factors that are not themselves elements of the offense.  The 9th held too that Staples, involving a mens rea of knowing a weapon was automatic, does not apply. Staples involved a general provision involving automatic weapons and not a distinct clause which is an exception.

This leaves the defense of an antique firearm. The 9th held that precedent in this circuit and others characterized the exception as an affirmative defense.  The defendant failed to produce any evidence that the firearm was that old to justify giving an affirmative defense instruction much less finding insufficient evidence.

The 9th did find a confrontation clause violation. The agent has elicited information from the landlord about the defendant having a very old firearm. This testimony violated the confrontation clause.  However, it was harmless.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/06/06/17-50308.pdf