June 3, 1996
MEMORANDUM
TO: All United States Attorneys
All Criminal Division Section Chiefs
FROM:John C. Keeney
Acting Assistant Attorney General
SUBJECT: Application of Staples v. United States, 114
S.
Ct. 1793 (1994), to Firearms Embraced by the National Firearms Act
In Staples v. United States, the Supreme Court
held that, in order to obtain a conviction for possession of an unregistered
automatic weapon, in violation of the National Firearms Act (NFA) (26 U.S.C.
§ 5861(d)), the government must prove that the defendant knew of the
features
or characteristics that brought the weapon within the Act. Id. at
1804.
In the wake of the Staples decision, the courts of appeals
have
disagreed as to whether its mens rea requirement applies to
all NFA
"firearms." Several courts have held that the reasoning of Staples
applies not only to automatic weapons but to silencers and short-barreled
weapons
as well. See United States v. Thompson, No. 94-30104,
1996
WL 204095 at * 3 (9th Cir., Apr. 29, 1996) (silencer); United States
v.
Rambo, 74 F.3d 948, 955 (9th Cir. 1996) (same); United States
v.
Starkes, 32 F.3d 100, 101 (4th Cir. 1994) (short-barreled shotgun);
see
also United States v. Mains, 22 F.3d 1222, 1229 (10th Cir.
1994) (same but holding that instruction adequate).
In contrast, two other courts have held that the requirement of
proving
knowledge concerning the unlawful characteristics of certain firearms
embraced
by the NFA does not extend to those firearms whose unlawful characteristics
are
readily discernable from their appearance. See United States
v.
Imes, 1996 WL 157194 (9th Cir. Apr. 5, 1996) (short-barreled
shotgun),
petition for rehearing pending; United States v. Barr, 32 F.3d
1320, 1324 (8th Cir. 1994) (same).
In Pulido v. United States, No. 95-7946, the
Solicitor
General addressed the question whether the scienter requirement of
Staples
applies to a homemade silencer. In doing so, he filed a brief on behalf of
the
United States taking the position that, in all cases prosecuted under the
NFA, the government must prove that the defendant knew the features of
the
firearm that brought it within the scope of the Act and that the defendant
is
entitled to an instruction to that effect.
Prosecutors should adhere to this position in all pending and
future
cases brought under the NFA. Consequently, in such cases, the government
should
anticipate proving the defendant's knowledge of the NFA weapon's unlawful
characteristics and request an appropriate instruction on knowledge. We
suggest
the following jury instruction:
In order to convict the defendant of a violation of the
National
Firearms Act, the government must prove beyond a reasonable doubt that the
defendant had knowledge of the characteristics of the weapon that brought it
within the definition of a firearm under that Act. Thus, in this case, the
government must prove beyond a reasonable doubt that the defendant [knew the
firearm was designed [or modified] to fire automatically] [knew he possessed
a
shotgun with a barrel length shorter than 18 inches or with an overall
length
less than 26 inches] [knew he possessed a silencer] [knew he possessed a
grenade]. Such knowledge can be established through circumstantial
evidence.
In pending appeals, the government should, likewise, concede that knowledge
of
an NFA firearm's unlawful characteristics is an element of the offense and
that
the defendant was entitled to a knowledge instruction upon request. In some
cases, where such an instruction was not given, a plain error or a harmless
error
argument may be available.
This guidance also supersedes the suggestion in Federal
Firearms Offenses (July 1995) at 7-10 that, for purposes of the
scienter
requirement of Staples, a distinction can be drawn between NFA
firearms,
such as sawed-off shotguns, whose unlawful characteristics are manifest and
those
whose unlawful characteristics are not. This portion of the Firearms Manual
will
be revised to conform to the Solicitor General's position.
[cited in USAM 9-63.500] |