RK -

You may have read the law, but you obviously don't know anything about statutory interprtation or the basic presumptions under the law. This is a defense to the charge of possession; the accused has to prove his own defense though.  Check out 922(o) and the cases surrounding it to see how this sort of thing is interpreted.

No one is saying that it is a crime for not having any proof of status on your AR15 Assault Weapon.  Only that it is a crime to assemble one after the '94 ban.

Everyone knows the FBI can dig up that yellow form you filled out when you purchased that "pre-ban" lower after 1994.  If the prosecutor produces that document and your AR15 is in a pre-ban configuration... you're screwed.  Lets just hope youre right that the burden of proof is with the prosecutor.  However, many of us arent taking any chances.

Hey Troy!

The Golden Eagles I have seen have 20" s/s bbl's, bayonet lug, weighted A2 stock, birdcage flash suppressors and were pretty damm bad looking.

Every "evil" feature is on this rifle sans the shorty stock.

Possible that you are thinking of the Predator or Eagle Eye rifle?

I'm pretty sure both of those rifles didn't have flash thingies on the end.  The early model Predator might have had a shorty stock though.

The Eagle Eye had a damm heavy too heavy barrel on it.

There’s been a lot of implication that “paper” is required, or you are “screwed”.

A yellow form on the sale of a preban lower (made before 9-94) that takes place
after the ban does not prove anything, other than a lower was sold.  It doesn’t do
anything to prove the lower was or was not assembled into an AW before or after
the ban.

I still don’t know where the burden of proof is in a case like this, and I am not
claiming to know.  I’ve yet to see anything that offers substantial evidence one
way or the other.

According to Troys post, I have an illegal post ban because I cannot prove my EA lower was assembled before the 1994 ban.  I'm not sure about that because the law does not state that the possesser has to prove it.  Like I said earlier, it's all moot unless you commit a crime and someone knows or cares.  There prob isn't 5 jackleg LEO's in SC that even give a crap.  Bayo lugs and treaded barrels shoot the same size and number of bullets which is all your LEO cares about.   That's one of those crimes that would be "added on" to the big one right below shop lifting and j-walking.

Righteous, Deerslayer, etc. -

For the last time, the burden to prove the weapon is pre-ban is on the possessor.  It is an affirmative defense.  If you want more proof, Re-read 18 USC 922(v).

Now read 18 USC 922(o).

Note how the offense in both is worded.  Note how the exculpatory subpart is worded and constructed.  They are almost identical.

I now refer you to U.S. v. Gonzales, 121 F.3d 928 (5th Cir. 1997) and U.S. v. Just, 74 F.3d 902 (8th Cir 1996).

The court in both cases is quite clear that the exculpatory clauses in 922(o) are AFFIRMATIVE DEFENSES and places the burden of proof on the accused.

Look at the exculpatory clauses in 922(v) again.  Compare to 922(o).  No significant diference.  In both 922(o) and 922(v) the exculpatory clauses are affirmative defenses; they are not elements of the offense.

There's your proof.

I don't like it either, but thats the way it is.

Because this is import to me, I'll do the leg work for you.
First, I will post the references that shaggy indicates.
Later I will reply with my thoughts on the subject.

shaggy, If I’ve missed something or incorrectly represented your references
please let me know.

“Note how the offense in both is worded. Note how the exculpatory subpart is
worded and constructed. They are almost identical.”

Fancy lawyer translation, exculpatory subpart = the part of the text that makes
exceptions to the law.  i.e, indicates that preban AWs and legal machine guns can
be possess.  In this case paragraph (2) in all three of the texts below.

Here are the codes shaggy referred to.  I also included the magazine ban.

18 USC 922(o) - Basically the machine ban.

o)
      (1) Except as provided in paragraph (2), it shall be unlawful for any
    person to transfer or possess a machinegun.
      (2) This subsection does not apply with respect to -
          (A) a transfer to or by, or possession by or under the
         authority of, the United States or any department or agency
         thereof or a State, or a department, agency, or political
         subdivision thereof; or
          (B) any lawful transfer or lawful possession of a machinegun
         that was lawfully possessed before the date this subsection takes
         effect.

18 USC 922(v) - The assault weapon ban.
      (1) It shall be unlawful for a person to manufacture, transfer, or possess a
    semiautomatic assault weapon.
      (2) Paragraph (1) shall not apply to the possession or transfer of any
    semiautomatic assault weapon otherwise lawfully possessed under Federal
    law on the date of the enactment of this subsection.
      (3) Paragraph (1) shall not apply to -


18 USC 922(w) - The high-cap mag ban.
      (1) Except as provided in paragraph (2), it shall be unlawful for a person
    to transfer or possess a large capacity ammunition feeding device.
      (2) Paragraph (1) shall not apply to the possession or transfer of any large
    capacity ammunition feeding device otherwise lawfully possessed on or
    before the date of the enactment of this subsection.
      (3) This subsection shall not apply to -

U.S. v. Gonzales, 121 F.3d 928 (5th Cir. 1997)
[url]http://www.cs.cmu.edu/afs/cs.cmu.edu/user/wbardwel/public/nfalist/us_v
_gonzales.txt[/url]

The part I’m guessing you refer to:

Gonzales, Jr., claims that the evidence was insufficient to support his conviction
for unlawful possession of a machinegun, in violation of 18 U.S.C. section
922(o), because the government failed to prove beyond a reasonable doubt that
Gonzales did not possess the machinegun prior to May 19, 1986. His claim is
merit less. (footnote 3) The statute provides that it shall be unlawful for any
person to transfer or possess a machinegun, but there is an exception for "any
lawful transfer or lawful possession of a machinegun that was lawfully possessed
before the date this subsection takes effect."18 U.S.C. section 922(o)(2)(B).
Gonzales, Jr., argues that the statute requires the government to demonstrate,
beyond a reasonable doubt, that the defendant did not lawfully possess the
machinegun before the effective date of the statute. We disagree.

The Due Process Clause requires the government to prove only the essential
elements of the offense beyond a reasonable doubt.  See In re Winship, 397 U.S.
358, 361-64 (1970). The exception for lawfully possessed machineguns is an
affirmative defense, however, not an element of the offense. Therefore, the
government is under no duty to disprove this affirmative defense; on the contrary,
the burden was on Gonzales, Jr., to establish this affirmative defense. See United
States v. Just, 74 F.3d 902, 904 (8th Cir. 1996).(footnote 4) Having failed to
prove that he lawfully possessed the machinegun prior to May 19, 1986,
Gonzales, Jr., has failed to establish his affirmative defense, and the government
is under no obligation to prove the negative.





U.S. v. Just, 74 F.3d 902 (8th Cir 1996).

[url]http://www.cs.cmu.edu/afs/cs.cmu.edu/user/wbardwel/public/nfalist/us_v_ju
st.txt[/url]

Again,  part I’m guessing you refer to:

18 U.S.C. section 922(o). The exceptions contained in part(2) of the subsection
establish affirmative defenses to the definedoffense. They are not elements of the
offense that must be chargedin the indictment. See McKelvey v. United States,
260 U.S. 353, 357(1922). Just could have defended against the charge by showing
thathe lawfully possessed the machinegun prior to the enactment of the statute on
May 19, 1986 and that he lawfully transferred it toOfficer Cooper. This would
have required proof that the weapon wasregistered in the National Firearms
Register and Transfer Record,but that does not convert lack of registration to an
element of theoffense or require the government to prove it where the
appropriatedefense was not raised.

edited so the links will work.

here is a link that shows some of the preban serial numbers for various manufacturers

http://www.geocities.com/Pipeline/2494/serial.html

The caselaw is pretty clear.  The initial burden is on the government- once they have met that burden (prima facia) then it's on the defendant to prove he meets an exception (and any other defense, including reasonable doubt- dominion and control, possession etc.).

The defendant in Gozales dropped the ball- he did not even, apparently, proffer any evidence that the MG met one of the enumerated exceptions.

As long as it IS a pre-ban according to the serial number they can't prove anything different!!!! People have to replace parts everyday so if it's a pre-ban it's a pre-ban!!!!!

But, don't forget that it must have been configured before the ban as well, not just made.

Nobody on here is tryihg to one-up anyone on knowledge. If anyone wants to ignore Steve, Troy, and the folks who feel they understand the law (and I'm convinced they do, after reading a lot of their posts and reading the law a few times myself) then you do so at your own risk. But if you have never been involved in the legal system, especially the federal system, you do have a shock coming--both to your peace of mind and to your wallet. If you feel that's worth the sacrifice, go ahead, but please do so with an open mind. Whether we agree with you or not, no one wants another gun person to get into legal trouble or go to jail. Any baby prosecutor can nail you to the wall on illegal AW possession if you don't do your part. Remember, THEY wrote the law.  

Righteous -

First off, you'll have to forgive me, I copied your post before you came back and editied it, and wrote the response below.  I'm too tired now to revamp the thing again to fit with your edited post above, so you'll have to remember what you wrote the first time before the editing.

**********************************************************************
Yes it is my work.

Lets clear up the mag issue first (922(w)).  If you're going to read the law, you better read ALL the applicable law.  You read and copied subsections 1&2.  What ever happened to subsection #4?  I read it, and here it is:

18 USC 922(w)(4) If a person charged with violating paragraph (1) asserts that paragraph (1) does not apply to such person because of paragraph (2) or (3), the Government shall have the burden of proof to show that such paragraph (1) applies to such person. The lack of a serial number as described in section 923(i) of this title shall be a presumption that the large capacity ammunition feeding device is not subject to the prohibition of possession in paragraph (1).

As I said before, the burden is on the gov't to prove your hi-cap mags were made after the ban.  Any more questions with regard to mags?  Lets move on, shall we?



Well thats a brilliant insight, but the legal requirements to possess an NFA weapon do not change the evidentiary standard or burden of proof if you get caught with one.  It merely changes the types proofs required to exculpate your ass.  Certainly it is a different process and its more expensive and difficult to get an NFA weapon than a semi, but getting your name in the NFRTR and an approved form are the ONLY forms of evidence you have the weapon was owned and transfered legally.  With semis there are a lot more forms of proof you can use; receipts, testimony, manufacturers records, etc.

The problem with Gonzales and Just (and your thinking) is that on appeal they argued the Gov't's case lacked an essential element - proof the exception didn't apply.  They argued that under 922(o) the Gov't needed to prove not only possession, but that the gun was unregistered to convict them.  This is essentially your argument; innocent until proven guilty; that the accused needs to do nothing, that the gov't needs to show the exception does not apply.  Only difference is under 922(v) you argue the gov't must prove preban status to convict.  This is wrong, and the convictions were upheld because the court found that the exculpatory clauses were affirmative defenses and the burden of proof to be on the defendant.

shaggy, sorry about the edit.  After posting, I found some really bad errors on my
part to change and didn’t have time to work on it at the moment, it was also
unorganized.  Can’t believe you saw that, it was only posted for like 10 seconds,
oh well.

I completely understand what you’re saying.  Haven’t had time to look up the
cases you had posted until today.  Thank you for posting info with a connection to
law and case history.  Also understand that I’m not an attorney and it’s taken me a
while to research this stuff and get a handle on all the lingo.



That was harsh, but I probably deserve it, that’s just part of what I would have
revamped in my early post.

Yeah, the mag thing was really dumb, I have read “The lack of a serial number as
described in section 923(i) of this title shall be a presumption that the large
capacity ammunition feeding device is not subject to the prohibition of possession
in paragraph”, there again I had jumped the gun.

Here’s a definition of “affirmative defense” for the folks:

a defense that does not deny the truth of the allegations against the defendant but
gives some other reason (as insanity, assumption of risk, or expiration of the
statute of limitations) why the defendant cannot be held liable
Note: The defendant bears the burden of proof as to affirmative defenses.

On the first case, U.S. v. Gonzales, 121 F.3d 928 (5th Cir. 1997)

“Gonzales, Jr., argues that the statute requires the government to demonstrate,
beyond a reasonable doubt, that the defendant did not lawfully possess the
machinegun before the effective date of the statute. We disagree.”

His affirmative defense seems to be he possessed the machinegun before the May
86 law took effect.  A poor defense, it doesn’t matter when you possessed the
machinegun, it had to be “legally possessed” on or before 5-86, in other words
registered.  So it’s irrelevant that he may have possessed it on or before the date
of the statute, it’s still and illegal machine gun.  I agree with the finding and the
government didn’t need show he didn’t possess it before the date, because it
doesn’t matter.

“The exception for lawfully possessed machineguns is an affirmative defense”

And there’s that important statement.

On the second case, U.S. v. Just, 74 F.3d 902 (8th Cir 1996).

“The exceptions contained in part(2) of the subsection establish affirmative
defenses to the defined offense.”

Once again, affirmative defense for machinegun possession.

Yes, that shows burden of proof is on the defendant in the case of a machine gun.
And it tends to show the same might be applied to semi-auto assault weapons.
Which has been something I have been interested in finding out for sure.

to be cont...

No, that is not my argument, and I’ve never said. nor believed that the accused
needs to do nothing, that would be just plain stupid when faced with a federal
criminal charges.  Innocent until proven guilty is fairy tale they teach school kids.

What I am primarily interested is this notion of preban status proof.  Does
someone who does not possess proof of status for their legal preban AW in
violation of the law?  If I buy a preban AW with a serial in the preban range and
the seller told me it’s a legal preban, have I committed a crime?  What if a guy
installed a folding stock on his mini-14 in 1987 and no longer has the receipt, how
is suppose to defend himself in court?  Help me out here.

Ok, in the case of a machine gun law an affirmative defense exists, the NFA
registry and the form 4/tax stamp.  Where in the semi-AW law does an
affirmative defense exist?

RK IN THE AZ

This is the [i]civil[/i] definition of an affirmative defense, however, the basic feature remains the same, to-wit:  burden of proof falls on the defendant.  In a criminal context, it's just a "defense", plain and simple.  Like self-defense is to assault and battery or diminished capacity is to a specific intent crime.



That's not entirely accurate.  They were referring to the "affirmative defense" of "[i]lawful[/i] possession prior to May 86", not just "possession prior to May 96".  The appellant in that case lost not because the defense "doesn't matter", but because it was never raised by the appellant in the first place, at trial, in the lower court.  In other words, the appellant's case failed not because the government did not have the burden to disprove the defense since it "did not matter", but because it was NOT THEIR BURDEN to disprove that defense in thier case in chief, period.  


 

Believe it.

One last thing:  The presumption of innocence is alive and well in our criminal judicial system; it's NOT a fairy tale.  It's very real and is a hurdle that every state and federal prosecutor faces on a daily basis.

This issue, IMHO, has been complicated somewhat.  It all boils down to a "defense" to a crime; the burden is [i]always[/i] on the defendant to prove any and all defenses in a criminal case just as any and all essential elements to a crime are always the burden of the government.

Righteous -

No problem about the edit - I copied the whole post, went offline, wrote for about  20minutes and went back to post it...but you had already done the edit.  I was just a little too tired and lazy to go any further, so I basicly said "screw it" and posted it as it was.

And you're right, I was a bit harsh in my response...especially considering by the time I posted it, you had already edited your post and toned it down a bit.  I should have taken the time to revamp and tone down my response.  Sorry.

To answer your question about the required proofs for a semi; the law leaves it up to you to decide what you think is enough proof.  There's no magic formula; its a question of fact that will be decided by the jury.  Are you guilty of possessing a semi assault weapon if you don't have receipts?   Well, you're not guilty until you're convicted, but  the gov't can certainly prosecute and try to convict you.  Of course, even if you have all the proof in the world, the gov't can still prosecute, but it just won't get very far.  You just have to ask yourself "what do I think is enough proof to convince a jury of my peers?" (keeping in mind about half of your 'peers' voted for Gore), and "Do I have enough proof to do that?".

With NFA wapons, its easy - the original stamped copy of your form 1 or 4 is solid proof.  With semis its more difficult, in a sense, because there really is no comparable form or piece of paper which provides uncontroverted evidence of its preban status.  On the other hand, there's more types of proof that you can use to prove your semi is indeed a preban; receipts, 4473's, records from the manufacturers, testimony of witnesses who saw the assembled weapon, etc..  

Under that scenario, given what I've read, the defendant would likely be convicted; although  I've yet to find such a prosecution in the Eastern District of VA (and I've looked).  However, if you lacked the type of proof you indicated, I would find an expert (class 3 FFL) to offer an opinion on the "likelihood" that such a lower was configured prior to the ban and then argue same to the trier of fact.

Like you, I consider this academic since I find it hard to imagine any of us being targeted in a criminal investigation based solely on an AW config violation.  As I've said over and over, the only time I see these type cases in federal court are ancillary to some major felony, multi-count indictment; almost as an afterthought tag-a-long crime lumped into the information by the feds.  HOWEVER, it does not mean such consdierations should not be taken seriously.  They should and we should all get proof, any proof, and keep it with you or in your safe with the weapon.

Geez Steve it’s late here so it must be really later in VA, now go to bed!

Did Gonzales in fact have a registered machine gun?
Yeah, my “doesn’t matter” comment doesn’t look right, it’s late.  Didn’t mean to
say they lost the case because “it doesn’t matter”, rather in the whole scope of
things.

“This is the civil definition of an affirmative defense”
Come awn man, don’t I at least a pat on the head for trying.

Presumption of innocence, have to wonder about alive and well, maybe battered
and bruised.

What about my laymen’s drivel above the semi-AW situation? Any thoughts?

RK HEADING FOR BED.

Your probably right, heck I didin’t understand half of what you just said.
However, I’m not gonna let that keep me from learning.

NOW I’M REALLY GOING TO BED.

RK,

Can't sleep- bored.  Had a long morning fighting stubborn prosecutors.  

I'm feeling real pedantic- sorry for the nit-picking.  Enjoyed your posts.

Hitting the rack now.

RK - you got me again. Sorry for being such a cocky SOB there too.  Somewhere in this thread, I guess I lost it. Keep learning, keep questioning, and I'll try not to be such an SOB in the future.

...and now I'm calling it a night...

If it don't fit you must acquit!

shaggy,

No problem man, I don’t blame you a bit.  I tend to be stubborn and have a really
thick sculled some times, just ask my wife.

I appreciate your and Steve’s input, and have learned a lot from you in
this tread.

Hope to see you around.

RK IN THE AZ