Talked with an Attorney on Preban Status.

[b]According to him, the prosecution would bear the burden of proving the crime.[/b]

The conversation basically reenforced my beliefs.  That is “proof of status” is not
required on the part of the owner.  Further, the belief in necessary proof of status
is self imposed by the people who would perpetuate it.  For it is simple to terrify,
while difficult to enlighten.

I believe Circuits said it, “Your tolerance for risk may vary”
To that I added, “Your perception of risk my vary.”

What I really wanted to say, “If you’re a bitch whipped, scared little pussy, best
have your papers in order”.  Because that is what it really boils down to.

[b]R[/b]ighteous [b]K[/b] - A nutritious part of a well balanced breakfast.

Sweet.

Tell your friend to take a look at the law.

The AUSA only has to prove his/her prima facia case.  That is, he/she must only prove, as a matter of law, that the weapon fits within the perameters of a banned AW and that you possessed it.  If they meet this burden, the case is now yours.  You then may proceed with one of many defenses, including but not limited to, the fact that the weapon falls within an exception to the ban.

Sorry, but it's just that simple when it comes to who has what burden.  In the end (NOT at the close of the government's case), the government must still prove that you have violated the law beyond a reasonable doubt.  Violating the law means possessing the AW- you can beat this as a matter of law on a motion to strike the evidence (at the government's close) if you establish the exception by use of the government's witnesses or you can create reasonable doubt by proving the exception with your own evidence.

BTW, this is purely academic since, IMHO (dealing with with US attorneys for over 10 years in the 4th Circuit), that case would never go forward if you can show the AUSA or agent that the weapon falls within a recognized exception to 18 USC 922.  They have bigger fish to fry.

I am, of course, excluding the gargantuan drug conspiracy case where the charge is a nebulous add-on.

Huh!?

He said RK's attorney friend is wrong, but it doesn't really matter if you can show reasonable evidence that the receiver was a legitimate pre-ban, unless the AW charge is one of many charges in a major case.

RK -

I'll see your attorney and raise you one more.

You've got two lawyers right here - Steve in VA and myself - who say otherwise.  And while we don't like the law, we aren't about to ignore the facts of the situation just to give ourselves a false sense of security about how far the gov't could go under this law.

Did your attorney actually sit down and read the law and the cases, or did you just explain it to him and get a quick answer over a cup of coffee or a beer?

The attorney and I are not friends.  Just chit chat, he appeared versed on the topic.

He didn’t say they wouldn’t arrest and try you.



Yes, they have to prove.

One of those parameters of a banned AW, that it was assembled after the ban, is
going to rather difficult to prove.  Remember, we’re talking about pre-94 firearms, not post-94.

I also think this is topic is academic, but perhaps for other reasons.

RK

Huh?

RK, the US would have to prove you possessed what they define as an AW. So if you have an AR with a detachable mag, and a pistol grip if you have ANY of the following features it is an AW, bayonet lug, folding stock, or flash hider.

That means if they can prove you had that weapon with that combination of features they have proved their case, and maybe if you wanna be technical they have to prove you had it after 9-13-94. That's it, that's a conviction, remand the defendant into custody of the Marshall service to await sentencing.

Oh yeah, if the government proves its case you can rebutt it by proving that the weapon was an AW prior to the ban going into effect. It's a theory of law "ex posto facto". That means if you do something the government can't make it against the law after the act and then prosecute you for the act that occured prior to the law being enacted.  

Hey shag, hope tonight finds you well.



Like or dislike for the law is irrelevant, just calling it like I see it.  

I have no delusions how far the government can and will go, regardless of the law.

A false sense security? Is that anything like a false sense of paranoia?  

Why is it that nobody has been convicted in a case like this?
(Pre-94 firearms configured as a semi-automatic assault weapon.)

Multiple choice:

a.) It’s a weak case built on vague law.
b.) They probably wouldn’t win.
c.) They have better things to do.
d.) You’ve committed no crime.
e.) They’re just waiting to get me.

If you answerer (d.), please seek help.


RK

RK, you are right, but do you wanna be the guy who gets convicted on an illegal AW possesion charge becasue you thought a bayonet lug was cool?? Sounds like a risk of a substantial nature with not a heck of a lot of gain.

Yes, I would prefer to be technical, as date of assembly bears an important part of
what constitutes a legal or illegal semi-auto AW.  In fact it’s the main point, the
exception is based on the date of assembly.

And since we are talking about pre-94 rifles, [b]they[/b] would need to show it
was assembled into a semi-auto AW after the Sept 94 ban.

RK                                                              

We are talking about legally possessed  pre-94 rifles here.

No, I’d rather not be that guy.

In fact, I doubt that anybody is going to be that guy.

RK

What is today?? AW's are illegal to possess TODAY. They don't have to prove when it was assembled. They have to prove you possessed it after 9-13-94, and it meet the definition of an AW. THAT IS IT.

ex posto facto comes in as a defense because AW's were legal to possess up until 9-13-94. So if and only if you had an AW prior to 9-13-94 can you posses one after 9-13-94. That is up to you to prove since AW's are illegal to posses.  

Wrong.  They don't have to prove that the exception to the rule does not exist.  The rule is, as OLY points out, that you cannot possess the banned weapon TODAY.  

I think you are oversimplifying the procedures.  You do understand that their case in chief only requires them to establish, not beyond a reasonable doubt, that the essential elements of the crime exist?  That means possessing the weapon described.  The law does not include non pre-ban as an essential element, rather, it's an exemption.  So, they don't have to prove it in their case in chief.  Once they rest, it's  your turn to make a motion to stike and/or present your case.  When you rest, the burden is now "beyond a reasonable doubt".

No offense, but your reliance on the "chit chat" advice from the attorney is misplaced, despite his appearance at being "versed".

The rifle need not have been assembled as a SAW on or prior to the AW ban in order to fall under the exception provision as provided by law. It need only to have been legally possessed as a complete SAW kit OR as an assembled rifle in SAW configuration. If it was in kit form as stated it could legally be assembled into a legal excepted SAW today.

As always Steve has correctly stated the procedural and statute provisions of the law.

Keep in mind that a defendant never has to "prove" his innocence.  To be successful he just has to present a defense that establishes reasonable doubt in the judge or juries mind.

As far as prosecutions are concerned never underestimate the prosecutorial decision making process.  I have personally seen petit larceny cases prosecuted in NY for the larceny of a 10-cent ballpoint pen.

You and Oly are wrong.  You can possess a banned semi-AW TODAY.  
So long as it was legally possessed on or before the ban. Several hundred
thousand or more people are doing it as we speak.



Yes, I understand that.  



Ok, show me that it’s an “exemption” and not an essential element of the crime.
Be a good lawyer, argue, back it up, bring it awn!



None taken. Funny though, he told me the same thing, stop taking “chit chat”
legal advise from a web bulletin boards.  Bahahahaha

RK

Correct, I’ve just been lazy in my description.  It need only to have been an
accumulation of the parts required to complete a semi-auto assault weapon.

The term SAW generally refers to a Squad Automatic Weapon.

RK

When you talk about 18 USC 922, "SAW" refers to "semiautomatic assault weapon".  Again, you and the attorney need only to read the law.

I don't really have to bring anything "awn".  Get off your ass and get a copy of the code section.  Just after the subsection on prohibition of transporting and possessing a SAW (I believe it's subsection (v)(1)), there is another subsection that creates an exemption.  It is separate and apart from the prohibiting component of 18 USC 922; it is NOT an essential element to the crime.  I really don't know what else to tell you.  The statutory structure is clear and I am not going to beat an otherwise patently obvious point any further.  

Again, there's not a AUSA I know, and I know a lot, who would bring one of these cases by itself.  They would not have the time nor the interest to pursue it unless it's an afterthought to a multi-count indictment.

You're right about the last point raised regarding "chit-chat", except, this is not advice, this is a conversation and it's getting kinda silly.  If we were in court, the judge would have ruled in my favor a long time ago [;)].

ALL F****ing RIGHT. Where do I trade my Sporter Match HBAR in for a SAW?[:D]

It's a complete waste of time trying to convince RK that the exemption is not an element of the violation that must be disproven by the prosecution.  He either is unaware how to read the law, or chooses to pretend that he is unaware how to read the law just to see himself in electronic print and create controversy.    

The military acronym SAW means "Squad Automatic Weapon."

The Civilian AR15/BATF acronym SAW means "Semiautomatic Assault Weapon."

I could say I talked to god today, and a dozen attorneys, and they all told me your attorney friend is wrong - so there!  I've presented all the proof and credentials you did when naming your own 'source'.  I could just as well say god appeared to be well versed in the law, too.

A hypothetical over a beer in a bar is not a legal consultation, R_K.  Did you have your anonymous Attorney actually read the statute, or just pose one of your hypotheticals and run with it from there?

No competent lawyer, on reading the text of the statute in question, would render the 'legal opinion' you claim your Attorney did.

Whether the law's right, fair or constitutional is moot.  Whether it'll ever get prosecuted is not relevant to a discussion of the government's burden of proof under the law.

Obviously there have been no prosecutions we know of because of eagle-eyed legal scholars and non-bitch whipped, non-scared little pussy patriots such as yourself out there, intimidating the opressive forces of big government and by your very existence preventing them from enforcing their nefarious rules.

I ask for you to explain how it works, and that is your rebuttal?
Does that work in court for you?
Your credibility level is dropping rapidly.



Like I said, show me how that works, not how it reads.



If you can’t play, then run home.



The discussion with him was not advice, I never claimed it was.

RK

Is that out of the Dave_G book of definitions? I must get a copy.

What’s a BBCHA?

The voices in your head don’t count.



The discussion with him was not advice, I never claimed it was.

It simply reaffirmed my belief, not created it.
Unlike some people on this board, I can freely think for myself.



Did Miss Cleo tell you that?
Or do you just know the thoughts of every “competent” attorney in the country?
Shit, with that kind of knowledge you should be a lawyer.
Knowing what everyone is thinking would be a big advantage.




I know that, never said it did have anything to do with it.



Yeah maybe, or there could be a logical explanation. [rolleyes]



[b]R[/b]easonable [b]K[/b]nowledge  

That was sort of my point - the voices in your head don't count, either...



The manner in which you presented the information was intended to present the "Attorney's" assent as evidence bolstering your case.  If you didn't feel the information qualified as legal advice, why go to the trouble to mention that your conferee was "an Attorney" whom you believed "well versed"?

I can think for myself as well - otherwise I'd just let you do my thinking for me... it would save so much time and trouble. :)



Not Miss Cleo (but is she the "Attorney" you consulted with?).  I have the fortune or misfortune to know many lawyers, none of whom has ever been judged incompetent to practice.  One is my father, another is one of my sisters.  I presented each with a printout of the statute in question, gave no arguments of my own, and simply asked for a legal opinion in the manner explained to you here previously ad nauseum.  Their answer agrees with mine, and Steve-in-VA's.  So at least I've got my three lawyers, and own reasoned opinion against yours (...and Miss Cleo?).

CRAP! Does this mean I can't trade my Sporter Match HBAR in for a SAW?[:D]

Be careful with attorneys. The sneaky bastards never ask a question they don't know the answer to![:D]

I under stand that part, you gave them a copy of the law.



What exactly did you say, ask?
You can’t ask an opinion without some sort of context. ????



RK

 NO SAW FOR YOU!


RK

[center][red][size=6]ALL YOUR SAW'S ARE BELONG TO US![/center][/red][/size=6]  

Like I said, if you can't understand unambiguous statutory language, I can't help you . . . maybe you need an attorney in tune with your level of cognitive deficiency- like the Caveman Lawyer maybe?  I'm not here to teach you basic statutory construction; I don't have the time and you obviously lack the brain cells.

If we were in court and you were my client, I would have demanded a competency hearing by now based on your inability to understand the proceedings (I'm being serious by the way).  The majority of my criminal juvenile defendants have a better grasp of legal concepts than you have displayed in this thread.



Say it ain't so, RK, I so crave your approval.  

Credibility level . . . dropping?  Because you don't understand a very simple concept?  Because I did not explain myself as if I was speaking to a 3rd grader (which may be the case)?  Good- I consider your disdain a compliment given the circumstances.



I [i]did[/i] explain how "it" works, you obviously lack the tools to grasp it.

Why don't you take a remedial course in statutory construction and then re-read my replies.

RK:  I emailed the statute, explained that it was the legislation which prohibits certain features on semi-auto weapons made after its effective date and asked "If someone were charged with violating this law, would the government have to prove the weapon in question was illegally assembled after the ban, or merely prove that the weapon was in a banned configuration, and leave asserting an exception to this law to the defense?".

Steve,

So you’ve reduced to insults.

What’s that noise? It’s your credibility dropping some more.

Your not here to teach?  What then, to insult people?

You have really shown me the way.  The next time some asks a question on the
AR-15 I’ll tell them how stupid they must be, and to go read the Tech Manual.

RK

Circuits,

Thanks for clarification on that.  The question was well put.

RK

RK,  just calling it like I see it.  Try this one on for size, your a hypocrite.  You call fowl after the insulting diatribe in your original post and the double entendres that followed?  Give me a break- wasn't it you who said "if you can't play, go home . . ."

I honestly did try and explain a very simple concept to you, as I have done on this subject many times before, and as others have as well both lawyer and non-lawyer.  You obviously started this post to confront this position I and others have taken on this subject in the past.  You did it in an insulting and condescending manner and I responded, eventually, in kind.  If you can't take it, again, that's your problem.  

In the end, you are left, standing alone (save your "versed" mystery attorney), on the side of a subject that is clearly wrong.  

That’s what I said, you don’t seem to want to play.



No you did not, I ask you to explain [b]how[/b] it works, not just tell me that it
does work.  You told me “I'm not here to teach you. . . “ and proceed to imply
what a idiot I must be.

 


Yes, I got the ball rolling and called it like I see it.



Yeah, you really showed me up.  Calling me a dimwit over something
you can’t explain in simple terms. [rolleyes]

Analogy:

RK - “Oh Enlighten One Steve, why is the sky blue?”
Steve - “Because it is Blue”
RK - “Why, what makes it blue and not Green?”
Steve - “Because it is Blue”
RK - “Yes it’s blue, but how?”
Steve - “Refraction makes it blue”
RK - “What is refraction, why does it make the sky blue?”
Steve - “Look you stupid retard, I told why it’s blue, now bugger off!”

RK

This is getting old (your failure to comprehend a relatively simple concept).  Again,



That's not just "saying it's so", that's an explanation.  This is why I make the statements about your intelligence, based on your insistence that no one has "taught" you why a complete and separate exemption to a prohibition is not an essential element to the crime.  Seriously, most of my clients, even the very uneducated ones, would be able to grasp this.  I'm not calling you a dimwit, that is self-evident given this bantor.

I also find it incredible that you are still whining about "insults".  Go back and re-read your posts.  I offered the explanations in several replies and you replied with insults.  I did not, and I never do, complained but instead gave it back to you.  You whine.  Very weak.

What else you got?  More bitching about me not teaching you?  More whining about my comments regarding your obvious lack of analytical grasp?  Why don't you give us some more of that pithy analogy; that was brilliant (relatively speaking of course).

A rather poor explanation.

Yeah, guess all I can do is ask you to explain, while all you
can to is tell me I’m not worthy.

So this isn’t going anywhere.

RK

That's it?  It's a "poor explanation"?  At least you did a 180 and acknowledge that I gave one.  What part of it don't you understand?

All you've done is bitch about semantics and proferred the argument "na-ah" bolstered by "an attorney said so".  Why not tell me what part of that explanation (offered many replies ago) you fail to understand?  I will honestly try and elaborate.

RK, you've asked a question Steve, a knowledgable guy, who answers to help others from getting "jammed up", answered your question. Shaggy also answered your question, with a similar answers to Steve's. And yet you persist with saying they are wrong...my attorney friend told me so. It seems that you only want to hear a particular answer. I think "cave-man lawyer" was hilarious.

Don't ask questions if you'll only accept the answer that you want.

Now you’re going to 180 and actually offer to help?

I never denied you gave me an explanation!
I merely asked for more information.

What is a “prohibiting component”, an “essential element”, a “statutory structure”?
I can hazard a guess at those by the English definition of the individual words.

“Prohibiting component” - What is illegal, i.e. rape, murder, robbery.
“Essential element” - A necessary component of several that defines the crime.
“Statutory structure” - The way in which the law is written.

But I don’t know how those terms are applied in the law or if I have the right definitions.
Like translation in language, you might know the word, yet lack the context.

Why is the subsection of a subsection “separate and apart” from its subsection?
Is not one related to the other?
Why is the exemption not part of the essential elements?

Let me guess.  Just because you shoot someone in self defense doesn’t
keep them from arresting you on a murder/manslaughter charge, right?
Essential element, you killed someone, the prohibited component.

(I haven’t read the murder statute, so this may be a bad example)
Now the question.  To get this in court what do they need?
Just to show you killed someone?
Or must they show is wasn’t self defense?

RK

RK is a perpetual troublemaker.  He cares not that his arguments are unsupported.  All he cares about is that he made up his mind about what the law means and has simply watched way too many TV "lawyer shows" and has come to believe that the legal system is the way Hollywood sees it, not what it really is.  That and he argues for the sake of argument and to goad the knowledgeable into name calling.

Drop this thread.  Quit replying to RK's ignorant rants and petty insults and he will go away, more or less, until some other fool brings this question up again.  

You can't educate one who wishes to remain a fool.

Do you believe everything you hear, read and see?

Only by asking why, does one become enlightened.  

RK

I’ll take that as a compliment.



That hurts, I do care.



You can’t fool someone who wishes to become educated.

Here’s a song just for you Dave,

To the tune of Cops:

Bad boy, bad boy.
Whatch’a gonna do?
Whatch’a gonna do?
When Dave_G comes for you.
Bad boy, bad boy.

If you like I’ll make up the rest of the versus.

RK

The essential elements to a crime are those facts that must be proved by the prosecution, on two levels.  First they must make a prima facia showing (kinda like probable cause).  Then they rest and it's your case.  You can present a defense or not.  Once you rest, the second level of proof born by the government kicks in- it is now the burden of "beyond a reasonable doubt".  So, at that point, each essential element of the crime must have been proved beyond a reasonable doubt.

The essential elements to, larceny, for example are:

1) The taking of property,

2) Belonging to someone else,

3) With the intent to deprive them of the property permenantly.

One of the basic rules of statutory construction dictates that the essential elements be contained together in a concise and unambiguous description- basically in one big run-on sentence.  Legislatures will draft statutes accordingly.  Code sections usually start with "No person shall . . ." or "It is unlawful to . . ." and all the essential elements follow without breaks.  Exceptions to the rule and defenses are not to be included in this run-on sentence.  So, if an exemption or exception to the rule is carved out, it should be placed separately, lest it could be construed an essential element of the crime and part of the prosecutions case in cheif at trial.  

18 USC 922 is a plethera of separate rules and prohibitions, however, Congress basically adhered to this general rule of statutory construction.

So we have hearsay from one lawyer on one side. Opinions of two lawyers (did a third chime in there?) and heresay of two lawyers on the other, but then who's keeping score?

OK, that horse is dead and most likely wouldn't have won any races alive anyway but this hoof over here might stand another whack or two.... Beyond a reasonable doubt. If somebody came to you and said I have been charged with possesing a pre -ban AW. I don't have proof it was assembled or in complete kit form before the ban, but I can prove it was made prior to the ban by a few years. An example would be Oly Arms, I have heard since the fire they can't tell in what configuration the lowers left in, just when they were made. That's it. You might tell him:

A) Law Office? They are two doors down, this is a print shop!
B) $250 grand, no guarentees, do you like jumpsuits? (that's a joke please don't pick B)
C) Can you say "Throw yourself on the mercy of the court?"
D) We should plea bargain now!
E) Reasonable Doubt, without having actual proof or testimony I think we can cast enough reasonable doubt that we can get you off.
F) Don't worry we can cast plenty of Reasonable Doubt.
G) Reasonable Doubt, my boy! Let me make a 10 minute call here. You might want to write my check now, I don't think we will have to meet again.

I guess a layman's example of your intrepretation of the law is if you are sitting in public and are approached by a policeman who states "Those are illegal drugs sticking out of your bag!"  It is encumbent upon you to show, you have a perscription, they aren't illegal or that ain't my bag man! Or a reasonable doubt. You can't remain silent except for "prove it!"

Steve,

Ok I follow that.

How does the exemption fit in? (In the semi-AW statute) As it seems to conflict
with the essential element.


Bkinzey, Funny, I’ll guess B


RK

“Heyyy mannnn, that’ss not my semi-automatic assault weapon mannn,
somebobbbbbyyy mussssst have left in my houssssse mannnn.”  


RK

This is a long argument of shoulda, coulda, woulda's that really can't be answered hypothetically.  History has shown that an LEO is going to do what he wants, severity depending on the actions of the suspect.

So let me give you my 2 cents, since I'm probably one of the only people in this discussion to have actually gone through this.  Of all places, I went through it in NY, the second worse state in the union to own an AW.

In my case, no criminal charges were filed.  The AW's were seized, although they were prebans and I told the local authorities such.

Instead of going to court, the LEOs just laid it in my lap to prove they were exempted from the AW ban.  Think that's not the way it is?  Think again.  It's written in black and white that the owner has to prove, [i] beyond a reasonable doubt[/i], that the guns [i]are not[/i] included in the ban.  I flip through my papers and see if I can find that law again, but think of it as having medically necessary morphine on your person, having it seized, and not being able to find the perscription or the doctor who filled it out.  Would they look it up for you, since you contend it is legal?  No, they would not.  

Of course, receipts would've been the easiest way out, but I had none.  [b]BUT[/b], here's the kicker.  If the gun in question [i]is[/i] a preban, and you think there are good records of it, you can demand an ATF trace.  In effect, you will have the ATF working in your behalf.

In my case, the gun trace came to the LEOs, along with a letter to the LEOs stating that it would be in the best interest of the LEOs to return the guns, and any state actions going forth with the seizure would not be backed up by the federal government.

If you do not think the trace will come back solid, ask for it anyway.  It can't hurt.  Meanwhile, do a trace of your own.  The LEO should give you a copy of the evidence report that will include serial numbers.  Start with the manufacturer and start chasing the origin of your gun yourself.  Keep the LEO in charge informed of your progress the whole time.  That way, if you come to a standstill, the LEO might see how hard you tried, and he might believe you enough to give your gun back.

Well, that's about it.  OK, RK, flame on; but not about this post.  This is experience talking, not shoulda, coulda, and woulda.

That's the essence of an exemption.  It is supposed to conflict with at least part of the criminal prohibition.  In this case, it says not all SAW's are prohibited, just the ones that are assembled etc. after the enactment of the statute.