Under 18 U.S.C. § 922(g), it is illegal for a convicted felon or anyone else barred from owning, possession or having access to a firearm or ammunition to have a firearm or ammunition. To convict someone of this section, the government must prove: 1) defendant was a felon; 2) defendant knowingly possessed a firearm or ammunition, and 3) the firearm or ammunition “was in or affecting interstate commerce.” United States v. Nevils (9th Cir., 2010) 598 F.3d 1158, 1163.
“Firearm” has a broad definition under 18 U.S.C. § 921(a)(3), but it also carves out a narrow exception: “such term does not include an antique firearm.” An “antique firearm” is any firearm “manufactured in or before 1898.” 18 U.S.C. § 921(a)(16)(A). This is otherwise known as the antiquity defense.
To see how this defense could apply, the following reported decision (United States v. Samir Benamor (2019 DJDAR 4910)) is presented.
Defendant Samir Benamor was a convicted felon and at the time of his arrest, law enforcement had authority to conduct a warrantless search of his car and residence.
The local police had received a tip that Benamor had engaged in illegal activity. Two local detectives outside the house in the garage in which he lived. After Benamor left his house, two detectives went into the garage and found keys to a minivan parked in the driveway and an ammunition belt containing four shotgun rounds. The detectives then used the keys to look inside the minivan, where they found a shotgun. The ammunition in the ammo belt did not match that of the shotgun.
While the police were there, defendant’s landlord arrived and confirmed that Benamor was the only one who lived at the residence.
Benamor was later arrested and, while in custody, said he did not intend to use the shotgun. He said he only intended to sell it or give it away.
Benamor went to trial on one charge of having the ammunition and one charge of having the gun. An agent from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) testified that the shotgun could not have been manufactured before 1915, given certain engravings on the gun. He also testified that given its make and model number, it was likely manufactured in the 1920’s.
Benamor argued that he was innocent because the government did not prove he knew the shotgun was manufactured after 1898.
The jury found defendant guilty on the shotgun charge, but acquitted him on the ammunition charge.
Benamor appealed to the United States Court of Appeals for the Ninth Circuit in Pasadena. He argued that his conviction was improper because the government did not prove he knew the weapon was manufactured after 1898.
The Ninth Circuit acknowledged that although the shotgun found was old, it did not meet the antiquity exception to 922(a)(3)’s definition of a firearm. Such an exception is considered an affirmative defense.
However, to convict a defendant, the prosecution only needs to prove the elements of a crime, not that any affirmative defense does not apply. This fundamental flows from “the longstanding principle that ‘an indictment or other pleading found on the general provision defining the elements of an offense need not negative the matter of an exception made by a proviso or other distinct clause.” United States v. Royal (4th Cir., 2013) 731 F.3d 333, 338, quoting McKelvey v. United States (1922) 260 U.S. 353, 357. The burden to raise this defense lies with defendant. Royal, at 338.
Benamor acknowledged that the antiquity defense is an affirmative defense, but argued that United States v. Aguilera-Rios (9th Cir., 2014) 769 F.3d 626 overrode these cases. There, the Ninth Circuit held that after the Supreme Court’s decision in Montcrieffe (Montcrieffe v. Holder (2013) 569 U.S. 184), the categorical approach requires courts to consider “a definitional element of a criminal offense, like the antique firearms exception.” Aguilera-Rios, at 635.
The Ninth Circuit rejected this argument, distinguishing the categorical approach discussion from the more fundamental principal that a defendant simply bears the burden of proving an affirmative defense.