Descriptions of various gun court cases (u-z)

Copyright by James O. Bardwell, 1995-1997. Permission is given to reproduce this document or portions thereof with attribution, for non-commercial, or non-governmental use only. No claim to U.S. statutes, regulations or case opinions quoted herein.

Various gun court case links with no descriptions (same cases as this document)

Cases a-t

  • U.S. v. Adams, 11 F.Supp. 216 (S.D.Fla. 1935)
    This is the first reported case I have found interpreting the NFA. Adams got caught with an unregistered Thompson SMG right after the law was enacted. The court finds that, based on the cases interpreting the Harrison Narcotics Act, the NFA is constitutional as an exercise of the taxing power. The court decides that the tax power can be used as a substitute for the general police power Congress allegedly doesn't have under the Constitution; Congress can tax things it dislikes out of existence. The court also directly addresses the second amendment issue, and decides that the amendment only protects the rights of states to have national guards, and cites a whole host of cases, carefully avoiding both Supreme court, and other state court cases directly to the contrary. Too bad Adams wasn't appealed, instead of Miller. It would have at least disposed of the "short shotgun is not a military weapon" issue that Miller hangs on.
  • U.S. v. Adams, 438 F.2d 644 (8th Cir 1971)
    This very short case really only has one point of law; can you be in "possession" of a sawed off shotgun such as to constitute a violation of the NFA if the only evidence is that the police saw you throw down a sawed off shotgun? Yup.
  • United States v. Adams, No. 96-4970 (11th Cir. 2/36/98)
    In this case the court decides that in order for a person to be convicted of possessing a firearm as a felon, the government need not show whether the firearm was operable, nor whether the defendant knew whether it was operable. If the gun was described as a Winchester shotgun, and the characterization as a firearm was not rebutted by the defendant in his case, then the jury could conclude that the item fell within the statute, whether it in fact worked or not, and regardless of whether the defendant knew it worked or didn't work.
  • U.S. v. Aiken, 787 F.Supp. 106 (D.Md. 1992)
  • U.S. v. Alborola-Rodriguez, 153 F.3d 1269 (11th Cir. 1998)
    In this case the court decides that for purposes of the sentencing enhancement for using a sawed off shotgun in a crime, the determination as to whether a sawed off shotgun was in fact used is for the court to make, not the jury, as part of sentencing. The court thus disagrees with several other circuits, setting up a situation where the Supreme Court may agree to decide the issue.
  • U.S v. Allah, 130 F.3d 33 (2nd Cir. 1997)
  • U.S. v. Alston, 112 F.3d 32 (1st Cir. 1997)
    In this case a convicted felon got a mandatory 15 year sentence for possessing a rusted shut Colt model 1908 .25 caliber pistol. ATF was able to get the gun to work after the use of WD-40 and a mallet, according to the opinion. Because the defendant had three felony convictions, all over 20 years old, he is subject to a mandatory 15 year prison term. The main point of interest in this (to me, anyway) is the court's approval of the thinking that a pistol that is incapable of firing a shot when seized is still a firearm as defined by the the GCA, because it was "designed" to fire a shot, even though it wasn't able to do so when seized.
  • U.S. v. Alverson, 666 F.2d 341 (9th Cir. 1982)
  • U.S. v. Amparo, 68 F.3d 1222 (9th Cir. 1995)
    In this case the 9th circuit decides that possessing two guns, a sawed off shotgun and a pistol permits the defendant to be convicted of both possessing a sawed off shotgun, and possessing a firearm while committing a crime of violence, under the setencing enhancement at issue in Harris, Bailey and Smith. The court decides, without much basis, that mere possession of an unregistered NFA weapon is a "crime of violence." Possesing a pistol at the same time, therefore, kicks in the sentencing enhancement, assuming the jury finds he possessed a second gun besides the sawed-off.
  • U.S. v. Anderson, Transcript of decision, No. 15951, (D.Colo. May 6, 1959)
  • U.S. v. Anderson, 885 F.2d 1248 (5th Cir. 1989)
    Anderson is a precursor to the Staples supreme court case, where the 5th circuit (the whole circuit, rehearing the case en banc, and voting 8-7) reversed its own precedent and decided that in order to get a conviction under the NFA the government must prove the defendant knew the gun was the sort subject to the NFA, not that it was a gun in the general sense of the term. A lot of this decision was adopted by the Supreme court, both the majority opinion, and the dissent took a lot from this case.
  • U.S. v. Anderson, 987 F.2d 251 (5th Cir. 1993)
  • United States v. Andrade - F.3d - (1st Cir. 1998)
  • U.S. v. Arce, - F.3d - (5th Cir. 1997)
    In this case the court upholds the conviction of the defendant for possessing machine guns and unregistered silencers. The court decides that the NFA is not a taxing statute, but can also be justified on the power to regulate interstate commerce, thus the fact that the NFA both precludes registration of existing NFA guns, and punishes non-registration, is just fine, citing their Ardoin case. The court also upholds upward sentencing departures for having made NFA weapons, and for having made a video describing how to make silencers out of junk and crap from the hardware store, and for claiming on the tape that the defendant was a licensed NFA manufacturer.
  • U.S. v. Ardoin, 19 F.3d 177 (5th Cir. 1994)
    Ardoin is a silly case. The main point of it is that the 5th circuit decided that the 10th was wrong, in Dalton, and that the making ban (922(o)) does not preclude a prosecution under the NFA for possessing a post-may mg. In this case Ardoin was a class 3 who made several post May mg's for a local PD, on Form 10. He apparently had possession of the guns although they were registered to the PD, as he was a deputy or officer or like thing. ATF prosecuted him, claiming the guns could have and should have been made on a form 1; for possessing untaxed mg's. This despite the fact that ATF had sent out a memo that no longer would mg's be registered on form 1, after the making ban, they wanted them on form 10's. ATF agents lied on the stand and claimed the memo didn't exist, Ardoin couldn't scrounge up a copy till after the trial. A real travesty. Anyway the main thrust of the case was that these guns were for a PD, not Ardoin, and that he let his class 3 lapse (for like two months, I suspect ATF screwed up his renewal, intentionally or otherwise) and thus was an individual in possession of post-May guns, not taxed and not registered to him. The court claimed that he could pay the tax and register the guns, even though 922(o) precludes ATF from accepting them from him. The court just claimed that wasn't true, that interpretation of the law was wrong. The upshot is that between the lies and total retardation as to the law on the part of the court, Ardoin is in the can. I urge class 3 dealers to reconsider possessing post-May mg's. If your SOT lapses for any reason at all, apparently, you can and will be prosecuted. Cheap shooters maybe, but clearly a problem in the current environment. It seemed Ardoin wanted cheap shooters, and he got the chief of police to agree to his making the guns and keeping them, as cheap shooters, while they were nominally registered to the department. The supreme court refused to review this case, despite the lies,and despite the conflict with the 10th circuit Dalton case.
  • U.S. v. Bailes, 10 F.Supp.2d 607 (S.D.W.Va. 1998)
    In this case the judge throws out a charge of possessing a firearm while subject to a domestic violence restraining order, since the judge finds that the order was revoked by operation of West Virginia law when the judge that made the order modified the divorce orders. The judge also refuses to permit the government to base its case on a second restraining order, since that order was not listed in the indictment, and because the constitution only permits trials on indictments from grand juries, and the government may not alter them halfway through trial after finding they cannot support the charge they got from the grand jury.
  • U.S. v. Bailey, 123 F.3d 1381 (11th Cir. 1997)
    In this case the 11th circuit affirms convictions of a gun dealer for mail fraud, and dealing without an FFL, and possessing unregistered NFA weapons. The dealer had his license on premises which he didn't actually use for his business, and instead did his business from his home, which was not his licensed premises. He also cheated two customers on the sales of machine guns. He also made orders to H&K for police guns, which he intended to sell to private persons, even though they were ordered as government sales, and thus were FET exempt. Lastly, when his house and storage locker were searched unregistered machine guns and grenades were found. The court rejects arguments that ATF agents perjured themselves while testifying, although one clearly testified falsely, and rejected arguments that the government failed to reveal government witnesses were informants, and failed to turn over evidence in their possession.
  • U.S. v. Balanga, - F.3d - (8th Cir. 1997)
    In this case the court of appeals upholds the defendant's conviction for possessing firearms and ammunition as a felon, where the guns and ammo were found in a locked basement room of the defendant's house. He contended he didn't have access to the room, and thus wasn't in "possession" of the items. While the court agreed that if he really didn't have access to the guns he wasn't in possession, the court and jury apparently didn't believe he really didn't have access to the basement room - perhaps because it had the washer and dryer in it, including his laundry.
  • U.S. v. Barno, 340 F.Supp. 1326 (D.D.C. 1972)
  • U.S. v. Barr, 32 F.3d 1320 (8th Cir. 1994)
    In this case the 8th circuit looks at the mens rea required for a conviction for possessing an unregistered NFA weapon (sawed off shotgun) in the post-Staples era. The court however severely limits Staples, saying the jury need only find the defendant had seen the weapon, and knew its characteristics, in a situation where the weapon is does not appear to be a traditional sporting weapon, and is a "quasi suspect" weapon. They claim that applies, based on Staples, and that the state need not prove the defendant knew of the characteristics of the weapon which brought it under the NFA (in this case the short barrel and overall length). This severely limits Staples, almost to its facts, to cases where the gun appears ordinary (like an AR?). This is what happens when lower courts think the Supremes made a mistake, they try and undermine the decision as much as possible, knowing the court in unlikely to review their interpretation.
  • U.S. v. Bascue, 5 F.Supp.2d 1139 (D.Or. 1998)
    In this case the trial court refuses to set aside the defendants convictions for possessing unregistered machine guns, and transferring unregistered machine guns. The defendants apparently made MAC style gun frame flats into guns. They claim here that the flats were required to be registered by the seller, and not by them, as well as that their lawyers did a crummy job. The court says the testimony shows the flats did not need to be registered, and that the lawyers did an acceptable job.
  • U.S. v. Beal, 810 F.2d 574 (6th Cir. 1987)
    This case applies the szymkowiak rationale to some "pen guns" seized during a search for other items. Again, as the contrbanad nature was not obvious, the court ruled the warrantless seizure was not permitted under the "palin view" exception to the 4th amendment, and the pen guns were not admissible in court, killing the whole case. The sole suspicion about the pens was their weight, far heavier than ordinary pens.
  • U.S. v. Beason, 690 F.2d 439 (5th Cir. 1982)
    In this case the 5th circuit upholds a conviction for possessing unregistered, homemade, hand grenades. The court decides that the government does not have to prove the grenades are not designed as weapons, or that they are not likely to be used as a weapon, as an element of the offense, the defendant may raise those exceptions to the definition as affirmative defenses. The court also upheld the use of authenticated reports from the custodian of the NFA Registry as proof of non-registration of the grenades.
  • U.S. v. Benner, 289 F.Supp. 860 (D.Or 1968)
    In this case the trial court decides that there is not a self incrimination problem with a prosecution under the pre-68 NFA for possessing a firearm made in violation of the NFA, even if the defendant is the one that made the firearm. This decision was reversed and remanded by the 9th circuit (see below.)
  • U.S. v. Benner, 417 F.2d 421 (9th Cir. 1969)
  • U.S. v. Bess, 593 F.2d 749 (6th Cir. 1978)
    In this case the court reverses a conviction for retaining scrap metal belonging to the government after being informed it was stolen. While the court finds that the facts could justify such a finding - the defendant scavenged at a military base open to the public, and didn't return all of the scavenged metal after being asked by the FBI to do so. However, as the US Attorney made improper statements to the jury aobut his personal beliefs that the defendant was guilty, the court reversed the conviction for a new trial.
  • U.S. v. Beuckelaere, 91 F.3d 781 (6th Cir. 1996)
  • Motion from 5/31/90 in U.S. v. Billistics, Inc., No. N.90.25(EBB)
    Resulted in an 6/5/90 order.
  • U.S. v. Billistics, Inc., No. N.90.25(EBB) (D.Conn. June 5, 1990)
    First very brief order resulting from 5/21/90 motion directing the ATF to return a number of guns seized in a raid of Billistics in 1989, to the registered owners; I guess the guns were at Billistics for repair or something, and were seized as not registered to them. Anyway the court directs their return.
  • Motion from 6/18/90 in U.S. v. Billistics, Inc., No. N.90.25(EBB)
    Resulted in 6/19/90 order.
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