4.18.922(g) Possession of a Firearm or Ammunition in or Affecting Commerce by a
Convicted Felon, 18 U.S.C. § 922(g)(1) See Statute
[Defendant] is charged with possessing [a firearm; ammunition] in or affecting commerce after having been convicted of a crime punishable by imprisonment for more than one year. It is against federal law for a convicted felon to possess [a firearm; ammunition] that was connected with interstate [or foreign] commerce. For you to find [defendant] guilty of this crime, you must be satisfied that the government has proven each of the following things beyond a reasonable doubt:
First, that [defendant] has been convicted in any court of [at least one] crime punishable by imprisonment for a term exceeding one year. I instruct you that the crime of [______] is such a crime. [Alternative: The parties have stipulated that [defendant] has been convicted of a crime which is punishable by imprisonment for a term exceeding one year. You are to take that fact as proven.]
Second, that [defendant] knowingly possessed the [firearm; ammunition] described in the indictment. [The term “firearm” means any weapon which will or is designed or may readily be converted to expel a projectile by the action of an explosive. The term “firearm” also includes the frame or receiver of any such weapon.]
Third, that the firearm was connected with interstate [or foreign] commerce. This means that the [firearm; ammunition], at any time after it was manufactured, moved from one state to another [or from a foreign country into the United States]. The travel need not have been connected to the charge in the indictment and need not have been in furtherance of any unlawful activity.
The word “knowingly” means that the act was done voluntarily and intentionally, not because of mistake or accident.
The term “possess” means to exercise authority, dominion or control over something. It is not necessarily the same as legal ownership. The law recognizes different kinds of possession.
[Possession includes both actual and constructive possession. A person who has direct physical control of something on or around his or her person is then in actual possession of it. A person who is not in actual possession, but who has both the power and the intention to exercise control over something is in constructive possession of it. Whenever I use the term “possession” in these instructions, I mean actual as well as constructive possession.]
[Possession [also] includes both sole and joint possession. If one person alone has actual or constructive possession, possession is sole. If two or more persons share actual or constructive possession, possession is joint. Whenever I have used the word “possession” in these instructions, I mean joint as well as sole possession.]
(1) The charge is based on United States v. Bartelho, 71 F.3d 436, 439 (1st Cir. 1995).
(2) The definition of “knowingly” is based on United States v. Tracy, 36 F.3d 187, 194-95 (1st Cir. 1994). Care must be taken, however, for some parts of the firearms statute require proof of willfulness. See 18 U.S.C. § 924(a)(1)(D). Willfulness requires proof that the defendant knew the conduct was unlawful. Bryan v. United States, 524 U.S. 184, 192 (1998).
(3) United States v. Rogers, 41 F.3d 25, 29 (1st Cir. 1994), discusses dominion, control, possession and ownership. United States v. Booth, 111 F.3d 1, 2 (1st Cir. 1997), counsels against defining constructive possession in terms of dominion and control “over the area in which the object is located” and thereby limits United States v. Wight, 968 F.2d 1393, 1398 (1st Cir. 1992). However, the jury may be told in appropriate circumstances that knowledge could be inferred from control of the area. See Booth, 111 F.3d at 2.
(4) Possession of multiple firearms and/or ammunition in one place at one time constitutes only a single offense under 18 U.S.C. § 922(g). United States v. Verrecchia, 196 F.3d 294, 298 (1st Cir. 1999). In a multiple weapons case, no instruction requiring jury unanimity on any particular firearm is required. Id. Because possession of multiple weapons is a single offense unless there are separate possessions, the trial judge faced with multiple possession counts must decide whether to: (1) require the government to elect or combine counts before trial; (2) allow multiple counts but require a specific jury finding of separate possessions; or (3) allow multiple counts with no special jury instruction, but make a post-verdict “correction” by not entering judgment of conviction on any multiplicitous counts. Three circuits have made it clear that the jury, not the trial or appellate judges, must find separate possession as a critical element of a multi-count weapons possession conviction. United States v. Frankenberry, 696 F.2d 239, 245 (3d Cir. 1982); United States v. Szalkiewicz, 944 F.2d 653, 654 (9th Cir. 1991); United States v. Valentine, 706 F.2d 282, 294 (10th Cir. 1983). The Eleventh Circuit has held that it was not plain error for the trial judge to fail to give a separate possession instruction, and upheld conviction on multiple counts because sufficient evidence of separate possession was presented at trial, even though there was no jury finding to that effect. United States v. Bonavia, 927 F.2d 565, 569-71 (11th Cir. 1991). The Sixth Circuit in United States v. Throneburg, 921 F.2d 654, 657 (6th Cir. 1990), explained that the trial judge should exercise his or her discretion to vacate any multiplicitous guilty verdicts, the government in its discretion can decide how many counts to bring, and no jury instruction or finding is required as to separate possessions. A possible instruction is as follows:
If you have found the defendant guilty on Count I, you may not find [him/her] guilty on Count II unless you also find that the government has proven beyond a reasonable doubt that the firearm and ammunition were acquired at different times or that they were stored in different places.
(5) United States v. Acosta, 67 F.3d 334, 340 (1st Cir. 1995), supports the broad definition of “commerce.” See also United States v. Joost, 133 F.3d 125, 131 (1st Cir. 1998).
(6) The trial judge determines as a matter of law whether a previous conviction qualifies under 18 U.S.C. § 922(g)(1). Bartelho, 71 F.3d at 440. The fact of conviction, however, is for the jury unless it is stipulated, and so too is any factual issue on the restoration of civil rights. Id. at 440-41. It should be noted that, although the court in Bartelho found the approach of United States v. Flower, 29 F.3d 530 (10th Cir. 1994), persuasive, 71 F.3d at 440, Flower seems to be in conflict with Bartelho to the extent that it treats a factual dispute concerning restoration of civil rights as a preliminary matter to be resolved by the court prior to admitting the conviction into evidence. See 29 F.2d at 535-36.
(7) An aiding and abetting charge under the statute requires the court to instruct the jury that the aiding and abetting defendant must know or have cause to believe the firearm possessor’s status as a convicted felon. United States v. Xavier, 2 F.3d 1281, 1286-87 (3d Cir. 1993).
(8) For a charge of possessing a firearm with an altered serial number under 18 U.S.C. § 922(k), the First Circuit has said that it is “ordinarily . . . enough to charge the jury in the words of the statute, leaving it to the common sense of the jury to understand the purpose and to adjust its application to carry out that purpose. ‘Alter,’ in this statute, is not some highly obscure or special-purpose term that cries out for elaboration. This, then, is an instance in which the district judge may choose to elaborate but is not ordinarily required to do so.” United States v. Adams, No. 02-1007, 2002 WL 31065286, at *2 (1st Cir. Sept. 20, 2002).