MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION IN LIMINE TO PRECLUDE EVIDENCE OF POSSESSION OF UNREGISTERED ANTIQUE

MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION IN LIMINE TO PRECLUDE EVIDENCE OF POSSESSION OF UNREGISTERED ANTIQUE GUN (Author’s name)

(Institutional Affiliation)

It is a debatable assumption that the accused actually owned the five firearms found in his possession, one of which was found in his father’s apartment, which is on the first floor of the building. The defendant lives in a row- home that was converted into two separate living units. There is one common front door, which leads into a small foyer that opens to the two apartments. The defendant lives in the first- floor apartment and his father lives in the upstairs apartment. The defendant does not live with his father as everyone has their own apartment and they only see each other occasionally for diner. Though the defendant has access to his father’s apartment, he does not access the other rooms except the kitchen where he frequents to feed his father’s cat when its owner is not around.

On the fateful day, the defendant was arrested and upon searching his premises and that of his father, five firearms were found which were allegedly not registered and in violation of the national firearms act. The defendant explained that the guns were not his as they belonged to a friend who was between homes for the moment. In the case of the firearm found in his father’s apartment, the defendant explained that it was an antique weapon, which his father had collected a while back as he had an interest in ancient weapons. The defense moves to file a memorandum to back up the proposal by the defendant to preclude evidence of possession of illegal firearms.

Rule

Upon the defendant’s arrest and interrogation, Frederick Malloy was found to actually or constructively to be in possession of firearms that were found to be unregistered according to the rules and regulations of the national firearms registration and transfer record. In his possession included a Smith & Wesson 1000 series, a Smith & Wesson model 500 revolver, model 1020 shotgun, a featherweight deluxe rifle, and a Winchester super X3 classic field shotgun. In addition to this, the court also found him answerable to the constructive possession of a firearm that was unregistered with the NFRTR, which was identified as a Springfield forager shotgun an act that wars also in violation of the United State’s code, title 26, section 5861d, and in addition subjective to penalties as described by section 5871 of the United State’s code of title 26.

Defendant’s Motion

In response to these charges, the defendant denies the constructive or actual possession of the following firearms a Smith & Wesson 1000 series, a Smith & Wesson model 500 revolver, model 1020 shotgun, a featherweight deluxe rifle, and a Winchester super X3 classic field shotgun and a Springfield forager shotgun. In addition to this, the defendant denies that he had any constructive possessions of a Springfield forager shotgun. The affirmative defense assumed by the defendant was that the Springfield forager shotgun is not a regular gun but an antique according to the definitions of an antique firearm by the national firearms act, therefore, the mentioned gun is exempted from the requirements of registration of the national firearm act.

As it follows, the defendant, Frederick Malloy, through and by his lawyer wishes to file a memorandum to seek for the court to prevent the attorney of the state from presenting the antique firearm as part of evidence during trial. In support of his motion in Limine, the defendant stresses that:

He was involved in a violation of protection from abuse act which allowed for the state to be in possession of his weapons,

It was during the arrest when the police officer seized the antique shotgun.

The antique gun was found not to be registered under the national firearms registration and transfer record according to the stipulations and requirements of the national firearms act.

The defended was then charged with alleged constructive possession of an unregistered antique gun.

The antique gun, which in this case is the Springfield forager shotgun should be exempt from evidence the state presents at trial the accused did not have any constructive possession of the firearm and because the gun is an antique firearm that the NFA excludes from the registration requirements.

The defendant was in constructive possession the shotgun because it was taken from his father’s apartment. The defendant does not live with his father, but in a different apartment in the same building.

The state, therefore, does not have any evidence that the defendant has constructive possession of the antique gun.

The shotgun is an antique because it was made before 1898.

According to the expert report delivered by the government’s professional, the ammunition of the antique gun that was specifically made for the gun is no longer available in the market.

As it follows, the Springfield gun falls under the category of antique firearms and is exempted from registration requirements.

Because of the circumstances described above, the defendant Frederick Malloy moves to plead with the court to rule against the state from introducing the Springfield shotgun as evidence during trial for whatever reason.

Explanation

Antique Firearm according to the NFA

The firearms the national firearms act defines as antique firearms are not subjected to any regulations under the act. The national firearms act defines these kinds of firearms depending on their manufacture date and the kind of ignition system that use to fire projectiles. Any firearm manufactured before or in the year 1898 that is not redesigned and designed for using conventional center fire ignition or rim fire is an antique firearm. In addition to this, any firearm that uses a flintlock, matchlock, percussion cap or same kind of ignition system regardless of the actual manufacture date of the firearm is also referred to as an antique firearm.

The national firearm act approved firearms that make use of fixed ammunition are antique firearms only when the weapon was actually manufactured before or in 1898 and the ammunition the firearm uses is no longer manufacture in the US or readily available in common commercial trade channels. A fixed cartridge- firing weapon approved by the national firearm act must qualify in both the ammunition availability and age standards of definition so as to qualify as an antique firearm. In the case of the availability of ammunition availability, it is essential to note that a certain kind of fixed ammunition has been out of manufacture or production for a number of years may once more become available, as a result, of increasing interest in ancient firearms. Therefore, the classification of a certain national firearm act firearm as one of an antique firearm can change of ammunition for the weapon once more becomes readily available in the market or the common commercial trade channels.

According to the professional who investigated the Springfield shotgun found in possession of the defendant, it is clear that the weapon is an antique firearm according to the regulations and guidelines of the national firearm act. The agent is an experienced agent with the bureau of alcohol, tobacco and firearms. The examiner of the shotgun was positive that the shotgun had been manufactured sometime between 1881 and 1873.He confirmed that the barrel of the gun appeared to be in its original condition, and that it had not been sawed off. The expert explained that only a maximum of 1,374 Springfield shotguns were manufactured, and that these firearms seized to be manufactured by the early 1900. The guns, according to the expert, are scarce and rare. He even indicated that the ammunition designed for use with the gun also seized to be manufactures in the late 1800s, and as a result, the gun is no longer manufactured. The firearms are exceedingly collectable. According to the bureau of alcohol, tobacco and firearms engineer, the Springfield firearm found in the defendant’s father’s bedroom is an antique and, therefore, exempt from the registration rules and requirements of the national firearms act. As it follows, the state’s attorney has no case in claiming that the defendant was in possession of an unregistered firearm when it comes to the Springfield shotgun, because it is an antique and a collectable that is excluded from the registration rules and regulations of the NFA.

Constructive Possession

The defendant did not have constructive possession of the Springfield shotgun. Constructive possession is a legal term or theory that is commonly used to extend possession to situations where an individual has no hands- on custody of something. A lot of courts argue that constructive possession, also in other cases referred to as possession in law, occurs in cases where an individual has knowledge of an object, and in addition to this, also has the ability to control the thing in question, even if the individual has no physical contact with the questionable thing. In case of the defendant, the state’s attorney accused him of being in constructive possession of the Springfield shotgun, which was found in his father’s room. Possession of a firearm may be defined either as constructive or actual.

The former has been explained as the kind of possession that takes place when an individual knowingly has the intention and power at a certain time to exercise control and dominion over the thing or over the region in which the thing is placed or kept. If one has the knowledge that a firearm is present in their place of residence, and if there, is enough evidence that that person have the ability exercise control and access that firearm through one individual or personally, then there is a possibility that they can be considered to have constructive possession of the firearm. As it follows, the person would then be subject to criminal charges.

However, the case scenario of the defendant is different, as he did not have the firearm. According to the arresting officer, the defendant was not inside the upstairs apartment were the weapon was found. He was in the downstairs apartment were the rest of the other firearms were found. The police officer who made the arrest noted that the two were separate apartments with bedrooms, kitchens and sitting rooms. The two, therefore, live independently and the defendant even pays rent to his father. The two do not live together, and, therefore, one cannot argue that the defendant was in possession of the Springfield firearm found in his father’s room. Though the defendant once knew about his father’s interest in antique firearms, and the fact that his father had acquired some firearm a long time ago, he was not aware of the where about of the firearm, and he was not even aware whether his father still had the gun or not. The government, therefore, cannot accuse the defendant of having constructive possession of the Springfield firearm, as it was not in his home when it was confiscated.

Conclusion

According to the evidence presented above, it is obvious that the court should move to deter the state from including as evidence during trial the Springfield shotgun found in the possession of the defendant’s father based on two considerations. The first consideration is the fact that the Springfield shotgun is an antique firearm according to the guidelines of the NFA, and that it s exempt from registration requirements of the national firearm act unlike the other firearms. The second consideration is that the accused was not in constructive possession of the Springfield shotgun. The firearm was found in his father’s apartment, which was on a separate floor from the defendants’. The two do not live together and interact occasionally. As it follows, the defense moves to request the court to preclude evidence of possession of an antique firearm.

Notes

18 U.S.C. § 922(g) (1-9)

26 U.S.C. 5845(a), (g)

26 U.S.C. 5845(a)

Added Pub. L. 107-273, div. C, title I, Sec. 11009(e) (2) (A), Nov. 2, 2002, 116 Stat. 1821.)

U.S. v Booth, et.al. 111 F.3d 2 [1st Cir. September 1997

United States v. Derose, 74 F.3d 1177 [11th Cir. 1996]