Prosecutor Reads Federal Ban on People Who Are Under Indictment Receiving Guns as Being Satisfied by Possession of Guns

In the post below, I discussed whether it was constitutional to ban gun possession by all people who are under indictment. But in the case in which the U.S. Attorney argued that this was constitutional, no such statute was actually in play. Federal law bars gun possession by felons, 18 U.S.C. § 922(g)(1), but only gun receipt, shipment, and transportation by those under indictment for a felony, 18 U.S.C. § 922(n).

Yet the U.S. Attorney’s office for the Southern District of Alabama indicted Clayton Adams for “knowingly possess[ing]” a gun, “[i]n violation of Title 18, United States Code, Section 922(n),” and argued to the court that “proof of possession would satisfy proof of receipt for the purposes of Section 922(n).” But that can’t be right. As the court pointed out, in its April 18 decision,

Though there may be circumstances where evidence of possession is sufficient to prove receipt, the terms “possess” and “receive” are not synonymous…. Discussing the meaning of “receipt” under 18 U.S.C. § 922(h), a predecessor statute, the Eleventh Circuit held: “’Receipt,’ under 18 U.S.C. § 922(h), is interpreted broadly and includes any knowing acceptance or taking of possession of a firearm.” United States v. Griffin, 705 F.2d 434, 437 (11th Cir. 1983) (emphasis added). As the government points out, a number of circuits have held that proof of possession, either actual or constructive, is sufficient to prove receipt. E.g., United States v. Manni, 810 F.2d 80, 84 (6th Cir. 1086); United States v. Clark, 741 F.2d 699, 703 (5th Cir. 1984); United States v. Martin, 732 F.2d 591 (7th Cir. 1984); Goerlich, 729 F.2d at 1170; United States v. Lipps, 659 F.2d 960, 961 (9th Cir. 1981); United States v. Turnmire, 574 F.2d 1156, 1157-58 (4th Cir. 1978). Still, those cases do not address the sufficiency of an indictment that fails to track the statutory language and charges a person under indictment with “possessing,” rather than “receiving,” a firearm.

The statute criminalizes receipt of a firearm after indictment. Even assuming that one who possesses a firearm necessarily received it first, receipt is a discrete occurrence while possession implies a continuous act. A person who acquires a firearm and is later indicted continues to possess the firearm, but he does not receive the firearm again by virtue of that possession. A person under indictment who accepts or takes possession of a firearm after the indictment has both possessed and received a firearm. When the indictment charges only possession, either scenario is possible, but only the latter violates the statute. Thus, an indictment that alleges only possession of a firearm by a person under indictment is insufficient to charge a violation of 18 U.S.C. § 922(n).

I would go further and say that in most cases possession of a gun after an indictment is not, by itself, sufficient evidence to prove — beyond reasonable doubt — receipt after an indictment. Nor is it by itself sufficient, I think, to create probable cause to believe that the gun was received after the indictment (probable cause is the standard required for a grand jury to indict).

But in any event, to indict a grand jury must actually find (in a nonadversarial hearing, and after hearing only the prosecutor’s side of the evidence) that there is probable cause to believe that a crime has been committed — here, that the defendant actually received the gun after being indicted. The indictment in this case did not reflect that.

I think § 922(n) is an unconstitutional restriction on Second Amendment rights, since the right to possess a gun must include the right to acquire the gun, free of government prohibition, and since — as I argued in the earlier post — Second Amendment rights aren’t lost just because one has been indicted. But, independently of that, § 922(n) just doesn’t sweep nearly as broadly as the prosecutor argued. (Note: The federal bans on gun possession and gun receipt are technically limited to “possess[ion] in or affecting commerce” or receipt of “any firearm … which has been shipped or transported in interstate or foreign commerce”; but in practice these jurisdictional requirements have been read in such a way that they are almost always satisfied.)