United States v. Samir Benamor (9th Cir. June 2019)
Firearm Offenses/922(g) – The “antique firearm defense,” as an exception to the prohibition of 922(g), is an affirmative defense, not an element of the crime.
Evidence/Confrontation Clause – The defendant’s right to confrontation was violated where the testifying agent, despite not repeating the statement from the out-of-court declarant, made an unmistakable implication that had the same effect as repeating the statement.
Samir Benamor challenged his conviction under 18 U.S.C. § 922(g)(1) for possessing a firearm as a felon. Pursuant to the “antique firearm defense,” a firearm manufactured before 1898 does not qualify as a “firearm” under § 922(g) At trial, Benamor asked the district court to instruct the jury that, to convict Benamor, it had to find that Benamor actually knew the firearm he possessed was manufactured after 1898. The district court refused to instruct the jury on the “antique firearm” defense, however, so the defendant appealed, and the Ninth Circuit affirmed.
The firearm Benamor possessed was actually an old shotgun that was manufactured around 1915. At trial, the Government’s ATF experts testified that the shotgun could not have been manufactured before 1915. Neither party presented evidence regarding the Benamor’s knowledge of the gun’s age.
On appeal, the Court first held that the “antique firearm defense” was an affirmative defense as opposed to an element of the crime. Accordingly, Benamor had the burden to produce sufficient evidence warranting the affirmative defense.
The Court recognized that it remains an open question whether the “antique firearm defense” is objective, meaning that the age of the firearm alone determines the availability of the defense, or whether the defense is subjective, meaning the defense applies when a defendant reasonably believes the firearm was manufactured before 1899. The Court chose not to answer that question in this case, however, since there was insufficient evidence to warrant an instruction under either theory. There was no evidence that the firearm either was in fact antique or that Benamor may have reasonably thought that it was antique.
The Court did find error, however, in the trial court’s decision to admit evidence reflecting an interview between law enforcement and the defendant’s landlord. The landlord had informed law enforcement upon Benamor’s arrest that he had seen Benamor with a “very old or antique firearm.” Prior to trial, the trial court held that agents could testify that there had been an interview, but that the landlord could not testify that he saw Benamor with a gun. The agent testified at trial, in response to suggestive questions from the prosecutor, that his interview with the landlord had directly confirmed his suspicions that the firearm belonged to the defendant.
The Court held that this was a violation of the Confrontation Clause. Though the agent never repeated the landlord’s words verbatim, the agent’s implication was unmistakable. The Court rejected the Government’s argument that the statements were not relevant to the agent’s state of mind, since this would allow the wholesale admission of testimonial statements made to police under the guise of informing the police’s reasons for investigating an individual. However, the district court’s error was harmless given Benamor’s confession.
Appeal from the Central District of California
Opinion by Graber, joined by Bybee and Harpool (by designation from W.D. Mo.)