| June 3, 1996
TO: All United States Attorneys
All Criminal Division Section Chiefs
FROM:John C. Keeney
Acting Assistant Attorney General
SUBJECT: Application of Staples v. United States, 114 S. Ct. 1793 (1994), to Firearms Embraced by the National Firearms Act
In Staples v. United States, the Supreme Court held that, in order to obtain a conviction for possession of an unregistered automatic weapon, in violation of the National Firearms Act (NFA) (26 U.S.C. § 5861(d)), the government must prove that the defendant knew of the features or characteristics that brought the weapon within the Act. Id. at 1804.
In the wake of the Staples decision, the courts of appeals have disagreed as to whether its mens rea requirement applies to all NFA "firearms." Several courts have held that the reasoning of Staples applies not only to automatic weapons but to silencers and short-barreled weapons as well. See United States v. Thompson, No. 94-30104, 1996 WL 204095 at * 3 (9th Cir., Apr. 29, 1996) (silencer); United States v. Rambo, 74 F.3d 948, 955 (9th Cir. 1996) (same); United States v. Starkes, 32 F.3d 100, 101 (4th Cir. 1994) (short-barreled shotgun); see also United States v. Mains, 22 F.3d 1222, 1229 (10th Cir. 1994) (same but holding that instruction adequate).
In contrast, two other courts have held that the requirement of proving knowledge concerning the unlawful characteristics of certain firearms embraced by the NFA does not extend to those firearms whose unlawful characteristics are readily discernable from their appearance. See United States v. Imes, 1996 WL 157194 (9th Cir. Apr. 5, 1996) (short-barreled shotgun), petition for rehearing pending; United States v. Barr, 32 F.3d 1320, 1324 (8th Cir. 1994) (same).
In Pulido v. United States, No. 95-7946, the Solicitor General addressed the question whether the scienter requirement of Staples applies to a homemade silencer. In doing so, he filed a brief on behalf of the United States taking the position that, in all cases prosecuted under the NFA, the government must prove that the defendant knew the features of the firearm that brought it within the scope of the Act and that the defendant is entitled to an instruction to that effect.
Prosecutors should adhere to this position in all pending and future cases brought under the NFA. Consequently, in such cases, the government should anticipate proving the defendant's knowledge of the NFA weapon's unlawful characteristics and request an appropriate instruction on knowledge. We suggest the following jury instruction:
In order to convict the defendant of a violation of the National Firearms Act, the government must prove beyond a reasonable doubt that the defendant had knowledge of the characteristics of the weapon that brought it within the definition of a firearm under that Act. Thus, in this case, the government must prove beyond a reasonable doubt that the defendant [knew the firearm was designed [or modified] to fire automatically] [knew he possessed a shotgun with a barrel length shorter than 18 inches or with an overall length less than 26 inches] [knew he possessed a silencer] [knew he possessed a grenade]. Such knowledge can be established through circumstantial evidence.
In pending appeals, the government should, likewise, concede that knowledge of an NFA firearm's unlawful characteristics is an element of the offense and that the defendant was entitled to a knowledge instruction upon request. In some cases, where such an instruction was not given, a plain error or a harmless error argument may be available.
This guidance also supersedes the suggestion in Federal Firearms Offenses (July 1995) at 7-10 that, for purposes of the scienter requirement of Staples, a distinction can be drawn between NFA firearms, such as sawed-off shotguns, whose unlawful characteristics are manifest and those whose unlawful characteristics are not. This portion of the Firearms Manual will be revised to conform to the Solicitor General's position.
[cited in USAM 9-63.500]