C4_03_76_23.htm

Summary: Defendant filed a motion to dismiss the charge that he was in possession of an unregistered sawed-off shotgun in violation of 26 U.S.C. §§ 5861(d). The basis for his motion was the shotgun had not been transferred and, therefore, was not subject to registration under the National Firearms Act. The Court denied the motion, noting the loophole to the National Firearms Act described by the defendant had been closed by legislation passed in 1952 and 1958.

Case Name: USA v. Joshua L. Beaman

Case Number: C4-03-76

Docket Number: 23

Date Filed: 6/3/04

Nature of Suit:

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
NORTHWESTERN DIVISION

United States of America,

Plaintiff,

-vs-

Joshua L. Beaman,

Defendant.

)
) ORDER DENYING DEFENDANT’S
) MOTION TO DISMISS COUNT TWO
) OF THE INDICTMENT
)
) Case No. C4-03-076
)
)
)
)

Before the Court is the Defendant’s Motion to Dismiss Count Two or, in the alternative, Motion for a Bill of Particulars filed on May 24, 2004. For the reasons set forth below, the motion is denied.

I. BACKGROUND

The defendant, Joshua L. Beaman (Beaman), is charged in an Indictment with two separate offenses. Count One of the Indictment charges Beaman with the offense of possession of firearms and ammunition by an unlawful user of a controlled substance in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2). Count Two charges Beaman with possession of an unregistered firearm–a shotgun with a barrel length less than 16 3/8 inches–in possession of an unregistered firearm–a shotgun with a barrel length less than 16 3/8 inches–in violation of 26 U.S.C. §§ 5861(d) and

On May 24, 2004, Beaman filed a Motion to Dismiss Count Two or, in the alternative, a Motion for a Bill of Particulars. Beaman anticipates the Government will introduce evidence at trial to show that he was the “maker” of the sawed-off shotgun. Assuming he did saw off the barrel of the shotgun in question, Beaman contends the gun was never transferred and, therefore, not subject to registration under the National Firearms Act. In the alternative, Beaman requests the Government be directed to file a bill of particulars setting forth the specific manner and means by which the shotgun should have been registered.

II. LEGAL DISCUSSION

26 U.S.C.§ 5861 provides in part that it is illegal for an individual:

(d) to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record; or

(e) to transfer a firearm in violation of the provisions of this chapter; or

(f) to make a firearm in violation of the provisions of this chapter . . . .

The Government contends Beaman did not obtain authorization to alter the shotgunand illegally possessed the shotgun after it was altered. The Government also contends the shotgun cannot be registered since it was illegally made. According to the Government, the loophole to the National Firearms Act (Act) described by Beaman was closed by legislation passed in 1952 and 1958. An examination of the Act’s legislative history confirms this.

The possession prescription of the Act was amended in 1952 to make the possession of an illegally-made firearm unlawful. The purpose of the amendment was to widen the scope of the Act to include those persons who acquired unregulated firearms and convert them into regulated firearms:

Since the effective control over fully automatic firearms, such as machine gunds (sic) and machine pistols, has made it difficult for criminals to obtain such firearms, the sawed-off shotgun has become the favorite offensive weapon of such criminals. By the comparatively simple device of purchasing standard shotguns from legitimate dealers and then sawing off the barrels to a length of less than 18 inches, criminals are able to make vicious weapons without incurring the penalties of the act. Since such weapons are seldom transferred after the barrels have been sawed off, the owners cannot be prosecuted for possession of a firearm unlawfully transferred. Hence, the act does not reach those who process sawed-off shotguns made in this manner. It is this defect in the act which the bill is designed to correct.

H.R. Rep. No. 1714, 82^nd Cong., 2d Sess. (1952), reprinted in 1952 U.S.C.C.A.N 1454, 1455-56 (explaining the general purpose of the bill was “to bring the act of making sawed-off shotguns and rifles, or otherwise transforming a weapon into a firearm, within the tax on firearms imposed by subchapter B of chapter 25 of the Internal Revenue Code and to provide for the forfeiture of any firearm produced in this manner without the tax first having been paid”).

The Act was further amended in 1958 to make it unlawful to possess an unregistered firearm.

Existing law (sec. 5851) specifically defines as an unlawful act the receipt or possession of any firearm which has been transferred or made in violation of law, but fails to so define the possession of an unregistered firearm. The amendment of this section specifically defines such possession of an unregistered firearm as an unlawful act and makes it applicable to such possession the presumption contained in the section. The primary purpose of this change is to simplify and clarify the law and to aid in prosecution.

S. Rep. No. 2090, 85^th Cong. 2d Sess. (1958), reprinted in 1958 U.S.C.C.A.N. 4395, 4604.

The Court concludes that an individual in possession of a shotgun with a barrel length less than 16 3/8 inches does not escape the reach of 26 U.S.C.§ 5861 by virtue of the fact he was the shotgun’s “maker.” Accordingly, Beaman’s Motion to Dismiss Count Two of the Indictment (Docket No. 21) is DENIED. The Government has essentially set forth the specific manner and means by which the shotgun should have been registered in its response to Beaman’s motion and, therefore, Beaman’s request for a bill of particulars (Docket No. 21) is deemed MOOT.

IT IS SO ORDERED.

Dated this _____ day of June, 2004.

________________________

Daniel L. Hovland, Chief Judge

United States District Court