United States District Court, D. New Mexico
C. Anderson United States Attorney Paul H. Spiers Kristopher
N. Houghton Paul Edward Schied Assistant United States
Attorneys United States Attorney's Office Albuquerque,
New Mexico Attorneys for the Plaintiff
Charles E. Knoblauch Charles E. Knoblauch Attorney at Law
Albuquerque, New Mexico -and- Jennifer J. Wernersbach Law
Offices of Jennifer J. Wernersbach, P.C. Albuquerque, New
Mexico Attorneys for the Defendant
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the Defendant's Motion
for Judgement of Acquittal, filed September 26, 2018 (Doc.
103)(“Motion”). The primary issues are: (i)
whether Plaintiff United States of America failed to
establish that Defendant Apache Young had been convicted of a
felony that would disqualify him from owning a firearm
pursuant to 18 U.S.C. § 922(g)(1); and (ii) whether the
United States was required to prove that the firearms in
question were manufactured after 1898. The Court concludes
that: (i) the United States established that Young had been
convicted of a disqualifying felony, because the Stipulation
that Young signed incorporated Young's Indictment, which
referenced three qualifying felony convictions; and (ii) the
United States was not required to prove that the firearms
were manufactured after 1898, because the antique firearms
exception is an affirmative defense that Young did not
properly raise. Accordingly, the Court denies the Motion.
March 14, 2017, a federal grand jury returned an indictment
charging Young with being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1). See
Indictment at 1, filed March 14, 2017 (Doc. 2). The
Indictment states, in relevant part, that,
[o]n or about November 13, 2016, in Bernalillo County, in the
District of New Mexico, the defendant, APACHE
YOUNG, having been convicted of at least one of the
following felony crimes punishable by imprisonment for a term
exceeding one year: (1) receiving and transferring a stolen
motor vehicle, (2) attempt to commit a felony, to wit
robbery, (3) aggravated battery, knowingly possessed, in and
affecting commerce, a firearm. In violation of 18 U.S.C.
at 1 (emphasis in Indictment). The Court ordered the trial to
commence on September 17, 2018. See Order to
Continue at 2, filed September 7, 2018 (Doc. 69). Before
trial, Young filed the Motion in Limine to Exclude Use of
Prior Convictions. See Motion in Limine to Exclude
Use of Prior Convictions at 1, filed September 11, 2018 (Doc.
78)(“Convictions Motion”). The Convictions Motion
states that Young “is willing to stipulate to his
status of being a felon to satisfy a necessary element of the
offense.” Convictions Motion at 1 (citing Old Chief
v. United States, 519 U.S. 172, 181 (1997)). Young
remarks that his “criminal record is long and marked by
violence. Amongst them are convictions for Attempted Robbery,
Aggravated Battery, Robbery with a Weapon, Robbery and
Assault and Battery with a Deadly Weapon.” Convictions
Motion at 1. Moreover, Young avers that the “nature of
these prior convictions, is that they are inherently violent,
and, highly prejudicial, ” and Young therefore requests
that the Court exclude reference to Young's prior
criminal record. Convictions Motion at 1. The United States
responds that Young, “pursuant to Federal Rules of
Evidence, Rule 609(a)(1), may be impeached by his prior
felony convictions provided that the facts of the convictions
and their attendant sentences are not referenced, ”
because Young's impeachment's probative value
“exceeds any derivative and collateral prejudicial
effect.” Response by the United States to the
Defendant's Motions in Limine at 3, filed September 12,
2018 (Doc. 83). The Court held a pretrial conference and
motion hearing. See Transcript of Hearing at 1:22-23
(taken September 12, 2018)(“Sep. 12
Tr.”). At the hearing, the Court acknowledged
that “we have two stipulations . . . we have a
stipulation that prior to November 13, 2016[, ] that the
[D]efendant had sustained a felony conviction.” Sep. 12
Tr. at 19:3-7 (Court). The Court then instructed both parties
to sign the Stipulations and to ensure that Young
“knows exactly what he's been stipulated
for.” Sep. 12 Tr. at 19:8-11 (Court). Young relied that
he would “take care of it.” Sep. 12 Tr. at 19:12
(Knoblauch). The parties then agreed to have the Court read
the Stipulation to the jury, see Sep. 12 Tr. at
19:15-20:1 (Court, Spiers, Knoblauch), which, according to
Young, gives it “a bit more authority, ” Sep. 12
Tr. at 19:3-7 (Knoblauch). Young was tried on September 17,
2018. See Clerk's Minutes for Proceedings Held
Before District Judge James O. Browning: Jury Selection/Trial
as to Apache Young held on 9/17/2018 and 9/18/2018 at 1,
filed September 17, 2018 (Doc. 100)(“Clerk's
Minutes: Jury Selection/Trial”).
United States' opening statement, the United States told
the jury that the firearms in this case consist of: one
Hi-Point .45 caliber semi-automatic pistol, one .30-06 rifle,
and one shotgun. See Excerpt -- Opening Statements
and Closing Arguments at 9:4-7 (Spiers), filed October 3,
2018 (Doc. 110)(“Statements/Arguments Tr.”).
See also Excerpt -- Trial Testimony Only at 59:14-16
(Spiers), filed October 3, 2018 (Doc. 109)(“Testimony
Tr.”)(identifying the rife as a .30-06 Remington and
the shotgun as a 12-gauge Remington). The United States
further informed the jury that “you'll have two
stipulations. I may have mentioned it. The Court will read
you two stipulations: One, again, that he was a convicted
felon on that date . . . . Those . . . stipulations provide
those elements for your satisfaction and your comfort.”
Statements/Arguments Tr. at 9:21-10:6 (Spiers). In
Young's opening statement, Young asserted that
“[t]here are parts of this case that are cut and dry,
the Government is right. Those are the parts that we have
already stipulated to . . . . And that's because we
don't want to waste your time with things that are very
easy to decide and very straightforward.”
Statements/Arguments Tr. at 11:18-23 (Wernersbach).
the parties' opening statements, the Court read to the
jury the Stipulation regarding Young's felony conviction:
Government's Exhibit one is [a] stipulation regarding
prior felony convictions, . . . . [T]he part[ies] by and
through their undersigned counsel stipulate and agree as
follows[:] one[, ] the defendant Apache Young prior to
November 13, 2016[, ] had been convicted of a crime
punishable by imprisonment for a term exceeding one year,
that is a felony offense as charged in the indictment of this
case. And then[, ] two[, ] this stipulated fact is proved
beyond a reasonable doubt and may be read to the jury at
trial. This stipulation also release[e]s [the] Government
[from] its burden of proof with regard t[o] t[he]
defendant's status as a felon at the time relevant t[o]
t[he] charge contained in the indictment. Acknowledged to
agreed and stipulated. Mr. Apache Young, the defendant has
signed it dated the 2[th] of [September] 2018 . . .
Charles E [Knoblauch] counsel for the defendant signed the
[unintelligible] 2018[, ] and Paul H [Spiers] [A]ssistant
U.S. Attorney has signed the [unintelligible] September 12,
Transcript -- Day 1 at 172:6-173:2 (Court)(“Trial
Tr.”). See Clerk's Minutes: Jury
Selection/Trial at 3 (“Court reads 2 stipulations,
exhibit 1 and 2.”).
United States' case in chief, the United States called
Task Force Officer Timothy Hotle. See Excerpt -- Trial
Testimony Only at 59:14-16 (Spiers), filed October 3, 2018
(Doc. 109)(“Testimony Tr.”). Hotle testified that
he test fired the three firearms in this case, and that each
firearm functioned as designed. See Testimony Tr. at
61:19-62:15 (Spiers). On cross-examination, Young questioned
Hotle about the pistol's firing mechanism. See
Testimony Tr. at 64:2-23 (Knoblauch). Young stated:
Knoblauch: Okay. That's kind of an old system; is that
Hotle: What do you mean by “old”?
Knoblauch: It's not something -- semi-automatic pistols
weren't invented yesterday, were they?
Hotle: No, not yesterday.
Knoblauch: Quite a long time ago; is that right?
Hotle: I'm not sure when they were invented.
Knoblauch: Is that what you would call an expensive type of
gun, or -- Hotle: Like what the value of this would be?
Hotle: No, Hi[-]Points are generally cheaper firearms.
Tr. at 65:2-15 (Knoblauch, Hotle).
Knoblauch: Now, let me see: These other two items are made by
Remington; is that right?
Hotle: They're both Remingtons, yes.
Knoblauch: Now, Remington is a company in New York; is that
Hotle: Yes, New York or New Jersey.
Knoblauch: And do you know anything about the history of
Knoblauch: You don't know it's been around for a
couple hundred years?
Hotle: I couldn't tell you. I don't collect guns.
I'm not like a gun enthusiast, per se. I'm just
experienced with them.
Tr. at 67:7-20 (Knoblauch, Hotle). Young further questioned
Hotle about the pistol's firing mechanism:
Knoblauch: Pushing towards the back. That's what operates
Knoblauch: And that's -- again, it's an old system;
is that right?
Hotle: I don't know when it was -- I don't know. I
don't know when it came into invention. Old is -- I mean,
old to you is different from what's old to me, so I
Knoblauch: I see.
Hotle: It's been around for a while. I mean, I don't
know. I'm not sure what you want me to answer on this. I
don't know when it was invented, and I don't know how
old it is.
Tr. at 72:13-73:1 (Knoblauch, Hotle).
close of the United States' case, Young made an oral
motion pursuant to rule 29 of the Federal Rules of Criminal
Procedure. See Trial Tr. at 241:23-24 (Knoblauch).
Young asserted that, “although there has been
information brought before the Court and the jury that Mr.
Young is a felon, ” the United States failed to
indicate that Young's specific felony conviction deprived
him of his right to own a firearm. Trial Tr. at 242:3-9
(Knoblauch). Young referenced § 921(a)(20)(A), which
disqualifies felonies related to the regulation of business
practices from § 922(g)(1)'s firearms'
prohibition, and stated that the government offered no proof
that “Young's disabling felony was not an antitrust
violation or trade practices or restraint of trade.”
Trial Tr. at 242:10-21 (Knoblauch). Moreover, Young argued,
the United States failed to prove that Young's felony
“has not been set aside, ” pursuant to United
States v. Essick, 935 F.2d 28, 31 (4th Cir. 1991), which
requires the United States to prove that Young's prior
felony conviction was not one that allows for the restoration
of his civil right to possess a firearm. Trial Tr. at
also asserted that the United States failed to establish that
the firearms in this case conform to the statutory definition
of a firearm, because, pursuant to 18 U.S.C. §
921(a)(20)(A), a “firearm” does not include an
antique firearm manufactured before 1898, and, according to
Young, the firearms could have been manufactured before 1898.
See Trial Tr. at 243:5-10 (Knoblauch). Hence, Young
requested that the Court dismiss the case. See Trial
Tr. at 242:3-243:13 (Knoblauch).
United States replied that, in Young's Convictions
Motion, Young cited “a roster of prior felony
convictions[, ] all of which qualify” for prosecution
pursuant to the statute. Trial Tr. at 243:17-22 (Spiers).
Young thus “acknowledged that he has sustained those
convictions, and as a result he's taken the position that
they are in fact . . . qualifying prior felony
convictions.” Trial Tr. at 243:24-244:2 (Spiers). In
response to Young's antique firearms argument, the United
States asserted that, based on the firearms appearance, and
Hotle's ability to test fire them, “anybody . . .
can make a reasonable inference by circumstantial evidence
that these firearms do in fact qualify for prosecution of
this case.” Trial Tr. at 244:4-12 (Spiers).
rebutted that the United States “is way off base here
as far as looking at the firearm and determining whether or
not they're made after 1898, ” because each of
the three firearms “uses a mechanism which was in use
in . . . 189 . . . and before.” Trial Tr. at
244:15-20 (Knoblauch). According to Young, Hotle
“conceded that he could not tell the age of these
firearms, ” which “alerted” the United
States to the possibility that the firearms' manufacture
predated 1898. Trial Tr. at 244:20-25 (Knoblauch).
Court stated that it was not going to grant Young's rule
29 motion “at the present time.” Trial Tr. at
245:2-3 (Court). The Court acknowledged that it had never
heard, in any prior felon-in-possession case, Young's two
arguments at the rule 29 stage and, therefore, needed to give
the matter some thought. See Trial Tr. at 245:3-5
(Court). The Court concluded that the United States Court of
Appeals for the Tenth Circuit's pattern jury instructions
which discuss antique firearms do not state a specific
manufacture date. See Trial Tr. at 245:6-11 (Court).
Similarly, the Court concluded that the Tenth Circuit's
pattern jury instructions for disabling felonies “just
gives a definition of felonies, it doesn't leave it . . .
t[o] [the] jury to determine whether there is a qualifying
felony or not.” Trial Tr. at 245:11-14 (Court). The
Court stated that it would further analyze Young's rule
29 arguments “and see whether they may require [the
Court] to set aside any verdict.” Trial Tr. at
United States added that “there were motion deadlines
in place in this case, and if the [D]efendant felt
sufficiently aggrieved by the prosecution of this case, there
was ample time to file a motion to dismiss. And that motion
never came.” Trial Tr. at 246:13-17 (Spiers). Moreover,
according to the United States, Hotle testified that the .45
caliber pistol “was basically a cheap gun, not that
expensive, ” and, had the firearm been an antique,
Hotle would have given it a higher valuation. Trial Tr. at
declined to present witnesses or evidence in his defense.
See Trial Tr. at 247:4-9 (Knoblauch). Thereafter,
the Court instructed the jury as to the elements of
Mr. Young is charged with a violation of 18 [U.S.C.] Section
922(g)(1). This law makes it a crime for any [person] tha[t]
has been previously convicted in any [c]ourt of a felony to
knowingly possess any firearm in or [a]ffect[ing] interstate
commerce. To find Mr. Young guilty of this crime you must be
convinced that the Government [has] proved each of the
following beyond a reasonable doubt[:] First, Mr. Young
knowing[ly] . . . possessed a firearm[;] . . . second[, ] Mr.
Young was convicted of a felony[, ] that is a crime
pun[ishable] by . . . [imprisonment] for a term exceeding one
year[, ] before he possessed the firearm[;] and[, ] third[, ]
before Mr. Young possessed the firearm, the firearm moved at
some time from one state to another.
Tr. at 266:19-267:7 (Court). Furthermore, in reading to the
jury from the Tenth Circuit's pattern jury instructions,
the Court informed the jury that “[a] firearm,
however, does not include an antique firearm.” Trial
Tr. at 267:13-14 (Court).
closing argument, Young reminded the jury that the
“burden is on the Government to establish every single
element beyond a reasonable doubt.”
Statements/Arguments Tr. at 22:10-13 (Knoblauch). Moreover,
Young “conceded that he was convicted of a felony. . .
. Lots of people are convicted of a felony. He was convicted
of a felony.” Statements/Arguments Tr. at 22:13-15
(Knoblauch). In discussing the possession element, Young
it does not include an antique firearm. Every single one of
these firearms here could have been an antique firearm. They
could have been made -- okay, let me read you the definition
of an antique firearm. According to federal law, antique
firearm means, “Any firearm manufactured in or before
Tr. at 22:20-23:2 (Knoblauch). The United States objected,
arguing that “[t]he law comes from . . . the Court . .
. [a]nd any outside reference to the law is
prohibited.” Statements/Arguments Tr. at 23:3-5
(Spiers). The Court overruled the objection, because the
Court instructed the jury about the antique firearms
exception. See Statements/Arguments Tr. at 23:6-8
(Court). Young continued:
Every single one of those firearms has a mechanism which was
invented way before 1898. The pistol, the rifle, the shotgun,
every single one of those has a very, very old type of
mechanism. Could it have been made before 1898? Yeah. The
burden is on the Government to prove that these weapons, any
single one of these things, was made after 1898. Have they
done that? Have they brought out any testimony? On
cross-examination, I asked Officer Hotle what he knew. He
said, [“]Well, they could be old.
I don't know.[”] He
doesn't have enough education on this matter. The burden
is on the Government to prove that. Have they done that? No.
Tr. at 23:9-22 (Knoblauch).
United States, in its closing argument, responded to
Young's antiques firearms defense by instructing the jury
to evaluate the firearms and reach its own conclusions:
You can take a look at them yourselves and determine, using
your common sense, whether they qualify for antiques. Task
Force Officer Hotle testified about the .45 caliber
semi-automatic Hi[-]Point, that it was of de minimis value.
If it was an antique and it was advertised on the
Antique's Road Show on channel 5, PBS, it would, if it
was really an antique, be valued at considerably more than de
But you can take a look at the firearms yourself, and use
your common sense as to whether they were antiques or not.
And then again, why would somebody, if they were using a
firearm for protection, indulge in the luxury of being out on
the West Mesawith a firearm that was regarded as an
antique, and in that sense be hopelessly compromised as if it
would work effectively each time it was meant to be
discharged. So I would disqualify that. I would suggest that
you do as well.
Tr. at 24:18-25:11 (Spiers). Moreover, in discussing the
offense elements, the United States asserted that Young
“was a convicted felon. You know that. That was
conceded and stipulated to.” Statements/Arguments Tr.
at 27:14-15 (Spiers).
two days of deliberations, the jury failed to reach a
unanimous verdict. See Clerk's Minutes: Jury
Selection/Trial at 5-6. Therefore, on September 18, 2018, the
Court declared a mistrial. See Clerk's Minutes:
Jury Selection/Trial at 6. See also Order of
Mistrial, filed September 19, 2018 (Doc. 97)(“[A]
Mistrial is declared as to the Indictment.”).
Acquittal Motion, Young first argues that his “oral
Motion for Judgement of Acquittal at the close of the
Government's case on 17 September, 2018, ” was
predicated on the United States' failure “to bring
forth sufficient evidence to sustain a conviction.”
Acquittal Motion at 1. Young contends that, at the close of
the United States' case,
the following was established without question: a. That the
Defendant had been convicted of a felony prior to the 13th of
November, 2016, although the nature of the felony was not
brought into evidence; b. [t]hat the said firearm had been in
interstate commerce; c. [t]hat all of the above occurred in
the District of New Mexico on or about the 13th of November,
Motion at 1. Young reminds the Court that, although
Glasser v. United States, 315 U.S. 60 (1942),
requires the Court to view the evidence in a light most
favorable to the United States, “if the evidence gives
‘equal or nearly equal circumstantial support to [a]
theory of guilt and a theory of innocence, then a reasonable
jury must necessarily entertain a reasonable doubt' and
the Court should enter an acquittal.” Acquittal Motion
at 2 (quoting United States v. Glenn, 312 F.3d 58,
70 (2d Cir. 2002)).
contends that, “[c]ontrary to popula[r] conceptions,
all felony convictions do not disqualify a person from owning
a firearm.” Acquittal Motion at 2. According to Young,
the “plain language” exempting “offenses
relating to the regulation of business practices” from
the phrase “crime punishable by imprisonment for a term
exceeding one year” indicates that the United States
bears the burden to prove that Young's prior felony
conviction was not “one for which the civil right to
possess a firearm has not been restored.” Acquittal
Motion at 2. According to Young, “the government's
proof failed.” Acquittal Motion at 2 (citing United
States v. Essick, 935 F.2d 28, 31 (4th Cir. 1991)).
further contends that “the Government's expert
witness Detective Timothy Hotle . . . conceded that the
firearms in question could be old, but he was unable to state
how old.” Acquittal Motion at 3. According to Young,
“18 U.S.C. §921 (a)(3) excepts a firearm from
being an article whose possession is banned for prohibited
persons if it was manufactured before 1899.” Acquittal
Motion at 3. Because the United States failed to establish
that Young had been convicted of a disqualifying felony, and
failed to establish that the firearms were manufactured after
1898, Young therefore requests that, the Court enter a
judgement of acquittal. See Acquittal Motion at 3.
United States responds. See Response by the United
States to the Defendant's Motion for Judgement of
Acquittal, filed October 5, 2018 (Doc. 112)(“Acquittal
Response”). First, the United States asserts, according
to its understanding of Young's Acquittal Motion, that
claims that the United States failed to prove that the
Defendant's prior felony convictions -- convictions for
Attempted Robbery, Aggravated Battery, Attempted Robbery with
a Deadly Weapon, Assault and Battery with a Deadly Weapon
(two counts), Robbery with a Weapon and Attempted Robbery
with a Firearm - felony convictions which are identified both
in the Defendant's Form 13 Presentence Report (Doc. 18)
and in the Defendant's own motion in limine by
which he successfully avoided their damaging mention at trial
(Doc. 78) -- were not for regulation of business practices
Response at 1. The United States reminds the Court that, for
trial purposes, Young “stipulated that he had sustained
a felony conviction prior to November 13, 2016 -- the offense
date alleged in the indictment upon which he went to
trial.” Acquittal Response at 2. The United States
asserts that Young never argued that his felony convictions
failed to qualify him for prosecution under 18 U.S.C. §
922(g)(1). See Acquittal Response at 2. Moreover,
according to the United States, Young's pre-trial efforts
to exclude references to his prior convictions at trial
indicates that Young recognized that the nature of his
convictions could prejudice the jury against him.
See Acquittal Response at 2. According to the United
States, the Tenth Circuit's opinion in United
States v. Flower, 29 F.3d 530 (10th Cir. 1994),
is unhelpful to Young, because the Tenth Circuit in
United States v. Flower states that,
“if a defendant believes that one of the prior
convictions that the government seeks to use as a predicate
conviction under § 922(g)(1) does not meet the legal
definitional requirements of § 921(a)(20), it will be up
to the defendant to challenge the admissibility of such
conviction.” Acquittal Response at 2 (quoting
United States v. Flower, 29 F.3d at 535-36). The
United States argues that, in this case, Young could have
contested “the legitimacy of the predicate felony
convictions” by filing a pre-trial motion
“pursuant to Rule 12(B)(iii) and (v) of the Federal
Rules of Criminal Procedure, ” but “declined to
follow the blueprint of the rule.” Acquittal Response
at 2-3. Instead, according to the United States, Young waited
until his closing argument to advance this theory, despite
stipulating to “having sustained a felony conviction, a
conviction(s) which was well-understood as the relevant and
operative predicate to the trial.” Acquittal Response
at 3. This tactic, according to the United States, evidenced
Young's goal to “accomplish sanitizing damage
control by way of stipulation so as to avoid specific mention
of [his predicate felony convictions'] non-business,
antitrust regulation nature.” Acquittal Response at 3.
The United States avers that rule 12(b)(3) of the Federal
Rules of Criminal Procedure affirmatively requires Young
“to make a pre-trial motion to state a claimed defect
in the indictment for lack of specificity or for failure to
state an offense, ” and that Young failed to abide by
this mandate. Acquittal Response at 3.
United States v. Basnett, according to the United
States, is unhelpful to Young, because, in rejecting the
appellant's antique firearm defense, the Tenth Circuit in
United States v. Basnett noted that “every
appellate court that has considered the issue, held that the
antique exception for firearms in prosecution of felon in
possession of a firearm cases is an affirmative defense
rather than an element of the crime and an affirmative
defense for which the defendant bears the burden of producing
evidence.” Acquittal Response at 3 (citing United
States v. Basnett, 735 F.3d 1255, 1258 (10th Cir.
2013)(“Every circuit court of appeals to consider the
issue has treated the antique exception as affirmative
defense.”)). The United States cites three additional
federal Courts of Appeals decisions which conclude that the
antique-firearm exception is treated as an affirmative
defense and not as an element of the crime. See
Acquittal Response at 4 (citing Gil v. Holder, 651
F.3d 1000, 1005 n.3 (9th Cir. 2011); United States v.
Lawrence, 349 F.3d 109, 122 (3rd Cir. 2003); United
States v. Neal, 692 F.2d 1296, 1303-04 (10th Cir.
United States asserts that Young failed to provide evidence
that the firearms were antique, as an affirmative defense
case requires. Moreover, although the United States maintains
that it did not have the burden to establish that the
firearms in question were not antique, the jury nevertheless
could infer this fact beyond a reasonable doubt, because
Hotle testified that the firearms “test-fired without
issue” and that the .45 caliber firearm “was
relatively inexpensive.” Acquittal Response at 4. The
jury could further infer that the .45 caliber firearm is not
an antique, according to the United States, based on
“its non-antique appearance.” Acquittal Response
at 4. The United States, therefore, requests that, because
Young did not “express these grievances by way of a
pre-trial motion . . . and to bear the burden of proving any
affirmative defense that he perceived as having merit,
” the Court should deny the Acquittal Motion. Acquittal
Response at 4.
answers the United States' Response. See
Defendant's Answer to Plaintiff's Response to
Defendant's Motion for Judgement of Acquittal, filed
October 11, 2018 (Doc. 113) (“Acquittal Reply”).
In the Acquittal Reply, Young first contends that the United
States, according to Young, “seems to assert that any
information of evidence that possibly could have been adduced
at trial is sufficient to overcome a motion based on Rule
29.” Acquittal Reply at 1. According to Young, rule 29
“refers only to what was brought forth at trial”
and that “[t]he clear import of this Rule is that it is
evidence which has been presented to the jury, not whatever
evidence that might exist anywhere in the universe.”
Acquittal Reply at 1. Thus, according to Young, the Court may
disregard the United States' argument that “the
Court should consider matters which were not fairly put
before the jury.” Acquittal Reply at 1.
contends that the United States' argument that the United
States is not required to prove that the firearms “were
firearms as defined by Congress” cannot succeed,
because the United States “fails to recognize that the
burden shifted” once Young established that the
firearms “could, indeed, be old weapons.”
Acquittal Reply at 1-2. Young contends that the burden
shifted when Hotle was “unable to testify as to [the
firearms'] antiquity due to his lack of expertise,
” which, according to Young, was sufficient to put the
United States on notice of its burden “to establish
that the firearms were manufactured after 1898.”
Acquittal Reply at 2. The United States' failure to carry
its burden, Young contends, “cannot be laid on the
Defendant. It is certainly not his burden to ensure he is
convicted in an orderly manner.” Acquittal Reply at 2.
response to the United States' argument that the firearms
were not antique, because the firearms functioned, were
inexpensive, and had a non-antique appearance, Young counters
that “[a]ntique firearms also function, may be cheap,
and appearances are not at issue, it is proof of the date of
manufacture which can be dispositive.” Acquittal Reply
at 2. In support of this assertion, Young directs the Court
to a website that, according to Young, discusses antique
firearms. Acquittal Reply at 2 (citing
Young further directs the Court to two exhibits that,
according to Young, describe “pre-1899 firearms with
the same mechanisms as those firearms in evidence.”
Acquittal Reply at 2 (citing Gewehr 1888 -- Wikipedia, filed
October 11, 2018 (Doc. 113-1); Model 1893 Shotguns --
Winchester Collector, filed October 11, 2018 (Doc. 113-2)).
Court held a hearing. See Transcript of Hearing at
1:22-23 (taken October 16, 2018)(“Oct. 16
Tr.”). Young began by discussing “the
nature of the felony conviction, ” and that, pursuant
to Old Chief v. United States, Young and the United
States decided to enter a stipulation that Young is a felon.
See Oct. 16 Tr. at 2:20-24 (Knoblauch). Young
asserted that the United States drafted the Stipulation and
that Young agreed to it. See Oct. 16 Tr. at 2:24-3:1
(Knoblauch). Young argued that the United States bears
responsibility for not describing Young's felony
conviction with specificity, thereby “failing to
adequately draft the stipulation.” Oct. 16 Tr. at 3:1-5
(Knoblauch). Young reminded the Court that certain felonies
“do not qualify . . . for purposes of the firearms
act.” Oct. 16 Tr. at 3:6-9 (Knoblauch). Young argued
that, pursuant to 18 U.S.C. § 921, “bank fraud any
sort of things like that . . . . are not . . . the sort of
thin[g] that will disqualify somebody from owning a
firearm.” Oct. 16 Tr. at 3:11-14
Young contends that
basically the evidence that was presented to the Court was
just that Mr. Young had been convicted of a felony on that
date. Not the nature of the felony, not the type of felony.
Not that the felony was a felony that would disqualify him
from owning a firearm. Basically there is not sufficient
evidence brought before the Court that Mr. Young was indeed
disqualified from owning a firearm.
Oct. 16 Tr. at 3:15-22 (Knoblauch).
contended that the United States misinterprets “the
standard” by asserting the self-evident nature of the
fact that Young's prior convictions were disqualifying.
See Oct. 16 Tr. at 3:22-4:1 (Knoblauch). Young
argued that the offense element requires that evidence of a
disqualifying conviction “be brought before the decider
of fact . . . . Not just anything in the whole universe of
facts that could be out there.” Oct. 16 Tr. at 4:2-5
(Knoblauch). Young concluded by arguing that the United
States failed to “bring forth any sort of evidence that
[Young's conviction] was a disqualifying felony.”
Oct. 16 Tr. at 4:6-9 (Knoblauch).
Court asked what language, in Young's view, the United
States should have included in the Stipulation to satisfy its
requirement to prove each element of Young's charge.
See Oct. 16 Tr. at 4:10-14 (Court). Young responded
that, after the trial, he suggested to Assistant United
States Attorney Paul Spiers that any future stipulation
merely state “a felony that would disqualify him from
owning a firearm.” Oct. 16 Tr. at 4:18-19 (Knoblauch).
According to Young, “[j]ust putting that information in
there would have been sufficient.” Oct. 16 Tr. at
4:15-21 (Knoblauch). The Court asked whether the language
would say: “a felony that would disqualify him.”
Oct. 16 Tr. at 4:22-24 (Court). Young responded in the
affirmative. Oct. 16 Tr. at 4:25 (Knoblauch).
Court stated that Young's argument gives the Court
“pause, ” because the Tenth Circuit's
standard jury instruction does not address either Young's
qualifying-felony argument or his antique-firearm-exception
argument. Oct. 16 Tr. at 5:2-7 (Court). Young responded that
the Court's observation should not foreclose Young's
arguments, because “a new issue is a new issue, and . .
. could possibly cause the Tenth Circuit to redraft their
instructions.” Oct. 16 Tr. at 5:8-13 (Knoblauch).
Court asked about the Stipulation's specific language.
See Oct. 16 Tr. at 5:18-21 (Court). Young replied
that the Stipulation's language “is that on the
13[th] of November, 2016, Mr. Young had been convicted of a
felony.” Oct. 16 Tr. at 5:22-25 (Knoblauch). The Court
then asked whether Young's suggested stipulation language
“is more prejudicial or prejudicial to ...