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United States v. Young

United States District Court, D. New Mexico

November 28, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
APACHE YOUNG, Defendant.

          John 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

         THIS 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.

         PROCEDURAL BACKGROUND

         On 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. §§ 922(g)(1).

         Indictment 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.”).[1] At the hearing, the Court acknowledged that “we have two stipulations[2] . . . 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”).

         In the 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).

         After 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 [1]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, 2018.

         Trial Transcript -- Day 1 at 172:6-173:2 (Court)(“Trial Tr.”).[3] See Clerk's Minutes: Jury Selection/Trial at 3 (“Court reads 2 stipulations, exhibit 1 and 2.”).

         In the 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 right?
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?
Knoblauch: Yeah.
Hotle: No, Hi[-]Points are generally cheaper firearms.

         Testimony 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 correct?
Hotle: Yes, New York or New Jersey.
Knoblauch: And do you know anything about the history of Remington?
Hotle: No.
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.

         Testimony 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 the mechanism?
Hotle: Yes.
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 don't know.
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.

         Testimony Tr. at 72:13-73:1 (Knoblauch, Hotle).

         At the 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 242:22-243:4 (Knoblauch).

         Young 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).

         The 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).

         Young 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 18[]98, ” because each of the three firearms “uses a mechanism which was in use in . . . 189[8] . . . 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).

         The 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 245:16-18 (Court).

         The 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 246:18-25 (Spiers).

         Young 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 Young's charge:

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.

         Trial 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).

         In his 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 asserted that

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 1898.”

         Statements/Arguments 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.

         Statements/Arguments Tr. at 23:9-22 (Knoblauch).

         The 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 minimis value.
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 Mesa[4]with 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.

         Statements/Arguments 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).

         After 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.”).

         1. Acquittal Motion.

         In his 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, 2016.

         Acquittal 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)).

         Young 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)).

         Young 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.

         2. Acquittal Response.

         The 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 Young

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 felonies.

         Acquittal 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.

         Moreover, 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. 1982)).

         The 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.

         3. Acquittal Reply.

         Young 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.

         Young 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.

         In 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 https://www.antiquegunlist.com/home/1870-1898/hand-guns). 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)).

         4. The Hearing.

         The Court held a hearing. See Transcript of Hearing at 1:22-23 (taken October 16, 2018)(“Oct. 16 Tr.”).[5] 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

         (Knoblauch). 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).

         Young 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).

         The 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).

         The 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).

         The 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 ...


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