Comment 

          Definitions of many of the terms used in the firearms statutes are found in 18 U.S.C. § 921 and 26 U.S.C. § 5845.  The Committee recommends that definitional instructions be used sparingly.  Many of the terms defined are of common significance and really require no definition. Some examples are “pistol,” “rifle,” “importer,” and “manufacturer.”  While jurors will readily recognize that one who is engaged in the business of buying and selling firearms is a dealer, they probably do not know that one engaged in the business of repairing firearms is also a dealer, 18 U.S.C. § 921(a)(11)(B), and in that case a definition would be necessary. 

            The most effective way to avoid definitions relating to firearms is to use the most specific designation available.  For example, assume that a defendant is being tried for transporting a rocket having a propellant charge of more than four ounces in violation of 18 U.S.C. § 922(a)(4). Examples of the ways the judge might instruct the jury on one of the elements are as follows: 

            (1) “The defendant transported a firearm.”  It will then be necessary to have an additional instruction that a rocket having a propellant charge of more than four ounces is a firearm.  See 18 U.S.C. § 921(a)(3)(D) (defining “firearm” as including “destructive device”) and 18 U.S.C. § 921(a)(4)(A)(iii) (defining “destructive device” as including a “rocket having a propellant charge of more than four ounces); or   

            (2) “The defendant transported a destructive device.”  Even here, it will then be necessary to instruct that a rocket having a propellant charge of more than four ounces is a destructive device.  Id.; or 

            (3) “The defendant transported a rocket having a propellant charge of more than four ounces.”  Using the third alternative, no additional instruction is necessary.

            A fugitive from justice is a person who has fled from any state to avoid prosecution for a crime or to avoid giving testimony in any criminal proceeding. 

Comment 

            This instruction is appropriate when a firearms offense involves a fugitive from justice.  See 18 U.S.C. § 922(d)(2) and (g)(2).

           The defendant is charged in [Count _______ of] the indictment with [dealing] [importing] [manufacturing] firearms without a license, in violation of Section 922(a)(1) of Title 18 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, the defendant was willfully engaged in the business of [dealing in] [importing] [manufacturing] firearms within the dates specified in the indictment; and 

            Second, the defendant did not then have a license as a firearms [dealer] [importer] [manufacturer]. 

Comment 

            The government must prove beyond a reasonable doubt that the defendant engaged in a greater degree of activity than the occasional sale of a hobbyist or collector, and that the defendant devoted time, attention, and labor to selling firearms as a trade or business with the intent of making profits through the repeated purchase and sale of firearms.  See United States v. King, 735 F.3d 1098, 1106 (9th Cir. 2013) (citing Instruction 8.53 ((now Instruction 14.3)).  For a person to engage in the business of dealing in firearms, it is not necessary to prove an actual sale of firearms.  Id. at 1107 n.8. 

            Willfully, as used in this statute, requires proof that the defendant knew that his or her conduct was unlawful, but does not require proof that the defendant knew of the federal licensing requirement.  Bryan v. United States, 524 U.S. 184, 198-99 (1998). 

Revised May 2020

          The defendant is charged in [Count _______ of] the indictment with the [shipment] [transportation] of a firearm to a person not licensed as a [dealer] [importer] [manufacturer] [collector] of firearms, in violation of Section 922(a)(2) of Title 18 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, the defendant was a licensed firearms [dealer] [importer] [manufacturer] [collector]; 

            Second, the defendant willfully [shipped] [transported] a [specify firearm] [[from one state to another] [between a foreign nation and the United States]]; and 

            Third, the defendant [shipped] [transported] the [specify firearm] to a person who was not licensed as a firearms [dealer] [importer] [manufacturer] [collector]. 

Comment 

            See Comment to Instruction 24.8 (False Impersonation of Citizen of United States). 

            While § 922(a)(2) also prohibits shipment or transportation of a firearm to a person not licensed as a firearms collector, a firearms collector’s license authorizes transactions only in curio and relic firearms.  See 18 U.S.C. § 923(b); 27 C.F.R. §§ 478.41(c) and (d), 478.50, and 478.93.  Moreover, the prohibition in § 922(a)(2) does not apply to returning a firearm or replacing a firearm of the same kind or type to a person from whom it was received.  It also does not prohibit depositing a firearm for conveyance in the mails to any officer, employee, agent, or watchman who is authorized to receive such firearms for use in connection with that person’s official duty.  See 18 U.S.C. §§ 922(a)(2)(A) and (B). 

Revised May 2020

            The defendant is charged in [Count _______ of] the indictment with [transporting] [receiving] a firearm [into] [in] the state of his residence in violation of Section 922(a)(3) of Title 18 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, the defendant was not licensed as a firearms [dealer] [importer] [manufacturer] [collector]; and 

            Second, the defendant willfully [transported into] [received in] the state in which the defendant resided a [specify firearm] that the defendant purchased or otherwise obtained outside that state. 

            A person acts “willfully” if [he] [she] acts knowingly and purposely and with the intent to do something that the law forbids.  Willfulness can be proved by direct evidence or by circumstantial evidence. 

Comment 

            See Comment to Instruction 14.1 (Firearms), Comment to Instruction 14.4 (Firearms—Shipment or Transportation to a Person Not Licensed as a Dealer, Importer, Manufacturer, or Collector), and Instruction 4.6 (Willfully).  See also exceptions at 18 U.S.C. § 922(a)(3). 

            The government is not required to prove that a defendant knew that transporting or receiving firearms into his state of residence violated a specific legal duty or particular law, but the government is required to prove that the defendant acted willfully in committing the charged conduct.  United States v. Hernandez, 859 F.3d 817, 822-23 (9th Cir. 2017). 

Revised May 2020

            The defendant is charged in [Count _______ of] the indictment with the unlawful transportation of a [destructive device] [machine gun] [short-barreled shotgun] [short-barreled rifle] in violation of Section 922(a)(4) of Title 18 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, the defendant was not licensed as a firearms [dealer] [importer] [manufacturer] [collector]; 

            Second, the defendant knowingly transported a [specify destructive device or firearm] [[from one state to another] [between a foreign nation and the United States]]; and 

            Third, that the defendant did so without specific authorization by the Attorney General of the United States. 

Comment 

            See Comment in 14.1 (Firearms) and Comment to Instruction 14.4 (Firearms—Shipment or Transportation to a Person Not Licensed as a Dealer, Importer, Manufacturer, or Collector). 

            The term “destructive device” is defined in 18 U.S.C. §§ 921(a)(4)(A)-(C) as:  

(A) any explosive, incendiary, or poison gas (i) bomb, (ii) grenade, (iii) rocket having a propellant charge of more than four ounces, (iv) missile having an explosive or incendiary charge of more than one-quarter ounce, (v) mine, or (vi) device similar to any of the devices described in the preceding clauses;

(B) any type of weapon (other than a shotgun or a shotgun shell which the Attorney General finds is generally recognized as particularly suitable for sporting purposes) by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, and which has any barrel with a bore of more than one-half inch in diameter; and

(C) any combination of parts either designed or intended for use in converting any device into any destructive device described in subparagraph (A) or (B) and from which a destructive device may be readily assembled. 

            26 U.S.C. § 5845(b) provides the definition of “machine gun.”  United States v. Kuzma, 967 F.3d 959, 967 (9th Cir. 2020).  “[A] weapon is ‘designed to shoot’ automatically if it has a specific configuration of objective structural features that, in the absence of any minor defect, would give the weapon the capacity to shoot automatically.”  Id. at 969-70.  See United States v. Schaefer, 13 F.4th 875, 893-95 (9th Cir. 2021) (explaining “destructive device” as that term is used in both 18 U.S.C. § 921(a)(4) and 26 U.S.C. § 5845(f)).  

       Revised Dec. 2021

           The defendant is charged in [Count _______ of] the indictment with the unlawful disposition of a firearm in violation of Section 922(a)(5) of Title 18 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, the defendant willfully [sold] [traded] [gave] [transported] [delivered] [transferred] a [specify firearm] to [name of unlicensed dealer]; 

            Second, neither the defendant nor [name of unlicensed dealer] was licensed as a firearm [dealer] [importer] [manufacturer] [collector]; and 

            Third, the defendant knew or had reasonable cause to believe that [name of unlicensed dealer] was not a resident of the same state in which the defendant resided. 

Comment 

            See Comment in 14.1 (Firearms) and Comment to Instruction 14.4 (Firearms—Shipment or Transportation to a Person Not Licensed as a Dealer, Importer, Manufacturer, or Collector). 

Revised May 2020

            The defendant is charged in [Count _______ of] the indictment with [making a false statement] [giving false identification] in [[acquiring] [attempting to acquire]] [specify firearm] in violation of Section 922(a)(6) of Title 18 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, [specify seller] was a licensed firearms [dealer] [importer] [manufacturer] [collector]; 

            Second, in connection with [acquiring] [attempting to acquire] a [specify firearm] from [specify seller], the defendant [made a false statement] [furnished or exhibited false identification]; 

            Third, the defendant knew the [statement] [identification] was false; and 

            Fourth, the false [statement] [identification] was material; that is, the false [statement] [identification] had a natural tendency to influence or was capable of influencing [specify seller] into believing that the [specify firearm] could be lawfully sold to the defendant. 

Comment 

            As to the fourth element of this instruction, the identity of the “actual” buyer is material to the lawfulness of the sale of a firearm. Abramski v. United States, 573 U.S. 169, 179 (2014). A “straw” buyer’s false indication on ATF gun sales Form 4473 that he is the “actual” buyer is material, even if the true buyer was legally eligible to own the firearm. Id. at 189-90; see alsoUnited States v. Manney, 114 F.4th 1048, 1053-54 (9th Cir. 2024) (holding that Abramksi foreclosed the defendant’s argument that her statement falsely claiming to be the actual purchaser was immaterial because the true buyer could legally possess a firearm).

Revised November 2024

           The defendant is charged in [Count _______ of] the indictment with unlawfully [selling] [delivering] a firearm in violation of Section 922(b)[(1)][(2)][(3)] of Title 18 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, the defendant was licensed as a firearms [dealer] [importer] [manufacturer] [collector]; 

            Second, the defendant willfully [[sold] [delivered]] [specify firearm] to [specify unauthorized purchaser]; and 

           Third, the defendant knew or had reasonable cause to believe that [[specify unauthorized purchaser] was less than eighteen years of age] [purchase or possession of the firearm by [specify unauthorized purchaser] would be in violation of [applicable state law or published ordinance]] [specify unauthorized purchaser] did not reside in the same state in which the defendant’s place of business was located]].

 Comment 

            See Comment in 14.1 (Firearms). 

            If ammunition is for or the firearm is a shotgun or rifle, it is unlawful to sell or deliver it to a person the licensee knows or has reason to believe is under 18; the minimum age is 21 if the ammunition is for or the firearm is a shotgun or rifle.  18 U.S.C. § 922(b)(1). 

            Section 922(b)(3) has been interpreted to mean that a dealer licensed in one state, who attends a gun show in another state, may display and possess guns, negotiate price, and receive money for guns as long as the transfer of the firearm is through a licensee of the state in which the gun show is located who fills out the appropriate forms.  United States v. Ogles, 406 F.3d 586, 590 (9th Cir. 2005), adopted by 440 F.3d 1095, 1099 (9th Cir. 2006) (en banc). 

Revised May 2020

            The defendant is charged in [Count _______ of] the indictment with [selling] [delivering] a [destructive device] [machine gun] [short-barreled shotgun] [short-barreled rifle] without specific authority in violation of Section 922(b)(4) of Title 18 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, the defendant was licensed as a firearms [dealer] [importer] [manufacturer] [collector]; 

            Second, the defendant willfully [[sold] [delivered]] [specify destructive device or firearm] to [name of purchaser]; and 

            Third, the defendant did so without specific authorization by the Attorney General of the United States. 

Comment 

           See Comment in 14.1 (Firearms).

           The term “destructive device” is defined in 18 U.S.C. §§ 921(a)(4)(A)-(C) as: 

(A) any explosive, incendiary, or poison gas (i) bomb, (ii) grenade, (iii) rocket having a propellant charge of more than four ounces, (iv) missile having an explosive or incendiary charge of more than one-quarter ounce, (v) mine, or (vi) device similar to any of the devices described in the preceding clauses;

(B) any type of weapon (other than a shotgun or a shotgun shell which the Attorney General finds is generally recognized as particularly suitable for sporting purposes) by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, and which has any barrel with a bore of more than one-half inch in diameter; and

(C) any combination of parts either designed or intended for use in converting any device into any destructive device described in subparagraph (A) or (B) and from which a destructive device may be readily assembled. 

See United States v. Schaefer, 13 F.4th 875, 893-95 (9th Cir. 2021) (explaining “destructive device” as that term is used in both 18 U.S.C. § 921(a)(4) and 26 U.S.C. § 5845(f)). 

Revised Dec. 2021

            The defendant is charged in [Count _______ of] the indictment with selling [a firearm] [ammunition] in violation of Section 922(d) of Title 18 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, the defendant knowingly sold [specify firearm] [specify ammunition] to [name of unauthorized purchaser]; and 

            Second, the defendant knew or had reasonable cause to believe that [name of unauthorized purchaser] was [specify applicable prohibited status from 18 U.S.C. § 922(d)(1)-(9)]. 

Comment 

            See Comment in 14.1 (Firearms). 

            Section 922(d) makes it unlawful “to sell or otherwise dispose” of a firearm or ammunition.  The instruction is written only in terms of a sale.  If the facts are that the defendant “otherwise disposed” of the firearm or ammunition (for example, by gift or trade), the instruction should be modified accordingly. 

            Section 922(d)(1) makes it unlawful to sell or otherwise dispose of a firearm to a person who “is under indictment for, or has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year.”  The Committee recommends that the specific crime be stated in the instruction.  Cf.  Comment to Instruction 14.16 (Firearms—Unlawful Possession—Convicted Felon).  Whether a particular crime is punishable by imprisonment for a term exceeding one year is a matter of law. 

            For a definition of “fugitive from justice,” see Instruction 14.2 (Firearms—Fugitive from Justice Defined). 

Revised May 2020

           The defendant is charged in [Count _______ of] the indictment with delivery of a firearm to a carrier without written notice in violation of Section 922(e) of Title 18 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:  

            First, the defendant knowingly [delivered] [caused to be delivered] to [specify carrier] a package or other container in which there was [specify firearm] [specify ammunition];  

            Second, the package or container was to be [[shipped] [transported]] [[from one state to another] [between a foreign nation and the United States]]; 

             Third, the package or container was to be [shipped] [transported] to a person who was not licensed as a firearms dealer, manufacturer, importer, or collector; and  

            Fourth, the defendant did not give written notice to [specify carrier] that there was [specify firearm] [specify ammunition] in the package or container.  

Comment  

            See Comment in 14.1 (Firearms). 

Revised May 2020

            The defendant is charged in [Count _______ of] the indictment with receiving [a firearm] [ammunition] in violation of Section 922(g) of Title 18 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, the defendant knowingly received [specify firearm] [specify ammunition]; 

            Second, the [specify firearm] [specify ammunition] had been [[shipped] [transported]] [[from one state to another] [between a foreign nation and the United States]]; 

            Third, at the time the defendant received the [specify firearm] [specify ammunition], the defendant [specify applicable prohibited status from 18 U.S.C. §§ 922(g)(1)-(9)]; and 

            Fourth, at the time the defendant received the [specify firearm] [specify ammunition], the defendant knew [he] [she] was [specify applicable prohibited status from 18 U.S.C. § 922(g)(1)-(9)]. 

            If a person knowingly takes possession of [a firearm] [ammunition], [he] [she] has “received” it. 

Comment 

            See Comment to Instruction 14.1 (Firearms). 

            Under 18 U.S.C. § 922(g) individuals falling into certain categories, such as fugitives from justice, are prohibited from receiving, shipping, or transporting firearms or ammunition.  This instruction covers receipt for shipment or transportation, see Instruction 14.14 (Firearms—Unlawful Shipment or Transportation), and for possession, see Instruction 14.15 (Firearms—Unlawful Possession). 

            To establish “knowingly” under the first element, the government need not prove the defendant’s knowledge of the law, only “that the defendant consciously possessed [received, shipped, or transported] what he knew to be a firearm.”  United States v. Benamor, 937 F.3d 1182, 1186 (9th Cir. 2019) (quoting United States v. Beasley, 346 F.3d 930, 934 (2003)).  Moreover, a defendant prosecuted under § 922(g)(1) need not be aware that the firearm or ammunition traveled in interstate commerce.  United States v. Stone, 706 F.3d 1145, 1146 (9th Cir. 2013) (“there is no mens rea for the affecting commerce element of the felon-in-possession statute.”); United States v. Walker, 68 F.4th 1227 (9th Cir. 2023) (holding that the Supreme Court’s decision in Rehaif v. United States, 139 S. Ct. 2191 (2019), does not overrule and is not clearly irreconcilable with the Ninth Circuit’s decision in Stone); see also United States v. Nevils, 598 F.3d 1158, 1168-70 (9th Cir. 2010) (en banc) (concluding sufficient evidence established sleeping defendant had knowing possession of firearms).  The antique firearm exception, codified at 18 U.S.C. § 921(a)(16), is an affirmative defense and the government need not prove that the defendant knew a firearm was not antique to establish knowing possession.  Benamor, 973 F.3d at 1186-87. 

            The third and fourth elements refer to 18 U.S.C. § 922(g)(1)-(9), which sets forth nine categories of individuals prohibited from receiving, shipping, transporting, or possessing firearms and ammunition.  Those categories are:  (1) convicted felons; (2) fugitives from justice; (3) unlawful users and addicts of controlled substances defined in 21 U.S.C. § 802; (4) individuals who have been adjudicated as mentally ill or who have been committed to a mental institution; (5) aliens without authorization to be in the United States, and (subject to certain exceptions set forth at 18 U.S.C. § 922(y)(2)) aliens lawfully in the United States but with non-immigrant visas; (6) individuals who have been dishonorably discharged from the Armed Forces; (7) individuals who have renounced their citizenship; (8) individuals who are subject to certain restraining orders issued after the individuals have been provided notice and opportunity to be heard and supported by specific factual findings that the individuals represent a credible threat to their intimate partners or children; and (9) individuals who have been convicted in any court of a misdemeanor crime of domestic violence. 

            In addition to proving that the defendant falls into one of the categories listed in § 922(g)(1)-(9), the defendant must have known of his or her relevant status at the time of the offense.  Rehaif, 139 S. Ct. at 2200 (“[I]n a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.”); see also United States v. Door, 996 F.3d 606, 614-16 (9th Cir. 2021) (holding that government must prove defendant’s knowledge of prohibited status).  If a defendant is charged under § 922(g)(5)(b), the government must prove that the defendant knew he had a nonimmigrant visa at the time of the offense.  See United States v. Gear, 9 F.4th 1040, 1042 (9th Cir. 2021) (per curiam) (as amended). 

            If the defendant is charged under § 922(g)(1) (convicted felon), the instruction should be modified if the defendant stipulates to the third element of the offense rather than have evidence of prior convictions presented to the jury.  See Old Chief v. United States, 519 U.S. 172, 190-92 (1997) (holding that in case where “proof of convict status is at issue,” it is “an abuse of discretion to admit the record of conviction” when defendant offers to stipulate to the prior conviction).  If the defendant so stipulates, the third element should be modified as follows: 

Third, at the time the defendant [received] [shipped] [transported] [possessed] the [specify firearm] [specify ammunition], the defendant had been convicted of a crime punishable by imprisonment for a term exceeding one year.  The defendant stipulates that on [date], the defendant was convicted of a crime punishable by imprisonment for a term exceeding one year. 

            If the defendant does not stipulate to the third element, the following instruction should be given: 

Third, at the time the defendant [received] [shipped] [transported] [possessed] the [specify firearm] [specify ammunition], the defendant had been convicted of a crime punishable by imprisonment for a term exceeding one year. 

            A conviction in a foreign court does not satisfy the element of prior conviction under § 922(g)(1).  Small v. United States, 544 U.S. 385, 387 (2005). 

            For a definition of “fugitive from justice” as used in § 922(g)(2), see Instruction 14.2 (Firearms—Fugitive from Justice Defined). 

            Despite some indication in the case law that aliens who have been released on bail pending deportation or pending a removal hearing, but who have filed applications to legalize their immigration status, are not subject to the prohibition of § 922(g)(5), such a conclusion is incorrect under current versions of removability statutes.  See United States v. Latu, 479 F.3d 1153, 1158 (9th Cir. 2007). 

            The term “misdemeanor crime of domestic violence” used in § 922(g)(9) is separately defined in § 921(a)(33)(A).  The Supreme Court has interpreted that definition to include two requirements:  first, the crime must have as an element “the use or attempted use of physical force, or the threatened use of a deadly weapon,” and second, the victim of the offense must have been in a “specified domestic relationship” with the defendant.  United States v. Hayes, 555 U.S. 415, 421 (2009).  The first requirement, the use or attempted use of force, or threatened use of a deadly weapon, must be an element of the underlying offense.  Id.  Conversely, the second requirement, the domestic relationship, need not be an element of the underlying offense.  Id.  A conviction under a statute that does not require a domestic relationship may thus be a misdemeanor crime of domestic violence if the government proves that the “prior conviction . . . was, in fact, for an offense . . . committed by the defendant against a spouse or other domestic victim.”  Id. (internal quotation marks omitted). 

            In determining whether a statute has as an element the “use . . . of physical force” for purposes of § 922(g)(9), the Supreme Court has held that “Congress incorporated the common-law meaning of ‘force’—namely, offensive touching—in § 921(a)(33)(A)’s definition of a ‘misdemeanor crime of domestic violence.’”  United States v. Castleman, 572 U.S. 157, 161-63 (2014).  Accordingly, the statute under which the defendant is convicted need not prohibit violent force, so long as it prohibits “the degree of force that supports a common-law battery conviction.”  Id. at 168; see id. at 168-79 (holding that Tennessee statute prohibiting “intentionally or knowingly caus[ing] bodily injury” to family or household member necessarily has as element use of physical force in common-law sense). 

Revised August 2023

          The defendant is charged in [Count _______ of] the indictment with [[shipping] [transporting]] [[a firearm] [ammunition]] in violation of Section 922(g) of Title 18 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, the defendant knowingly [[shipped] [transported]] [[specify firearm] [specify ammunition]] [[from one state to another] [between a foreign nation and the United States]]; 

            Second, at the time of [shipment] [transportation] the defendant was [specify applicable prohibited status from 18 U.S.C. §§ 922(g)(1)-(9)]; and 

            Third, at the time the defendant [[shipped] [transported]] [[specify firearm] [specify ammunition]] [[from one state to another] [between a foreign nation and the United States]], the defendant knew [he] [she] was [specify applicable prohibited status from 18 U.S.C. §§ 922(g)(1)-(9)]. 

Comment 

            See Comment in 14.1 (Firearms).           

            For a discussion of both knowledge elements for a prosecution under 18 U.S.C. § 922(g), see Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019) (“[T]he Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.”).  For a discussion of the nine categories of prohibited status set forth in 18 U.S.C. §§ 922(g)(1)-(9), see Comment to Instruction 14.13 (Firearms—Unlawful Receipt). 

Revised May 2023

           The defendant is charged in [Count _______ of] the indictment with the possession of [a firearm] [ammunition] in violation of Section 922(g) of Title 18 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, the defendant knowingly possessed [specify firearm] [specify ammunition]; 

            Second, the [specify firearm] [specify ammunition] had been [[shipped] [transported]] [[from one state to another] [between a foreign nation and the United States]]; 

            Third, at the time the defendant possessed the [specify firearm] [specify ammunition], the defendant [specify applicable prohibited status from 18 U.S.C. §§ 922(g)(1)-(9)]; and 

            Fourth, at the time the defendant possessed the [specify firearm] [specify ammunition], the defendant knew [he] [she] was [specify applicable prohibited status from 18 U.S.C. §§ 922(g)(1)-(9)]. 

Comment 

            See Comment in 14.1 (Firearms). 

            For a discussion of both knowlege elements for a prosecution under 18 U.S.C. § 922(g), see Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019) (“the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.”).  For a discussion of the nine categories of prohibited status set forth in 18 U.S.C. §§ 922(g)(1)-(9), see Comment to Instruction 14.13 (Firearms—Unlawful Receipt).  For a definition of “possession,” see Instruction 6.15 (Possession—Defined). 

            Depending on the facts in evidence, it may be appropriate to amend this instruction with language requiring specific jury unanimity as to when the possession occurred.  See Instruction 6.27 (Specific Issue Unanimity) and United States v. Garcia-Rivera, 353 F.3d 788, 792 (9th Cir. 2003).  For instance, an indictment may allege that the possession occurred at some point within an imprecise time frame.  In such a case, and if there was evidence that the defendant possessed the weapon or ammunition on more than one occasion during the interval, the jury should be instructed to find unanimously as follows:  “You must unanimously agree that the possession occurred on or about a particular date.”  In such a case, it is advisable to require the jurors to answer a special interrogatory specifying the date(s) upon which all agreed that the possession occurred. 

            The Ninth Circuit does not recognize an “innocent possession” affirmative defense.  See United States v. Johnson, 459 F.3d 990, 995-98 (9th Cir. 2006). 

            Although brief handling of a weapon does not always satisfy the element of possession, a short length of possession does not preclude conviction.  Compare United States v. Teemer, 394 F.3d 59, 63 (9th Cir. 2005), with United States v. Kearns, 61 F.3d 1422, 1425 (9th Cir. 1995).  The commission of the crime requires no “act” other than the knowing possession of a firearm or ammunition by someone not authorized to do so.  United States v. Beasley, 346 F.3d 930, 934 (9th Cir. 2003).

            Constructive or joint possession may satisfy the possession element.  To show constructive possession, the government must prove a connection between the defendant and the firearm or ammunition sufficient “to support the inference that the defendant exercised dominion and control over” it.  United States v. Carrasco, 257 F.3d 1045, 1049 (9th Cir. 2001) (internal quotation marks and citation omitted).  See generally, United States v. Tucker, 641 F.3d 1110 (9th Cir. 2011).  Similarly, joint control of the premises where the firearm or ammunition was found may be sufficient to establish possession where a defendant “has knowledge of the weapon and both the power and the intention to exercise dominion and control over it.”  Carrasco, 257 F.3d at 1049 (internal quotation marks and citation omitted).

            For a defendant to be convicted of multiple counts under 18 U.S.C. § 922(g)(1) for possession of multiple firearms and/or ammunition, the government must prove that the firearms and/or ammunition at issue were acquired or possessed at different times or stored in different places.  United States v. Keen, 96 F.3d 425, 432 n.11 (9th Cir. 1996); United States v. Wiga, 662 F.2d 1325, 1336 (9th Cir. 1981).  If a defendant is charged with multiple counts, the jury should be instructed to make a finding of fact as to separate acquisition or possession.  United States v. Ankeny, 502 F.3d 829, 838 (9th Cir. 2007); United States v. Szalkiewicz, 944 F.2d 653, 653-54 (9th Cir. 1991) (per curiam).  A possible instruction could be:  

If you have found the defendant guilty of Count I, you may not find [[him][her]] guilty of Count II unless you also find that the government has proven beyond a reasonable doubt that the [firearm[s]] [and] [ammunition] charged in Counts I and II [[were][was]] acquired or possessed at different times or stored in different places. 

            Section 922(g)(8)(C)(i) (prohibiting a person subject to a domestic violence restraining order from possessing a firearm if the order includes a finding that the person represents a credible threat to the physical safety of an intimate partner) survived a facial Second Amendment challenge when the Supreme Court held that, “[w]hen an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.” United tates v. Rahimi, 602 U.S. __, 144 S. Ct. 1889, 1896-902 (2024) (reiterating that the government need only provide a “historical analogue, not a historical twin ” to meet its burden of showing that § 922(g)(8)(C)(i) is “consistent with the Nation’s historical tradition of firearm regulation” (quoting N.Y. State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1, 24, 30 (2022))).            

Revised Sep 2024

           The defendant is charged in [Count _______ of] the indictment with the possession of [a firearm] [ammunition] in violation of Section 922(g)(1) of Title 18 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, the defendant knowingly possessed [specify firearm] [specify ammunition]; 

            Second, the [specify firearm] [specify ammunition] had been [[shipped] [transported]] [[from one state to another] [between a foreign nation and the United States]]; 

            [Third, at the time the defendant possessed the [specify firearm] [specify ammunition], the defendant had been convicted of a crime punishable by imprisonment for a term exceeding one year.  The defendant stipulates that on [date], the defendant was convicted of a crime punishable by imprisonment for a term exceeding one year; and] 

or 

            [Third, at the time the defendant possessed the [specify firearm] [specify ammunition], the defendant had been convicted of a crime punishable by imprisonment for a term exceeding one year; and] 

            Fourth, at the time the defendant possessed the [specify firearm] [specify ammunition], the defendant knew [he] [she] had been convicted of a crime punishable by imprisonment for a term exceeding one year. 

Comment 

            For a discussion of both knowledge elements for a prosecution under 18 U.S.C. § 922(g), see Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019) (“the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.”); Comment to Instruction 14.13 (Firearms—Unlawful Receipt); see also United States v. Johnson, 979 F.3d 632, 634-35 (9th Cir. 2020) (stating government must prove under § 922(g)(1) “that the defendant ‘knew he belonged to the relevant category of persons barred from possessing a firearm’ . . . those convicted of a crime punishable by more than one year of imprisonment.”) For a discussion of possession, see Comment to Instruction 14.15 (Firearms—Unlawful Possession).  See also Instruction 6.15 (Possession—Defined). 

            Defendants frequently stipulate to the third element of the offense rather than have evidence of the prior convictions presented to the jury.  See Old Chief v. United States, 519 U.S. 172, 190-92 (1997) (holding that in case where “proof of convict status is at issue,” it is “an abuse of discretion to admit the record of conviction” when defendant offers to stipulate to prior conviction). 

            If multiple 18 U.S.C. § 922(g)(1) counts are charged, see the Comment to Instruction 14.15 (Firearms—Unlawful Possession). 

Revised May 2023

           The defendant claims that [he] [she] was justified in committing the crime of [specify unlawful possession offense charged].  Justification is a defense to that charge.  The defendant is justified in committing the crime of [specify unlawful possession offense charged] if: 

            First, the defendant was under unlawful and present threat of death or serious bodily injury; 

            Second, the defendant did not recklessly place [himself] [herself] in a situation where he would be forced to engage in criminal conduct; 

            Third, the defendant had no reasonable legal alternative; and 

            Fourth, there was a direct causal relationship between the criminal activity and the avoidance of the threatened harm. 

            The defendant has the burden of proving each of the elements of this defense by a preponderance of the evidence. 

Comment 

            The defense usually arises when a defendant is charged as a felon in possession of a firearm.  It is based on the theory that criminal conduct may be justified if necessary to prevent a greater wrong.  The defendant is entitled to the instruction when there is any foundation in the evidence.  However, a mere scintilla of evidence supporting a theory of justification is not sufficient.  United States v. Wofford, 122 F.3d 787, 789 (9th Cir. 1997).  The justification instruction should be given only in exceptional circumstances.  United States v. Gomez, 92 F.3d 770, 774-75 (9th Cir. 1996). 

            The burden is on the defendant to prove the elements of the defense.  United States v. Beasley,346 F3d 930, 935 (9th Cir. 2003).  Where the defendant is involved in illegal activities and his or her fear is a result of engaging in those activities, the justification defense is not permitted.  United States v. Phillips, 149 F.3d 1026, 1030 (9th Cir. 1998). 

Revised May 2020

           The defendant is charged in [Count _______ of] the indictment with [[transporting] [shipping]] [[a stolen [specify firearm] [stolen ammunition]] in violation of Section 922(i) of Title 18 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, the defendant knowingly [[transported] [shipped]] [[a stolen [specify firearm] [stolen specify ammunition]] [[from one state to another] [between a foreign nation and the United States]]; and 

            Second, the defendant knew or had reasonable cause to believe that the [specify firearm] [specify ammunition] had been stolen. 

Revised May 2020

            The defendant is charged in [Count _______ of] the indictment with [transporting] [shipping] [receiving] [possessing] a firearm that had the serial number removed, obliterated, or altered in violation of Section 922(k) of Title 18 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, the defendant knew that [he] [she] had [transported] [shipped] [received] [possessed] a [specify firearm] [[from one state to another] [between a foreign nation and the United States]]; 

            Second, the serial number of the [specify firearm] had been removed, obliterated, or altered; and 

            Third, the defendant knew that the serial number had been removed, obliterated, or altered. 

Comment 

            A serial number is “altered” if the serial number is changed in a manner that makes it appreciably more difficult to discern; it need not make tracing the gun impossible or extraordinarily difficult.  United States v. Carter, 421 F.3d 909, 916 (9th Cir. 2005).  

Revised May 2020

           The defendant is charged in [Count _______ of] the indictment with [[shipping] [transporting]] [[a firearm] [ammunition]] while under indictment for a felony in violation of Section 922(n) of Title 18 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, the defendant was under indictment for [specify felony]; and 

            Second, the defendant willfully [[shipped] [transported]] [[specify firearm] [specify ammunition]] [[from one state to another] [between a foreign nation and the United States]]. 

Comment 

            The willfulness requirement is not found in the statutory text of § 922(n); rather, it is found in the relevant statutory sentencing provision, § 924(a)(1)(D).  See Dixon v. United States, 548 U.S. 1, 5 n.3 (2006). 

Revised May 2020

            The defendant is charged in [Count _______ of] the indictment with receiving [a firearm] [ammunition] while under indictment for a felony in violation of Section 922(n) of Title 18 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, the defendant was under indictment for [specify felony]; and 

            Second, the defendant willfully received [specify firearm] [specify ammunition] that had been shipped or transported [from one state to another] [between a foreign nation and the United States]. 

Comment 

            Federal law prohibits receipt of a firearm by anyone charged with a felony, whether under state or federal law, or whether by indictment or information.  See 18 U.S.C. § 921(a)(14) (defining “indictment” as including information). 

Revised May 2020

            The defendant is charged in [Count _______ of] the indictment with possessing body armor in violation of Section 931(a) of Title 18 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

            First, the defendant knowingly possessed body armor;                             

            Second, the defendant had previously been convicted of a felony; and

            Third, the defendant knew that [his][her] felony conviction had as an element the use, attempted use, or threatened use of physical force.

Comment

            “The term 'body armor' means any product sold or offered for sale, in interstate or foreign commerce, as personal protective body covering intended to protect against gunfire, regardless of whether the product is to be worn alone or is sold as a complement to another product or garment.”  18 USC § 921(a)(35) [23].

            In United States v. Door, 996 F.3d 606, 615 (9th Cir. 2021), the Ninth Circuit held that “the government must prove that a defendant who possessed body armor knew that (1) he was convicted of a felony and, (2) the felony of which he was convicted had as an element ‘the use, attempted use, or threatened use of physical force.’”

Revised June 2021

            The defendant is charged in [Count _______ of] the indictment with [possession] [receipt] of an unregistered firearm in violation of Section 5861(d) of Title 26 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, the defendant knowingly [[possessed] [received]] [specify firearm]; and 

            Second, the defendant was aware that the [specify firearm] was [specify statutory features or characteristics of the firearm that bring it within the statute]; and 

            Third, the defendant had not registered the [specify firearm] with the National Firearms Registration and Transfer Record. 

            The government need not prove that the defendant knew that possessing the firearm was illegal. 

Comment 

            For a definition of “firearm,” see 26 U.S.C. § 5845(a). 

            The government must prove that the defendant knew of those features of the firearm which brought it within the scope of the statute.  See Staples v. United States, 511 U.S. 600, 619 (1994) (“[T]o obtain a conviction, the Government should have been required to prove that petitioner knew of the features of his AR-15 that brought it within the scope of the Act”); see also United States v. Montoya-Gaxiola, 796 F.3d 1118, 1122 (9th Cir. 2015) (“The law then is clear that, in order to convict under § 5861(d) . . . the Government must prove that the defendant knew the specific characteristics that made it a firearm within the Act”).  The government need not prove that the defendant knew that possessing the firearm was illegal.  See United States v. Summers, 268 F.3d 683, 688 (9th Cir. 2001). 

Revised Sept. 2015

            The defendant is charged in [Count _______ of] the indictment with possession of an unregistered firearm—specifically, components from which a destructive device such as a bomb, grenade, or mine can be readily assembled—in violation of Section 5861(d) of Title 26 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, the defendant knowingly possessed components that could be readily assembled into a destructive device such as a bomb, grenade, or mine; 

            Second, the defendant intended to use the components as a weapon; and 

            Third, the components were not registered to the defendant in the National Firearms Registration and Transfer Record. 

Comment 

            The statutory definition of “destructive device” includes “any combination of parts either designed or intended for use in converting any device into a destructive device . . . and from which a destructive device may be readily assembled.”  26 U.S.C. § 5845(f).  For unassembled components to qualify as a “firearm” there must be proof beyond a reasonable doubt that the components were intended for use as a weapon.  United States v. Fredman, 833 F.2d 837, 839 (9th Cir. 1987).  See United States v. Schaefer, 13 F.4th 875, 893-95 (9th Cir. 2021) (explaining “destructive device” as that term is used in both 18 U.S.C. § 921(a)(4) and 26 U.S.C. § 5845(f)). 

Revised Dec. 2021

            The defendant is charged in [Count _______ of] the indictment with [possession] [receipt] of a firearm without a serial number in violation of Section 5861(i) of Title 26 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, the defendant knowingly [possessed] [received] a [specify firearm]; and 

            Second, there was no serial number on the [specify firearm]. 

Comment 

            For a definition of “knowingly,” see Instruction 4.8 (Knowingly). 

            For a definition of “firearm,” see 26 U.S.C. § 5845(a). 

Revised Mar. 2018

14.28 Transportation of an Explosive or Attempted Transportation of an Explosive
(18 U.S.C. § 844(d))

The defendant is charged in [Count _______ of] the indictment with [attempted] transportation of an explosive in interstate or foreign commerce in violation of Section 844(d) of Title 18 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

First, the defendant [transported] [received] [attempted to [transport] [receive]] in [interstate commerce] [foreign commerce] any explosive; and

Second, the defendant [did so] [attempted to do so] with the knowledge or intent that it would be used to [kill, injure, or intimidate any individual] [unlawfully damage or destroy any building, vehicle, or other real or personal property];

[Third, the defendant did something that was a substantial step toward committing the crime and that strongly corroborated the defendant’s intent to commit the crime, meaning that it strongly corroborated the defendant’s intent to commit the crime.

Mere preparation is not a substantial step toward committing the crime.  To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.

Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.]

Comment 

Concerning the elements of the crime, see, e.g., United States v. Linehan, 56 F.4th 693, 699 (9th Cir. 2022) (citing United States v. Michaels, 796 F.2d 1112, 1118 (9th Cir. 1986)).

18 U.S.C. § 10 defines interstate and foreign commerce.

Section 844(d)’s intent requirement relates “only to the use of the device to kill, injure, or intimidate, and not to the transportation element.”  Michaels, 796 F.2d at 1117.  Thus, section 844(d) does not require specific intent to transport in interstate commerce.  See id.

The term “explosive” is defined in 18 U.S.C. § 844(j); see Linehan, 56 F.4th at 702 (“For purposes of § 844(d), the term ‘explosive’ means any device or chemical ‘in such proportions, quantities, or packing that ignition by fire, by friction, by concussion, by percussion, or by detonation of the compound, mixture, or device or any part thereof may cause an explosion.’” (quoting 18 U.S.C. § 844(j)).

            The bracketed language regarding an “attempt” or “substantial step” applies only when the charge is an attempt.  See Comment to Instruction 4.4 (Attempt).