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VOLUME 7 - CHAPTER 106
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106.2 Possession Or Transportation Of Weapons: Miscellaneous Issues

    106.2.1 Possession Of Illegal Weapons: Juror Unanimity
    106.2.2 Possession Of Weapons: Multiple Convictions
    106.2.3 Possession Of Weapon With Obliterated Serial Number: Presumption From Possession Violates Due Process
    106.2.4 Knowing Transportation Of Firearms With Altered Serial Numbers (18 USC 922(k))
    106.2.5 Possession Of Weapon During Drug Offense: Requirement Of Instruction On Underlying Drug Offense

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VOLUME 7 - CHAPTER 106

    See FORECITE National™ 273.10.11.4 [Jury Unanimity: Firearm/Weapon Possession Offenses].

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VOLUME 7 - CHAPTER 106

    106.2.2    Possession Of Weapons: Multiple Convictions

    See FORECITE National™ 274.4.1 [Whether Multiple Possessions May Result In Multiple Convictions].

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PRACTICE NOTE: A California statute (Calif. Penal Code § 12091) declares: "Possession of any pistol or revolver upon which the name of the maker, model, manufacturer's number or other mark of identification has been changed, altered, removed, or obliterated, shall be presumptive evidence that the possessor has changed, altered, removed, or obliterated the same."

    However, this presumption was held to violate federal due process principles. (See People v. Wandick (CA 1991) 227 CA3d 918, 922-23 [278 CR 274]; People v. Henderson (CA 1980) 109 CA3d 59, 61-65 [167 CR 47].) Therefore, instruction upon this presumption is error in violation of 14th Amendment due process principles. (Wandick, 227 CA3d at 922-23; see also U.S. v. Haynes (2nd Cir. 1994) 16 F3d 29, 33-34 [improper to instruct that government need not prove that the defendant ... knew that the serial numbers were removed ..., but only that the defendant ... knowingly possessed a firearm that was in such condition]; State v. Francis (CT 1998) 717 A2d 696, 704 [jury instruction on offense of altering or removing identification mark on pistol was misleading to jury, where it presented statutory inference that person owning or in possession of pistol has altered it as mandatory, rather than permissive].)

    See also FORECITE National™ 84.2.3.1 [Failure To Appear: Unconstitutional Presumption From Failure To Appear Within Certain Number Of Days].

    See also FORECITE National™ 300.5.3 [Instructions Which Shift The Burden].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally FORECITE National™ 106.1.2 [Possession Or Transportation Of Weapons: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: Knowledge element of the offense requires actual knowledge that the firearm had an altered serial number. (U.S. v. Hooker (5th Cir. 1993) 997 F2d 67, 73-74.)

    See also FORECITE National™ 106.4.3.5 [Lack Of Knowledge That Numbers Were Altered As Defense Theory To Transportation of Firearms with Altered Serial Numbers (19 USC 922(k))].

RESEARCH NOTES:

See generally, FORECITE National™ 305.23.1 [Weapons Offenses].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally FORECITE National™ 106.1.2 [Possession Or Transportation Of Weapons: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: In some jurisdictions possession of a weapon during a drug offense may be charged as a separate substantive crime without the need to charge the underlying drug offense.

    However, when this is the case, the jury must still find the existence of the drug offense under proper instruction. For example, under federal law (18 USC 924(c)) the failure to instruct the jury on the elements of the underlying drug offense amounts to an omission of an element of the 924(c) offense and requires reversal of the possession of a weapon during a drug offense conviction. (U.S. v. Nelson (6th Cir. 1994) 27 F3d 199, 201-02.)

RESEARCH NOTES:

See generally, FORECITE National™ 305.4.9 [Drug Offenses].

See also generally, FORECITE National™ 305.23.1 [Weapons Offenses].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally FORECITE National™ 106.1.2 [Possession Or Transportation Of Weapons: Federal Circuit Model Instructions And Notes].