United States District Court, S.D. West Virginia, Beckley Division
MEMORANDUM OPINION AND ORDER
C. BERGER O UNITED STATES DISTRICT JUDGE
Court has reviewed the Motion for Judgement of Acquittal
of Defendant John Swain (Document 51) and the
Response to Motion for Judgment of Acquittal
(Document 52). For the reasons stated herein, the Court finds
that the motion should be denied.
BACKGROUND AND PROCEDURAL HISTORY
February 12, 2019, the Defendant was indicted for being a
Felon in Possession of a Firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). At the time of
possession, the Defendant was a prohibited person based on a
prior conviction of Possession of a Firearm by a Prohibited
Person, occurring on April 7, 2008. A one-day jury trial was
held on April 29, 2019.
to the trial, the Defendant and the Government stipulated
that the Defendant was a “prohibited person” and
that the item of evidence claimed to be a firearm traveled in
interstate commerce. The trial proceeded with two issues in
dispute. First, the Defendant did not stipulate that the item
in evidence was a “firearm” as defined by 18
U.S.C. § 921(a). Second, the Defendant did not stipulate
to possessing the item of evidence claimed to be a firearm.
trial, the Government called two witnesses from the Beckley
Police Department: Officer Capehart and Officer Reynolds.
Officer Reynolds is also affiliated with ATF, a federal
agency that focuses on firearm and gun crimes. At the close
of the United States' case, the Defendant moved for
judgment of acquittal pursuant to Fed. R. Crim. P. 29,
arguing that the United States failed to proffer any evidence
that the firearm possessed by the Defendant was not an
Court denied the Defendant's motion for judgment of
acquittal at that time. The Court also denied the
Defendant's request to modify the definition of firearm
in the jury instructions based on the Defendant's
argument that no evidence had been presented to prove that
the weapon was not an “antique firearm.” The jury
found the Defendant guilty of the single count of the
indictment. He remains incarcerated awaiting sentencing. The
Defendant now moves for judgment of acquittal claiming
sufficient evidence was presented, at trial, to shift the
burden to the United States, requiring it to prove that the
weapon at issue was not an “antique firearm.”
Rule of Criminal Procedure 29(a) (“Rule 29”)
states, in relevant part, that “[a]fter the government
closes its evidence …, the court on the
defendant's motion must enter a judgment of acquittal of
any offense for which the evidence is insufficient to sustain
a conviction. The court may on its own consider whether the
evidence is insufficient to sustain a conviction.” Fed.
R. Crim. P. 29. In its review, the court must “
‘[v]iew[ ] the evidence in the light most favorable to
the Government, '” United States v.
Hickman, 626 F.3d 756, 762-63 (4th Cir. 2010) (quoting
United States v. Bynum, 604 F.3d 161, 166 (4th Cir.
2010)). The Court must assume that the Government's
evidence is credible and draw all favorable inferences in the
Government's favor. United States v. Gadsden,
616 Fed.Appx. 539, 541 (4th Cir. 2015); see also United
States v. Boddy, No. 2:14-00038, 2014 WL 6961695, at *3
(S.D. W.Va. Dec. 8, 2014). However, “leaps of
logic” are not permitted. Evans-Smith v.
Taylor, 19 F.3d 899, 908 n.22 (4th Cir. 1994). More
precisely, “[a] judgment of acquittal based on the
insufficiency of the evidence is a ruling by the court that
as a matter of law the government's evidence is
insufficient ‘to establish factual guilt' on the
charges in the indictment.” United States v.
Alvarez, 351 F.3d 126, 129 (4th Cir. 2003) (quoting
Smalis v. Pennsylvania, 476 U.S. 140, 144 (1986)).
The test for deciding a motion under Rule 29(a) is
“whether there is substantial evidence (direct or
circumstantial) which, taken in the light most favorable to
the prosecution, would warrant a jury finding that the
defendant was guilty beyond a reasonable doubt.”
United States v. McCloskey, 682 F.2d 468, 473 (4th
Cir. 1982). If a “rational trier of fact” can
find that the essential elements of a charged offense are
supported by the evidence, the motion must be denied.
United States v. Singh, 518 F.3d 236, 246 (4th Cir.
Defendant argues that the United States failed to establish
sufficient evidence that the “firearm was, in fact, a
firearm as that term is defined under the law.”
(Def.'s Mot. at 3.) Specifically, “antique
firearms, ” or those manufactured prior to 1898, are
not “firearms” for purposes of the offense. 18
U.S.C. §§ 921(a)(3), 921(a)(16). At trial, defense
counsel asked Officer Reynolds when the firearm in evidence
was manufactured, to which “Officer Reynolds testified
that he did not know when the item of evidence claimed to be
a firearm was manufactured . . .” (Def.'s Mot. at
4.) The Defendant argues that raising the question was
sufficient to establish the “antique firearm”
affirmative defense. As such, the Defendant argues that the
burden shifted to the Government to demonstrate beyond a
reasonable doubt that the firearm at issue was not an antique
firearm. Because the Government failed to prove beyond a
reasonable doubt that such exception did not apply to this
case, the Defendant argues that he is entitled to a judgment
United States takes the position that it was not required to
prove that the firearm possessed by the Defendant was not an
antique firearm. (Pl.'s Resp. in Opp'n at 1.)
Specifically, the United States notes that “the antique
firearms exception is an affirmative defense that must be
raised by the defendant and supported by evidence before the
Government must disprove its application.” Id.
at 2. The United States argues that the Defendant
“failed to provide any evidence of the ‘antique
firearm' application. As such, the Government was not
required to demonstrate that the firearm was not an antique
firearm.” Id. at 2.
is well established that the antique firearm exception is an
affirmative defense to a firearm charge under §
922(g).” U.S. v. Royal, 731 F.3d 333, 338 (4th
Cir. 2013). The government does not have to prove that the
weapon at issue was not an antique. United States v.
McMillan, 346 Fed.Appx. 945, 947 (4th Cir. 2009).
Instead, the burden of raising the antique firearm exception
is on the defendant. Id.; United States v.
Mayo, 705 F.2d 62, 75 (2d Cir. 1983). To establish the
affirmative defense, the defendant must raise sufficient
evidence to justify shifting the burden of proof.
Royal, 731 F.3d at 338 (quoting United States v.
Lawrence, 349 F.3d 109, 122 (3d Cir. 2003)). If the
defendant produces “more than a scintilla of
evidence” that the firearm was an antique, then the
burden shifts to the government. United States v.
Sligh, 142 F.3d 761, 762 (4th Cir. 1998). Additionally,
the “affirmative defense may be raised by the testimony
of the government's own witnesses.” Sherman v.
United States, 356 U.S. 369, 373 (1958).
Defendant moves for judgment of acquittal, arguing that
raising the question of the firearm's date of manufacture
with Officer Reynolds at trial was sufficient to establish
the affirmative defense and shift the burden to the
government. However, testimony from law enforcement officers
in which they state that they do not know the date that the
object was manufactured fails “to sufficiently raise
the defense.” United States v. Royal, 731 F.3d
333, 339 (4th Cir. 2013); see also United States v.
Lawrence,349 F.3d 109, 111, 121 (3d Cir. 2003) (raising
the possibility that the firearm is an antique manufactured
prior to 1898 is insufficient to shift the burden to the
government). As such, the Defendant failed to establish the