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Government’s failure to prove element of offense results in reversal of illegal firearms deal conviction

The defendant in U.S. v Fries was convicted of transferring a firearm to an out-of-state resident which is a violation of federal criminal laws when neither the seller nor the buyer was a licensed firearms dealer. 18 U.S.C. 922(a)(5) make a crime for a seller to sell a weapon to a nonresident, if neither the seller or the buyer are licensed dealers. Fries was arrested when ATF agent, posing as a Georgia resident, purchased a gun from Fries, non-licensed seller, at a Gun and Knife show in Tallahassee, Florida. Fries was convicted following a trial, but at the close of the government’s case his attorney did not file a motion for judgment of acquittal, nor did he filed one at the close of all the evidence, or in a post-trial motion. Fries filed a notice of appeal, and subsequently his attorney filed a motion to withdraw and an Anders brief, arguing that the record revealed no arguable issue of merit. The court of appeals denied the motion and ordered briefing on an issue relevant to this decision: Whether the evidence was insufficient to convict when no evidence was presented as to whether the buyer of the firearm was a licensed dealer.

For this reason, the issue raised by the defendant on appeal was the sufficiency of the evidence. To convict, the government must offer evidence on these four elements: 1) the defendant was not a licensed firearms dealer, importer, manufacturer or collector; 2) the defendant sold, transferred, traded or gave to another person; 3) the person to whom the defendant transferred the firearm was not a licensed importer, manufacturer, dealer, or collector; and 4) the defendant knew or had reasonable cause to believe that the person receiving the firearm did not reside in the state of the defendant’s residence. Because Fries did not move for a judgment of acquittal or preserve the argument, the court of appeals held that it is required to find that either the record is devoid of evidence of an essential element of the crime, or “that the evidence on a key element of the offense is so tenuous that a conviction would be shocking.”

After combing the entire record, the court of appeals found no evidence that the person the defendant sold the firearm to did not possess a firearms license. The government argued the jury could find evidence the buyer was unlicensed from testimony between the defendant and various ATF agents in which Fries apparently demonstrated knowledge that it would be illegal to sell to a non-resident unless that person held a license. The court of appeals rejected this argument. Because Fries lacked personal knowledge of the buyers licensure status, the defendant’s subjective believe he was executing a transaction with an unlicensed person does not bear on the objective state of affairs as they existed at the time of the sale. There was no evidence that the undercover buyer was in fact an unlicensed buyer at the time of the sale. The court held the lack of evidence was not harmless error. Though there was no contemporaneous objection or motion at trial, permitting the conviction to stand where government failed to offer any evidence of an essential element of the crime, “would do great damage to the considerations of due process that the serve as a fundamental bulwark of our criminal justice system.”