United States v. Michael J. O'Mara

concurring.

Federal law requires some, but not all, firearms to be registered. Six circuits, including ours, hold that conviction of a defendant for possessing an unregistered firearm does not require the government to prove that the defendant knew of the characteristics of the weapon that brought it within the registration requirement. See United States v. Thomas, 531 F.2d 419, 421-22 (9th Cir.), cert. denied, 425 U.S. 996 , 96 S.Ct. 2210 , 48 L.Ed.2d 821 (1976); see also United States v. Ross, 917 F.2d 997, 999-1001 (7th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 1078 , 112 L.Ed.2d 1183 (1991); United States v. Mittleider, 835 F.2d 769, 774 (10th Cir.1987), cert. denied, 485 U.S. 980 , 108 S.Ct. 1279 , 99 L.Ed.2d 490 (1988); United States v. Shilling, 826 F.2d 1365, 1367-68 (4th Cir.1987), ce rt. denied, 484 U.S. 1043 , 108 S.Ct. 777 , 98 L.Ed.2d 863 (1988); United States v. Gonzalez, 719 F.2d 1516, 1522 (11th Cir.1983), ce rt. denied, 465 U.S. 1037 , 104 S.Ct. 1312 , 79 L.Ed.2d 710 (1984); Morgan v. United States, 564 F.2d 803, 805-06 (8th Cir.1977). Three circuits hold that it does. See United States v. Harris, 959 F.2d 246, 259-261 (D.C.Cir.1992); United States v.…

Michael J. O’Mara appeals from his conviction after jury trial for possession of an unregistered firearm in violation of 26 U.S.C. § 5861 (d). The weapon in question was a Sten machinegun built and designed to fire in either fully automatic or semiautomatic mode by manipulation of a visible, external selection switch. It is not disputed that the weapon was in fact a machinegun which is defined in 26 U.S.C. § 5845 (b) to include all weapons designed to be fired automatically. It was, therefore, a firearm subject to regulation. See 26 U.S.C. § 5845 (a)(6) (defining “firearm” to include machineguns). The gun was seized as the result of a search by national park rangers. Appellant challenges the search, and also challenges the court’s instruction to the jury as to the elements of the crime charged. Appellant contends that the district court should have instructed the jury that it was the government’s burden to prove not only that the appellant knew that he possessed the weapon, but also that he knew that the weapon was a dangerous device of the type which might be regulated. We hold that the district court did not err in instructing the jury or in admitting the challenged evidence. We…

963 F.2d 1288 UNITED STATES of America, Plaintiff-Appellee, v. Michael J. O'MARA, Defendant-Appellant. No. 90-50632. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 2, 1991. Decided May 8, 1992. Marcia J. Brewer, Los Angeles, Cal., for defendant-appellant. Steven M. Bauer, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before SCHROEDER and KOZINSKI, Circuit Judges, and HOGAN, * District Judge. SCHROEDER, Circuit Judge: 1 Michael J. O'Mara appeals from his conviction after jury trial for possession of an unregistered firearm in violation of 26 U.S.C. § 5861 (d). The weapon in question was a Sten machinegun built and designed to fire in either fully automatic or semi-automatic mode by manipulation of a visible, external selection switch. It is not disputed that the weapon was in fact a machinegun which is defined in 26 U.S.C. § 5845 (b) to include all weapons designed to be fired automatically. It was, therefore, a firearm subject to regulation. See 26 U.S.C. § 5845 (a)(6) (defining "firearm" to include machineguns). The gun was seized as the…