UNITED STATES of America, Plaintiff-Appellee, v. Jerry Lee IMES, Jr., Defendant-Appellant

dissenting:

The court candidly notes that “the issue is not without difficulty” and that both the Tenth Circuit and the Fourth Circuit have reached a conclusion opposite to that of the court. In the face of this division and difficulty it is not easy to see why the court prefers to eliminate proof of an element of knowledge that goes to the mens rea of the defendant.

*1315 The court’s principal reliance appears to be on an offhand reference to sawed-off shotguns in Staples v. United States, — U.S. -, -, 114 S.Ct. 1793, 1800 , 128 L.Ed.2d 608 (1994). This reference is hardly the kind of incidental illustration that should be dis-positive when the issue is squarely presented. Our jurisprudence has traditionally demanded proof of a criminal intent to obtain a felony conviction. Our belief in individual responsibility requires such proof. Purely regulatory crimes should be the exception. Morissette v. United States, 342 U.S. 246, 250-62 , 72 S.Ct. 240, 243 , 96 L.Ed. 288 (1952). We succumb to a regulatory, bureaucratic mentality when we add one more regulatory crime to an increasing roster.

This appeal requires us to consider the impact of two recent Supreme Court opinions, Staples v. United States, — U.S. -, 114 S.Ct. 1793 , 128 L.Ed.2d 608 (1994), and Bailey v. United States, — U.S. -, 116 S.Ct. 501 , 133 L.Ed.2d 472 (1995), on the law of this circuit concerning possession of a sawed-off shotgun.

Jerry Lee Imes, Jr., argues that his conviction for possession of an unregistered firearm in violation of the National Firearms Act, 26 U.S.C. § 5861 (d), cannot stand under Staples because the jury was not instructed that the government must prove his knowledge of the illegal features of the sawed-off shotgun he possessed. We conclude that a defendant is not entitled to such an instruction under Staples where, as here, the defendant knowingly possessed the firearm and the firearm is an obviously sawed-off shotgun. Because the characteristics of the weapon itself render it “quasi-suspect,” Staples does not require proof that the defendant knew of the specific characteristics which make the weapon subject to the Act.

Imes also contends that the district court’s imposition of a four-level enhancement at sentencing pursuant to U.S.S.G. § 2K2.1(b)(5) for “use[] or…

80 F.3d 1309 96 Cal. Daily Op. Serv. 2336 , 96 Daily Journal D.A.R. 3931 UNITED STATES of America, Plaintiff-Appellee, v. Jerry Lee IMES, Jr., Defendant-Appellant. No. 95-30025. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 7, 1996. Decided April 5, 1996. Stephen R. Hormel, Federal Defenders of Eastern Washington and Idaho, Spokane, Washington, for defendant-appellant. Gregory M. Shogren, Assistant United States Attorney, Yakima, Washington, for plaintiff-appellee. Appeal from the United States District Court for the Eastern District of Washington Alan A. McDonald, District Judge, Presiding. No. CR-94-02054-AAM. Before: FLETCHER, JOHN T. NOONAN, Jr., and RYMER, Circuit Judges. RYMER, Circuit Judge: 1 This appeal requires us to consider the impact of two recent Supreme Court opinions, Staples v. United States, --- U.S. ----, 114 S.Ct. 1793 , 128 L.Ed.2d 608 (1994), and Bailey v. United States, --- U.S. ----, 116 S.Ct. 501 , 133 L.Ed.2d 472 (1995), on the law of this circuit concerning possession of a sawed-off shotgun. 2 Jerry Lee Imes, Jr., argues that his conviction for possession of an unregistered firearm in violation of the National Firearms Act, 26…