Updated: 01-07-16
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United States v. Mixon, C.A. 7 (Wis.) , 457 F. 3d 615 (6/12//06)

As noted in my comments at other sections of this site, normally “felon in possession of firearm(s) cases” are not reported unless they involve novel issues, or a judge makes some comment regarding gun control—the object then being to alert viewers of those courts expressing pre-conceived notions about our right to keep and bear arms. This case demonstrates how far the prosecution can stretch a factual scenario to make a charge stick--with a little help from the Court.
The applicable law: Under the federal Gun Control Act, 18 U.S.C. Sec. 922(g)(1), “ . . .a felon may not ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition.” In its definition of firearm, the Act specifically excludes from its application “any gun that is an antique ‘i.e., any firearm manufactured in or before 1898.’’’ 18.U.S.C. Sec. 921(a)(3), (a) (16). Defining “ammunition” the Act states: “ammunition or cartridge cases, primers, bullets, or propellant powder designed for use in any firearm.” Id Sec. 921(a)(17)(A). “Bullets are ‘ammunition’ if they are designed for use in any firearm.” 18. Sec. 921 (a)(17)(B).
[Note: Throughout its reported decision, the Court, as common with gun cases, when referring to ammunition describes the rounds or cartridges as “bullets.”]
Facts When stopped by police on suspicion that he planned to rob a video store, the defendant, a convicted felon, was found in possession of a revolver with five rounds, later identified as a .38 caliber Hopkins & Allen revolver manufact ured before 1899.
The defendant’s initial approach was to attack the police recovery of the gun and ammunition by motion on the theory that the police had no probable cause for the stop and search. A magistrate judge issued a finding recommending the District Court find there was “reasonable suspicion” for the stop & search. Before that could be effectuated, the Defendant executed a plea agreement, part of which stipulated to the commerce element (the bullets having been manufactured in Russia and brought to the U.S. in foreign commerce). The guilty plea was withdrawn when the defendant alleged he entered into the plea on the mistaken belief that any federal sentence would have to run concurrent with one he was serving for his parole violation.
Although Mixon could legally possess the firearm because it is exempted under the Act as an antique firearm, he was charged with unlawful possession of “ammunition.”
Arguments & Appellate Court Decision:
The ammunition loaded in the gun were Russian-made 9mmWolf cartridges, and the prosecution alleged they were designed for use in any firearm.
The defendant argued that his 1898 .38 caliber revolver is not a “firearm” within the meaning of the Act, and, therefore,” because ammunition is prohibited only if it is designed for a firearm, bullets designed for an antique are not prohibited for felons to possess.” On that issue the Court had this to say:
“If these bullets had been designed exclusively for use in the Hopkins & Allen revolver, they would not be ‘ammunition’ because by definition this antique revolver is not a ‘ firearm.’ On the other hand, if the bullets were designed for use, not just in this antique revolver, but in other guns manufactured after 1898, then it would appear, given the literal language of the definition, that they are ‘ammunition’ because they would be designed for any firearm.”
Defendant had an additional argument, that is—“the only logical construction of the statute is that bullets loaded in an antique firearm—whether or not they are usable in a gun that’s not an antique—are not ’ammunition’ as that term is used in the Gun Control Act.” The Court’s response to that argument:
“What was not disputed before trial is that Mixon had a .38-caliber firearm loaded with 9mm rounds. But it’s the design of the bullets, not the location, that matters, There was no agreement—indeed no effort by Mixon to suggest—that these bullets were ‘designed’ for use in this gun. It is true that the bullets were in the cylinder, but that simple fact hardly establishes as a matter of law that they were designed for, and could be safely used , in this weapon.
“ . . . More importantly, though, Mixon did not even stipulate that the 38-caliber handgun was an ‘antique firearm’ or that it was manufactured in 1898 or before. Thus, as far as the trial evidence shows, Mixon was caught with both a gun and bullets that he could not lawfully possess as a felon.” Affirmed.





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