holding that the introduction of evidence of previous instances in which the defendant had been present in an automobile with a shotgun were admissible "under Fed. Rules of Evid. 404(b)[ ] to show that his presence in the car with the shotgun [on the occasion in question] was intentional and not a mistake or accident"
How later courts described this case
- holding that the introduction of evidence of previous instances in which the defendant had been present in an automobile with a shotgun were admissible "under Fed. Rules of Evid. 404(b)[ ] to show that his presence in the car with the shotgun [on the occasion in question] was intentional and not a mistake or accident"
- holding that, “absent any evidence that the defendants received the .12 gauge shotgun and the five rounds of ammunition on separate occasions, they could not lawfully be found guilty of receipt of the gun and the ammunition as separate crimes forming the subject of multiplicitous counts”
- holding that a defendant may not be charged separately for receiving both a "firearm” and "ammunition” under 18 U.S.C. § 922(h) unless the government offers evidence that the firearm and ammunition were received on separate occasions
- holding that defendant may not be lawfully convicted of a separate ammunitions receipt charge under 18 U.S.C. § 922(h) absent evidence that ammunition recovered with firearms had been received on a different occasion
Written by the judges who cited it.
The opinion
WINTER, Circuit Judge,
dissenting in part and concurring in part;
Since I would affirm the convictions on counts IV and V, I respectfully dissent.
First, the language “receive any firearm or ammunition” seems to me to state that a receipt of a gun and ammunition is two crimes, whether or not the items are simultaneously received. Second, if the purpose of the legislation is to prevent access to firearms by indicted or convicted felons because of the danger that they will use them to commit further crimes, that danger is *170 much greater when a fully loaded firearm is received than when only the weapon or the ammunition but not both are obtained.
Both the language and purpose of the statute thus seem contrary to the result reached by the majority. Since I concur in the remainder of Judge Mansfield’s opinion, I would affirm the convictions on all counts.