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United States v. Benamor

United States Court of Appeals, Ninth Circuit

June 6, 2019

United States of America, Plaintiff-Appellee,
v.
Samir Benamor, Defendant-Appellant.

          Argued and Submitted April 10, 2019 Pasadena, California

          Appeal from the United States District Court for the Central District of California D.C. No. 2:16-cr-00461-SJO-1 S. James Otero, District Judge, Presiding

          Michael Tanaka (argued), Los Angeles, California, for Defendant-Appellant.

          Matthew O'Brien (argued), Assistant United States Attorney; Lawrence S. Middleton, Chief, Criminal Division; Nicola T. Hanna, United States Attorney, Los Angeles, California; for Plaintiff-Appellee.

          Before: Susan P. Graber and Jay S. Bybee, Circuit Judges, and M. Douglas Harpool, [*] District Judge.

         SUMMARY[**]

         Criminal Law

         The panel affirmed a conviction for knowingly possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1).

         The defendant argued that because firearms manufactured in or before 1898 do not qualify as "firearms" under § 922, the district court erred by refusing to instruct the jury that, to convict, they had to find that the defendant knew that his firearm was manufactured after 1898. The panel rejected that argument. The panel explained that United States v. Aguilera-Rios, 769 F.3d 626 (9th Cir. 2014) (concerning the categorical approach), does not override the line of cases holding that a firearm's antique status is an affirmative defense in a criminal prosecution; and that Staples v. United States, 511 U.S. 600 (1994) (concerning the National Firearms Act), does not help the defendant. The panel held that the defendant failed to meet his burden of production to put the "antique firearm" affirmative defense at issue, and rejected the defendant's sufficiency-of-the-evidence argument that rested on the same contention.

         The panel held that the admission of an ATF agent's testimony that his interview with the defendant's landlord confirmed the agent's decision to arrest the defendant for the firearm and ammunition violated the Confrontation Clause, but that the error was harmless beyond a reasonable doubt.

          OPINION

          GRABER, CIRCUIT JUDGE:

         Defendant Samir Benamor appeals his conviction for knowingly possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1). He possessed an old shotgun that might have been manufactured as early as 1915. Because firearms manufactured in or before 1898 do not qualify as "firearms" under § 922, Defendant argues that the district court erred by refusing to instruct the jury that, to convict, they had to find that Defendant knew that his firearm was manufactured after 1898. Defendant also raises a Confrontation Clause challenge to certain testimony. We affirm.

         BACKGROUND

         At the time of his arrest in this case, Defendant was a felon, and law enforcement had authority to conduct warrantless searches of his car and residence. After the local police department received tips that Defendant had engaged in illegal activity, two detectives, Anthony Chavez and Matthew Concannon, conducted surveillance outside the house in the garage of which Defendant resided.

         Concannon saw two vehicles, a Volvo and a minivan, parked in front of the house. Concannon also saw Defendant appear from the back of the property and walk to the street, where he opened the sliding door on the minivan's passenger side, climbed into the driver's seat, and moved the van a short distance down the road. Defendant left the van through the same door and returned to the house. At that point, Concannon ran the number on the van's license plate and learned that it belonged to Defendant.

         Several minutes later, Concannon saw Defendant re-emerge from the back of the house, accompanied by a man named Angel Vasquez and an unidentified woman. All three individuals got into the Volvo and drove away. Chavez and Concannon then searched the garage. They found, among other things, keys to the minivan and an ammunition belt containing four shotgun rounds. Concannon used the keys to open the minivan's locked doors. Next to the sliding door that Defendant used to enter and exit the minivan, Concannon found a shotgun on the floor. The ammunition found in the garage did not match Defendant's shotgun.

         Defendant's landlord arrived at the property during the search and confirmed that Defendant was the only person living in the garage. Because Defendant was a felon and because the detectives had found the ammunition and the shotgun, Chavez directed that Defendant be arrested. Officers arrested Defendant, Vasquez, and the unidentified woman that same day, and jailed Defendant. Four days later, while Chavez was transporting Defendant to a different jail, Defendant asked Chavez how much prison time he might ...


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