and Submitted April 10, 2019 Pasadena, California
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
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.
panel affirmed a conviction for knowingly possessing a
firearm as a felon, in violation of 18 U.S.C. §
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.
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
GRABER, CIRCUIT JUDGE:
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
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.
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.
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
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 ...