We therefore conclude that the district court did not abuse its discretion in ordering a new trial to instruct the jury that the Government had to prove that Kwan had no other apparent legal purpose for the shoulder stock than to convert his unregistered pistol into an illegal short-barreled rifle.This is good news. Per Len Savage:
AFFIRMED.
So Albert Kwan would get a new trial. If there is a trial, the burden of proof will be on the government. And they will have to prove "no other apparent legal purpose," which would be impossible because, as the Ninth Circuit pointed out, Kwan testified that the stock is plastic and breaks easily (so the apparent purpose is replacement) and that Kwan purchased the second stock before Kwan purchased the civilian version (so a second apparent purpose would be to have it go with the military version).Of course, with BATFU, anything's possible...we'll see if they still go forward after this. But for now, it is definitely good news.
Look for this now to be dismissed, as the trial judge pointed out there is no violation.
Don't forget in Kwan's case the ATF came to his place of business and removed the "registered " pistol and one stock, leaving the unregistered pistol and one stock. Then they came back and seized "an unlawful collection of parts" that could be assembled into a SBR, and charged him based on constructive possession [for having the parts that the ATF left him]. ATF also charged him with possession of a machine gun that only fired as a machine gun after the ATF altered it. The Jury understanding that, acquitted.
One other thing-- I note the title-linked disposition document says:
NOT FOR PUBLICATION...I'm not sure I understand what that means in terms of restrictions, if any--all I can say is, if they have any that apply to We the People, they shouldn't make it accessible on a public website. Whatever, I saved a copy.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
This is yet another case of an American being harassed into financial ruin, something we're all too familiar seeing. I'll see what I can find out about what we can do to help Mr. Kwan, as what he's done on his own can benefit the rest of us in the future.
5 comments:
It doesn't help much. Most courts don't accept unpublished opinions. TBH I have no idea where the idea of "let's make a decision but we don't want to be bound by stare decisis in the future!" started...
It's not uncommon for an appeals court to not publish an opinion if they believe there is already adequate case law on the books. Without reading the opinion (I'm at work right now), I would assume that the court just pointed to existing rules and case law about district court discretion.
It's usually just another way for the court to tell whoever filed the appeal that "this is already well covered by the law, you're being stupid."
It's like the medieval Church arguing about how many angels can dance on the head of a pin, as people died of starvation and the plague.
They give me such a headache.
Sure'n 'tis a fine lantern ye've got there, Mrs. O' Leary, all shiny and polished and newly full of oil. How proud ye must be, to keep it so well-tended.
As pointed out, "not for publication" means not for official publication, therefore not binding as precedent. That got started in routine cases where precedent (and the cost of printing) would be pointless. I've seen a claim that the process is now being overused, especially when a court wants to decide a certain way in one case but knows the legal theory is shaky or doesn't want to be bound the same way in the future.
Anyone with the time can forward the decision to west legal publishing, denoting which "west law key number" of case law it falls within, and with an explanation as to its importance, and West may proceed with publishing it.
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