The firearm at issue was a shotgun manufactured around 1920. The defendant argued he was entitled to an instruction on the antique firearms exception (that, to convict, the jury had to find that the defendant knew that his firearm was manufactured after 1898).
The Court disagreed. Joining the other Circuits, it held a firearm’s antique status is an affirmative defense in a criminal prosecution. And the defendant failed to meet his burden of production to put the “antique firearm” affirmative defense at issue.
More interesting is the Confrontation Clause issue. An agent interviewed defendant’s landlord, who told him that she had seen defendant "with a very old or antique firearm." At trial, the agent testified:
Q: Did your discussion with [the landlord] confirm your decision to arrest Mr. Benamor for the firearm and ammunition?
A: Yes, it did.
The Court held, "[i]n context, that answer implied that the landlord confirmed that Defendant possessed the shotgun and the ammunition." This was a clear Confrontation Clause violation: "If the government’s argument prevailed here, then “every time a person says to the police 'X committed the crime,' the statement (including all corroborating details) would be admissible to show why the police investigated X. That would eviscerate the constitutional right to confront and cross-examine one’s accusers."
The Court, however, found the error harmless.
Moving to the Sixth Circuit, in United States v. Havis, --- F.3d ---, No. 17-5772 (6th Cir. 2019), the en banc court considered "whether the definition of 'controlled substance offense' in § 4B1.2(b) includes attempt crimes." Although the Guideline's commentary says it does, the Guideline itself makes no mention to attempt crimes (or conspiracy).
The Court found the Commission could not add attempt crimes in the commentary:
"The guideline expressly names the crimes that qualify as controlled substance offenses under § 2K2.1(a)(4); none are attempt crimes. And the Commission knows how to include attempt crimes when it wants to—in subsection (a) of the same guideline, for example, the Commission defines “crime of violence” as including offenses that have “as an element the use, attempted use, or threatened use of physical force against the person of another.” USSG § 4B1.2(a) (emphasis added).
To make attempt crimes a part of § 4B1.2(b), the Commission did not interpret a term in the guideline itself—no term in § 4B1.2(b) would bear that construction.4 Rather, the Commission used Application Note 1 to add an offense not listed in the guideline. But application notes are to be “interpretations of, not additions to, the Guidelines themselves.” Rollins, 836 F.3d at 742. If that were not so, the institutional constraints that make the Guidelines constitutional in the first place—congressional review and notice and comment— would lose their meaning. The Commission’s use of commentary to add attempt crimes to the definition of “controlled substance offense” deserves no deference. The text of § 4B1.2(b) controls, and it makes clear that attempt crimes do not qualify as controlled substance offenses.
