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Old April 7, 2018, 01:25 PM   #1
LilPewPew
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So my good friend is a felon and his son wants to have some guns (son is 14 so can't legally own a gun). So the guns would go under his wife's name but he says since the house is under his name then everything under his roof is his possession. But I say since his wife would be the owner of the gun then it would be her possession. So who's right? And can he really get in trouble if they are in his possession because cops can't raid his house without a warrant so as long as he doesn't become suspicious he should be good?

Also he's in Missouri if that matters.
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Old April 7, 2018, 01:54 PM   #2
Sharkbite
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No guns in the house that he could hava access to.

Access is the issue
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Old April 7, 2018, 02:21 PM   #3
LilPewPew
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Alright so if they keep the guns locked away in the basement he's good?
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Old April 7, 2018, 02:23 PM   #4
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Thats a gray area i would not want to be in. Locked in a safe he does not have access to....MAYBE

IMHO, not worth the risk
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Old April 7, 2018, 02:32 PM   #5
LilPewPew
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Alright, I'll let him know.
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Old April 7, 2018, 03:39 PM   #6
SonOfScubaDiver
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He would be taking a big chance. Not worth it, in my opinion. His wife could also get into trouble for buying guns that really aren't for her.
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Old April 7, 2018, 04:12 PM   #7
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I've purchased more than a half a dozen firearms as gifts for each of my two sons through their years of growing up here in Missouri.
I know for certain that I won't be getting into any trouble for buying firearms that really aren't for me.

Sharkbite is right, it's about access not possession.
If the felon could reasonably take possession it is the same as if they had.
It is a touchy area but not impossible to deal with, though what is needed is advice from a legal authority, not a firearms forum frequenter.
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Old April 8, 2018, 01:39 AM   #8
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Consult with a local attorney - internet speculation is worth what you pay for it, don't get involved with what could be a criminal act.
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Old April 8, 2018, 02:05 AM   #9
Frank Ettin
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It's about access, not ownership.

Under federal law a person who was convicted of a felony is prohibited from possessing a gun or ammunition.

"Possession" is a good, English word, and its normal meaning is:
Quote:
1 a : the act of having or taking into control...
So possession is in a sense broader than ownership. One may have possession of something without being the owner. And one may own something without having [at the time] possession of it.

Also, unless a word is specifically defined in a statute it will be read and applied by a court according to its ordinary meanings. See Perrin v. United States, 444 U.S. 37 (United States Supreme Court, 1979), at 42:
Quote:
...A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning...
So, for example, I have possession of the things here on my desk near me not because I own them (which in this case I do), but because they are under my control. I can pick up a pen here and use it. I can hand this stapler to my wife, who just entered my study so she can use it (or I can physically prevent the neighbor kid, who has no business being here anyway, from picking up my letter opener.) And if something on my desk has been loaned to me, so I don't own it, it's still here and I can handle and use it.

The courts have applied the same reasoning to prohibited-persons-in-possession-of-a-gun cases:
  1. See U.S. v. Barron-Rivera, 922 F.2d 549 (C.A.9 (Wash.), 1991) in which Barron-Rivera's conviction for being an alien in possession of a firearm was affirmed without him even having had to touch a gun. Barron-Rivera's claimed reversible error in that the government failed to prove the necessary intent.

    The court of appeal noted, at 551:
    Quote:
    ...Barron-Rivera argued that the gun was in his wife's residence at the time he re-entered the United States and moved back into that residence. Accepting that contention, the district court, nonetheless, found that Barron-Rivera's possession of the firearm was voluntary because he permitted the firearm to remain in the house after he acquired knowledge of its presence....
    In affirming the conviction, the court of appeal found, at 551 -- 552:
    Quote:
    ...In other words, by continuing to reside in the apartment in which the gun was located, he voluntarily and knowingly possessed the gun...
  2. See, also, United States v. Huet, 665 F.3d 588 (3rd Cir., 2012), in which the gun a prohibited person was charged with illegally possessing was not secured against the prohibited person's access, supporting both the prohibited person's conviction for unlawful possession of a gun and the indictment of his cohabitant. From the opinion (at pg. 593, emphasis added):
    Quote:
    ...on June 6, 2008, a valid search warrant (the “search warrant”) was executed on the couple‟s Clarion County home. Agents seized an SKS, Interordnance M59/66 rifle (“SKS rifle”) from an upstairs bedroom.

    Although Huet is legally permitted to possess a firearm, Hall was convicted in 1999 of possessing an unregistered firearm, in violation of 26 U.S.C. § 5861(d), and is therefore prohibited from owning or possessing a firearm. After being informed of the raid, Huet allegedly told investigators that the guns in the house belonged to her and that it was not illegal for her to purchase weapons. Despite Huet‟s assertions that she alone possessed the SKS rifle, the Government sought and obtained an indictment charging Hall with illegal possession of the weapon, and Huet with aiding and abetting Hall‟s possession....
    So the gun Hall, a convicted felon, was indicted for unlawfully possessing, belonged to his cohabitant, Huet. It appears to have been undisputed that Huet could lawfully possess firearms. Nonetheless, she was indicted for aiding and abetting Hall's unlawful possession of gun because Huet's gun wasn't secured against access by Hall.

Bottom line, guns need to be stored in a manner which reasonably assures that the felon can't get his hands on one -- e. g., in a locked safe to which he doesn't have the combination or can't get the key.
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Old April 8, 2018, 07:59 AM   #10
Spats McGee
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Quote:
Originally Posted by LilPewPew View Post
So my good friend is a felon . . . . And can he really get in trouble if they are in his possession because cops can't raid his house without a warrant so as long as he doesn't become suspicious he should be good?
Frank has already laid this out, but I'll add a couple of points:
  • Yes, he can really get in trouble. A great deal of trouble. At the federal level, a violation of 18 USC 922(g) is punishable by 10 years in prison plus fines, the amount of which escapes me. It's also possible to be prosecuted at the State level. In fact, while it's an unusual circumstance, he could (in theory) be prosecuted by both the federal and state authorities.
  • If he's a felon, and still on probation or parole, he may well have a search waiver on file. That's a waiver of the warrant requirement and his parole officer could come over and look around, kind of whenever he wants.
  • Your friend and his wife need to consult an attorney, licensed in the appropriate jurisdiction, about this. One familiar with criminal law & procedure, as well as federal firearms law.
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