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Legal Memorandum: Unauthorized Possession of Ammunition

Issue: Is it necessary for the U.S. Government to establish that use of ammunition was unauthorized in order to obtain a criminal conviction?

Area of Law: Criminal Law
Keywords: Possession or use of ammunition; Criminal conviction
Jurisdiction: Federal, Virgin Islands
Cited Cases: None
Cited Statutes: None
Date: 10/01/2008

As an element of the offense, it is clear that the government must establish, beyond a reasonable doubt, that the possession of ammunition was unauthorized.  United States v. Daniel, 518 F.3d 205, 208 (3d Cir. 2008).  Even if there was a stipulation that a firearm possessed or used by a defendant was unlicensed, this does not permit an inference that the possession of ammunition for that firearm was “unauthorized.”  Id. at 208-09.  The government raised this precise argument in Daniel and the Third Circuit flatly rejected it.  Id.  It also rejected the government’s contention that authorization to possess ammunition is an affirmative defense that the defendant must raise. The Daniel court concluded:

To obtain a criminal conviction, the government must establish each element of the alleged offense beyond a reasonable doubt.  In order to fulfill that requirement, the government cannot substitute proof of a lack of authorization to possess a firearm for the requisite proof of lack of authorization to possess ammunition—particularly in view of the fact that there is no apparent way under Virgin Islands law to obtain permission to possess ammunition.

Id. at 209.

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