Criminal Practice – Prior Felony Conviction – False Statement on ATF Form

The district court therefore erred in concluding that the Government failed to present substantial evidence to prove that Defendant had been convicted of a felony such that his statement to the contrary on the ATF form was false.

We reversed the district court’s grant of Fulton’s motion for a judgment of acquittal, reversed the conditional grant of a new trial, and remanded with instructions to reinstate the jury’s verdict.

A jury convicted Steven Fulton of knowingly making a false statement in connection with the attempted acquisition of a firearm. At trial, the Government introduced evidence that, on a background check form at a gun shop in North Carolina, Fulton denied having any felony convictions, despite having a prior felony conviction in New Jersey. The district court, however, overturned the jury’s verdict and entered a judgment of acquittal because the Government did not present evidence to the jury demonstrating that Fulton’s New Jersey offense was punishable by more than a year in prison. In the event this Court disagreed with that decision, the district court conditionally granted Fulton a new trial. The district court erred in both respects.

To establish that Fulton violated 18 U.S.C. § 922(a)(6), the Government was required to prove he (1) knowingly made (2) a false or fictitious statement (3) that was material to the legality of the firearm transaction and (4) was intended or likely to deceive the firearms dealer. The district court’s judgment of acquittal turned on the second element, the existence of a false statement. Because the allegedly false statement was that Fulton was not a felon, the Government had to prove that Fulton was a felon. The Government did so. The district court erred in holding that the Government was required to present evidence proving to the jury as a factual matter the statutory penalties for Fulton’s offense.

Whether a crime is punishable by more than one year in prison is a question of law for the judge to determine. It is not a question of fact to be decided by the jury based on competing evidence at trial.1 Indeed, it is untenable to put the question of applicable statutory penalties to the jury, such that this New Jersey offense could be found punishable by more than one year in prison in one case but not in another. The maximum statutory penalty for the crime is a legal question. Because the question is legal in nature, the district court was empowered to consider whatever authorities or sources it needed to resolve it, without regard to whether such sources were admitted into evidence or subject to judicial notice. The close of evidence did not constrain the district court from considering the content of New Jersey law in resolving Fulton’s Rule 29 motion.

In sum, the Government introduced evidence that Fulton was convicted in 2007 of unlawful possession of a handgun, a third-degree offense, in violation of New Jersey Statutes § 2C:39-5(b). As a matter of law, that offense is a felony punishable by more than one year in prison. The district court therefore erred in concluding that the Government failed to present substantial evidence to prove that Fulton had been convicted of a felony such that his statement to the contrary on the ATF form was false. The judgment of acquittal was in error.

We turned next to the district court’s conditional grant of a new trial. The district court granted a new trial because it perceived an “absence of proof of Fulton’s knowledge” that he was a felon. That conclusion is “unsupportable.” The Government did present proof of Fulton’s knowledge. First, the Government introduced evidence that Fulton is a felon, and “[i]f a person is a felon, he ordinarily knows he is a felon.” The district court’s failure to credit this evidence flows from its error in concluding, on the acquittal motion, that the Government failed to present evidence sufficient to prove that Fulton’s prior conviction was a felony. As described above, that ruling was erroneous. Second, Agent Cato testified that he personally told Fulton he was a felon, twice, in 2023 and that Fulton seemed to understand that fact. Although the district court acknowledged Agent Cato’s testimony, the court never evaluated its effect on Fulton’s knowledge or addressed why the court did not consider that testimony at least some “proof of Fulton’s knowledge.” The court did not explain if or why it discounted Agent Cato’s testimony, nor did the court ever weigh his testimony “with the evidence as a whole.” Third, the Government presented evidence that, on 10 prior occasions, with 10 different sales associates, Fulton had attempted to purchase firearms and been denied because he failed the background check. That is at least circumstantial evidence that Fulton knew he was prohibited from owning a firearm.

Reversed and remanded.

United States v. Steven Nicholas Fulton (Lawyers’ Weekly No. 001-121-25, 14 pp.) (Allison J. Rushing, J.) Appealed from the U.S. District Court for the Eastern District of North Carolina, at Greenville (Terrence W. Boyle, J.) ARGUED: Katherine Simpson Englander, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellant. Jaclyn L. Tarlton, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellee. ON BRIEF: Michael F. Easley, Jr., United States Attorney, David A. Bragdon, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellant. G. Alan DuBois, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellee. U.S. Court of Appeals for the Fourth Circuit