Nfa question for attorneys

General Firearms NFA
1

I know it’s “common knowledge” among most gun trust attorneys, and the ‘big two’ both claim it, but, I recently disagreed with an attorney that claimed in the commonly used hypothetical where the item is registered to the husband alone, either with no trust or generic trust, and the wife knows the combination to the safe, that they are both felons under constructive possession, and that people have been arrested and charged in this situation.

I believe it is not felony constructive possession, for both, and have never heard of nor could I find any instance of this actually happening

2

There are several cases of felons being arrested under the same theory for a firearm being present in the house. In fact if I remember right there is one in my criminal law textbook from law school. Google is bad source for the kind of information you are seeking, westlaw and lexisnexis are the proper place to be looking. Also, most of the time these things happen, it never goes to the appellate court, which means most are never going to be case law. Because this issue has been beaten to death in the courts since the 80s, it just doesn’t pop up anymore.

In short, your attorney friends are right, you are wrong. I would be curious as to why they think both are breaking the law, as only one of them isn’t allowed to be in possession of the restricted item(unless your local jurisdiction considers it aiding in some fashion), unless it is the federal law he is talking about.

Also, I should add. In some states, depending on your local prosecutor and local laws, I don’t think it matters whether or not the wife knows the combination or has a key. It is generally presumed that husband and wife share these things and I think you would have a heck of a hard time trying to prove otherwise.

3

I’m curious, how would anyone know if a situation like this existed? If said wife could access a NFA item, who besides her or her husband would know. Outside of committing a crime and having LEO going through your house, I would think this is a non-issue. It reminds me of the “constructive intent” argument when people buy an upper before they get their stamp back.

4

Bingo. It usually comes up during the investigation of another crime.

5

OP, do you live a life of crime? Does your wife? My point is if you’re being charged with constructive possession, you’ve probably got bigger fish to fry.

6

I know of the original ‘constructive possession’ case where the court said the drug dealer was justifiably charged with possession of the firearm with serial number removed, and the Florida case where the guy sold an illegal sbr to a cop, but removed the stock and vert grip while still selling them as one bundle, but that’s it.

I’m going to need some evidence or I can only conclude that the wife knowing the safe combo is both false, and also the claim that couples have been charged is also false

It’s doctrine for gun trust attorneys, but I can’t find any basis

** hypo is that ‘you’ facilitated, assisted, etc her possession-crime

7

Do a westlaw search or have your attorney friend do it for you it. It is not false. The case I’m thinking about is an old one where a felon is home from prison and his wife stores her pistol inside a safe and doesn’t tell her husband the combination. The court concluded the felon had constructive possession of the firearm and he went back to prison, plus an additional ten years.

I’m telling you, this stuff does happen. I’m not sure what kind of proof you are wanting…you can always test it out for yourself and report back :smiley: .

I’m not sure if the assistance would be an issue under texas law(I’ve never seen one where it was an issue), and I don’t practice federal. If the arrest occurred in Texas though under state law, the wife would lack the statutory defense provided under texas law to possession of a suppressor though, whether she knew the combination or not. In federal court If there is a crime in regards to the facilitation of possession then I would absolutely assume the AG would file the charge against both parties.

Constructive Possession is a fact driven issue, and an expensive one as you will likely be arguing it in front of a jury.

8

Are you talking about the case I mentioned? Drug dealer staying with his girlfriend and her child, he says you can’t change me for the gun with serial numbers removed, lower court says yes, and hypothetically all of you could be charged.

To get from there to your wife knowing the combination of the safe is… Questionable

That’s also part of the reason I think it may be unfounded, that’s the whole foundation of their argument

I’ve mentioned it in the past, I’m a police officer and attorney, with some prosecution experience, so I have a basis for questioning their doctrine

9

I don’t think I’ve read the one involving serial numbers, the one I’m talking about is different and from minnesota I think (its been several years since I’ve read it). You are right to question the doctrine, as a lot of people don’t like it and I know it can vary from state to state. The point of constructive possession is dominion and control. I think in some jurisdictions intent also comes into play. Frankly, just from taking a quick search it appears that even if the wife DOES NOT know the combination, the mere presence of the contraband, even in a locked safe, can give rise to constructive possession as there is a presumption the wife and husband would share that.

10

Complete nonsense borne from Internet idiots. Ask them to cite this safe combination case. How does a registered owner get charged with constructive possession (no such law), when he in fact owns the firearm, and it is registered to him…

11

When is access alone enough?

12

Constructive possession is what is known as a legal fiction, as in it was created by case law. I don’t think the issue is in regards to the actual registered owner, but as it would affect the person who is not.

I don’t think access is enough. The government would have to establish knowledge of the item as well.

13

Not sure this was posted to the thread, apologies if it shows up twice.

JG007 asked that I reply after my reply to the other trust question thread, so I will try. What you are getting is my opinion based on 30 years of practicing law, the last 15 of which have been exclusively trust based planning. My criminal law attorney days were a long time ago nor do I litigate any more, so give it what value you see fit.

jmoney is right, constructive possession is a potential problem. Do I expect the ATF to be checking house to house to see if there are people living in your house who are not properly included on your Trustee list? I hope not in this lifetime. Do I think it could happen that the question comes up, absolutely. If someone breaks into your house and steals your collection, guess who is going to show up. Do you want to be the newest case to be listed as an appellate opinion? I don’t and don’t want it to be my client.

There are so many other good, legitimate reasons to do a quality trust that constructive possession concerns, real that they are, become a secondary benefit of having a properly drafted trust.

Look at it from my side as I sit down to work with a client (yep, I do that before I draft a gun trust), my job is to point out and discuss the POSSIBLE risks, I am not guaranteeing they will happen on a regular basis to honest people, but I have not done my job if I don’t bring it up and say be careful about this. I have a concealed weapon permit, I don’t carry a handgun because I am certain I am going to need it, I carry it because of the remote possibility I might need it. What probability of occurrence does a risk have to have to make you want to prepare for it? Constructive possession concerns, and I believe they are real, are so cheap and easy to fix why would you waste your time and your attorney’s time arguing about it.

If all you want is to have ATF issue the paperwork to allow you to possess a restricted item, go get the cheapest trust you can find on the internet. If you have any concerns about what possibly could go wrong, or if you are concerned about your spouse or kids when you die, you need to do it right and the junk floating around is not adequate.

Good luck with your choices.

14

what led to me questioning a different gun trust attorney was his claim that people have been charged in that scenario, if he would have said that a properly drafted gun trust helps avoid a hypothetical situation like that, I would not have given it any notice

15

Ehh, I have seen a lot of felons in possession of a firearm in that scenario, but I have yet to see an NFA case. There are several NFA constructive possession cases, mostly involving “parts”, but I didn’t see any pop up for the hypo yet.

However, keep in mind, that doesn’t mean they aren’t there. Doing a law search is only going to show appellate decisions, individual prosecutions, especially ones where the individual plea bargains (which 98%) are not going to show up.

I think WCJMT’s example involving burglary is very on point.

16

I don’t think the burglary example could happen. From my research, the entire constructive possession premise is based on a criminal, a NON REGISTERED /illegal nfa item, and an absence of anyone actually being charged.

If this was reality, wouldn’t the atf have addressed it at some point in the Nfa handbook? (which most gun trust attorneys have never read and may not even be aware of)

Also, wouldn’t every military or police member with an NFA item be informed of this and instructed to prevent it (neither happens)

And, in addition to myself, the atf agents, prosecutors, and police legal advisers I’ve run it past have also all said no.

Because I’m cautious and meticulous, I have not reached one hundred percent certainly that it’s unfounded, but I’ve apparently done more research than most and I found nothing

17

One more comment then I will be quiet. This discussion has been interesting, but is turning into a 45 vs 9mm type debate, different agendas not likely to reach a common agreement.

I have not researched the court decisions for constructive possession cases in NFA matters because for my clients it doesn’t matter. I set them up so that it is not a problem and never should become an issue. Assuming that there are no reported appellate cases, that changes absolutely nothing. Constructive possession is a real issue, however rarely encountered in NFA matters. The lack of appellate cases has no bearing on what is done at the field level between agents and NFA owners or with prosecutors. It could still be an issue, plan around it and move on. The lack of appellate decisions on point does not mean it does not exist as an issue or concern. The lack of reporting at the trial court and enforcement level also means you cannot prove it is an issue, so we are back to 45 vs 9mm.

The only appellate case that will change my practice is a US Supreme Court decision on point dealing with NFA constructive possession. Don’t hold your breath waiting on it. From a practicing attorney viewpoint if I don’t address constructive possession concerns I am probably negligent, so I deal with it and don’t worry about it. Maybe you are right and this is a non issue, but I KNOW it is a non issue with proper planning, so I move on to more important concerns.

One last point on the NFA handbook, be careful what you assume. I have a PDF copy on my desktop, a mouse click away, and I don’t think I am unique. I also seriously doubt you would ever see this issue addressed in the handbook, that is not its purpose.

The discussion has been enlightening, have fun with it.

18

Regarding the Nfa handbook point, that’s addressing the huge number of new attorneys doing gun trusts in the last year or two after doing a seminar and using that attorneys software. They are jumping right in like you saw with bankruptcy a few years ago. Same thing as a new realtor (non attny) or tax guy at h and r block

19

I also can’t compare the (mis) information of “if you do this then you and your wife are felons” to 9 vs 45

20

So basically anyone who has ever purchased NFA items as an individual vs corp or trust is condemning their entire family to prison?? While I can see the potential for that kind of abuse from our masters, I’d really like to see some cases where this hypothetical offense was a primary charge brought against otherwise law abiding folk.