A. The Thompson .45 Caliber Weapon
Section 5845(b) of Title 26 defines a "machine gun" as "any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger." Alverson argues that the Government offered insufficient proof that the Thompson .45 caliber weapon fit this definition. No one disputes that the Thompson, in the condition in which it was left at the gun store, did not fire "more than one shot ... by a single function of the trigger." The Government contends, however, that its evidence proves either that the gun could be "readily restored to shoot automatically" or that the gun did function automatically when Alverson brought it to the gun store and before he replaced the disconnect.
The following evidence was adduced: (1) when defendant first brought the weapon to the store, he stated that he and his son had just been firing it and that "while his son was shooting it he held down the trigger too long." This statement makes sense only in reference to a weapon that fires more than one shot per function of the trigger. (2) In the presence of gun store employees, defendant removed the disconnect from the gun and replaced it because "you don't want [the Thompson] like this," or "it was fixed." The second disconnect differed from the first in that it "had a smaller hump on it." A Government firearms expert testified that the function of a disconnect was to prevent the weapon from firing fully automatically. He also testified that the Thompson "probably" would fire fully automatically if it had a disconnect on which the hump had been "filed down." Finally, the Government's expert testified that a "shaved off" disconnect, in conjunction with the polished interior surfaces he actually observed on the Thompson, "would convert it into fully automatic." (3) Defendant had the knowledge to convert semi-automatic weapons to fully automatic,and had done so on previous occasions. (4) A gun store employee testified that appellant gave, as a reason for having his wife sign for the Thompson, the fact that "he had spent 18 months in Lompoc for possession of a machine gun." From this evidence, a rational trier of fact could conclude, beyond a reasonable doubt, that the Thompson could be "readily restored to shoot automatically." [footnote 1]
B. Constructive Possession of the Other Weapons
Possession of firearms in violation of section 5861(d) "need not be [proved by] exclusive actual possession, but may be [proved by] constructive or joint possession." United States v. Kalama, 549 F.2d 594, 596 (9th Cir.), cert. denied, 429 U.S. 1110, 97 S.Ct. 1147, 51 L.Ed.2d 564 (1977). "'In order to establish constructive possession, the government must produce evidence showing ownership, dominion, or control over the contraband itself or the premises ... in which contraband is concealed.' ... [D]ominion and control over[defendant's] own residence, in which the guns were found, is a sufficient basis for the jury's inference of constructive possession." United States v. Smith, 591 F.2d 1105, 1107 (5th Cir. 1979) (quoting United States v. Ferg, 504 F.2d 914, 916-17 (5th Cir. 1974)). [footnote 2] The defendant argues that the Government's evidence fails to show that the residence in which the three additional weapons were seized was his.
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