United States v. Theodore Stewart Fries
2013 U.S. App. LEXIS 16247
| 11th Cir. | 2013Background
- Fries was convicted of Count II for transferring a firearm to a nonresident not licensed as a dealer, in violation of 18 U.S.C. § 922(a)(5).
- ATF undercover agents at a Tallahassee Gun Show attempted two purchases from Fries; the first was refused, the second succeeded without verifying transferee licensure.
- Count I (unlicensed dealer) resulted in a not-guilty verdict; Count II (sale to nonresident unlicensed) resulted in a guilty verdict, which the district court imposed as two years’ probation.
- § 922(a)(5) prohibits transfers by unlicensed persons to unlicensed recipients residing outside the transferor’s state, with limited exceptions.
- Fries requested jury-instruction modification to reflect dual residency; the court did not address whether the transferee’s licensure status was an essential element of the crime.
- On appeal, Fries challenged the sufficiency of evidence showing the transferee, Visnovske, lacked a federal firearms license.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the evidence sufficient to prove an essential element that transferee was unlicensed? | Fries | Fries | Insufficient evidence; verdict reversed |
| Did the jury instruction treat transferee licensure as an exception rather than an element? | Fries | Fries | Not reached due to insufficiency ruling |
Key Cases Cited
- United States v. Tyson, 653 F.3d 192 (3d Cir. 2011) (defines § 922(a)(5) elements for unlicensed transfers)
- United States v. James, 172 F.3d 588 (8th Cir. 1999) (statutory element construction for § 922(a)(5))
- United States v. Lain, 640 F.3d 1134 (10th Cir. 2011) (confirms licensure status as element)
- United States v. Lopez, 2 F.3d 1342 (5th Cir. 1993) (§ 922(a)(5) prohibits transfers to nonlicensees in different state)
- Tapia v. United States, 761 F.2d 1488 (11th Cir. 1985) (due process requires evidence of every element beyond reasonable doubt)
- United States v. Wright, 63 F.3d 1067 (11th Cir. 1995) (manifest miscarriage standard for sufficiency review when no acquittal motion)
- United States v. Hamblin, 911 F.2d 551 (11th Cir. 1990) (sufficiency review under manifest miscarriage standard)