Fries: Insufficient evidence to support 922(a)(5) conviction

In U.S. v. Fries, No. 11-15724 (Aug. 6, 2013), the Court found insufficient evidence to support a conviction under 18 U.S.C. § 922(a)(5) for transferring a firearm to an out-of-state resident without being a licensed firearms dealer, and reversed the conviction. Because the defendant neglected to move for a judgment of acquittal in the trial court, the Court did not review the sufficiency issue de novo, but only to determine whether the record was “devoid of evidence” of an essential element of the crime. An essential element of § 922(a)(5) is that the defendant sold a firearm to an unlicensed person. The government conceded that there was no direct evidence of the licensure status of the person to whom Fries sold a firearm. The Court rejected the government’s argument that Fries knew he was “breaking the law,” noting that this subjective belief did not bear upon the objective state of affairs at the time of the sale. The Court also rejected the government’s argument that it could have proved that the buyer was unlicensed, pointing out that Due Process requires convictions to be based on what the government proved, not what it could have proved.