Eleventh Circuit Orders Acquittal Where Prosecution Failed to Prove Gun Sale Illegal – United States v. Fries

August 14, 2013 by David S. Seltzer

In every contested criminal case, the standard to convict someone is proof beyond a reasonable doubt that he or she committed the crime being prosecuted. My job as a criminal defense attorney is to point out when prosecutors have failed to do that—by finding problems with their proof, the way it was obtained, and other aspects of their cases. In U.S. v. Fries, the Eleventh U.S. Circuit Court of Appeals decided, unusually, that the prosecution simply failed to prove an essential element of the firearms crime that Theodore Stewart Fries was accused of. Fries sold a gun at a Tallahassee gun show to an undercover agent from the Bureau of Alcohol, Tobacco and Firearms. This violates a federal law banning interstate firearms sales unless one party to the sale is to a licensed dealer. The Eleventh ultimately agreed with Fries that the prosecution failed to prove that the agent was not a licensed dealer.

Fries was approached by ATF agents Donald Williams and William Visnovske at a 2009 gun show. Visnovske posed as a Georgia resident visiting the area and asked to buy a gun, but Fries refused because it’s illegal to sell to someone from out of state. He suggested that Williams, posing as a Florida resident, might like to buy the gun. Neither party mentioned whether they had a federal firearms license. The agents left, but tried again in April of 2010. That time, Fries did sell a gun to Visnovske, still posing as a Georgia resident. Again, there was no discussion of license status and no request for Visnovske’s ID. Fries was then federally charged with selling a gun to a nonresident who was not a licensed firearms dealer. At trial, there was no evidence presented about whether Visnovske was a licensed dealer, and the jury instructions omitted the license as an element the jury had to find proven. Fries was convicted.

Fries appealed, but his attorney moved to withdraw from the appeal, saying it was frivolous. The Eleventh Circuit denied that motion, ordering briefing on issues related to whether the licensing element of the crime was proven. Not surprisingly, Fries argued on appeal that it was not, so his conviction should be reversed or a new trial should be granted. Because Fries hadn’t made this argument in trial court, the Eleventh used a higher standard of reversal: only where reversal is necessary to avoid a manifest miscarriage of justice. Fortunately for Fries, the court did find it necessary. The statute requires proof that both parties not have federal firearms licenses. The Eleventh “comb[ed] the record” but failed to find any evidence at all about Visnovske’s license status. Thus, it reversed his conviction. A concurrence added that “it is not asking to much to expect a prosecutor… to ensure that all of the elements in [the indictment] are proven.”

I agree. No one should go to prison if the government did not truly prove that they committed a crime. Though it may seem like Fries was lucky to have his guns and firearms conviction reversed, it’s likely that he spent some time in prison, which is not very lucky. This case does show that prosecutors make mistakes—and it’s my job to find those mistakes and use them to my client’s advantage. In addition to failing to prove a vital element of the crime, prosecutors and police can make mistakes with gathering and storage of evidence, civil rights violations and more. At Seltzer Law, P.A., we can use those mistakes to break down the cases against our clients, creating lowered or dropped charges, lowered penalties and more.

If you’re facing a weapons charge in Florida, don’t wait to contact Seltzer Law for a free, confidential consultation. We answer the phone 24 hours a day and seven days a week. You can reach us through our website or call 1-888-THE-DEFENSE (1-888-843-3333).

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