We therefore conclude that the district court did not abuse its discretion in ordering a new trial to instruct the jury that the Government had to prove that Kwan had no other apparent legal purpose for the shoulder stock than to convert his unregistered pistol into an illegal short-barreled rifle.This is good news. Per Len Savage:
AFFIRMED.
So Albert Kwan would get a new trial. If there is a trial, the burden of proof will be on the government. And they will have to prove "no other apparent legal purpose," which would be impossible because, as the Ninth Circuit pointed out, Kwan testified that the stock is plastic and breaks easily (so the apparent purpose is replacement) and that Kwan purchased the second stock before Kwan purchased the civilian version (so a second apparent purpose would be to have it go with the military version).Of course, with BATFU, anything's possible...we'll see if they still go forward after this. But for now, it is definitely good news.
Look for this now to be dismissed, as the trial judge pointed out there is no violation.
Don't forget in Kwan's case the ATF came to his place of business and removed the "registered " pistol and one stock, leaving the unregistered pistol and one stock. Then they came back and seized "an unlawful collection of parts" that could be assembled into a SBR, and charged him based on constructive possession [for having the parts that the ATF left him]. ATF also charged him with possession of a machine gun that only fired as a machine gun after the ATF altered it. The Jury understanding that, acquitted.
One other thing-- I note the title-linked disposition document says:
NOT FOR PUBLICATION...I'm not sure I understand what that means in terms of restrictions, if any--all I can say is, if they have any that apply to We the People, they shouldn't make it accessible on a public website. Whatever, I saved a copy.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
This is yet another case of an American being harassed into financial ruin, something we're all too familiar seeing. I'll see what I can find out about what we can do to help Mr. Kwan, as what he's done on his own can benefit the rest of us in the future.