Summary
holding within the § 5845 definition of Blair flare gun which the defendant had loaded with a shotgun shell and which was shown by test-firing to be capable of being used as a shotgun
Summary of this case from Commonwealth v. SampsonOpinion
No. 72-1853.
December 6, 1972.
George Minor, Jr., Portsmouth, Va. (court-appointed counsel, on brief), for appellant.
Brian P. Gettings, U.S. Atty. for Eastern District of Virginia, and Roger T. Williams, Asst. U.S. Atty., on brief, for appellee.
Appeal from the United States District Court for the Eastern District of Virginia.
Before BUTZNER, RUSSELL and FIELD, Circuit Judges.
Fred Douglas Coston appeals from his conviction, after a plea of guilty, of unlawful possession of a firearm in violation of the National Firearms Act, 26 U.S.C. § 5861. Coston contends that the weapon he possessed, a Blair Flare gun which he had loaded with a shotgun shell, was not a "firearm" within the meaning of the Act. The weapon, which had a length of 5 3/8 inches and a smooth bore, proved capable of being used as a shotgun when test-fired. These physical characteristics and firing capability made the weapon a firearm within the meaning of 26 U.S.C. § 5845. Cf. United States v. Shafer, 445 F.2d 579, 583 (7th Cir.), cert. denied, 404 U.S. 986, 92 S.Ct. 448, 30 L.Ed.2d 370 (1971); United States v. Williams, 427 F.2d 1031, 1033 (9th Cir.), cert. denied, 400 U.S. 909, 91 S.Ct. 154, 27 L.Ed.2d 149 (1970).
Affirmed.