Whether Prior Conviction Is “Felony” for § 922(g)(1) Purposes Is Question of Law

US v. Fulton: Fulton had a hobby of trying, and failing, to buy firearms. In 2023 he tried to so 11 times (from licensed dealers), each time answering “no” to the required question of whether he had ever been convicted of a felony. None of the “denials” specified a reason. Still, “after Fulton’s eighth attempt,” an ATF agent, working with a local police officer, spoke to Fulton and told him he could not buy a gun because of a prior felony conviction from New Jersey. After trying a couple of more times, the agent visited in person and told him the same thing. After the eleventh attempt, Fulton was charged with making a false statement during the attempted purchase of a firearm.

At trial, the Government introduced a judgement from New Jersey for Fulton’s prior conviction, but it showed only a 13-day sentence (followed by probation), did not state a maximum potential sentence, and did not contain the word “felony.” Fulton made a motion for a judgment of acquittal, arguing that the Government had failed to prove that the prior conviction was, in fact, a felony. The Government responded that the district court could determine that the prior conviction was a felony as a matter of law. Ultimately (after the jury convicted), the district court granted Fulton’s motion, along with a motion for a new trial, holding that the Government had failed to establish the nature of the prior conviction, including by not introducing the New Jersey statute at issue into evidence.

On appeal, the Fourth Circuit reversed. The court first concluded that the Government proved that Fulton had a prior felony conviction, holding that the nature of the offense is a “question of law for the judge to determine” (the ATF agent also testified, without objection, that it was a felony). As a result, the district court “was empowered to consider whatever authorities or sources it needed to resolve it, without regard to whether such sources were admitted into evidence or subject to judicial notice.”  The court the concluded that the grant of a new trial was also erroneous, rejecting the district court’s conclusion that there was an “absence of proof of Fulton’s knowledge that he was a felony,” pointing to the repeated failed attempts to purchase guns and the ATF agent’s warnings. The district court erred by focusing “exclusively on Fulton’s 2007 sentence . . . and the text of the criminal judgement.” In the end, the “jury was not required to find Fulton guilty. But it did, and the evidence supports its verdict.”