Or is that s no no? Seems I heard at one time you can't.

I know it's a pistol & this is the rifle section but you know... you guys are smarter over here

I believe the ATF has ruled that placing a fore grip on a pistol creates a new class of weapon – an AOW (Any Other Weapon), which must also be registered and a fee paid. While it might seem tempting to mount a vertical fore grip to your AR pistol, and while technically the law is silent on this addition, the ATF still takes a dim view of it and in the end, even if you are right, you will have to endure an expensive trial to prove it.

I wonder if an AFG or a handstop opens the same can of worms?

A pistol with a second pistol grip has generally been interpreted by BATFE to be an "any other weapon," requiring NFA registration. However, the USC 26 § 5845 definition of an AOW does not specifically include the second pistol grip:

quote:

(e) Any other weapon The term ‘‘any other weapon’’ means any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive, a pistol or revolver having a barrel with a smooth bore designed or redesigned to fire a fixed shotgun shell, weapons with combination shotgun and rifle barrels 12 inches or more, less than 18 inches in length, from which only a single discharge can be made from either barrel without manual reloading, and shall include any such weapon which may be readily restored to fire. Such term shall not include a pistol or a revolver having a rifled bore, or rifled bores, or weapons designed, made, or intended to be fired from the shoulder and not capable of firing fixed ammunition.

https://www.gpo.gov/fdsys/pkg/...subtitleE-chap53.pdf

The issue is that BATFE does not believe that a handgun with a second pistol grip is designed to be fired with one hand (which is part of the definition for pistol). Therefore, since it is not a pistol, they classify it in the legal trashcan of AOW.

Here is their opinion letter:

https://www.atf.gov/firearms/d...rip-handgun/download

AFG does not, for some reason, trigger the same issues as a VFG. Where between 45 degrees and 90 degrees the exact problem lies has never been made clear:

https://drive.google.com/file/...w?ddrp=1&hl=en&pli=1
[Skip to the very bottom for Question 7 which deals with adding an AFG to an AR pistol]

quote:

[Skip to the very bottom for Question 7 which deals with adding an AFG to an AR pistol]

THAT is a very specific answer to a specific question. Thank you LDD.

I thought it was permissible if the overall length of the weapon was more than 26"? I think the Franklin Armory website has a copy of the ATF letter. They sold an AR pistol with a vfg at one time.

Here's an angled fore grip that you can grab like a handle, if your hands are med to large.

BCM has a KAG and I have one on my pistol...."supposed" to be acceptable.

http://www.bravocompanyusa.com...p/bcm-kag-km-blk.htm

If the OAL is over 26", you CAN have a vertical grip.

quote:

Originally posted by Zacsquatch:
If the OAL is over 26", you CAN have a vertical grip.

As I recall, the OAL is calc'd by have the "stock" in the most extended position.

I have an AR pistol with a 11.5" barrel and a 1.5 inch muzzle device that comes damn close to being below 26 inches (as I recall) with the pistol brace all the way in (nose to the charging handle shooting-style if I was allowed...)

James in Denver

quote:

Originally posted by Mikito:
I thought it was permissible if the overall length of the weapon was more than 26"?

Correct.

AR Pistol <26" = no vertical grip, but angled grips are fine.

AR >26" but with a sub-16" barrel and no stock = vertical grips are fine. (Such a gun is neither a rifle nor a handgun, in the eyes of the Feds. It's simply a "firearm".)

quote:

Originally posted by James in Denver:
As I recall, the OAL is calc'd by have the "stock" in the most extended position.

Correct. Stock extended, and muzzle device removed (unless the muzzle device is permanently attached by being soldered, or pinned and welded.)

But you shouldn't have an adjustable stock on a pistol anyway.


Here's a letter from the ATF that covers all these subjects:

Rogue, do you know if the BCM KAG is considered a vertical grip or angled grip. It's more of a hand-stop but it does protrude downwards.

It's called "Kinesthetic Angled Grip" but to me, it's not really angled that much.

James

I don't know what the ATF's stance is on the KAG. But I don't see how it could be considered a vertical foregrip. It's an angled hand stop.

Under the opinion of the ATF putting a vertical grip on a pistol remakes it into an AOW.

OTOH the only case that I know of where that was prosecuted the judge struck that logic down.

Hand stops and other not quite vertical grips like the AFG are legal in the eyes of the ATF.

quote:

Originally posted by PPGMD:
OTOH the only case that I know of where that was prosecuted the judge struck that logic down.

Do you mind pointing me towards that ruling?

quote:

Originally posted by RogueJSK:

quote:

Originally posted by PPGMD:
OTOH the only case that I know of where that was prosecuted the judge struck that logic down.

Do you mind pointing me towards that ruling?

This is the most of the text of the ruling I can find anymore.

http://www.saysuncle.com/2006/04/11/more_on_aows/

All I know is that it was US v Davis, in a district court in South Carolina, and the case was from 1993 IIRC. Maybe someone with LexisNexis can find the text again.

Anyways cases like this aren't unusual the ATF has been slapped down with their convoluted logic several times. But they just continue because people fear them more than the ATF fears the courts.

quote:

Originally posted by PPGMD:
This is the most of the text of the ruling I can find anymore.

http://www.saysuncle.com/2006/04/11/more_on_aows/

All I know is that it was US v Davis, in a district court in South Carolina, and the case was from 1993 IIRC. Maybe someone with LexisNexis can find the text again.

Here's the 1993 ruling from the South Carolina federal judge:

http://www.titleii.com/bardwell/us_v_davis2.txt

But here's another ruling from 2014 in which a different federal judge from the 6th Circuit held that adding a vertical grip to a pistol does make it an AOW.

http://caselaw.findlaw.com/us-...circuit/1654886.html

quote:

Originally posted by RogueJSK:

quote:

Originally posted by PPGMD:
This is the most of the text of the ruling I can find anymore.

http://www.saysuncle.com/2006/04/11/more_on_aows/

All I know is that it was US v Davis, in a district court in South Carolina, and the case was from 1993 IIRC. Maybe someone with LexisNexis can find the text again.

Here's the 1993 ruling from the South Carolina federal judge:

http://www.titleii.com/bardwell/us_v_davis2.txt

But here's another ruling from 2014 in which a different federal judge from the 6th Circuit held that adding a vertical grip to a pistol does make it an AOW.

http://caselaw.findlaw.com/us-...circuit/1654886.html

Interesting, US v Black and US vs Davis seems like two different cases, one is a guilty as sin criminal trying to get off while the other was a very technical case of how NFA regulations are applied. I wonder what the details of US v Fix (mentioned in the US v Black decision) involved.

quote:

Originally posted by PPGMD:
Interesting, US v Black and US vs Davis seems like two different cases, one is a guilty as sin criminal trying to get off while the other was a very technical case of how NFA regulations are applied. I wonder what the details of US v Fix (mentioned in the US v Black decision) involved.

[**2] Appellant Ted Parker Fix ("Fix") appeals his convictions on three counts under 26 U.S.C. § 922(v) and one count under 26 U.S.C. § 5861. On appeal, Fix raises seven issues: (1) whether the government proved that the Norinco weapons which were the bases of the convictions in Counts I, III, and IV were prohibited weapons; (2) whether the government proved that the weapon described as a Calico Liberty III in Count V was a firearm rather than a pistol; (3) whether the government proved the required mens rea for a conviction on all counts; (4) whether the performance of Fix's trial counsel amounted to ineffective assistance of counsel; (5) whether the district court erred in not instructing the jury as to the grandfather clause, the definition of "rifle," and the definition of "any other weapon"; (6) whether the sentencing court erred in increasing Fix's offense level by applying U.S.S.G. §§ 2K2.1(b)(1)(C), 3B1.1, and 3B1.3; and (7) whether the district court erred in denying Fix's motion to dismiss on the ground that 18 U.S.C. § 922(v)(1) is unconstitutionally vague. We affirm the convictions on Counts I, III, and IV, [**3] deny relief as to issues 3 through 7, but reverse as to Count V.



I. Whether the Government Proved that the Norinco SKS Weapons Are Prohibited
Fix argues that the government failed to prove that the grandfather clause does not apply to the Norinco SKS weapons involved in Counts I, III, and IV. This argument must fail because, contrary to Fix's contention, the Norinco weapons in question are not the type described by 26 U.S.C. § 921(a)(30)(A). HN1 Section 921(a)(30)(A) applies only to AK type Norinco weapons, which the Norincos involved in Counts I, III, and IV were not. The Norincos do, however, fall under § 921(a)(30)(B), by virtue of their features. Because the weapons were modified by Fix or one of his employees after the effective date of the statute prohibiting such weapons, the weapons cannot be deemed pre-ban weapons. Accordingly, the grandfather provision does not apply to the Norinco weapons involved in Counts I, III, and IV.

Fix argues that even if the Court finds the grandfather clause in § 922(v) does not [*326] apply to the Norincos, the government did not prove essential elements of the offense beyond a reasonable doubt, because it did not demonstrate [**4] that the Norinco weapons were rifles within the definition of § 921. This argument fails as well, because there was no dispute at trial as to whether the weapons met the definition, several witnesses testified that they were rifles, and even defense counsel referred to them as rifles.



II. Whether the Calico Liberty III Required Registration
Fix argues that the government did not prove the Calico Liberty III, found during a search of his home and business, was a weapon that required registration. Fix was convicted under 26 U.S.C. § 5861(d) of possession of an unregistered firearm. In a related provision, HN2 "firearm" is defined by a list of eight weapons and a catchall provision of "any other weapon." See 26 U.S.C. § 5845(a). "Any other weapon" includes "any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive," but not "a pistol . . . having a rifled bore . . ." See 26 U.S.C. § 5845(e). Weapons not included in the definition of firearm in § 5845 need not be registered under § 5861(d). Fix argues that his Calico was a pistol, [**5] met the exception in § 5845(e), and did not need to be registered under § 5861.

We agree that the Government failed to prove a violation of § 5861(d) for two reasons.

First, the weapon does not fit the definition required by the statute. HN3 The provision defining "pistol" for the purposes of the statute is 27 C.F.R. § 179.11, which defines a pistol as "a weapon originally designed, made, and intended to fire a projectile (bullet) from one or more barrels when held in one hand . . . ." The government argues that because the Calico was modified to be fired with two hands, it "falls out" of the definition of pistol and falls back into the definition of "any other weapon" in § 5845. This argument ignores the definition's requirement that the weapon be capable of being held with one hand at the time it was originally designed and made. As written, this definition does not consider modifications of the weapon by the owner. The Calico was originally designed and made to be fired with one hand, and still could be, despite the addition of a foregrip.

Second, the definition of "any other weapon" in §§ 5845(a) and (e) expressly excludes weapons with a rifled [**6] bore. We assume that the "any other weapon" provision was intended as a catch-all category in which to gather sawed-off shotguns and other hybrid weapons. A sawed off shotgun may be concealed like a pistol, but would have the smooth bore of a shotgun. The Government's witness stated that the Calico Liberty III had a rifled bore, and thus, cannot be considered "any other weapon."

Accordingly, the conviction on Count V must be reversed for insufficiency of the evidence. 1Link to the text of the note



III. Mens Rea
Fix argues that the government [**7] did not prove the required mens rea for convictions [*327] under 26 U.S.C. § 922 and 26 U.S.C. § 5861. In reaching this conclusion, Fix relies on Staples v. United States, 511 U.S. 600, 128 L. Ed. 2d 608, 114 S. Ct. 1793 (1994), for the proposition that the government must prove that he had knowledge that the particular weapons in his possession and/or sold by him were prohibited by statute. However, this is a misreading of Staples. Staples only requires that HN4 a defendant be aware of the features of the weapon which bring it within the scope of the statute. See id. at 619. Because Fix was aware of the features of the Norinco weapons that brought them within the statutes in question, the mens rea requirements were met.



IV. Ineffective Assistance of Counsel
Fix argues that the performance of his trial counsel amounts to a violation of his Sixth Amendment right to effective counsel. The government correctly argues that this claim should not be addressed at this time. While HN5 the Court is permitted to hear an ineffective assistance claim on direct appeal where the record is sufficiently developed to [**8] permit determination of the issue, see United States v. Davis, 36 F.3d 1424, 1433 (9th Cir. 1994), an ineffective assistance claim in this case would be more properly raised in a motion for collateral relief under 28 U.S.C. § 2255, at which time the District Court could develop a record regarding Fix's representation at the guilt phase of his trial.

V. Jury Instructions

Fix argues the district court erred in failing to instruct the jury regarding the definition of "rifle." Fix did not request this instruction at trial or object to its omission, and thus this Court reviews only for plain error. See United States v. Barajas-Montiel, 185 F.3d 947, 953 (9th Cir. 1999). At trial, Fix did not argue that the weapon did not fall under the statute as a rifle, and several witnesses testified that the Norinco weapons were rifles. Because the failure to instruct on this issue was not so clear that the judge should have given an instruction on its own, Fix's request for relief on this claim must be denied.

Fix also argues the district court should have instructed the jury about the grandfather provision in 26 U.S.C. § 922 [**9] (v)(2). However, because the rifles were not modified until after the statutory cut-off date, they do not qualify under the grandfather provision. Thus, the instruction would not have been proper.



VI. Sentencing Guidelines
Fix contends the district court erred in its application of the United States Sentencing Guidelines. The district court increased Fix's offense level by three points under U.S.S.G. § 2K2.1(b)(1)(C) for an offense involving between eight and twelve firearms, by two points under § 3B1.1(c) for being a leading in the criminal act, and by two points under § 3B1.3 for using a special skill. Fix failed to file a timely objection to the presentence report and declined to object to factual findings in the presentence report at the sentencing hearing. HN6 Rule 32(b)(6)(D) of the Federal Rules of Criminal Procedure requires the parties to provide the probation department with any objections to the report within 14 days after receipt of the report. These objections, along with the report, are then submitted to the court by the probation department. Under Rule 32(b)(6)(D), the sentencing court may accept the presentence report as its findings of fact, unless there is [**10] some unresolved objection. Fix filed a very untimely sentencing memorandum, and at sentencing Fix failed to comment on or object to the sentencing report, despite being given an opportunity to do so. HN7 In the Ninth Circuit, [*328] failure to object to findings in a presentence report constitutes waiver of that challenge on appeal. See United States v. Visman, 919 F.2d 1390, 1394 (9th Cir. 1990). Accordingly, Fix's arguments regarding the sentencing guidelines must fail.

VII. Vagueness of 26 U.S.C. § 922(v)

Finally, Fix argues that § 922(v) is unconstitutionally vague and thus that his convictions on Counts I, III, and IV should be overturned. There is no merit to this claim. Fix seriously misconstrues both the government's argument and the apparent basis for the result in the district court. The government did not argue that Fix himself had to possess the weapon prior to enactment of the statute, but only that someone must have lawfully possessed it. In fact, § 922 is not at all amenable to Fix's "personally possessed" interpretation. HN8 Sections 922(v)(1) and 922(v)(2), read together, require that the statute mean that the weapon was possessed [**11] by someone at the time of enactment, since § 922(v)(2) makes future possession or transfer of the weapon lawful where the weapon was lawfully possessed prior to enactment of the statute. The § 922(v)(2) exception would make no sense if the weapon had to be possessed by the defendant at the time of enactment, because it would render the transfer provision essentially ineffective.

AFFIRMED as to Counts I, III, and IV; REVERSED as to Count V; and REMANDED for resentencing.

Nice find, LDD. I saw the mention of the Fix case in several places, but a bit of searching last night kept bringing me back to an unrelated US v. Lawrence Christopher Fix "felon with a gun" case, and I gave up.

To further answer PPGMD's question, I was able to dig up these details surrounding this specific US v. Ted Parker Fix case:

quote:

United States Court of Appeals,
Ninth Circuit.
UNITED STATES OF AMERICA, Appellee,
v.
Ted Parker FIX, Appellant.
No. 99-30235.
1999.

STATEMENT OF FACTS

At the time of the offenses, appellant was the owner of a gun store in Lakewood, Washington. On January 8, 1998, appellant purchased two Norinco SKS assault rifles, serial numbers 8002356 and 8109223, from Nationwide Sports Distributors. See E.R. H62. Nationwide had purchased the guns on May 3, 1994 and May 5, 1994 respectively. See E.R. H66. Nationwide shipped the rifles to appellant with wooden stocks and permanent 10-round magazines. See E.R. H62-63. In early 1998, at appellant's direction, Jason Caputo, an employee in appellant's gun store, replaced the Norincos' stocks with folding ones. See E.R. H70-72, 123. Around the same time, Caputo added a folding stock to and removed a permanent magazine from a third Norinco SKS, serial number W2289. See E.R. H70-72. Appellant testified at trial that this third rifle was also manufactured before 1994. See E.R. H107.

*5 On April 8, 1998, Lieutenant Joseph Kirby of the City of Tacoma Police Department, working undercover in conjunction with the Bureau of Alcohol, Tobacco and Firearms, bought the Norinco SKS with serial number 8002356 from appellant at appellant's gun store. See E.R. H27-28. The gun was equipped with a folding stock and bayonet mount. Appellant modified it in Kirby's presence to accept an extended-capacity detachable magazine. See E.R. H28-29, 81-82. On April 27, 1998, Heith Holden, another Tacoma police officer working undercover with the Bureau, purchased the Norinco with serial number 8109223 from appellant. See E.R. H53-55. The weapon also came with a folding stock and bayonet mount and accepted high-capacity detachable magazines. See E.R. H55, 81-82. Appellant had obtained the accessories added to the rifles from wholesalers. See E.R. at H111.

Following these purchases, Special Agent Benjamin Silva of the Bureau of Alcohol, Tobacco and Firearms executed a search warrant at appellant's store, where he found the Norinco SKS rifle with serial number W2289. See E.R. H81-82. Agent Silva also found a nine millimeter Calico Liberty III pistol in appellant's store, to which a foregrip and laser site had been added. See E.R. H82-83. *6 Appellant confirmed at trial that the Calico was his, see E.R. H119, and stated that he had bought the foregrip and laser site, see E.R. H112, and had installed the laser site himself, see E.R. H120.

At trial, Agent Silva testified that, with the foregrip attached, the Calico was a two-handed weapon. See E.R. H90. Officer Michael Cooney, also with the Bureau of Alcohol, Tobacco and Firearms, testified that, with the addition of the foregrip, the Calico is a two-handed weapon and therefore not a pistol. See E.R. H98-02. Officer Cooney further explained that, because of the way it was mounted, use of the laser site in firing the gun would require two hands. See E.R. H103. The defendant testified that he had fired the Calico both one-and two-handed, see E.R. H119; confirmed that, in installing the laser site, he envisioned firing the gun two-handed, see E.R. H120; and suggested, apparently in reference to the foregrip, that “[i]t could be a counter-balance” against the weight of the gun, see E.R. H122.

So now it's 2:1 on documented court cases involving vertical foregrips on pistols. We have a District Judge and a 9th Circuit Judge saying that it doesn't make it an AOW, and a 6th Circuit Judge saying that it does (while specifically rejecting the line of reasoning used by the 9th Circuit Judge).

Interestingly, as PPGMD pointed out, the case in which it was upheld involved a hardened violent criminal, while both cases in which it was rejected do not. One had to wonder whether this factored into the Judges' decisions.

So it appears that the real answer to "Can I put a vertical grip on my pistol?" is "Maybe, provided you're okay with the possibility of spending several years and many thousands of dollars on trials and appeals, with a ~33% chance of being convicted of a federal felony. Otherwise no."