469 F2d 1153 United States v. Coston

469 F.2d 1153

UNITED STATES of America, Appellee,
Fred Douglas COSTON, Appellant.

No. 72-1853.

United States Court of Appeals,
Fourth Circuit.

Dec. 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.

Before BUTZNER, RUSSELL and FIELD, Circuit Judges.


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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. Sec. 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. Sec. 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).