Tenth Avoids Heller Issue; Affirms Conviction for Unlawful Possession of Firearm by DV Misdemeanant

US v. Pope, No. 09-4150, 7/23/10 (Utah - Denial of pretrial motion to dismiss based on Heller/McDonald as-applied challenge affirmed. Defendant was charged with possession of a firearm by a person convicted of a misdemeanor crime of domestic violence. He moved to dismiss before trial on grounds that the statute was unconstitutional as applied to him because, he claimed in a proffer, that he possessed the gun on his property solely to protect himself, others and his property. The government disputed that that was his sole purpose in possessing the gun, in light of allegations that he had threatened to kill a neighbor's dog, along with the neighbor, which the government claimed it would prove at trial. The district court denied the motion and the defendant pled guilty, reserving the right to appeal the denial of the motion. The 10th avoided the constitutional issue and affirmed on the basis that the motion depended on disputed facts that could only be resolved at trial.