In U.S. v. Fontaine, No. 11-2602 (August 28, 2012), a Virgin Islands case, the Circuit held that the local statute criminalizing unauthorized possession of an "imitation" firearm during a crime of violence was not void for vagueness. It also held that the government had proved its case against Fontaine.
The statute reads: Whoever, unless otherwise authorized by law, has, possesses, bears, transports or carries either, actually or constructively, openly or concealed any firearm . . . loaded or unloaded . . . shall be sentenced to imprisonment of not less than one year nor more than five years except that if such person shall have been convicted of a felony in any state, territory, or federal court of the United States, or if such firearm or an imitation thereof was had, possessed, borne, transported or carried by or under the proximate control of such person during the commission or attempted commission of a crime of violence, as defined in subsection (d) hereof, then such person shall be . . . imprisoned not less than fifteen (15) years nor more than twenty (20) years.
Fontaine and an accomplice robbed two victims at gunpoint. Police arrested Fontaine nine days later, but never recovered the gun. Although Fontaine threated to shoot the gun during the robbery, when he pulled the trigger, it didn’t fire. There was thus no evidence of its operability, and the government was forced to proceed on the "imitation" prong of the statute.
Fontaine argued that the statute was vague. The Court dispatched this argument readily. It noted that the plain meaning of "imitation" gave ample notice who might be punished. Particularly in a case like Fontaine’s, where the imitation gun was used just like a real gun would be, the Court continued, a defendant could have no complaint.
Fontaine also argued that the government had the burden to prove that he was not "authorized" to possess an imitation firearm. The Court held that the statute should be read simply to require proof that the defendant is not authorized to possess a firearm. Persons who are not authorized to possess firearms are also not authorized to possess a firearm in a crime of violence or possess an imitation firearm in a crime of violence. Any other reading, the Court argues, would be absurd. (Perhaps not so absurd, given that Judge Cowen dissents on this point, in a 10-page opinion?)