In a motion for judgment of acquittal of a charge of possession of a certain type of firearm, how have the courts considered the procuring agent theory?

Counts One and Two here deal only with the possession of a certain type of firearm and not the sale, transfer or delivery thereof. Because the prosecution clearly established the elements of possession, United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971), the procuring agent theory could apply only to Count Three. Inasmuch as the sentences on the three counts were identical and to run concurrently, the alleged error would be harmless because it could not affect or control the convictions for the first two counts. In any event the trial court properly submitted the third count to the jury because appellant could have been convicted on that count as a procuring agent. Furthermore, the jury reasonably could have concluded that appellant was not merely a procuring agent. For all these reasons, the trial court did not err in denying the motion for judgment of acquittal.