Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.

             DISTRICT OF COLUMBIA COURT OF APPEALS

                                  No. 17-CF-291

                          JAMES N. TOLER, APPELLANT,

                                         v.

                             UNITED STATES, APPELLEE.

                         Appeal from the Superior Court
                           of the District of Columbia
                                 (CF2-13312-16)

                      (Hon. Maribeth Raffinan, Trial Judge)

(Submitted October 3, 2018                              Decided December 20, 2018)

      Ian A. Williams was on the brief for appellant.

      Jessie K. Liu, United States Attorney, and Elizabeth Trosman, Ethan L.
Carroll, and Anwar L. Graves, Assistant United States Attorneys, were on the brief
for appellee.

      Before BECKWITH and MCLEESE, Associate Judges, and STEADMAN, Senior
Judge.

      STEADMAN, Senior Judge: Appealing his convictions for several firearm

offenses, appellant James Toler argues that (1) all his convictions must be reversed

because he was required to reveal his social security number without a prior
                                           2

Miranda 1 warning, and (2) his convictions for possession of unregistered firearms

must be reversed because the government failed to prove as an element of the

offense that the firearms were not “antique” firearms. We disagree and therefore

affirm the judgment.



                              I.    Factual Background



        On August 18, 2016, around 5:30 p.m., members of the Gun Recovery Unit

(GRU) of the Metropolitan Police Department (MPD) 2 arrived at appellant’s home

to execute a search warrant to recover firearms. In the course of the search, the

GRU officers handcuffed appellant and, prior to any Miranda warnings, asked him

for his name, date of birth, phone number, and social security number, all of which

he readily provided. During the course of the search, officers recovered two

revolvers, a shotgun, two gun holsters, a speed loader, two gun cleaning kits,

assorted ammunition, an ammunition case, and appellant’s apartment lease.

Appellant was then charged with one count of unlawful possession of a firearm in

        1
            See Miranda v. Arizona, 384 U.S. 436 (1966), discussed further in section
II.A.
        2
        The GRU is a unit of the MPD charged with recovering unregistered and
otherwise illegal firearms in the District of Columbia, including through the
execution of search warrants.
                                         3

violation of D.C. Code § 22-4503(a)(1) (2018 Supp.), three counts of possession of

an unregistered firearm in violation of D.C. Code § 7-2502.01(a) (2018 Repl.), and

three counts of unlawful possession of ammunition in violation of D.C. Code § 7-

2506.01(a)(3) (2018 Repl.). He pled not guilty and proceeded to trial.



      The three-day jury trial was bifurcated. In the first phase, appellant was

convicted on all counts of possession of unregistered firearms and unlawful

possession of ammunition.     In the second phase, appellant was convicted of

unlawful possession of a firearm, based on his prior conviction of a “crime

punishable by imprisonment for a term exceeding one year.” As proof of his prior

conviction, the government introduced a certified copy of a U.S. Marine Corps

court martial conviction record from the Department of the Navy, which stated that

James Toler was convicted of a crime punishable by more than one year in prison.

The government then replayed an excerpt of the video from one of the GRU

officer’s body-worn cameras, which had been shown in the first phase of the trial,

and in which appellant stated his name and social security number, and also

volunteered that he was a former Marine. The prosecutor argued to the jury that

appellant was the same person as the one on the conviction record because the

name and social security number that appellant recited in the video matched the
                                          4

name and social security number appearing on the record as well on appellant’s

apartment lease.



                                   II.    Analysis



   A.      Admission of Biographical Information (Social Security Number)



        First, appellant contends that, during the search of his home, he was

subjected to custodial interrogation without a Miranda warning. In particular, he

flatly asserts that, had he not stated his social security number in response to an

officer’s question, the government would not have been able to link him to the

prior conviction that served as a predicate conviction for his unlawful possession

of a firearm conviction or to show that his firearms and ammunition were not

registered in the District of Columbia.       He argues that, because the officer’s

questions – particularly as to his social security number – did not fall within the so-

called “routine-booking exception” to Miranda, his biographical statements during

the search were improperly obtained and improperly admitted at trial.



        Under the doctrine first announced by the Supreme Court in Miranda v.

Arizona, “[t]he government is constitutionally precluded by the Fifth Amendment
                                         5

from using in its case-in-chief a defendant’s statement, whether exculpatory or

inculpatory, stemming from custodial interrogation unless the defendant has been

advised of his right to remain silent.” Johnson v. United States, 40 A.3d 1, 13

(D.C. 2012) (citing Miranda v. Arizona, 384 U.S. 436 (1966)). We have stated that

“[c]ustodial interrogation refers not only to express questioning, but also to any

words or actions on the part of the police (other than those normally attendant to

arrest and custody) that the police should know are reasonably likely to elicit an

incriminating response from the suspect.”      Id. (citation and internal quotation

marks omitted).



      However, “routine questions related to the booking process . . . are not

usually considered interrogation under Miranda, for such questions are not

normally likely to elicit incriminating answers.” Id. (citing Thomas v. United

States, 731 A.2d 415, 424-26 (D.C. 1999) (internal quotation marks omitted)).

Questions that fall under this routine booking exception to Miranda include

“‘biographical data necessary to complete booking or pretrial services[,]’ such as

questions regarding the name, address, height, weight, eye color, date of birth, and

age of the suspect.” Id. (quoting Pennsylvania v. Muniz, 496 U.S. 582, 600

(1990)).
                                          6

      In this case, the government conceded and the trial court found that appellant

was in custody when the GRU officers asked for his social security number and

other information. However, the trial court, citing Thomas v. United States, 731

A.2d 415 (D.C. 1999), and Jones v. United States, 779 A.2d 277 (D.C. 2001) (en

banc), found that the officers’ conduct did not constitute interrogation, as the

questions regarding appellant’s name, phone number, and social security number

were not likely to elicit incriminating information.         It therefore denied the

appellant’s pre-trial motion to suppress these statements.



      Appellant does not seriously challenge the questions relating to his name or

date of birth, which have been previously countenanced in our case law. Johnson,

40 A.3d at 13. His focus is on the question relating to his social security number.

This court has not specifically addressed whether a social security number falls

within the routine booking exception. However, we have noted in the past that the

MPD’s booking forms request a social security number, among other information.

See, e.g., High v. United States, 128 A.3d 1017, 1019 (D.C. 2015). Moreover, at

least two federal circuit courts have held that a social security number is the type of

information that would fall within the routine booking exception. United States v.

Reyes, 225 F.3d 71, 77 (1st Cir. 2000) (“[I]t would be a rare case indeed in which

asking an individual his name, date of birth, and Social Security number would
                                          7

violate Miranda,” though “questions about an individual’s Social Security number

might be likely to elicit an incriminating response where the person is charged with

Social Security fraud.”); United States v. Dougall, 919 F.2d 932, 934-35 (5th Cir.

1990) (“[T]he agents requested minimal personal data[:] name, social security

number, birth date, birth place, height, weight, and address . . . . [W]e have held

the sort of biographical questions – name, birth information, address, height,

weight – asked here are part of the booking routine.”).



      In modern America, a social security number is an intrinsic element of one’s

identity. For children born in hospitals, it is common, at the parents’ request, for

the baby to be given a social security number at birth. 20 C.F.R. § 422.103(b)-(c)

(2018).3 And a child claimed as a dependent on an income tax return must have a

social security number. 26 U.S.C.A § 151(e) (West 2018).4 As with name and

date of birth, a social security number is a routine means of identifying oneself.

Since questioning is indubitably allowed as to these other identifiers, it is difficult


      3
          See also Soc. Sec. Admin., Social Security Numbers for Children [Publ’n
No. 05-100023] (Dec. 2017), https://www.ssa.gov/pubs/EN-05-10023.pdf; Office
of the Inspector Gen., Soc. Sec. Admin., Follow-Up of the Enumeration at Birth
Program:         Audit        Report         [A-08-06-26003]       (Apr.    2006),
https://oig.ssa.gov/sites/default/files/audit/full/pdf/A-08-06-26003_0.pdf.
      4
         See also Internal Revenue Serv., Child Tax Credit [Publ’n 972] (2017),
https://www.irs.gov/publications/p972.
                                          8

to see any meaningful distinction that would generally prohibit a request for a

social security number.



      This is not to say that a request for a social security number would never be

problematic, as noted in the Reyes case cited above. Indeed, appellant contends

that “questions that appear innocuous on their face” should fall outside the scope of

the routine booking exception, even if it is standard practice to ask them, if the

inquiring police officer “should know that the question is reasonably likely to elicit

an incriminating response” from a suspect. In particular, appellant argues that

questions that provide some proof of an element of the crime are not routine

booking questions, and cites two state cases in support of this argument: Hughes v.

State, 695 A.2d 132 (Md. 1997), and State v. Locklear, 531 S.E.2d 853 (N.C. Ct.

App. 2000). But these cases are plainly distinguishable. In Hughes, the police

asked an individual who had been arrested on drug charges a question about drug

use, Hughes, 695 A.2d at 141, and in Locklear, the officer asked a suspect in a

statutory rape case his date of birth. Locklear, 531 S.E.2d at 855. The questions in

those cases were closely tied to elements of the crimes in question. In the case

before us, a social security number is not an element, or even related to an element,

of any of the offenses of which appellant was convicted. Rather, the question
                                          9

relating to appellant’s social security number involved, in context, nothing more

than routine biographical information. 5 We can find no Miranda violation here.6



           B.     Elements of Possession of an Unregistered Firearm



      Second, with respect to the convictions for possession of unregistered

firearms, appellant argues that the trial court erred in ruling that the government

was not required to prove beyond a reasonable doubt that the firearms were not

“antique” as an element of the offense in its case-in-chief.



      5
         Appellant also suggests that the questioning here was impermissible under
the routine booking exception because it did not take place at the time of booking.
We implicitly rejected this argument in our en banc decision in Jones, where we
held that questions asked at the scene of the arrest fell within the routine booking
exception, and we also noted that this so-called exception is best viewed as an
application of Miranda principles, under which “questions posed to a suspect
regarding his identity are not reasonably likely to elicit an incriminating response.”
Jones, 779 A.2d at 282-83, 283 n.6.
      6
          We note that, even assuming arguendo that there had been a Miranda
violation in this case, it would seem that the evidence in question would inevitably
have been discovered. See, e.g., Logan v. United States, 147 A.3d 292 (D.C.
2016). However, on appeal, the government does not attempt to defend the
Miranda issue on this basis, and we therefore do not address it further. In any
event, as the government points out in its brief, nothing in the record itself supports
appellant’s argument that, without the social security number, the government
would have been unable to prove appellant’s prior criminal offense or his lack of
registration for his firearms.
                                          10

      D.C. Code § 7-2502.01(a) provides, in relevant part, that “no person . . . in

the District shall possess or control any firearm, unless the person . . . holds a valid

registration certificate for the firearm.” That chapter of the Code, in turn, defines

firearm, in relevant part, as:



             [A]ny weapon, regardless of operability, which will, or is
             designed or redesigned, made or remade, readily
             converted, restored, or repaired, or is intended to, expel a
             projectile or projectiles by the action of an explosive; the
             frame or receiver of any such device; or any firearm
             muffler or silencer; provided, that such term shall not
             include: (A) Antique firearms . . . .



D.C. Code § 7-2501.01(9) (2018 Repl.). And the same section defines “antique

firearm,” in relevant part, as “[a]ny firearm (including any firearm with a

matchlock, flintlock, percussion cap, or similar type of ignition system)

manufactured in or before 1898.” D.C. Code § 7-2501.01(3)(A). We review the

interpretation of these statutory provisions de novo. See, e.g., Peterson v. United

States, 997 A.2d 682, 683 (D.C. 2010).



      The issue we must decide, then, is whether proof that the firearm is not

antique is part of the government’s case-in-chief or whether that obligation falls on

the government only if some evidence in the case suggests that the firearm may be
                                         11

antique. In resolving this issue, we find it instructive to examine the jurisprudence

relating to a similar federal statutory provision, which was enacted in 1968, eight

years before the passage of the District of Columbia statute, and which may well

have served as a model. That federal provision defines a “firearm” as:



             (A) any weapon (including a starter gun) which will or is
             designed to or may readily be converted to expel a
             projectile by the action of an explosive; (B) the frame or
             receiver of any such weapon; (C) any firearm muffler or
             firearm silencer; or (D) any destructive device. Such
             term does not include an antique firearm.



18 U.S.C. § 921(a)(3) (2012). In turn, the statute defines “antique firearm,” in

relevant part, as “any firearm (including any firearm with a matchlock, flintlock,

percussion cap, or similar type of ignition system) manufactured in or before

1898.” 18 U.S.C. § 921(a)(16)(A). See also 18 U.S.C.A §§ 922, 924 (West 2018)

(prohibiting various acts relating to the possession and use of firearms, as defined

in § 921(a)(3)).



      “This court is not bound by federal courts interpreting federal law, but we

generally consider applicable federal court precedent as persuasive authority when

interpreting a local provision that is substantially patterned on a federal statute.”

Fraternal Order of Police, Metro. Police Dep’t Labor Comm. v. District of
                                          12

Columbia, 52 A.3d 822, 829 (D.C. 2012) (citation, brackets, and internal quotation

marks omitted). As noted, D.C. Code § 7-2501.01(9) was first passed in 1976,7

eight years after 18 U.S.C. § 921 was enacted. 8 Given the timing of its passage

and the similarity in language, it is reasonable to conclude that the D.C. Code

section was substantially patterned on the federal provision. The federal courts’

interpretations of this provision are therefore persuasive.



      Every federal circuit court, seven in all, that has interpreted § 921(a)(3) has

held that the government need not prove in the first instance that a firearm is not an

antique firearm. Rather, the antique nature of a firearm is an affirmative defense;

only when some evidence indicates that the firearm is antique must the government

then prove that it is not antique. United States v. Mayo, 705 F.2d 62, 74-76 (2d

Cir. 1983); United States v. Laroche, 723 F.2d 1541, 1543 (11th Cir. 1984); United

States v. Smith, 981 F.2d 887, 891-92 (6th Cir. 1992); United States v. Washington,

17 F.3d 230, 232 (8th Cir. 1994); United States v. Lawrence, 349 F.3d 109, 122-23

(3d Cir. 2003); United States v. Basnett, 735 F.3d 1255, 1257-58 (10th Cir. 2013);




      7
          D.C. Law 1-85, § 101(9) (1976).
      8
          Pub. L. No. 90-351, Ch. 44, § 921(3), (18)(b)(1), 82 Stat. 227-28 (1968).
                                           13

United States v. Royal, 731 F.3d 333, 338 (4th Cir. 2013).9 We think these cases

persuasive. 10



       Moreover, it is telling that our particular statute goes on to list, in addition to

“antique firearms,” four other exceptions to the definition of “firearm” for a total

of five:


             (A) Antique firearms; or
             (B) Destructive devices; [or]


       9
         One additional federal circuit court has acknowledged this unanimity in an
unpublished opinion. United States v. Harris, 627 F. App’x 379, 380 (5th Cir.
2015). And we have articulated the same principle in a similar context. Bsharah
v. United States, 646 A.2d 993, 998 (D.C. 1994) (interpreting the licensed dealer
exception to the crime of carrying a pistol without a license under D.C. law, and
finding that, “[w]hen a defendant relies on a statutory exception as an affirmative
defense to a criminal charge, the burden is on the defendant to bring himself or
herself within the exception.” (citing Middleton v. United States, 305 A.2d 259,
261 (D.C. 1973)).
       10
            This court analyzes self-defense under a similar framework: the
government must prove the absence of self-defense only if some evidence in the
case suggests that self-defense may be a valid defense. See, e.g., Hernandez v.
United States, 853 A.2d 202, 205 (D.C. 2004) (a defendant is entitled to a jury
instruction on self-defense if there is “some evidence” of it); Parker v. United
States, 155 A.3d 835, 842 (D.C. 2017) (when a defendant presents evidence that he
acted in self-defense, the government must prove beyond a reasonable doubt that
he did not); Richardson v. United States, 98 A.3d 178, 187 n.11 (D.C. 2014)
(when a defendant has offered sufficient evidence to justify a jury instruction on
self-defense, the burden shifts to the government to disprove defendant’s self-
defense claim beyond a reasonable doubt).
                                          14

             (C) Any device used exclusively for line throwing,
             signaling, or safety, and required or recommended by the
             Coast Guard or Interstate Commerce Commission; [or]
             (D) Any device used exclusively for firing explosive
             rivets, stud cartridges, or similar industrial ammunition
             and incapable for use as a weapon; or
             (E) A stun gun.


D.C. Code § 7-2501.01(9)(A)-(E). It borders on the absurd to assert that the

government, as part of its case-in-chief, must disprove every one of these

exceptions, and no reason is readily apparent why antique firearms should be

treated differently from the others.



      In the case before us, there was no evidence that appellant’s firearms were

antique firearms. None emerged from the government’s case, and appellant did

not proffer any in support of such a defense. 11         He merely argued that the

government had failed to prove the non-antique nature of the firearms, which he

asserted was an element of the offense. Under these circumstances, we can find no

error in the trial court’s rejection of appellant’s argument.

      11
          At trial, appellant’s counsel asked one of the police officers whether he
knew the age of the firearms, and he stated that he did not. The government then
attempted to ask another officer when the firearms were manufactured, but
appellant counsel’s objected because the officer was not a qualified expert on the
age of firearms; the trial court permitted questioning only as to the officer’s
personal experience, and the government asked no further questions on this point.
This was the extent to which the issue was addressed at trial, and thus there was no
actual evidence of the date of manufacture.
                                15



                        III.   Conclusion



Accordingly, the judgment appealed from must be and hereby is

                         Affirmed.
