United States v. Fleischli, Joseph

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 01-2703

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOSEPH H. FLEISCHLI,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 00 CR 30008—Richard Mills, Judge.

____________

ARGUED JANUARY 7, 2002—DECIDED SEPTEMBER 12, 2002

____________

Before MANION, ROVNER and EVANS, Circuit Judges.

ROVNER, Circuit Judge. Joseph Fleischli was convicted

by a jury of two counts of possession of machine guns in

violation of 18 U.S.C. § 922(o)(1), one count of transpor-

tation of a firearm by a felon in violation of 18 U.S.C.

§ 922(g)(1), one count of possession of a firearm by a fel-

on in violation of 18 U.S.C. § 922(g)(1), one count of un-

lawful manufacture of a machine gun in violation of 26

U.S.C. § 5861(f), and one count of possession of an unregis-

tered destructive device in violation of 26 U.S.C. § 5861(d).

Fleischli was sentenced to 120 months’ imprisonment,

three years of supervised release and a $600 special

assessment. He appeals from both his conviction and his

2 No. 01-2703

sentence on numerous constitutional, statutory and factual

grounds. We affirm.

I.

Fleischli concedes that prior to the events that led to

his indictment, he had been convicted of four felonies. Two

convictions related to the illegal manufacture and posses-

sion of firearms and two related to illegal drugs. In March

and May of 1998, an informant told the Springfield, Illi-

nois ATF office that Fleischli had an aircraft machine

gun (sometimes called a “minigun”) and that Fleischli had

taken it to Missouri in the Spring of 1998. The informant

said that in Missouri, Fleischli and others had fired the

minigun. Around this same time, Donald Gibbs, an associ-

ate of Fleischli, approached Deputy James Malone in the

Macoupin County Sheriff’s Department with an unusual

request. Gibbs wanted the Sheriff’s Department to issue

a letter to the Treasury Department requesting a dem-

onstration of a Steyr machine gun in anticipation of a pos-

sible purchase. Gibbs gave the deputy Fleischli’s business

card which listed Fleischli as president of Springfield

Armaments Services, Inc. (“SAS”), a Class II licensed fire-

arms manufacturer. Gibbs told the deputy that Fleischli

was a licensed firearms manufacturer who owned a mini-

gun and wanted to add to his collection. Gibbs provided

the deputy with a sample letter to use in drafting the let-

ter to the Treasury Department, requesting permission

for Fleischli, as a licensed dealer, to purchase the gun.

The deputy recognized Gibbs as a convicted felon and

notified his captain who, in turn, notified the Springfield

ATF about this strange encounter.

The ATF learned that SAS was incorporated in 1996

by Delmar and Diamonda Tobias, who were Fleischli’s

father-in-law and mother-in-law, and by Vernon Medlock.

These three made up the board of directors as well. Delmar

No. 01-2703 3

Tobias1 was listed as president and Medlock was the

secretary/treasurer. Apparently, Fleischli had attempted

(and failed) to obtain a federal firearms license in 1991 and

sought restoration of his federal explosives privileges in

1993. The ATF was therefore already familiar with Fleischli

when Captain Jeff Rhodes called from the Sheriff’s Depart-

ment to tell them about Gibbs’ conversation with Deputy

Malone. The ATF agents decided to investigate, with the

aid of Deputy Malone, possible firearms violations by

Fleischli.

The ATF subsequently recorded a number of calls be-

tween Malone and Fleischli. The deputy initiated contact

by calling the number listed on the business card provided

by Gibbs. That number turned out to belong to Otto Ameri-

can Boiler, a business Fleischli owned in Springfield. Dur-

ing these recorded calls, Fleischli told the deputy about

his firearms manufacturing business, the minigun he

had constructed, and other machine guns he owned. To

persuade the Sheriff’s Department to issue the Treasury

letter, Fleischli agreed to demonstrate the minigun on

August 11, 1998 at the Brittany Range in Macoupin

County. At the August 11 demonstration, ATF seized the

minigun. ATF agents questioned Fleischli, Delmar Tobias

and Medlock about SAS. Fleischli said the minigun be-

longed to SAS, that SAS was Tobias’s company and that he

(Fleischli) was just an employee. Fleischli admitted he

possessed other machine guns in a safe at Otto Amer-

ican Boiler and other firearms at his home. Fleischli

volunteered that an ATF agent previously told him he

could not obtain a federal firearms license in his wife’s

name so he decided to use his father-in-law instead. As

the finger-pointing escalated, Tobias told the agents that

SAS was Fleischli’s idea and that Tobias was simply a

1

Hereafter we will use the name “Tobias” to refer to Delmar

Tobias.

4 No. 01-2703

partner. Tobias told the agents that Fleischli purchased

all the guns that were registered to SAS. Medlock also

washed his hands of blame, telling the agents that Fleischli

asked him to be secretary/treasurer of SAS but that he

received no pay and played no active role in the company.

On that same day, ATF agents armed with warrants

obtained before this questioning searched Otto American

Boiler, SAS and Fleischli’s home. The agents recovered

approximately seventy-five firearms from Fleischli’s home.

They seized machine guns, machine gun parts and explo-

sive devices from his place of business. Machine guns

registered to SAS were found at Otto American Boiler.

Registration forms and other paperwork related to the

guns were found at Otto American Boiler in Fleischli’s

office in his desk drawer. Following these seizures on

August 11, the agents gathered evidence about the prior

shooting demonstration in Missouri. They obtained wit-

ness statements, a videotape of the event, and photographs.

A six-count indictment against Fleischli followed.

Fleischli moved to suppress evidence seized from his

home and business and moved to dismiss the indictment.

He argued that the search warrants were not based on

probable cause because one of the informants supply-

ing information used to obtain the warrant was not reli-

able. That informant, Danny Dapron, told the agents he

had last seen the minigun and other guns at Fleischli’s

home and business on February 1, 1998. Dapron had a

checkered past himself and Fleischli argued he could not

have seen the guns on February 1, 1998 because he

(Dapron) was in jail at that time. The court denied the

motion to suppress because Dapron was just one of sev-

eral sources of information supporting the warrant. In-

deed, Fleischli himself had independently corroborated

Dapron’s statements during his many recorded conversa-

tions with Deputy Malone. The district court therefore

denied the motion to suppress and also rejected Fleischli’s

No. 01-2703 5

arguments in support of his motion to dismiss the indict-

ment. A jury subsequently found Fleischli guilty on all

six counts and the district court sentenced him to 120

months’ imprisonment. In determining Fleischli’s sentence,

the court included a two-level increase for his role in

the offense as manager of an illegal business. Fleischli

appeals.

II.

Fleischli raises eleven challenges to his conviction and

one to his sentence for an even dozen. He contends that:

(1) there was no probable cause to issue the warrants used

to search his home and business premises on August 11,

1998; (2) he was exempt from section 922(o)(1) by virtue

of section 922(o)(2) because he was an authorized agent

of a licensed firearms manufacturer; (3) section 922(o)(1)

exceeds Congress’s powers under the Commerce Clause;

(4) the government failed to prove in the section 922(g)(1)

possession count that Fleischli’s possession of firearms

substantially affected interstate commerce; (5) section

922(g)(1) exceeds Congress’s powers under the Commerce

Clause to the extent that it applies to Fleischli’s mere

possession of firearms in his home and business; (6) section

5822 does not encompass Fleischli’s manufacture of

machine guns because he was acting as an agent of a li-

censed manufacturer; (7) the minigun was not a machine

gun within the meaning of section 5845 because it does

not fire automatically and does not have a trigger; (8) the

term “similar device” in the definition of the term “destruc-

tive device” in section 5845 is unconstitutionally vague;

(9) the four alleged destructive devices seized from Fleischli

did not come within the purview of section 5845(f) be-

cause they were used only as fireworks; (10) Fleischli

could not be convicted of transporting firearms under

section 922(g)(1) because he was merely a passenger in a

6 No. 01-2703

vehicle used to transport firearms; (11) evidence of

Fleischli’s possession of firearms in Missouri was inad-

missable under the Sixth Amendment which requires

that a person be tried within the state and district in

which the crime occurred; and (12) the court erred in

applying a two-level enhancement for Fleischli’s role in

the offense because there were no other participants in

the offense. A number of Fleischli’s arguments are easily

resolved by well-settled law and we will address them in

summary fashion.

A.

On August 11, 1998, ATF agents searched Fleischli’s

home and business pursuant to two warrants. The war-

rants were issued on the basis of probable cause estab-

lished by the affidavit of ATF Special Agent Robert

Schmidt. Fleischli maintains that the warrants were

improperly issued and not based on probable cause be-

cause Agent Schmidt credited information from Danny

Lee Dapron, an unreliable informant, in drafting his

affidavit. In the affidavit, Schmidt reported that he inter-

viewed Dapron, a former employee of Otto American Boiler.

Dapron told Schmidt that he saw the minigun at Otto

American Boiler on February 1, 1998, and that Fleischli

kept another gun in a safe on the premises as well. Dapron

also reported seeing a number of firearms in a vault

in the basement of Fleischli’s home on that same day.

Fleischli complains that the affidavit did not contain the

basis of Dapron’s knowledge and that the agent did not

corroborate the information. Moreover, Fleischli contends,

Dapron was an unreliable source with a criminal record

who was actually in jail on February 1, 1998, the day

he claims to have seen guns at Fleischli’s home and busi-

ness. Finally, Fleischli complains that the information

provided by Dapron was stale by the time the warrant

No. 01-2703 7

was executed, approximately six months later. Fleischli

thus asks us to conclude that the warrant was not based

on probable cause and that the evidence seized from his

home and business should be suppressed.

We review de novo the district court’s determination

that probable cause existed to support a search warrant.

Ornelas v. United States, 517 U.S. 690, 699 (1996); United

States v. Singleton, 125 F.3d 1097, 1102 (7th Cir. 1997),

cert. denied, 522 U.S. 1098 (1998). We review for clear

error, however, findings of historical fact and give due

weight to inferences drawn from those facts by resident

judges and local law enforcement agencies. Ornelas, 517

U.S. at 699; Singleton, 125 F.3d at 1102. We begin by

reviewing the affidavit on which the court relied in issuing

the warrants. Special Agent Schmidt’s twelve-page affida-

vit contains an extensive amount of information from a

variety of sources, including Fleischli himself. In recorded

conversations with Deputy Malone, Fleischli corroborated

much of the information provided by Dapron and others.

A few examples will suffice to demonstrate the reliability

of the information provided in the affidavit.

Dapron, a family friend of Fleischli’s for thirty-seven

years, worked at Otto American Boiler for a number of

years. He correctly identified Delmar and Diamonda

Tobias as Fleischli’s in-laws, he knew that Fleischli’s wife

held an Illinois explosives license, he knew that Fleischli

had taken the guns to Knob Creek, Kentucky for shoot-

ing demonstrations on a number of occasions, and he

knew where Fleischli stored his guns in safes both at his

home and at Otto American Boiler. Dapron identified

the types of guns Fleischli owned, naming the models

and manufacturers. In short, Dapron demonstrated an

intimate knowledge of Fleischli, his guns, and his home and

business. Much of the detailed information provided by

Dapron was corroborated by Fleischli himself, lending

further credibility to Dapron’s information. Fleischli told

8 No. 01-2703

Malone, for example, that he had just returned from a

machine gun shoot in Knob Creek, Kentucky, and that he

had attended shooting events at Knob Creek twice a

year for eighteen years. Fleischli told the deputy he had

brought several guns with him down to Knob Creek. When

asking for the Treasury letter, Fleischli originally asked

that it be sent to 1905 East Washington, which turned

out to be the address of Otto American Boiler. The phone

number on Fleischli’s business card for SAS also turned

out to be the number of Otto American Boiler. Fleischli

also told the deputy about some of the guns he owned,

including some that had been identified by Dapron. Special

Agent Schmidt confirmed that Fleischli’s wife held a val-

id explosives license from the State of Illinois. Further

confirmation of Dapron’s information was provided by

Delmar Tobias who told a sheriff’s deputy that his son-in-

law stored the minigun in his (Fleischli’s) safe. When an

affidavit relies on an informant’s tip, the issuing judge

must look to the totality of the circumstances in determin-

ing whether probable cause exists. Illinois v. Gates, 462

U.S. 213, 238 (1983); United States v. Spry, 190 F.3d 829,

835 (7th Cir. 1999), cert. denied, 529 U.S. 1130 (2000).

Probable cause is a fluid concept, based on a reasonable

belief that evidence in the place to be searched will lead

to an arrest or conviction for a particular offense. United

States v. McClinton, 135 F.3d 1178, 1183 (7th Cir. 1998),

cert. denied, 524 U.S. 921 and 525 U.S. 885 (1998). “Proba-

ble cause denotes more than a mere suspicion, but does

not require certainty.” Id. Special Agent Schmidt’s affida-

vit provides sufficiently reliable information on which to

base a finding of probable cause. In addition to informa-

tion from Dapron and Fleischli himself, Special Agent

Schmidt relied on information from another confidential

informant, from Fleischli’s associate Gibbs, and from

sheriff’s department and ATF investigators. Although

Dapron was the only link to the location where the guns

would be found, numerous sources including Fleischli

No. 01-2703 9

himself verified that he currently possessed a large num-

ber of firearms. Although Dapron had a criminal record

and may have misidentified the date on which he last

saw the guns, he demonstrated an extensive and intimate

knowledge of Fleischli’s family, business and home, as

well as his gun collection. Much of this information

was independently corroborated, lending further credibil-

ity to the facts that could not be confirmed until the

search was actually conducted (i.e., the presence of guns

in particular locations within Fleischli’s home and busi-

ness). The court thus did not err in issuing the warrant

based on information provided by Dapron and others.

B.

Fleischli was convicted of two counts of possession of

machine guns in violation of 18 U.S.C. § 922(o)(1). He ar-

gues on appeal that he was exempt from the operation of

section 922(o)(1) by virtue of section 922(o)(2) and the

accompanying federal regulations. Section 922(o)(1) states:

Except as provided in paragraph (2), it shall be unlaw-

ful for any person to transfer or possess a machinegun.

19 U.S.C. § 922(o)(1). Section 922(o)(2) states in relevant

part:

This subsection does not apply with respect to . . . a

transfer to or by, or possession by or under the author-

ity of, the United States or any department or agency

thereof or a State, or a department, agency, or political

subdivision thereof[.]

18 U.S.C. § 922(o)(2)(A). Federal regulations provide that

qualified manufacturers may “import and manufacture

machine guns . . . for use by dealers qualified under this

part as samples as provided in paragraph (d) of this sec-

tion.” 27 C.F.R. § 179.105(c). Paragraph (d), in turn,

explains that applications to transfer and register certain

10 No. 01-2703

machine guns will be approved “if it is established by

specific information the expected governmental customers

who would require a demonstration of the weapon . . . and

letters from governmental entities expressing a need for

a particular model or interest in seeing a demonstration

of a particular weapon.” Presumably this is the letter

Fleischli and Gibbs sought to have the Sheriff’s Department

issue. Fleischli now argues that, in the Spring of 1998,

when he transported machine guns to Missouri, he was

authorized to do so by the president of SAS, a licensed

manufacturer, and he was accompanied by the president

of SAS on this trip as well. Because he was acting as

an agent of the corporation, his possession of the guns was

the corporations’s possession. He thus maintains that

he did not violate section 922(o)(1).

We review this question of statutory interpretation de

novo. United States v. Jain, 174 F.3d 892, 897 (7th Cir.

1999), cert. denied, 528 U.S. 889 (1999). Fleischli, in es-

sence, argues that a felon who may not possess any fire-

arms may immunize himself from prosecution for possess-

ing more tightly regulated machine guns by hiding behind

a corporate charter. He maintains that because his status

as a felon is not an element of a section 922(o) violation, he

may not be prosecuted under that provision if a licensed

corporation authorized him to possess and transport a

machine gun. Fleischli’s argument is bold but unavailing.

First, SAS would never have obtained a license if it had

truthfully disclosed that it was a front for a convicted fel-

on to gain access to firearms. Under 18 U.S.C. § 923(d)(1),

an applicant for a license to manufacture or deal in fire-

arms will be approved if “the applicant (including, in the

case of a corporation, partnership, or association, any in-

dividual possessing, directly or indirectly, the power

to direct or cause the direction of the management and

policies of the corporation, partnership, or association) is

not prohibited from transporting, shipping, or receiving

No. 01-2703 11

firearms or ammunition in interstate commerce under

section 922(g) and (n) of this chapter[.]” In other words, if

Fleischli had held himself out to be the president of SAS

during the licensing process (as he did when he approached

the Sheriff’s Department for the Treasury letter), SAS

would not have received its license. See also 18 U.S.C.

§ 925(b) (allowing a licensed manufacturer, dealer or

collector under indictment for a felony to continue opera-

tions until any conviction pursuant to the indictment be-

comes final). The statutory scheme when viewed as a

whole was never intended to allow convicted felons to hide

behind a corporate charter to gain access to the most

heavily regulated firearms, such as machine guns.

Second, it is well-settled that “an agent cannot be in-

sulated from criminal liability by the fact that his prin-

cipal authorized his conduct.” McNamara v. Johnston,

522 F.2d 1157, 1165 (7th Cir. 1975), cert. denied, 425

U.S. 911 (1976). See also Gillespie v. City of Indianapolis,

185 F.3d 693 (7th Cir. 1999), cert. denied, 528 U.S. 1116

(2000) (upholding challenge to section 922(g)(9) by a police

officer who lost his job because he could not possess a

firearm after being convicted of domestic violence); United

States v. Floyd, 882 F.2d 235, 240 (7th Cir. 1989) (holding

union official could not be absolved of wrongdoing by

claiming the act was done with union authorization un-

der the principal recognized in McNamara). In short, a

convicted felon who could not have legitimately obtained

a manufacturer’s or dealer’s license may not obtain access

to machine guns by setting up a sham corporation.

C.

Fleischli next contends that Congress exceeded its pow-

ers under the Commerce Clause when it enacted section

922(o)(1). Fleischli concedes that we have previously

rejected a Commerce Clause challenge to section 922(o).

12 No. 01-2703

See United States v. Kenney, 91 F.3d 884 (7th Cir. 1996).

He maintains, however, that Kenney is now in conflict

with the Supreme Court’s more recent ruling in United

States v. Morrison, 529 U.S. 598 (2000), and that we must

therefore reverse his convictions on Counts 1 and 3. In

Morrison, the Supreme Court struck down a section of

the Violence Against Women Act that created a federal civil

remedy for gender-motivated violence because gender-

motivated violence is not an activity that substantially

affects interstate commerce. Nothing in Morrison casts

doubt on the validity of section 922(o)(1), and our analysis

in Kenney remains sound. See also United States v. Haney,

264 F.3d 1161, 1166-71 (10th Cir. 2001), cert. denied, 122

S. Ct. 2362 (2002) (upholding section 922(o) against a post-

Morrison Commerce Clause challenge). Seeing no reason

to doubt our earlier analysis and no reason to split from

the well-reasoned decision of our sister circuit, we affirm

Fleischli’s convictions on Counts 1 and 3.

D.

Fleischli challenges his conviction under 18 U.S.C.

§ 922(g)(1), the “felon in possession” statute, because

the government was not required to prove that his pos-

session of firearms substantially affected interstate com-

merce. Again Fleischli acknowledges that we have re-

jected an identical argument in the past. See Gillespie, 185

F.3d at 705. This time he maintains that Gillespie can-

not stand in light of Jones v. United States, 529 U.S.

848 (2000). But we have rejected that argument as well,

and Fleischli offers us no reason to reconsider our earlier

opinions. See United States v. Mitchell, 2002 WL 1790467,

*2 (7th Cir. Aug. 5, 2002); United States v. Wesela, 223

F.3d 656, 660 (7th Cir. 2000), cert. denied, 531 U.S. 1174

(2001). See also United States v. Singletary, 268 F.3d 196,

205 (3rd Cir. 2001), cert. denied, 122 S. Ct. 1450 (2002)

(collecting cases).

No. 01-2703 13

E.

We next review Fleischli’s claim that section 922(g)(1)

does not extend to firearms possessed in Fleischli’s home

or business. He bases this argument on Jones, stating

that the possession of firearms in a home or non-firearms

related business (presumably Otto American Boiler) is

not in any sense commercial activity. Thus, he argues, as

applied to him, section 922(g)(1) exceeds Congress’s pow-

ers under the Commerce Clause. This is a curious argu-

ment given Fleischli’s claim above that he did not person-

ally possess any of the firearms but rather held them as

an agent of SAS, a licensed firearms manufacturer. In

that capacity, we have no doubt he would concede his

possession of firearms affected commerce. Fleischli is

entitled to argue in the alternative, however. This claim

is really just a slightly different twist on Fleischli’s

claim above that the government should have been re-

quired to prove that his possession of firearms substan-

tially affected interstate commerce. We have held numer-

ous times that the Commerce Clause requirement is met

in the case of firearms possession when the guns have

previously traveled in interstate commerce. See Mitchell,

2002 WL 1790467 at *2; Wesela, 223 F.3d at 660. Noth-

ing in Jones requires a different result.

F.

Fleischli next challenges his conviction under 26 U.S.C.

§ 5822. Presumably he means to challenge his convic-

tion under 26 U.S.C. § 5861(f) which states that “[i]t shall

be unlawful for any person to make a firearm in violation of

the provisions of this chapter[.]” Section 5822, in turn,

provides the scheme by which persons seeking to manu-

facture firearms may apply for permission to do so. Sec-

tion 5822 provides that no person shall make a firearm

unless he has filed a written application with the Secre-

14 No. 01-2703

tary, paid any appropriate taxes, identified the firearm

on the application, identified himself on the application

(a photograph and fingerprints must be included if the

applicant is an individual), and obtained the approval of

the Secretary to make and register the firearm. Section

5822 also provides “Applications shall be denied if the

making or possession of the firearm would place the per-

son making the firearm in violation of the law.” Fleischli

contends that section 5822 did not apply to him because

he manufactured the gun in question under the auspices

of SAS, a licensed manufacturer. Section 5822, he main-

tains, does not apply to licensed manufacturers but rath-

er applies to non-licensed persons who wish to manufacture

a machine gun. Because SAS was licensed under section

5802, it was not required to apply for approval under

section 5822, and because Fleischli was employed by SAS,

his manufacture of a machine gun could not be prosecuted

under section 5822.

Fleischli does not cite a single case in support of

this novel theory. It is essentially a replay of his argu-

ment that he is not subject to section 922(o)(1) because

he was acting as the agent of a licensed manufacturer.

We reject this claim here as we rejected it in section B

above. First, SAS would not have obtained a license to

manufacture guns if it had disclosed that Fleischli, a

convicted felon, would be central to the operation. Second,

Fleischli may not hide behind a corporate charter to en-

gage in conduct he could not legally accomplish as an

individual. Such a theory is contrary to the language and

structure of the statutory scheme regulating firearms. If

Fleischli’s theory prevailed, a hypothetical “Felons, Inc.”

could provide convicted felon-employees with access to

firearms they could not legally obtain, completely thwarting

Congressional intent to keep firearms out of the hands

of convicted felons. We do not believe Congress intended

to create such a gaping loophole, and no statutory lan-

No. 01-2703 15

guage supports such an expansive reading. McNamara,

522 F.2d at 1165; Gillespie, 185 F.3d at 693; Floyd, 882

F.2d at 240. Indeed, section 5822 specifies that applica-

tions will be denied if the making or possession of a fire-

arm would place the person making the firearm in viola-

tion of the law. As a convicted felon, Fleischli’s application

would be denied because possession of a gun would

place him in violation of 18 U.S.C. § 922(g)(1). Fleischli’s

conviction under section 5861 will stand.

G.

Fleischli challenges his convictions for possessing and

manufacturing a machine gun on the ground that the

minigun does not meet the statutory definition of a

machine gun. In particular, he claims the minigun is not

a machine gun as that term is defined in 26 U.S.C.

§ 5845(b) because the minigun does not fire automatically

and does not have a trigger. Section 5845(b) defines a

machine gun as follows:

The term “machinegun” means any weapon which

shoots, is designed to shoot, or can be readily restored

to shoot, automatically more than one shot, without

manual reloading, by a single function of the trigger.

The term shall also include the frame or receiver of

any such weapon, any part designed and intended

solely and exclusively, or combination of parts designed

and intended, for use in converting a weapon into a

machinegun, and any combination of parts from which

a machinegun can be assembled if such parts are in

the possession or under the control of a person.

26 U.S.C. § 5845(b). The words “automatic” and “trigger”

are not defined in the statute or regulations. Fleischli

argues that a gun does not fire automatically unless it

uses a portion of the energy of a firing cartridge to ex-

16 No. 01-2703

tract the fired cartridge and chamber the next round

without a separate pull of the trigger. He derives this

meaning from the United States Code’s definition of “semi-

automatic.” He also claims the minigun is akin to a

Gatling gun, which is not considered a machine gun under

an IRS ruling. Relying on firearms reference manuals, he

also contends that his minigun lacked a trigger as that

term is defined in the firearms field because the minigun

operates by virtue of an electrical on-off switch.

In interpreting the National Firearms Act (“NFA”), the

Supreme Court offered commonsense explanations of the

terms “automatic” and “semiautomatic” that give us all the

ammunition we need to dispose of Fleischli’s disingenuous

argument:

As used here, the terms “automatic” and “fully auto-

matic” refer to a weapon that fires repeatedly with a

single pull of the trigger. That is, once its trigger

is depressed, the weapon will automatically continue

to fire until its trigger is released or the ammunition

is exhausted. Such weapons are “machineguns” within

the meaning of the Act. We use the term “semiauto-

matic” to designate a weapon that fires only one shot

with each pull of the trigger, and which requires

no manual manipulation by the operator to place

another round in the chamber after each round is fired.

Staples v. United States, 511 U.S. 600, 602 n.1 (1994).

Fleischli dismisses this passage as not binding, arguing

that the Court did not define “automatically” but rather

defined “automatic.” We think the Court’s meaning is

plain enough. If Fleischli’s minigun, with one application

of the trigger, continued to fire until the trigger was

released or the ammunition exhausted, it was a machine

gun within the meaning of the Act.

That leads us to consider whether the minigun had a

trigger. Fleischli’s minigun was activated by means of

No. 01-2703 17

an electronic on-off switch rather than a more traditional

mechanical trigger. He maintains that an electronic

switch does not meet the traditional definition of trigger

and that the minigun, which fired between 2000 and 6000

rounds per minute once it was switched on, was therefore

not a machine gun. This is a puerile argument, based on

hyper-technical adherence to literalism. We are not sur-

prised to learn that Fleischli is not the first defendant

to make such a brazen argument, although he appears to

be the first to do so in this circuit. We join our sister cir-

cuits in holding that a trigger is a mechanism used to

initiate a firing sequence. United States v. Jokel, 969 F.2d

132, 135 (5th Cir. 1992) (commonsense understanding

of trigger is mechanism used to initiate firing sequence);

United States v. Evans, 978 F.2d 1112, 1113-14 n.2 (9th

Cir. 1992), cert. denied, 510 U.S. 821 (1993) (trigger is

anything that releases the bolt to cause the weapon to fire).

Fleischli’s definition “would lead to the absurd result

of enabling persons to avoid the NFA simply by using

weapons that employ a button or switch mechanism for

firing.” Evans, 978 F.2d at 1113-14 n.2. The dictionary

definition of “trigger” includes both the traditional (“a small

projecting tongue in a firearm that, when pressed by the

finger, actuates the mechanism that discharges the

weapon”) and the more general (“anything, as an act or

event, that serves as a stimulus and initiates or precip-

itates a reaction or series of reactions.”). See WEBSTER’S

UNABRIDGED DICTIONARY OF THE ENGLISH LANGUAGE (2001).

Fleischli’s electronic switch served to initiate the firing

sequence and the minigun continued to fire until the

switch was turned off or the ammunition was exhausted.

The minigun was therefore a machine gun as defined in

the National Firearms Act.

H.

We next consider whether the term “similar device” in

26 U.S.C. § 5845(f) is unconstitutionally vague. Fleischli

18 No. 01-2703

was convicted of violating section 5861(d), which prohibits

possession of an unregistered firearm. Section 5845(a)(8)

defines “firearm” to include a “destructive device.” Section

5845(f), in turn, defines destructive device:

The term “destructive device” means (1) any explosive,

incendiary, or poison gas (A) bomb, (B) grenade, (C)

rocket having a propellant charge of more than four

ounces, (D) missile having an explosive or incendiary

charge of more than one-quarter ounce, (E) mine, or

(F) similar device[.]

26 U.S.C. § 5845(f). The statute further provides that the

term “destructive device” does not include devices that

are not designed or redesigned for use as weapons. 26

U.S.C. § 5845(f)(3). Fleischli was charged with possess-

ing four “explosive or incendiary bombs or similar de-

vices each consisting of a cardboard container sealed

at both ends, containing a mixture of pentaerythritol

tetranintrate (PETN) powder, a non-electric blasting cap

with a short length of fuse.” R. 26 at 7. Fleischli main-

tains that the use of the word “similar” causes a reason-

able person to speculate as to how nearly a device must

resemble a bomb, grenade, rocket, missile or mine in

determining whether the device is encompassed by the

statute. Fleischli thus contends the statute is unconstitu-

tionally vague.

The three circuits to consider this issue have all found

that the statute is not unconstitutionally vague. See

United States v. Markley, 567 F.2d 523, 527-28 (1st Cir.

1977), cert. denied, 435 U.S. 951 (1978); United States v.

Ross, 458 F.2d 1144, 1145 (5th Cir. 1972), cert. denied,

409 U.S. 868 (1972); United States v. Morningstar, 456 F.2d

278, 281 (4th Cir. 1972), cert. denied, 409 U.S. 896 (1972).

All three courts agreed that a person of ordinary intelli-

gence would understand the statute to include any com-

bination of parts intended to be used as a bomb or weap-

No. 01-2703 19

on or from which a bomb or weapon could be readily

assembled. Fleischli’s device comes well within the pur-

view of the statute. He maintains, however, that the

four devices he was charged with possessing were not

intended for use as weapons but rather as fireworks. He

complains that the jury was not instructed that the gov-

ernment was required to prove the devices were designed

or redesigned for use as a weapon.

The jury was instructed as follows:

You must determine whether any of the devices

charged in Count 6 is a destructive device. If the

objective design of the device indicates that the ob-

ject has no legitimate social or commercial purpose,

the defendant’s intent in possessing that device is

not relevant to your determination. However, if the

assembled device may form an object with both a

legitimate and a nonlegitimate use, then you may

consider the defendant’s subjective intent in decid-

ing whether that device qualifies as a destructive

device.

R.81, Tr. at 461. This instruction was a correct statement

of the law in this circuit, and allowed Fleischli to pro-

ceed with his defense that the objects were actually fire-

works, not destructive devices. See United States v.

Saunders, 166 F.3d 907, 914 (7th Cir. 1999); United States

v. Johnson, 152 F.3d 618, 625 (7th Cir. 1998). The jury

simply did not believe his version of events. The statute

gave adequate notice of what conduct was proscribed, and

the jury was properly instructed about the government’s

burden of proof. We find no error.

I.

Fleischli next raises a sufficiency of the evidence chal-

lenge, arguing that the government failed to prove that

20 No. 01-2703

the four devices were designed or redesigned for use as

weapons. He claims that the undisputed evidence shows

that the devices were intended for use as fireworks at

the Tobiases’ farm. Fleischli’s in-laws apparently held a

valid fireworks permit. Fleischli has an uphill battle in

making out a sufficiency of the evidence claim. In review-

ing this claim we must determine whether, after view-

ing the evidence in the light most favorable to the pros-

ecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.

United States v. Copus, 93 F.3d 269, 271 (7th Cir. 1996).

We may reverse a conviction only when the record is de-

void of any evidence, regardless of how it is weighed, from

which a jury could find guilt beyond a reasonable doubt. Id.

The government presented evidence that Fleischli pos-

sessed four fully assembled devices consisting of blasting

caps (detonators), varying amounts of PETN (a highly

explosive powder), and fuses. Government evidence dem-

onstrated that lighting the fuse would cause the blast-

ing cap to activate, which in turn would detonate the

explosive powder. The resulting explosion was of suf-

ficient force to damage property and cause personal injury.

In response to Fleischli’s claim that the devices were

intended for use as fireworks, an ATF explosives expert

testified that no commercial firecrackers of which he

was aware used a detonator or PETN. The ATF expert

testified that he knew of no social or commercial use for

the devices as assembled. This evidence was more than

adequate to support a conviction under section 5861(d).

J.

Fleischli was convicted of transporting firearms in

interstate commerce in violation of 18 U.S.C. § 922(g)(1).

The district court here instructed the jury that a “defen-

dant transports a firearm when he transports or causes

No. 01-2703 21

to be transported the firearm in a vehicle.” R. 81, Tr. at 458.

The charge was based on the transport of the minigun

from Illinois to Missouri in the Spring of 1998. The gun

was transported in a trailer that was towed by a van

owned and driven by Kevin Traeger. Fleischli and his

family were passengers in Traeger’s van. Fleischli cites

Muscarello v. United States, 524 U.S. 125 (1998), for the

proposition that the driver of the vehicle was the only

person legally liable for transporting the firearms. Because

Fleischli was merely a passenger in the van in which the

minigun was transported, he maintains he did not “trans-

port” the gun. He does not dispute that, as a factual mat-

ter, he agreed to bring his minigun to Missouri to attend

a shooting event, that the minigun was loaded into

Traeger’s trailer at Otto American Boiler, that Fleischli

demonstrated the gun in Missouri, and that the gun

was returned to the safe at Otto American Boiler at the

end of the day.

In Muscarello, the Court considered the meaning of

“carry” as that term is used in 18 U.S.C. § 924(c)(1). The

Court concluded that “carry” is not limited to the carry-

ing of weapons directly on the person but can include

their carriage in a car. 524 U.S. at 132. According to the

Court, a person may “carry” firearms in a wagon, truck, car

or other vehicle that one accompanies. 524 U.S. at 128. The

Court rejected the petitioner’s claim that such a broad

definition of “carry” would make it equivalent to “trans-

port,” which clearly had a separate meaning in the stat-

ute. The Court commented that “carry” implies personal

agency and some degree of possession, “whereas ‘trans-

port’ does not have such a limited connotation, and, in

addition, implies the movement of goods in bulk over

great distances.” 524 U.S. at 134. “ ‘Transport’ is a broad-

er category that includes ‘carry’ but also encompasses

other activity.” 524 U.S. at 135.

22 No. 01-2703

There is no support in the language of the statute or the

case law for Fleischli’s distinction between a passenger

and driver of the vehicle in which the firearm is

transported. Under Muscarello, the key to the meaning

of “carry” is personal agency and possession. “Transport”

includes “carry” and is a broader category. The evi-

dence demonstrated that the gun belonged to Fleischli,

that it was transported to Missouri at his impetus, that

he accompanied the gun in a van to Missouri and over-

saw the loading and unloading of the gun at both ends

of the trip. In short, he transported the gun to Missouri

as that word is commonly understood. The government

was required to prove no more than that. The district

court’s instruction accurately conveyed the law by clarify-

ing that the standard could be met by showing that

Fleischli caused the firearm to be transported.

K.

Over Fleischli’s objection, the government offered evi-

dence of Fleischli’s possession of firearms in Missouri.

Fleischli contends that this evidence violated his Sixth

Amendment right to be tried in the district where the

crime was committed. Possession of a firearm is a con-

tinuing offense which ceases only when the possession

stops. United States v. Ballentine, 4 F.3d 504, 507 (7th Cir.

1993), cert. denied, 510 U.S. 1179 (1994). Continuing

offenses may be prosecuted in any district in which

they occurred. United States v. Chin, 981 F.2d 1275, 1278

(7th Cir. 1992), cert. denied, 508 U.S. 923 (1993). Thus,

Fleischli was properly prosecuted for possession in ei-

ther Illinois or Missouri, and the court did not err by

admitting evidence of Fleischli’s gun-related activities

in Missouri. Moreover, Fleischli was also charged with

transporting a gun from Illinois to Missouri and evidence

of his possession of the gun in Missouri was highly rele-

vant to that charge and appropriately admitted.

No. 01-2703 23

L.

Finally, Fleischli contests his sentence, arguing that

the district court incorrectly applied an enhancement for

his role in the offense pursuant to U.S.S.G. §3B1.1(c).

That provision allows a court to increase the defendant’s

offense level by two levels if the defendant was an orga-

nizer, leader, manager, or supervisor in any criminal

activity. Fleischli contends that this enhancement may

be applied only when the offense is committed by more

than one participant. Because “participant” is defined as

a person who is criminally responsible for the commission

of the offense (regardless of whether that person is con-

victed), and there were no other criminally responsible

persons, Fleischli argues that the district court erred in

applying the enhancement. Fleischli is correct that a sec-

tion 3B1.1(c) enhancement may be applied only when

there is another participant in the offense. United States

v. Mustread, 42 F.3d 1097, 1103 (7th Cir. 1994); U.S.S.G.

3B1.1, Application Note 2 (“To qualify for an adjust-

ment under this section, the defendant must have been

the organizer, leader, manager, or supervisor of one

or more other participants.”). The district court was

aware of this limitation, and declined to apply an adjust-

ment under section 3B1.1(c). Instead the court departed

upward, relying on additional language from Application

Note 2:

An upward departure may be warranted, however,

in the case of a defendant who did not organize, lead,

manage, or supervise another participant, but who

nevertheless exercised management responsibility

over the property, assets, or activities of a criminal

organization.

U.S.S.G. § 3B1.1, Application Note 2.

In particular, the court referenced Application Note 2

and then noted:

24 No. 01-2703

And here the government clearly established at

trial that the defendant procured parts for illegal

weapons and engaged in illegal weapons manufacture.

He arranged for potential sale of the Minigun. He

demonstrated its firepower at a gun show. And he had

Mr. Tobias register arms and conduct transactions in

his stead. Similarly, Mr. Fleischli employed Mr. Med-

lock as the firearm company’s secretary-treasurer

because Mr. Medlock had a valid firearm owner iden-

tification card, FOID card, and could use it to pos-

sess guns which the defendant could not legally pos-

sess himself. So these activities, it seems to the

Court, clearly warrant a two-point upward departure

pursuant to 3B1.1.

R.79, Sentencing Tr. at 8-9. The court had already found

that it was Fleischli’s idea to set up the corporation

after repeated attempts to gain access to firearms legally

had failed.

We review the court’s decision to depart upward from

the applicable Guideline range for abuse of discretion.

United States v. Leahy, 169 F.3d 433, 439 (7th Cir. 1999).

We see no abuse of discretion here. Fleischli set up a

sham corporation using friends and relatives to help him

gain access to firearms he could not obtain legally. He

recruited others to act as straw men in his gun purchase

activities, and directed the operation himself. He main-

tained in his own home and business a veritable arsenal

of weapons that were registered to this company, exercis-

ing management responsibility over the property, assets,

or activities of a criminal organization. We therefore

affirm the district court’s application of an upward de-

parture to Fleischli’s sentence.

No. 01-2703 25

III.

For the reasons stated above, we find no error in

Fleischli’s conviction or sentence. We therefore affirm the

judgment of the district court.

AFFIRMED.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-97-C-006—9-12-02