# United States v. Ralph R. Ross

> Court of Appeals for the Seventh Circuit · November 5, 1990 · 917 F.2d 997

URL: https://www.frixlaw.com/law-library/cases/9480970

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Ralph R. ROSS, Defendant-Appellant
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** November 5, 1990
- **Citations:** 917 F.2d 997; 1990 U.S. App. LEXIS 20349; 1990 WL 172547
- **Precedential status:** Published
- **Opinion:** Dissent by Manion
- **Judges:** Cummings, Easterbrook, Manion, Per Curiam
- **Cited by:** 19 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9480970

## How later opinions describe it (automated extraction)

- noting on direct appeal in this case that the error could not be considered harmless

## Opinion text

MANION, Circuit Judge,
dissenting.
I agree with the panel that Ross’ first three arguments are without merit. But as to the fourth issue I would reverse and follow the Fifth Circuit, thus overruling our prior cases interpreting 26 U.S.C. § 5861 (d). See United States v. Anderson, 885 F.2d 1248 (5th Cir.1989) (era banc).
Most handguns, rifles, and shotguns, though firearms in common terms, are not necessarily “firearms” as defined by the Act. Furthermore, mines and hand grenades are “firearms” under the Act (destructive devices), 1 even though they are *1002 not firearms in the usual sense. Although the Act requires registration of “firearms,” the statute excludes some weapons which really are firearms and includes some weapons which are not. Thus, Congress stripped the word “firearm” of its ordinary meaning and assigned it an entirely new definition for' purposes of the National Firearms Act.
We held in United States v. Gardner, 448 F.2d 617 (7th Cir.1971), and again in United States v. Ranney, 524 F.2d 830 (7th Cir.), cert. denied, 424 U.S. 922 , 96 S.Ct. 1130 , 47 L.Ed.2d 330 (1975), that the government must prove that a defendant “knew that he possessed a firearm in the general meaning of the term____” 2 Ranney, 524 F.2d at 832 . These cases rejected the contention that a defendant must have known the weapon was a “firearm” as defined by the Act. Gardner declared that the government was not required to prove inter alia “that the defendant knew the characteristics of the weapon that rendered it subject to registration, in order to convict____” Gardner rested its holding on United States v. Freed, 401 U.S. 601 , 91 S.Ct. 1112 , 28 L.Ed.2d 356 (1971), simply stating: “A reading of this opinion by the Supreme Court will suffice.” 448 F.2d at 619 . In addition to following Freed, Ranney relied on Gardner and United States v. Vasquez, 476 F.2d 730, 732 (5th Cir.1970), which has since been overruled by the Fifth Circuit sitting en banc in United States v. Anderson, supra, 885 F.2d 1248 .
Ranney required only that the defendant know he possessed a firearm as generally defined. But the context of that conclusion casts some light on the circumstances that caused the court to avoid further analysis. After quoting Freed that “one would hardly be surprised that possession of hand grenades is not an innocent act,” the Ranney court stated:
We believe that this section may well too be premised on the theory that one would hardly be surprised to learn that possession of a sawed-off shotgun is not an innocent act. Therefore, we hold that the Government was not required to show that the Defendant had specific knowledge that the shotgun in question was not identified by a serial number or was less than the lawful length. Proof by the Government that the Defendant knew that he possessed a firearm in the general meaning of the term was sufficient to fulfill its burden on this point.
524 F.2d at 832 (emphasis added).
I agree that a person should not be surprised to learn possession of an unregistered sawed-off shotgun (or a machine gun, for that matter) is not an innocent act. This is why Freed imposed strict liability on the issue of registration. However, what if the person does not know he possesses a sawed-off shotgun, believing it instead to be a common pistol? Gardner involved a pistol which fired shotgun shells. Should he be surprised to learn he is violating the law, when the Act does not require the registration of most pistols? Under Ranney , mere knowledge that the pistol is a firearm in the general sense (it clearly is) is enough to convict. The owner can be convicted even though he believes his weapon is not the type that needs to be registered under the Act.
Gardner held that Freed was dispositive on the question of knowledge. The issue in Freed , however, was whether the Act requires “specific intent or knowledge that the hand grenades were unregistered.” 401 U.S. at 607 , 91 S.Ct. at 1117 . We are not faced with the question of registration in this case. Rather, the issue here is to *1003 what extent the Act requires a defendant’s knowledge concerning the nature of the weapon — did he simply have to know it was a gun (firearm) or did he have to know it was a machine gun? The government concedes, as did the Gardner and Ranney panels, that the Act does require some knowledge as to the nature of the unregistered weapon. 3 The question here, which Freed did not address, is whether a defendant’s knowledge should be that the weapon is a firearm in the ordinary sense of the term, or a machine gun as more specifically defined by the Act. 4
“[A]n intent to perform the proscribed conduct is a necessary element of any serious criminal offense.” United States v. Busic, 592 F.2d 13, 21 (2d Cir.1978) (citing Morrissette v. United States, 342 U.S. 246 , 72 S.Ct. 240 , 96 L.Ed. 288 (1952)). The “proscribed conduct” in this case is not possessing a firearm in the ordinary sense; it is possessing a “firearm” as defined by the Act. Thus the knowledge requirement of Ranney and Gardner (that the weapon is a firearm in the usual sense) has no firm connection to the conduct actually prohibited (the possession of a “firearm” as defined by the Act).
To hold that the Act requires knowledge only that the weapon is a firearm in the ordinary sense can lead to strange results. For instance, the Act forbids possession of unregistered hand grenades. A hand grenade is obviously a dangerous weapon, but it is not a firearm in the ordinary sense of the term even though it is clearly a “firearm” under the Act. Conceivably, a defendant who knew he possessed a hand grenade could avoid conviction by arguing that he didn’t know the hand grenade was a firearm (gun) in the general sense. See Anderson, 885 F.2d at 1251, n. 5 (discussing the “strange consequences” of requiring knowledge that objects are firearms in the general sense, especially when the objects are “silencers or land mines, which are not firearms in the general sense at all[.] Are the elements of proof to be deemed different where they are concerned?”).
The Fifth, Sixth, and Ninth Circuits originally found (at least in dicta) that the Act requires knowledge that the weapon is a firearm in the ordinary sense, but since have held that the Act requires knowledge that the weapon is a “firearm” under the unique terms of the Act. Cf. Anderson, supra; United States v. Williams, 872 *1004 F.2d 773, 774-77 (6th Cir.1989) (“The Court ... holds that the government was required to prove defendants’ knowledge of the weapon’s automatic quality.”); United States v. Herbert, 698 F.2d 981, 987 (9th Cir.1983) (“[I]n a situation in which there were no external indications on the weapon that would ‘alert one to the likelihood of regulation,’ ” the government must prove knowledge that the weapon was automatic.). We should follow that trend.
I conclude the district court erred in instructing the jury that the government need only prove that Ross knew the machine gun was a firearm in the ordinary sense. That error was not harmless. Unquestionably Ross knew he possessed a “gun.” Under the questioned instruction that is all the jury had to find. But did he know he possessed a machine gun — a weapon “designed to shoot, or ... be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger”? Perhaps, but the government should have been required to prove he knew it, just as it had to prove the exhibit gun came under the machine gun definition.
The panel opinion concludes that “[rjeading into the statute a requirement of knowledge that the object is a lay firearm, or a statutory firearm ... or a dangerous device apt to be regulated (hand grenades and bazookas ...) makes sense.” But if the government is going to read the statute in that manner, it must be consistent in charging a defendant with knowing possession, whether he possesses a bazooka or a machine gun. The jury may well reject Ross’ claim that the exhibit gun was an inoperable replica with a lead plug and instead believe the weapons expert who testified that it could be restored to an automatic weapon in several hours. But if all Ross needed to know is that he possessed a gun, we may as well stop where the statute did and apply strict liability.
Although the facts may distinguish this case to some extent from Gardner and Ranney , we should overrule the general principle set down in those cases — that the government only had to prove the defendant knew he possessed a firearm in the general meaning of the term. I believe the government should be required to prove that Ross knew the gun at issue was a machine gun as defined by the Act (or some other weapon covered by the Act). 5 I would reverse the judgment of the district court and remand for a new trial.
. Section 5845(f) provides that the term “destructive device" includes
(1) any explosive, incendiary, or poison gas (A) bomb, (B) grenade, (C) rocket having a propellant charge of more than four ounces, *1002 (D) missile having an explosive or incendiary charge of more than one-quarter ounce, (E) mine, or (F) similar device;
(2) any type of weapon by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell which the Secretary finds is generally recognized as particularly suitable for sporting purposes; and
(3) any combination of parts either designed or intended for use in converting any device into a destructive device____
. Gardner involved the possession of a smooth-bore pistol designed to shoot shotgun shells. Ranney involved the possession of a sawed-off shotgun.
.No one contends that this is a strict liability crime. See United States v. International Minerals & Chemical Corp., 402 U.S. 558, 560 , 91 S.Ct. 1697, 1699 , 29 L.Ed.2d 178 (1971). In United States v. Carmany, 901 F.2d 76 (7th Cir.1990), we stated that "violation of the Act is a strict liability crime ..id. at 78 n. 2, but we meant it only in the sense that the Act "does not require intent or knowledge that the firearms were unregistered." (Emphasis added.) Id. As Justice Brennan noted in his concurrence in Freed :
To convict appellees of possession of unregistered hand grenades [in violation of 26 U.S.C. § 5861 (d) ], the Government must prove three material elements: (1) that appellees possessed certain items; (2) that the items possessed were hand grenades; and (3) that the hand grenades were not registered. The Government and the Court agree that the prosecutor must prove knowing possession of the items and also knowledge that the items possessed were hand grenades. Thus, while the Court does hold that no intent at all need be proved in regard to one element of the offense — the unregistered element of the offense — knowledge must still be proved as to the other two elements. Consequently, the National Firearms Act does not create a crime of strict liability as to all its elements____
401 U.S. at 612 , 91 S.Ct. at 1120 (Brennan, J., concurring).
We also stated in United States v. Taylor, 728 F.2d 864 (7th Cir.1984), that "proof that a person actually or constructively possessed an unregistered firearm, in violation of 26 U.S.C. § 5861 (d), is sufficient proof that the person ‘knowingly possessed’ the unregistered firearm in question.” Id. at 869 . However, as Justice Brennan noted in Freed, supra, knowing possession of the firearm and knowledge that the item was a firearm are two distinct elements.
.The Freed Court did note that "lower court decisions [had held] the only knowledge required to be proved was knowledge that the instrument was a firearm.” 401 U.S. at 607 , 91 S.Ct. at 1117. However, the Court never distinguished between the Act’s definition of "firearm” and the dictionary definition, as this was not an issue in Freed . The government apparently conceded in Freed that it had to prove knowledge the weapon was a "firearm” in the Act sense. See Anderson, supra, 885 F.2d at 1252 & n. 6.
. The government does not have to prove Ross knew he was violating the law. Section 5861(d) does not require specific intent. Herbert, supra, 698 F.2d at 986 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9480970. Public record. Not legal advice.