Opposition Brief — Ernest Armando Andujo, Petitioner v. United States

No. 21-8103

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

ERNEST ARMANDO ANDUJO, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

KENNETH A. POLITE, JR.

Assistant Attorney General

KEVIN J. BARBER

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTION PRESENTED

Whether the court of appeals erred in rejecting petitioner’s

claim, on harmless-error grounds, that the district court had

abused its discretion by allowing expert testimony about the

absence of an exception for movie props to the federal prohibitions

against possessing a firearm silencer that is unregistered and

lacks a serial number, 26 U.S.C. 5861(d) and (i).

(I)

ADDITIONAL RELATED PROCEEDINGS

United States District Court (C.D. Cal.):

United States v. Andujo, No. 18-cr-835 (Feb. 10, 2020)

United States Court of Appeals (9th Cir.):

United States v. Andujo, No. 20-50043 (Dec. 10, 2021)

(II)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 21-8103

ERNEST ARMANDO ANDUJO, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-4a) is not

published in the Federal Reporter but is available at 2021 WL

5860900.

The order of the district court (Pet. App. 6a-9a) is

unreported.

JURISDICTION

The judgment of the court of appeals was entered on December

10, 2021.

A petition for rehearing was denied on April 6, 2022

(Pet. App. 5a).

The petition for a writ of certiorari was filed

on June 7, 2022.

The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

2

STATEMENT

Following a jury trial in the United States District Court

for the Central District of California, petitioner was convicted

on one count of possessing an unregistered firearm silencer, in

violation of 26 U.S.C. 5861(d), and one count of possessing a

firearm silencer without a serial number, in violation of 26 U.S.C.

5861(i).

Pet. App. 1a-2a.

He was sentenced to 12 months and one

day of imprisonment, to be followed by three years of supervised

release.

C.A. E.R. 2.

The court of appeals affirmed.

Pet. App.

1a-4a.

1.

In November 2018, police executed a search warrant at

petitioner’s home in Long Beach, California.

C.A. E.R. 305-307.

In

firearms

a

bedroom

closet,

they

found

several

and

two

cylindrical devices that were examined by Bureau of Alcohol,

Tobacco, Firearms, and Explosives (ATF) agents and found to be

firearm silencers.

Id. at 196-208, 314-316, 331-338.

The National Firearms Act (Act), 26 U.S.C. 5801 et seq.,

prohibits the receipt or possession of a “firearm” that is not

federally registered to the recipient or possessor, 26 U.S.C.

5861(d), or identified by the required serial number, 26 U.S.C.

5861(i).

The Act defines the term “firearm” to include “any

silencer” as defined by 18 U.S.C. 921.

26 U.S.C. 5845(a)(7).

Section 921 in turn defines “silencer” to include “any device for

3

silencing, muffling, or diminishing the report of a portable

firearm.”

18 U.S.C. 921(a)(25). 1

The silencers found in petitioner’s home were not marked with

serial numbers.

C.A. E.R. 334-335.

In addition, an ATF agent

found no record that petitioner had registered them.

Id. at 630-

634.

2.

A federal grand jury indicted petitioner on one count of

possessing an unregistered silencer, in violation of 26 U.S.C.

5861(d), and one count of possessing a silencer without a serial

number, in violation of 26 U.S.C. 5861(i).

C.A. E.R. 892-893.

At trial, petitioner claimed that he was in the business of

“provid[ing] weapons and props for independent cult and low budget

action movies,” C.A. E.R. 294, and that the silencers recovered

from his home were props that he never intended to use to silence

gunfire, id. at 294, 298.

The government called as an expert

witness an ATF agent who had examined the devices and certified

that they were silencers.

Id. at 199, 486-487.

The agent

testified that federal law does not except movie props that meet

the definition of a “silencer” from federal registration and

marking requirements.

See id. at 499, 509-510.

Defense counsel

objected to that testimony under Federal Rule of Evidence 403 and

on

the

ground

that

it

constituted

“assume[d] facts not in evidence.”

“legal

conclusions”

and

C.A. E.R. 498-500; see id. at

In 2022, 18 U.S.C. 921 was amended to move the definition

of “silencer” from Section 921(a)(24) to Section 921(a)(25).

1

4

510; Pet. 5.

The district court overruled the objections, C.A.

E.R. 499-501, 510, and the ATF agent proceeded to explain her

determination that the devices found in petitioner’s home, based

on their “design, features, and characteristics,” were silencers,

id. at 504; see id. at 504-509.

The district court instructed the jury that a guilty verdict

on

either

count

would

require

a

finding,

inter

alia,

that

petitioner “knew of the specific characteristics of the firearm

silencer[,] [t]hat is, that this firearm silencer would silence,

muffle, or diminish the sound report of a portable firearm.”

E.R. 843-844.

C.A.

Petitioner neither objected to that instruction nor

requested an instruction under which the jury would have been

required to find that he intended to use the device to silence

gunfire.

See id. at 791-798.

both counts.

The jury found petitioner guilty on

See id. at 884-885.

At the hearing on petitioner’s subsequent motion for a new

trial or judgment of acquittal, his counsel acknowledged that the

jury instructions were correct, C.A. E.R. 42-43, but argued that

the ATF agent’s testimony had caused confusion over the offense

elements, id. at 36-39.

The district court denied the motion,

Pet. App. 6a-9a, explaining that the ATF agent’s “testimony was

concerned

with

whether

the

object

was

a

silencer,

not

[petitioner’s] knowledge of the silencer’s characteristics,” id.

at

8a.

Accordingly,

the

court

found

that

“nothing

in

the

government’s examination of [the ATF agent] could have misled the

5

jury as to the requirements of the crimes charged.”

court

sentenced

petitioner

to

12

months

and

Ibid.

one

day

The

of

imprisonment, to be followed by three years of supervised release.

C.A. E.R. 2.

3.

The

court

of

appeals

memorandum disposition.

petitioner’s

arguments

affirmed

in

Pet. App. 1a-4a.

that

the

ATF

an

unpublished

The court rejected

agent

had

impermissibly

offered legal conclusions and had improperly testified that there

is no “exception” to federal requirements “for silencers used as

props or on movie sets.”

Id. at 2a.

The court explained that

“any error” in admitting the latter testimony was “harmless.”

at 3a.

Id.

It found “no evidence that the expert’s testimony was

incorrect”

and

“[m]oreover”

presented

overwhelming

observed

evidence

that

possessed by [petitioner] were silencers.”

that

“the

government

the

silver

cylinders

Ibid.

ARGUMENT

Petitioner contends (Pet. 11-19), for the first time, that

his

convictions

for

possessing

an

unregistered

silencer

that

lacked a serial number, in violation of 26 U.S.C. 5861(d) and (i),

required proof of his intent to use the silencer to silence

gunfire.

The court of appeals’ decision is correct and does not

conflict with any decision of this Court or another court of

appeals.

And petitioner’s failure to preserve his current claim,

and the corresponding absence of any direct consideration of it

6

below, make this an unsuitable vehicle for considering it.

No

further review is warranted.

1.

Under 26 U.S.C. 5861(d), it is unlawful for any person

“to receive or possess a firearm which is not registered to him in

the

National

Firearms

Registration

and

Transfer

Record.”

Similarly, under 26 U.S.C. 5861(i), it is unlawful for any person

“to receive or possess a firearm which is not identified by a

serial number as required by this chapter.”

The definition of

“firearm” for purposes of both provisions includes “any silencer

(as defined in section 921 of title 18).”

26 U.S.C. 5845(a)(7).

And Section 921 defines “silencer” to include “any device for

silencing, muffling, or diminishing the report of a portable

firearm,

including

any

combination

of

parts,

designed

or

redesigned, and intended for use in assembling or fabricating a

firearm silencer or firearm muffler, and any part intended only

for use in such assembly or fabrication.”

18 U.S.C. 921(a)(25).

In Staples v. United States, 511 U.S. 600 (1994), this Court

held that to be convicted of possessing an unregistered firearm

(there, a machinegun) under 26 U.S.C. 5861(d), the defendant must

“kn[o]w the weapon he possessed had the characteristics that

brought it within the statutory definition of a machinegun.”

Id.

at 602; see United States v. Syverson, 90 F.3d 227, 231-232 (7th

Cir.)

(applying

Staples’s

knowledge

requirement

to

Section

5861(i)’s prohibition against possessing firearms that lack serial

7

numbers),

cert.

denied,

519

U.S.

982

(1996).

The

knowledge

requirement announced in Staples applies to the possession of all

unregistered

or

unserialized

statutory

“firearms,”

including

“silencers.”

See Rogers v. United States, 522 U.S. 252, 254-255

(1998) (plurality opinion); see id. at 255 (finding a defendant’s

admission that “knew the item was a silencer” to be “sufficient to

satisfy the mens rea element”).

The district court here accordingly instructed the jury,

without relevant objection, C.A. E.R. 793-794, 797, that to find

petitioner guilty of possessing an unregistered and unserialized

silencer under Section 5861(d) and (i), it was required to find

that petitioner “knew of the specific characteristics of the

firearm silencer[,] [t]hat is, that this firearm silencer would

silence,

muffle,

or

diminish

firearm,” id. at 843-844.

the

sound

report

of

a

portable

That instruction follows directly from

Staples and -- as petitioner himself expressly acknowledged at the

hearing on his posttrial motion -- was not erroneous.

Id. at 42-

43.

2.

Notwithstanding his explicit acknowledgement of the

instruction’s correctness -- as well as the absence of any relevant

objection

to

the

instruction

or

request

for

an

additional

instruction that would have required a finding of intent to use

the silencer to silence gunfire -- petitioner now asserts that his

conviction required further proof of his mens rea.

Although he

8

appears to recognize that no such additional proof is required

when the relevant offense concerns another type of “firearm,” see

Pet. 12-13, he contends that in the context of offenses involving

silencers,

the

government

must

prove

that

the

“defendant’s

intended use of the object” was for “silencing” gunfire, Pet. 1112.

Petitioner’s contention is unsupported by the statutory text

and context.

The plain text of Section 5861(d) and (i) bars

“receiv[ing] or possess[ing] a firearm” that is unregistered or

lacks a serial number, but says nothing about use.

26 U.S.C.

5861(d) and (i); see United States v. Bruce, 939 F.2d 1053, 1055

(D.C. Cir. 1991) (citing Section 5861(d) as an example of a “simple

possession statute”).

Accordingly, rather than focusing on those

provisions, petitioner appears to derive his silencer-specific

intent requirement from the use of the word “for” in Section 921’s

definition of “silencer” to include “any device for silencing,

muffling, or diminishing the report of a portable firearm.”

18

U.S.C. 921(a)(25). His argument thus rests on the unlikely premise

that

Congress

established

an

intent-to-use

requirement

for

silencer-possession offenses not in the substantive prohibitions

themselves

(Section

5861(d)

and

(i)),

but

instead

through

a

separate (and more general) definitional provision describing when

a device has characteristics that make it a “silencer” under

federal law (Section 921(a)(25)).

9

Even assuming the plausibility of that premise, petitioner

errs in construing the definitional provision to address a silencer

possessor’s intent to use the silencer.

Instead, as one would

expect in the definition of a type of device, it refers only to

the design of the device and the intent of its creator.

See United

States v. Crooker, 608 F.3d 94, 99 (1st Cir. 2010) (per curiam).

The

definition

muffling,

or

of

a

silencer

diminishing

the

as

“any

report

device

of

a

for

silencing,

portable

firearm”

specifically “includ[es] any combination of parts, designed or

redesigned, and intended for use in assembling or fabricating a

firearm silencer or firearm muffler, and any part intended only

for use in such assembly or fabrication.”

18 U.S.C. 921(a)(25).

To the extent that proviso refers to someone’s state of mind, it

is the state of mind of the fabricator, not the possessor.

Cf.

Syverson,

the

90

F.3d

at

231

(observing,

in

the

context

of

definition of “machine gun,” that “the only referent for the

adjectives ‘designed and intended’ is the manufacturer of the

parts, not the accused who is charged with the unlawful use of

those parts”).

The word “for” in the general definition does not obliquely

convert the nature of the device into something that would instead

change back and forth depending on the possessor.

Petitioner’s

suggestion (Pet. 12) that such an interpretation is necessary to

avoid “criminalizing possession of common household items” is

10

misplaced.

Section 921(a)(25) requires that the relevant device

have been designed or modified to silence firearms, not merely

“capable” of silencing firearms.

Crooker, 608 F.3d at 97.

And

the knowledge requirement explicated by this Court in Staples

provides a further reason why conviction based simply on the

possession of “soda bottles [or] potatoes” (Pet. 12) would be

implausible.

3.

Petitioner’s assertion of a circuit conflict (Pet. 12-

14) is likewise mistaken. The decisions cited by petitioner simply

take the view that to qualify as a “silencer” under Section

921(a)(25),

a

device

must

be

designed

for

the

purpose

of

“silencing, muffling, or diminishing the report of a portable

firearm.”

They do not suggest that to convict a defendant under

Section 5861(d) and (i), the government must prove that a defendant

intended to use such a device to silence gunfire.

In United States v. Crooker, the defendant was convicted of

transporting a silencer as a felon, in violation of 18 U.S.C.

922(g), which incorporates the same definition of “silencer” at

issue here.

608 F.3d at 95-96.

The relevant device was “designed

to muffle the sound of an airgun” -- which is not itself a “firearm”

under federal law -- and the device could suppress the sound of an

actual firearm only after “some modification or adaptation.”

at 95, 97.

Id.

The First Circuit reversed the defendant’s conviction

on the ground that the statutory definition, “device for silencing,

11

muffling, or diminishing the report of a portable firearm,” 18

U.S.C.

921(a)(24)

defendant

must

(2018)

know

the

(emphasis

device

was

added),

meant

“designed”

that

to

the

silence

a

statutory firearm, not just that it was “capable” of doing so after

“adaptation,” Crooker, 608 F.3d at 97-99.

The court made clear

that its “construction poses no barrier to prosecuting anyone” -like petitioner -- who “knowingly possess[es] a device designed to

be used as [a] silencer for [a] firearm.”

defendant’s

purpose

becomes

a

pivotal

Id. at 99.

issue,”

emphasized, “only for a device not so designed.”

the

“The

court

Ibid.

The decision below also does not conflict with United States

v. Syverson, supra, or United States v. Carter, 465 F.3d 658 (6th

Cir. 2006) (per curiam), cert. denied, 550 U.S. 964 (2007).

As a

threshold matter, Syverson and Carter affirmed the defendants’

convictions

for

possessing

an

unregistered

and

unserialized

silencer, so the results of those cases do not conflict with the

corresponding

affirmance

of

petitioner’s

convictions

Syverson, 90 F.3d at 233; Carter, 465 F.3d at 667.

here.

In any event,

those decisions simply stated that the government had to prove

“that the cylinder was made for the purpose of silencing a firearm,

not that this purpose was realized.”

Syverson, 90 F.3d at 232

(emphasis added); see Carter, 465 F.3d at 667 (“adopt[ing] the

analysis of the Seventh Circuit” in Syverson).

As in Crooker, 608

F.3d at 97-99, the courts thus focused on the device’s intended

12

design, not (as petitioner suggests) on the defendant’s intended

use of that device. 2

4.

Moreover, even if this Court were inclined to consider

the question presented, this case would be an unsuitable vehicle

for doing so.

As discussed above, see pp. 4-5, supra, petitioner

accepted the jury instructions without requesting an intent-touse instruction; later acknowledged that the jury instructions

were correct as given; and did not raise a mens rea claim in the

court of appeals.

See United States v. Wells, 519 U.S. 482, 488

(1997) (noting that the Court has “treated an inconsistency between

a party’s request for a jury instruction and its position before

this Court” as a relevant “consideration[] bearing on” whether to

grant certiorari); City of Springfield v. Kibbe, 480 U.S. 257, 259

(1987) (per curiam) (“[T]here would be considerable prudential

objection to reversing a judgment because of instructions that

petitioner accepted, and indeed [himself] requested.”).

Petitioner’s citation (Pet. 14) of the Second Circuit’s

decision in United States v. Kavoukian, 354 F.3d 117 (2003) (per

curiam), does not show any circuit disagreement. In Kavoukian,

the court affirmed a defendant’s conviction for possessing an

unregistered silencer, holding “that a defendant can be convicted

of * * * possessing a firearm silencer without proof that he

knew from experience that the silencer functions.” Id. at 120.

And petitioner himself acknowledges (Pet. 14) that Kavoukian arose

“in a different context” from the other decisions on which he

relies.

At all events, nothing in Kavoukian suggests that the

Second Circuit would have reversed petitioner’s conviction here.

2

13

Petitioner appears to view the claim as preserved based on

his objection at trial and on appeal to the ATF agent’s testimony

that the statutory requirements for silencer possession contain no

“exception for silencers used as props or on movie sets.”

App. 2a.

Pet.

But an objection to expert testimony is not the same as

a direct mens rea claim.

And to the extent that petitioner’s

objection could be construed to incorporate a mens rea claim, it

is not the one that he raises in this Court.

Here, he asserts

(Pet. i) that the statute “require[s] a showing of subjective

purpose or intent to use a device as a silencer.”

statute

required

such

an

intended

use,

But even if the

nothing

supports

an

exception in the circumstance where the intended use would occur

during the course of filming a movie.

As a result, the unpublished -- and thus nonprecedential -decision below did not even cleanly pass on his current claim.

The court of appeals’ statement that petitioner “offer[ed] no

evidence that the expert’s testimony was incorrect” (Pet. App. 3a)

most naturally refers to the argument that it understood petitioner

to be raising -- namely, an argument for a movie-prop exception to

the statutory requirements.

And even that statement appears only

in support of the court’s overarching determination that “any

error” from admitting the agent’s testimony “was harmless” because

petitioner “offer[ed] no evidence that the expert’s testimony was

incorrect.”

Ibid.

14

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

KENNETH A. POLITE, JR.

Assistant Attorney General

KEVIN J. BARBER

Attorney

OCTOBER 2022