Petition for Writ of Certiorari — Drasen v. United States

Supreme Court brief1988

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Supreme Coert, US,

FILLED

SEP 9 1988

F. SPANIOL, JR,

CLERK

In THE

Supreme Court of the Gunited States

Octroser Term, 1988

nem

—--

GERALD DRASEN, ANTHONY ALEO

and CYNTHIA ALEO,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

a ee eon eee aes

— See ees — ne

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

SamvuEL J. Berar, Esa.

Pau. J. Petit, Esqa.*

Mark T. Hecuincer, Esa.

333 West Wacker Drive

Suite 2600

Chicago, Illinois 60606

(312) 750-6750

Attorneys for Petitioners

Of Counsel:

ALTHEIMER & Gray

333 West Wacker Drive

Suite 2600

Chicago, Illinois 60606

(312) 750-6750 * Counsel of Record

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

QUESTIONS PRESENTED FOR REVIEW

1. Whether unassembled and never-before assembled

constituent parts of a rifle, which might or might not be

assembled to form a short-barrel rifle, are a short-barrel

rifle within the meaning of the National Firearms Act,

26 U.S.C. Section 5845?

2. Whether the Court of Appeals’ Opinion represents

a substantial erosion of the Due Process right to fair

notice in criminal statutes because it construed an admit-

tedly ambiguous criminal statute in favor of the govern-

ment?

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ..

TABLE OF CONTENTS ..........--seeeeee

TABLE OF AUTHORITIES ...............-.

OPINIONS BELOW ...........ccescccsssceee

JURISDICTION oa. 6:5 0ccncc.00 05 o00cnn becineewas

CONSTITUTIONAL PROVISION INVOLVED ..

STATUTE INVOLVED ............eeeeeeeees

STATEMENT OF THE CASE .............-.

REASONS FOR GRANTING THE WRIT:

Il.

ITI.

SUMMARY OF REASONS FOR GRANTING

THE WRIT .ucncccccccccecasstieseeavess

THE DECISION OF THE COURT OF AP-

PEALS RESTS UPON RULES OF STAT-

UTORY CONSTRUCTION WHICH ARE

IN DIRECT CONFLICT WITH DECI-

SIONS OF THIS COURT AND OF THE

COURT OF APPEALS ..............+..

THE COURT OF APPEALS’ OPINION REP-

RESENTS A SUBSTANTIAL EROSION OF

THE DUE PROCESS RIGHT TO FAIR NO-

TICE IN CRIMINAL STATUTES BECAUSE

IT CONSTRUED AN ADMITTEDLY AMBIGU-

OUS CRIMINAL STATUTE IN FAVOR OF

THE GOVERNMENT ...........-eeeeeees

CONCLUGION ....0kstssscbauksascauaeeeeens

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iii

APPENDIX

A— Opinion of the Court of Appeals ..........

B— Order of the Court of Appeals Denying Re-

Cie ler eh ec canvas cabs ses.

C— District Court Opinion ....................

TABLE OF AUTHORITIES

Cases

Bell v. United States, 349 U.S. 81, 75 S.Ct. 620

i Mie Rake wks vin de th ake ne cated

AR take ea hb0d abe ana dewen ses.

Bob Jones University v. United States, 461 U.S.

574, 103 S.Ct. 2017 (1983) .................

Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct.

EEE ee

Brook, Inc. v. Commissioner of Revenue, 799 F.2d

RE I ni 6 de wa We bic wines doewe’ sa

Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953

EEE Ea ee ra

Consumer Product Safety Commission v. GTE

Sylvania, Inc., 447 U.S. 102, 100 S.Ct. 2051

ee ie nd as ae had bn tens ove

Flanagan v. United States, 810 F.2d 930 (10th Cir.

citi ee Re WEEE bade ee ase 6 knee ise oe

PAGE

Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct.

TIDE CHFTED nccndccuunasiocedcaceteagitss:

Helvering v. New York Trust Co., 292 U.S. 455,

Bh BR ES Tee tic cccodcsacsseseccecas

Kaiser v. United States, 262 F.2d 367 (7th Cir.

SD oc isk cwednerscTibedcccenssaensscetsere

CEE ccc ccewades covenscvecvenensenervene

CRED: dcncctecdcaedd csdiccsssecsvaasecasss

Lankford v. Law Enforcement Assistance Adminis-

tration, 670 F.2d 35 (4th Cir. 1980) ........

McBoyle v. United States, 283 U.S. 25, 51 S.Ct.

OOD GD boa i ccd Ke desbtes essa ctswsde.

Rewis v. United States, 401 U.S. 808, 91 S.Ct. 1056

CTE ci kcsconthhedsadecutasin pia maudees

Richards v. United States, 369 U.S. 1, 82 S.Ct. 585

(WOOD osc ccd ccviin se cteccngg cad eles inate cts

OE CIID. noc nik c cece cede coseacsscsees ces

SS errr eer err. trier Tet Tee,

Tafoya v. U.S. Department of Justice, 748 F.2d

198D (Oth Cle. BOBO .cc cc cc ccccvcsccccsce.

United States v. Anzalone, 766 F.2d 676 (ist Cir.

ee reer Perey errr yt oe rere

United States v. Bass, 404 U.S. 336, 92 S.Ct. 515

IE cg ink 5'4e eh uesanesacorenaeeeanee

United States v. Blasius, 397 F.2d 203 (2d Cir.

1968), cert. dismissed, 293 U.S. 1008, 89 S.Ct.

SE WEE bh ss cctvecnasacwedvwecavbcedas.

18, 20

18, 19

18, 20

United States v. Board of Commissioners, 435 U.S.

BE OP ee CO CUED séccnccanaxBiccdsns

United States v. Cardiff, 344 U.S. 174, 73 S.Ct.

ED 5 tand pone dobrds Ok GewUNERELseX 08

United States v. Emmons, 410 U.S. 396, 93 S.Ct.

RY a ee ree

United States v. Five Gambling Devices, etc., 346

Che SOs Be CED on cidinnec nccccus

United States v. Gradwell, 243 U.S. 476, 37 S.Ct.

Ge GHPESE wewcen apd news keene peweedas edocs

United States v. Harriss, 347 U.S. 612, 74 S.Ct.

SE 25.6.sb6cadiecusddueuis so tmmmieséss

United States v. Morton, 467 U.S. 822, 104 S.Ct.

SE ot ab ibkcdd ween Zéksdcddonceee

United States v. Turkette, 452 U.S. 576, 101 S.Ct.

rN ee ry Oe irre erro erer

United States v. Universal C.I.T. Credit Corp., 344

U.S. 218, 73 S.Ct. S27 (19GB) .........205..

United States v. Wong Kim Bo, 472 F.2d 720 (5th

[ly MEE dt tnbed cadsuasbnaneneadsbanente

MEE 4465 ss nkdinciamenonbibtastsctaaintaes

Uptagrafft v. United States, 315 F.2d 200 (4th Cir.

1963), cert. denied, 375 U.S. 818, 84 S.Ct. 54

CHD 6 a Wise acnwensdausednceeBeiGitives

Constitutional Provision

United States Constitution, Amendment V...

6 Usd tia HE oc ne eaano 2

ool DOOM Tc. cccrcetcnccccomes 2

OF GE Bek OO cic ns nse sessisiasenesetnin 2

26 U.S.C. Sec. SAB .....cccccccccccsccscess passim

8 USE: tu Bok icici nial passim

i UG tee WL eae 2

Other Authorities

Rev.Rul. 54-606, 1954-2, Cumulative Bulletin .. 12, 14

Supreme Court Rule 20.4 ..............se005- 2

Ix Tae

Supreme Court of the United States

Ocroszr Tzrm, 1988

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioners, Gerald T. Drasen, Anthony Aleo and Cyn-

thia Aleo, respectfully pray that a Writ of Certiorari issue

to review the Opinion of the United States Court of Ap-

peals for the Seventh Circuit entered in this case on April

29, 1988.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Seventh Circuit is reported at 845 F.2d 731 (7th Cir.

1988) and is reprinted as Appendix A to this Petition at 1.

The opinion and order of the United States District

Court for the Northern District of Illinois is reported at

afin

665 F.Supp. 598 (N.D. 1987) and is reprinted, along with

the district court’s memorandum opinion in response to

the government’s motion to reconsider, as Appendix C

at 21.

JURISDICTION

—

The jurisdiction of the district court was predicated upon

an indictment charging violation of 26 U.S.C., Sections

5801, 5802, 5861(a) and 5845.

The government requested an interim appeal from the

district court’s dismissal of six counts of the fourteen-count

indictment pursuant to 18 U.S.C. Section 3731.

On April 29, 1988, the Seventh Circuit reversed the dis-

trict court and remanded the matter to the trial judge.

A petition for rehearing was timely filed on behalf of the

petitioners.

The petition for rehearing was denied on July 5, 1988.

This petition for certiorari is being filed within 60 days

from the denial of the petition for rehearing on July 5,

1988, pursuant to Supreme Court Rule 20.4.

The jurisdiction of this Court is invoked under and pur-

suant to 28 U.S.C. Section 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

Constitution Of The United States,

Amendment V, (Due Process Clause)

No person shall . . . be deprived of the liberty, or prop-

erty, without due process of law...

«f=

STATUTE INVOLVED

26 U.S.C. Section 5845(c)

Rifle:

A weapon designed or redesigned, made or remade, and

intended to be fired from the shoulder, and designed or

i and made or remade to use the energy of the

explosive in a fixed cartridge to fire only a single projec-

tile through a rifled bore for each single pull of the trig-

ger, and shall include, any such weapon which may be

readily restored to fire a fixed cartridge.

STATEMENT OF THE CASE

Petitioners, GERALD T. DRASEN (“Drasen’’), ANTHONY

ALEO and CYNTHIA ALEO (the “Aleos”) were charged

with dealing in and transferring firearms in violation of

26 U.S.C. Section 5861. Count One of the Indictment al-

leged that Drasen unlawfully engaged in business as a

dealer in “rifles having a barrel of less than 16 inches,”

in violation of 26 U.S.C. Section 5861(a) (1982), aided and

abetted by the Aleos, in violation of 18 U.S.C. Section

2 (1982). Counts III through VII alleged that the Aleos

unlawfully transferred five different rifles, having barrels

of less than 16 inches in length, in violation of 26 U.S.C.

Section 5861(e) (1982), aided and abetted by Drasen, in

violation of 18 U.S.C. Section 2. Petitioners filed a Mo-

tion to Dismiss on the ground that the Indictment taken

together with a Bill of Particulars, in which the govern-

ment acknowledged that all of the short-barrel rifles re-

ferred to in the Indictment were unassembled when sold

by the petitioners, failed to charge an offense. Petitioners

within

contended that a collection of component parts which have

never been assembled into a weapon cannot fall within

the definition of a “rifle,” “short-barrel rifle,” or “firearm”

under the statute, 26 U.S.C. Section 5845.

In a memorandum opinion and order, dated January 15,

1987, the district court dismissed Count I and Counts III

through VII of the indictment. (App. at 36) In its original

opinion, the district court focused on the specific language

of the statutory definition of “rifle.” Noting the “readily

restored to fire” language and the lack of any “combina-

tion of parts” language in the statutory definition, the dis-

trict court concluded that the statute’s application was

limited to previously assembled weapons. (App. at 45)

On February 4, 1987, the government filed a motion to

reconsider contending, in part, that the constituent parts

of a weapon should be considered tantamount to a com-

pleted “rifle” without reference to the “readily restored

to fire” language of Section 5845(c) and that the district

court’s “fair notice” analysis overlooked the fact that the

indictment charged the petitioners with a “strict liabil-

ity offense’ which placed the burden on them to ascer-

tain the legality of their conduct.

In its opinion denying the motion to reconsider, the dis-

trict court concluded that the statute’s use of the words

“weapon” and “made” indicated that its coverage was

likely confined to assembied weapons and that, although

defendants did have the burden of determining whether

their conduct was lawful, the statute and other authorities

were not sufficiently clear ‘“‘so that a person could deter-

mine that the conduct currently under prosecution is il-

legal.” (App. at 30)

On appeal, a panel of the Seventh Circuit Court of Ap-

peals reversed (2-1) the district court holding that rifle

kits that had never been assembled were within the defini-

tion of “‘rifle’’ under the Act. (App. at 12) In dismissing

the defendants’ “fair notice” argument, the court stated

that a “common sense reading of the statute,” in addi-

tion to the “highly regulated business” petitioners were

involved in, should have “made them inquire into the ap-

plicable firearms regulations.” (App. at 13)

However, as Judge Manion noted in his dissent, even

if petitioners had inquired into the legality of selling parts

kits, the statute could not have fairly informed them that

selling parts kits was illegal. (App. at 15) Based on Judge

Manion’s dissent, petitioners filed a petition for rehear-

ing. The petition stressed three fundamental concepts:

1) The Court of Appeals’ decision violates all estab-

lished rules of statutory construction;

2) The Court of Appeals’ decision violates the settled

rule of law that ambiguities in criminal statutes

must be resolved in favor of the defendant;

3) The Court of Appeals’ decision violates the due

process guarantee that a criminal statute must

clearly specify what conduct is illegal.

The Court of Appeals denied the petition for rehearing

without analysis. (App. at 19)

REASONS FOR GRANTING CERTIORARI

I. SUMMARY OF REASONS FOR GRANTING CER-

TIORARI.

This case involves the statutory definition of “rifle’’

under 26 U.S.C. Section 5861. The district court dismissed

six Counts! of the Indictment against the defendants on

the ground that a combination of parts which might be,

but never has been, assembled to be a rifle was not with-

in the statutory definition of “rifle” for purposes of Sec.

26 U.S.C. Sec. 5861 as defined in 26 U.S.C. Sec. 5845(c).

Prior to the decision of the district court, no court had

construed whether the sale of an unassembled “parts kit”

which might (or might not) be assembled to form a “Tifle”’

was a “rifle” under the statutory definition. In its Opin-

ion, the Court of Appeals became the first to decide that

an unassembled collection of parts was a “rifle” under

Section 5861.

This case is significant for several reasons, each of which

independently merits review by this Court. First, it is

a case of first impression construing the National Fire-

arms Act (“NFA”) to reach parts collections which might

be assembled as a rifle. As a result, the decision of the

Court of Appeals brings within the ambit of the National

Firearms Act a panoply of individuals and businesses

whose activities were previously beyond its reach.”

Second, the decision of the Court of Appeals is in direct

conflict with decisions of this Court and other Courts of

Appeals cited infra, regarding every principle of statutory

interpretation pertinent to this issue. By judicially amend-

ing the statute to add a “combination of parts clause,”

1 These Counts charged that defendants transferred “rifles”

without registration and engaged in the sale of “rifles” without

a license.

2 The importance of this case is underscored by the fact that U.S.

Senators Hatch and McClure and Representative Craig thought

it so significant that they sought and were granted leave to file

an amicus curiae brief arguing that Congress did not intend this

statute to be read as the Court of Appeals read it.

the Court of Appeals refused to implement the rules of

statutory construction which mandate that:

a. The use of different language in parallel provi-

sions of the same statutory scheme shows Con-

gressional intent that the provisions be given dif-

ferent meanings;

b. Where Congress adds words to a statute, it does

so for a purpose;

ec. Ambiguous cr:minal statues must be construed

against the government;

d. Fifth Amendment Due Process requires that

criminal statutes give fair notice as to what con-

duct is illegal;

e. Revenue Rulings do not have the force of law,

either independently or under the “legislative re-

enactment” doctrine.

In every respect, the decision of the Court of Appeals repre-

sents unfortunate judicial activism by de facto amendment

of a criminal statute where strict construction should be

the rule.

Third, the decision of the Court of Appeals represents

a substantial erosion of the right to Due Process, which

mandates fair notice in criminal statutes, by construing

an admittedly ambiguous criminal statute in favor of the

government. In so holding, the Court of Appeals errone-

ously created a “firearms exception” to the constitutional

guaranty of due process, for which there is no support

in precedent or logic. The decision of the Court of Ap-

peals creates a springboard for expansion of the rule that

ambiguous criminal statutes must be construed in favor

of the prosecution into any area of the law which might

be deemed by the government to be “highly regulated.”

Il. THE DECISION OF THE COURT OF APPEALS

RESTS UPON RULES OF STATUTORY CONSTRUC-

TION WHICH ARE IN DIRECT CONFLICT WITH

DECISIONS OF THIS COURT AND OF THE COURTS

OF APPEALS.

The Court of Appeals held that the definition of “rifle”

in 26 U.S.C. 5845(c) includes any combination of parts

which could be assembled to form a rifle. In so holding,

that Court violated every pertinent rule of statutory con-

struction and rendered a sweeping decision with respect

to federal criminal law which is palpably in error. Cer-

tiorari should be granted to review that decision and to

hold that Section 5845(c), taken in context of the entire

statute, was never intended by Congress to apply to a

combination of parts which might or might not be as-

sembled to form a “rifle.”

As this Court has held on numerous occasions, “‘the start-

ing point for interpreting a statute is the language of the

statute itself and, absent a clearly expressed legislative

intent to the contrary, that language must ordinarily be

regarded as conclusive.” United States v. Turkette, 452

U.S. 576, 580, 101 S.Ct. 2524 (1981); Consumer Product

Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102,

108, 100 S.Ct. 2051 (1980).

Section 5845(aX3) defines “firearm” to include ‘a rifle

having a barrel or barrels of less than 16 inches in length.”

“Rifle” is defined as:

3 Rifles with barrels over 16 inches in length are not subject to

the same special tax and registration requirements of Section 5861

because they are not “firearms” as defined by the Act. This dis-

tinction is particularly important to the case at bar. Petitioners

contend that Congress never intended to insert a combination of

parts clause in the rifle definition because a combination of parts

(Footnote continued on following page)

= a

The term “rifle” means a weapon designed or rede-

signed, made or remade, and intended to be fired

from the shoulder and designed or redesigned and

made or remade to use the energy of the explosive

in a fixed cartridge to fire only a single projectile

through a rifled bore for each single pull of the trig-

ger, and shall include any such weapon which may

be readily restored to fire a fixed cartridge.

It is abundantly clear that the words of this statutory

definition, given their commonly understood meanings, do

not expressly include a “combination of parts from which

a rifle could be assembled” within the definition of “rifle.”

The Court of Appeals concluded, however, that the peti-

tioners, using a “common sense” approach, should have

inferred that Congress intended the statutory definition

to include a “combination of parts” even though Congress

did not expressly say sv. In reaching that conclusion, the

decision of the Court of Appeals is in conflict with each

of the applicable tenets of statutory construction estab-

lished by settled law.

The canons of statutory construction are clear: statutes

are to be construed as a whole; Congress does not in-

3 continued

which form a rifle with a barrel length over 16 inches is not a

“firearm” under the Act. The same does not hold true for “parts”

which make up a machinegun, silencer or destructive device. No

matter how the “maker” assembles the parts of a machinegun,

mone or destructive device, the end result is still a regulated

‘6 arm.”’

: a States v. Morton, 467 U.S. 822, 828, 104 S.Ct. 2769

1984).

sert words in a statute for no reason;> and when Congress

uses disparate wording in separate provisions of the same

statute, it intends those provisions to have different mean-

ings.* In order to adopt the reading urged by the govern-

ment, the Court of Appeals abandoned each of these prin-

ciples.

The parallel provisions of other sections of the NFA

demonstrate without question that where Congress in-

tended to legislate with respect to a “combination of

parts” it did so by using those exact words—conspicuous

by their absence in the statutory definition of “rifle.”

For example, Congress has specifically provided that a

‘“machinegun,” another variety of NFA “firearm,” in-

cludes not only a “weapon” which shoots automatically,

but also “. . . 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.

Sec. 5845(b) (emphasis added). In addition, where Congress

intended to capture within the definition of “machinegun”’

a combination of parts which could be used to convert

5 Bird v. United States, 187 U.S. 118, 124, 23 S.Ct. 42 (1902);

Uptagrafft v. United States, 315 F.2d 200, 204 (4th Cir. 1963), cert.

denied, 375 U.S. 818, 84 S.Ct. 54 (1963); United States v. Blasius,

397 F.2d 203, 207 (2d Cir. 1968), cert. dismissed, 393 U.S. 1008,

89 S.Ct. 615 (1969).

6 “Where Congress includes particular language in one section

of a statute but omits it in another section of the same Act, it

is generally presumed that Congress acts intentionally and pur-

posely in the disparate inclusion or exclusion.” Russello v. United

States, 464 U.S. 16, 23, 104 S.Ct. 296 (1983), quoting with approval

from, United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.

1972), and citing, United States v. Wooten, 688 F.2d 941, 950 (4th

Cir. 1982). See also, Lankford v. Law Enforcement Assistance Ad-

ministration, 670 F.2d 35, 36 (4th Cir. 1980), and Tafoya v. U.S.

Department of Justice, 748 F.2d 1389, 1391-1392 (10th Cir. 1984).

a weapon which was not previously a machinegun into a

machinegun, it had no difficulty drafting such a provision:

“The term [machinegun] shall also include . . . any com-

bination of parts designed or intended for use in convert-

ing a weapon into a machinegun ... .”’ 26 U.S.C. Sec.

5845(b) (emphasis added).

In similar fashion, Congress defined ‘“‘a muffler or silencer

for any firearm as including “. . . any device for silenc-

ing, muffling, or diminishing the report of a portable fire-

arm, including any combination of parts, designed or re-

designed, and intended for use in assembling or fabricat-

ing a firearm silencer or firearm muffler and any part

intended only for use in such assembly of fabrication.”

18 U.S.C. Sec. 921(aX24) (emphasis added).

Likewise, Congress had no difficulty expressing its in-

tent that a combination of parts which could be used to

convert a device into a “destructive device,” yet another

category of NFA “firearm,” or a combination of parts from

which such a “destructive device” could be assembled,

were firearms. Under 26 U.S.C. Sec. 5845(f), a “destruc-

tive device” includes:

(3) any combination of parts either designed or in-

tended for use in converting any device into a de-

structive device as defined in subparagraphs (1) and

(2) and from which a destructive device may be readi-

ly assembled.”” (Emphasis added.)

7 It is also apparent that Congress has no difficulty using the

term “assembled” when it wants to capture within its definition

a group of parts which may or may not have previously been as-

sembled to form an operative weapon. That fact further under-

mines the Government’s contention that “readily restored” in 26

U.S.C. Sec. 5845(c) actually means “readily assembled.”

— =

Had Congress intended that the term “firearm’’ in the

NFA encompass a combination of parts, there would have

been no need for Congress to specify that a combination

of parts for some types of firearms fell within the same

definition as the completed item.

After citing an obscure 1954 Revenue Ruling® which was

neither adopted nor mentioned in the congressional hear-

ings leading up to the 1968 NFA Amendments, and after

admitting that the statute “could easily be clearer’ (App.

at 13), the Court of Appeals contravened all of this

Court’s well-settled rules of statutory construction by

holding that a “common sense” interpretation of Section

5845, coupled with a duty imposed on petitioners to in-

quire into the legality of their actions, would have re-

vealed that selling parts kits was illegal.

In so doing, the Court of Appeals ignored the fundamen-

tal precept that Congress does not insert words in a stat-

ute for no reason. Bird v. United States, 187 U.S. 118,

124, 23 S.Ct. 42 (1902); Richards v. United States, 369

U.S. 1, 9, 82 S.Ct. 585 (1962). The statutory definition

of rifle does not include a “combination of parts” clause.

8 Revenue Ruling 54-606, 1954-2 C.B. 33 provides:

Where an individual, ership, company, association, or cor-

poration has possession or control of sufficient parts to as-

semble an operative firearm as defined in Sec. 1) of the

Internal Revenue Code of 1954, the possession or control

thereof constitutes the possession of a firearm. Further, the

transfer, as defined in Sec. 5848(10) of such Code, of sufficient

parts to assemble an operative firearm is deemed to constitute

the transfer of a firearm subject to the tax imposed under Sec.

5811(a) of the Code.

® “It must be assumed that legislative purpose is expressed by

ordinary meaning of words used in the statute, and where they

have a basic and usual sense, they require no resort to legislative

history.” Richards, supra at 369 US. 9.

The statutory definitions of ‘“‘machinegun,” “machinegun

conversion kit,” “muffler” or “silencer” and “‘destructive

device,” all in the same statutory scheme, all contain a

specific clause which includes “any combination of parts”’

from which the item could be assembled. The statutory

definition of “rifle’’ does not contain that language.

Judge Manion, in dissent, observed that even if the peti-

tioners had inquired, the statute could not have informed

them that their conduct was illegal. Making reference to

the lack of a combination of parts clause in the rifle defini-

tion, Judge Manion concluded that:

. . . Where Congress intended to regulate combina-

tions of parts, it did so precisely and explicitly. For

example, the definition of “machinegun,” Sec. 5845(b),

includes “combination of parts” language . . . the

“combination of parts” language does not simply refer

to “any” part. The definition of “machinegun” also

includes ‘any part designed and intended solely and

exclusively . . . for use in converting a weapon into

a machinegun . . .’ If the “combination of parts” lan-

guage was sufficient to regulate “any” part, the “any

part” language would have been unnecessary. The

definition of “machinegun” shows that when Co

wanted to regulate a “combination of parts,”

any” parts, it knew how to do so with precision.

Congress has not included such precise language in

the definition of rifle. (App. at 15)

If, as the Court of Appeals asserts, it is “common

sense” that a “combination of parts” which can be assembled

to form a weapon is the weapon, there was no need for

Congress to insert the words “any combination of parts”

in the statutory definition of machinegun, machinegun con-

version kit, silencer or destructive device. The Court of

Appeals’ opinion thus rests on a second erroneous premise

that Congress inserted the words “combination of parts”

into the definitions of three subsections of the same stat-

ute for no reason.

In addition, when the statutory definitions of “machine-

gun,” “silencer” and “destructive device” are laid beside

the statutory definition of “rifle,” it is clear that Congress

used different wording in the definition of “rifle.” Of

these, only “rifle’’ does not contain a clause encompass-

ing a “combination of parts.” By giving the statute the

interpretation that a “combination of parts” is included

in the definition of rifle, the Court of Appeals contravenes

the basic principle of statutory construction that where

parallel statutory provisions are worded differently, that

difference in wording requires a difference in result. The

Court of Appeals construed clearly disparate statutory

provisions to mean exactly the same thing. In doing so,

the Court of Appeals renders a decision which is in direct

conflict with the settled law in other circuits as well as

decisions of this Court.

Even more untenable is the Court of Appeals’ reliance

on an obscure 1954 Revenue Ruling which it claims was

part of the “existing administrative interpretation” in ef-

fect prior to the 1968 Amendments to the National Fire-

arms Act and now has the force and effect of law. Citing,

United States v. Board of Commissioners, 435 U.S. 110,

134, 98 S.Ct. 965 (1978) which held that when Congress,

in re-enacting a statute, voices its approval of an adminis-

trative or other interpretation, that interpretation is

treated as if Congress expressly adopted it, the Court of

Appeals, without making reference to a single congres-

sional hearing in which Rev.Rule 54-606 was considered

prior to the Congress’ enactment of the 1968 Amend-

ments, simply concluded that “the interpretation continues

to be binding on the courts.” (App. at 11)

-§—

The decisions are clear that, whereas a properly enacted

Regulation has the force and effect of law, a ruling of the

IRS is merely an advisory guide, not to be accorded the

force and effect of law. See, Flanagan v. United States,

810 F.2d 930 (10th Cir. 1987); Brook, Inc. v. Commis-

sioner of Revenue, 799 F.2d 833 (2d Cir. 1986). While the

this Court has long recognized the primary authority of

the IRS and its predecessors in construing the Internal

Revenue Code, that authority must conform to Congres-

sional intent. Bob Jones University v. United States, 461

U.S. 574, 596-97, 103 S.Ct. 2017 (1983).

This Court and various Courts of Appeal have held that

Revenue Rulings, unlike Regulations, are not proper sub-

ject matter for application of the “legislative reenactment”

rule when such Rulings have not been brought to the in-

tention of Congress during congressional deliberations re-

garding reenactment of a statute. Helvering v. New York

Trust Co., 292 U.S. 455, 467-68, 54 S.Ct. 806 (1934).*°

There is no indication here that Congress ever considered

Rev.Rul. 54-606 nor is there even an indication that Con-

gress understood the administrative construction it said

it was adopting.

By judicially amending Section 5845(c) to include never-

before assembled parts kits, the Court of Appeals engaged

10 Also, in Kaiser v. United States, 262 F.2d 367 (7th Cir. 1958),

d, 363 U.S. 299, 80 S.Ct. 1204 (1960), the Court of Appeals spe-

By ee of the legislative reenactments rule

toal enue which preceded several reenactments

of the Internal Revenue Code, holding:

[Tyhe so-called reenactment doctrine is more properly applied

to regulations, which have the force of law, then to rulings.

de nape = aire Heong wetMedemey 9 yy Ne Ban

than the opinion of any other lawyer.” 262 F.2d at (foot

notes omitted).

in a form of judicial activism unparalleled in the history

of statutory construction.

What offends the principles of statutory construction and

fundamental fairness here is that the statute, taken as

a whole, makes no reference to “parts’’ or “combination

of parts” in the definition of “rifle,” although it clearly

makes such reference in the definitions of other types of

firearms. To hold petitioners criminally liable for conduct

they could not have determined was illegal, even after

thorough analysis of the statute and its legislative history,

is unjust. As Judge Manion points out, “we should not

impose criminal liability based on imprecise statutory lan-

guage, or an old and obscure revenue ruling that Con-

gress did not even mention in the legislative history . . .

people should not have to speculate on how Congress (or

a court) applies ‘common sense’ when determining whether

conduct is illegal.” (App. at 16)

For these reasons, this Court ought grant Certiorari to

review and reverse the decision of the Court of Appeals.

Ill. THE COURT OF APPEALS’ OPINION REPRESENTS

A SUBSTANTIAL EROSION OF THE DUE PROCESS

RIGHT TO FAIR NOTICE IN CRIMINAL STATUTES

BECAUSE IT CONSTRUED AN ADMITTEDLY AM-

BIGUOUS CRIMINAL STATUTE IN FAVOR OF THE

GOVERNMENT.

This Court should grant certiorari to redress a clear vio-

lation of petitioners’ constitutional rights of due process

and fundamental fairness.

The Court of Appeals, while repeatediy admitting that

this statute is unclear," held that a “common sense” ap-

11 The Opinion is littered with language which indicates the lack

of clarity and ambiguity of the statute:

(Footnote continued on following page)

—17—

proach in reading Sec. 5845 would have informed peti-

tioners that selling rifle parts kits was illegal. The Court

refused to entertain petitioners’ arguments concerning fair

notice and the harm caused by ambiguous criminal stat-

utes relying instead on the government’s argument that

since petitioners were dealing in a regulated industry,

they had a burden to ascertain whether their activities

were within the statute. The illogic in such a conclusion

is that, even if the petitioners had inquired, the statute

is so ambiguous that men of ordinary intelligence could

never interpret its parameters. Nevertheless, the prac-

tical result of the Court’s decision will be that in any pros-

ecution brought under the National Firearms Act where

an ambiguous statute is at issue, the statute will be con-

strued in favor of the government, and any doubts regard-

ing statutory construction will be resolved against the

defendants. Such a result is intolerable.

It is fundamental to our notion of Fifth Amendment Due

Process that a criminal statute must clearly define what

a3 er

A. . the government’s statutory oe py has _—

difficulty accommodating the ‘readily restored’ lan

guage.” (A-4)

B. “Applying the facts of this case, the statute on its face

is not clear.” (A-4)

Cc. “... it is apparent that to clarify the statute, little addi-

tional language would have been needed to accomplish

what the government claims Congress intended. The stat-

ute could have defined a rifle as also including the parts

thereof that could be readily assembled to form a func-

tioning weapon.” (A-4)

D. “The statutory language ‘readily restored’ is somewhat

ambiguous.”’ (A-5)

E. “... it is clear that the statute’s intended ing is

not as readily discernible as could be desired.” (A-5)

F. “The statute could easily be clearer .. .” (A-13)

constitutes an offense. Kolender v. Lawson, 461 U.S. 352,

357, 103 S.Ct. 1855 (1983). “{A] penal statute [must] define

the criminal offense with sufficient definiteness that ordi-

nary people can understand what conduct is prohibited

and in a manner that does not encourage arbitrary and

discriminatory enforcement.” Grayned v. City of Rockford,

408 U.S. 104, 108, 92 S.Ct. 2294 (1972). A criminal statute

may not be so vague that men of ordinary intelligence

must necessarily guess at its meaning. Broadrick v. Okla-

homa, 413 U.S. 601, 93 S.Ct. 2908 (1978); Colten v. Ken-

tucky, 407 U.S. 104, 110-11, 92 S.Ct. 1953 (1972); United

States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808 (1954).

Although the “void-for-vagueness” doctrine focuses on

both actual notice to citizens and arbitrary enforcement,

this Court has recognized that the more important aspect

of the vagueness doctrine “‘is not actual notice, but the

other principal element of the doctrine—the requirement

that a legislature establish minimal guidelines to govern

law enforcement.” Smith v. Goguen, 415 U.S. 566, 574,

94 S.Ct. 1242 (1974).

Coupled with this Court’s “void-for-vagueness” doctrine

is the settled rule of law that ambiguities in criminal stat-

utes must be resolved in favor of the defendant. United

States v. Emmons, 410 U.S. 396, 411, 93 S.Ct. 1007 (1973);

United States v. Bass, 404 U.S. 336, 347, 92 S.Ct. 515

(1971); United States v. Anzalone, 766 F.2d 676, 680 (1st

Cir. 1985). Ironically, it was in United States v. Bass, a

firearms case, where this Court gave one of its most ar-

ticulate expressions of this concept. The court in Bass

said:

First, as we have recently reaffirmed, ‘‘ambiguity

concerning the ambit of criminal statutes should be

resolved in favor lenity.” Rewis v. United States, 401

U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493

(1971). See also, Ladner v. United States, 358 U.S.

=_ =

169, 177, 79 S.Ct. 209, 213, 3 L.Ed.2d 199 (1958); Bell

v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed.

905 (1955); United States v. Five Gambling Devices,

etc., 346 U.S. 441, 74 S.Ct. 190, 98 L.Ed. 179 (1953)

(plurality opinion for affirmance). In various ways

over the years, we have stated that “when choice

has to be made between two readings of what con-

duct Congress has made a crime, it is appropriate,

before we choose the harsher alternative, to require

that Congress should have spoken in language that

is clear and definite.” United States v. Universal

C.I.T. Credit Corp., 344 U.S. 218, 221-222, 73 S.Ct.

227, 229, 97 L.Ed. 260 (1952). This principle is founded

on two policies that have long been part of our tradi-

tion. First, ‘‘a fair warning should be given to the

world in language that the common world will under-

stand, of what the law intends to do if a certain line

is passed. To make the warning fair, so far as possi-

ble the line should be clear.” McBoyle v. United

States, 283 U.S. 25, 27, 51 S.Ct. 340, 341, 75 L.Ed.

816 (1931) (Holmes, J.). See, also, United States v.

Cardiff, 344 U.S. 174, 73 S.Ct. 189, 97 L.Ed. 200

(1952). Second, because of the seriousness of criminal

penalties, and because criminal punishment usually

represents the moral condemnation of the communi-

ty, legislatures and not courts should define criminal

activity. This policy embodies “the instinctive dis-

tastes against men languishing in prison unless the

lawmaker has clearly said they should.” H. Friendly,

Mr. Justice Frankfurter and the Reading of Statutes,

in Benchmarks 196, 209 (1967). Thus, where there is

ambiguity in a criminal statute, dowbts are resolved

in favor of the defendant. Here, we conclude that

Congress has not “plainly and unmistakably,” United

States v. Gradwell, 243 U.S. 476, 485, 37 S.Ct. 407,

411, 61 L.Ed. 857 (1917), made it a federal crime for

a convicted felon simply to possess a gun absent some

demonstrated nexus with interstate commerce. 404

U.S. at 522-523 (Emphasis added; footnotes omitted).

————iii

—20—

This Court has held that Congress must speak clearly

in outlawing specific conduct. As the court said in United

States v. Anzalone, 767 F.2d 676, 682 (1st Cir. 1985):

Although this Court, like all other institutions of the

United States, is supportive of the law enforcement

goals of the government and society, we cannot en-

gage in unprincipled interpretation of the laws, lest

we foment lawlessness instead of compliance. Kolender

v. Lawson, 461 U.S. 352, 361 (1983).

This is particularly so when the confusion and uncer-

tainty in this law has been caused by the government

itself, and when the solution to that situation, namely

eliminating any perceived loopholes, lies completely

within the government’s control.

That analysis is diametrically opposite the approach em-

ployed by the Court of Appeals in concluding that the

petitioners, using their “common sense,” should have con-

cluded that Congress never intended a “loophole” of the

type created by a plain reading of the statute.

By requiring the petitioners to speculate at their peril

as to the meaning of an unclear statute, and by telling

them after the fact that their common sense should have

dictated that the congressional omission of a ‘‘combina-

tion of parts” clause from the statutory definition of rifle

was inadvertent, the Court of Appeals has violated all

known essentials of Due Process.

This case has now been considered by a total of four

federal judges—one district court judge and three judges

of the Court of Appeals. The vote is now tied at two each

for the competing interpretations of the statute urged by

the petitioners and by the prosecution. That simple fact

demonstrates that the statute is not only plainly vague

and ambiguous, but also that the petitioners and all other

citizens are required to speculate at their peril as to its

meaning.

i...

CONCLUSION

For the reasons stated herein, this Petition for a Writ

of Certiorari should be granted.

Respectfully submitted,

SAMUEL J. BetTar, Eso.

Pau. J. Petit, Esq.*

Mark T. HECHINGER, Esa.

333 West Wacker Drive

Suite 2600

Chicago, Illinois 60606

(312) 750-6750

Attorneys for Petitioners

Of Counsel:

ALTHEIMER & GRAY

333 West Wacker Drive

Suite 2600

Chicago, Illinois 60606

(312) 750-6750 * Counsel of Record

APPENDIX

App. 1

APPENDIX A

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 87-1964

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

Vv.

GERALD DRASEN, ANTHONY ALEO,

and CYNTHIA ALEO,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 86 CR 500—Susan Getzendanner, Judge.

ARGUED NoveMBER 30, 1987—DEcIDED APRIL 29, 1988

Before CUMMINGS, Woop, JR., and MANION, Circuit

Judges.

Woop, JR., Circuit Judge. This is an interim appeal?

by the government from the dismissal of six counts of

a fourteen-count indictment. The first count charged the

defendant Gerald Drasen, aided and abetted by defendants

Anthony Aleo and Cynthia Aleo, with engaging in busi-

ness as a dealer in rifles having barrels of less than sixteen

1 Jurisdiction rests on 18 U.S.C. § 3731 (1982), which permits a

government appeal from a district court decision dismissing one

or more counts of an indictment.

App. 2

inches in length without having paid the special occupa-

tional tax required by 26 U.S.C. § 5801, and without hav-

ing registered with the Secretary of the Treasury as a

dealer as required by 26 U.S.C. § 5802, in violation of

26 U.S.C. § 5861(a).2 Counts three through seven charged

defendants Anthony Aleo and Cynthia Aleo, aided and

abetted by defendant Gerald Drasen, with transferring

five different firearms, all having barrels of less than six-

teen inches, in violation of 26 U.S.C. § 58465.

I. THE ISSUE

The defendants in this case were not dealing in as-

sembled rifles, but were selling complete rifle parts kits.

The government conceded during discovery that all of the

short-barrel rifles involved were unassembled when the

defendants sold and transferred them. The indictment was

predicated upon the government’s theory that the simul-

taneous transfer of the unassembled constituent parts of

a short-barrel rifle constituted the transfer of a “rifle’’

within the meaning of 26 U.S.C. § 5845, in violation of

26 U.S.C. § 5861(e).2 The defendants moved to dismiss

2 26 U.S.C. § 5861(a) makes it illegal for persons to deal in fire-

arms without paying the special occupational tax required by 26

aa § 5801 or registering the firearms as required by 26 U.S.C.

The counts remaining and not involved in this appeal relate to

transfer of a machine gun conversion kit, possession of various

machine gun receivers, and the possession of a machine gun re-

ceiver not identified by serial numbers. A superseding indictment

was returned and is also not involved in this appeal. The super-

seding indictment does not affect our review of the original in-

dictment. It is well established that two indictments may be out-

standing at the same time for the same offense if jeopardy has

not attached to the first indictment. The government may then

select the indictment under which to proceed at trial. See United

States v. Stricklin, 591 F.2d 1112, 1115-16 n.1 (5th Cir.) (collect-

ing cases), cert. denied, 444 U.S. 963 (1979); 9 Federal Procedure

§ 22:463 (L. Ed. 1982).

3 26 U.S.C. § 5861(e) provides that it is unlawful to transfer a

firearm in violation of the Act.

App. 3

six counts on the basis that the statute did not cover un-

assembled rifles that had never been assembled. The dis-

trict judge so held and dismissed these counts. The ques-

tion, therefore, is whether or not the unassembled and

never previously assembled constituent parts of a rifle,

which might or might not be assembled to form a short-

barrel rifle, are in fact a short-barrel rifle within the

meaning of the National Firearms Act, 26 U.S.C. § 5845

(1982) (the Act). The government claims that assembled

and unassembled rifles are the same under the statute,

but the defendants argue that the statute excludes parts

of previously unassembled rifles.* The issue distilled from

this situation is easier to state than to decide: we must

determine the meaning of the statutory term “rifle” under

the National Firearms Act. The place to begin and end

is with the statute and its legislative history.

Il. OVERVIEW

Section 5845(aX3) defines “firearm” to include “a rifle

having a barrel . . . of less than 16 inches in length.”

“Rifle” is defined in section 5845 as follows:

The term “rifle’’ means a weapon designed or re-

designed, made or remade, and intended to be fired

from the shoulder and designed or redesigned and

made or remade to use the energy of the explosive

in a fixed cartridge to fire only a single projectile

through a rifled bore for each single pull of the trig-

ger, and shall include any such weapon which may

be readily restored to fire a fixed cartridge.

26 U.S.C. § 5845(c) (1982).

The government reads that provision to include a com-

plete rifle parts set, which it claims is the functional equiv-

alent of an assembled firearm. The government argues

4 We note the filing of an amicus curiae brief in — of the

defendants’ position by Larry E. Craig, a member of Congress,

joined in by Senators Orrin E. Hatch and James A. McClure.

App. 4

that it is “only natural that Co would have wanted

to regulate all devices ‘desi ... made... and in-

tended’ to operate as short barrel rifles, and a parts set

surely meets that definition.”” According to the govern-

ment, a 1954 ruling by the Commissioner of Internal Rev-

enue issued before Congress added the “readily restored

to fire” language to the statute supports the government's

view. The government argues that in the 1968 amendment

to the Act, Congress stated its intention to endorse that

administrative construction. Even though the government’s

statutory interpretation has some di ty in accommo-

dating the “readily restored” language, the government

contends that, contrary to the district court’s view, the

statute nevertheless provided fair notice to the regulated

firearms industry as to what is or is not unlawful. The

government also argues that the defendants could have

inquired to determine whether they were acting within

the law.

The defendants’ response is simply that a previously un-

assembled collection of rifle parts sold as a kit, although

ready for assembly into a functioning rifle, does not vio-

late the wage enya requiring licensing and registration

of certain rifles. The defendants find unsupportable the

government’s theories that the complete collection of parts

in a kit is the functional equivalent of an assembled weapon

anc that the Act reaches a previously unassembled w n

that can be readily assembled. Furthermore, the defen-

dants argue that we should construe an ambiguous crim-

inai statute in favor of the defendants.

Applying the facts of this case, the statute on its face

is not clear. Each of the parties therefore has some dif-

ficulty supporting their respective positions. Considering

the statutory definition of “rifle” set out in section 5845c),

it is apparent that to clarify the statute little additional

language would have been needed to accomplish what the

government claims Congress intended. The statute could

have defined a rifle as also including the parts thereof

that could be readily assembled to form a functioning

weapon. The omission of some clarifying language does

App. 5

not mean, however, that a reasonable interpretation of

the statute does not yield the same result.

III. ANALYSIS

Se ee ee oe = eae

parts an ordinary person not y sort out

meprrcernns te Bab wee ge b> The parts kits here

Barn ¢ Bapendle or plone hy are ee

be oh Rigdon aang ape ony gid uh oa 0

and easily slipped in so as to be ready to fire.

The canine weal a more difficult task in claim-

a collection of totally separate parte, all unas

ing

sembled and mixed, was the equivalent of a functional

rifle. If the rifle parts kit is largely assembled, but not

quite, the government may have an easier task. There

The sintihed Mates * ‘readily restored” is somewhat

ambiguous. That language suggests, as the defendants

argue, that if the rifle had previously been assembled, al-

though now in a parts kit, it would be within the statute.

The statute, therefore, would not cover rifle never

before assembled into a functioning rifle. , then, the

could be assembled from a previously unassem

Ser ae ne ce re

kit for sale, all are in agreement, it he oo

ute would cover that are other hypo-

thetical possibilities, i io lear that the otal

tended meaning is not as readily discernible as could be

desired.

The term “make,” used in section 5845(c), is defined in

section 5845(i):

The term “make,” and the various derivatives of

such word, shall include manufacturing (other than

App. 6

by one qualified to engage in such business under this

chapter), putting together, altering, any combination

of these, or otherwise producing a firearm.

26 U.S.C. § 5845(i) (1982). This definition suggests that,

to produce a firearm, “putting together” the parts is nec-

e . Thus, if the parts have never been put together,

the defendants argue that no firearm has in fact been

made. According to the government’s interpretation, how-

ever, what is “made” need not be a weapon ready to fire

at that moment; the parts merely need be “capable of

being made into” a weapon. The defendants argue that

manufacturing parts is only one step in the production

of a weapon. Even after the rifle parts have been man-

uf. , the rifle is not complete until the parts are as-

sembled so that the rifle is ready to be fired. The defen-

Ons ae Oe 8 oe SS 6 Se ee Soe

the assembly line ready to drive away.

The government suggests that the district court’s and

the defendants’ statutory interpretation would allow crim-

inals to legally possess short-barrel rifles in a disassembled

state even though it might take very little assembly to

make a functional rifle. The defendants’ nse is that

the district court confined ite ruling to rifle kits that had

never, even temporarily, been assembled into functioning

rifles. If the buyer of the kits does the assembling, then

the buyer, not the dealer or manufacturer, would be the

one ired to register the rifle and pay the applicable

tax. If j rifle were then disassembled,

capable of being readily restored to firing condition, the

statute would still apply. The defendants’ explanation is

not the way Congress intended the statute to work.

A parts kit cannot fire a fixed cartridge, nor can the

unused be readily “restored” to a fixed car-

tridge if “restored,” as the defendants argue, means to

return to a previous condition. In the defendants’ view,

assembling a ae er parts kit would not

be a restoration, but original creation of a rifle. This

would allow rifle dealers and manufacturers to use parts

App. 7

kits to take advantage of a possible statutory loophole.

That supposed loophole, however, would be difficult to

ascribe to any conscious and reasonable legislative _

pose. If the so-called loophole was intentional, then .

gress’s reasoning escapes us. We shall consider and weigh

the opposing arguments.

The government points out that the statute contains no

specific ment that a “rifle” must be assembled and

functional for the statute te apply. The defendants argue

that the statutory use of the w “weapon” and “made”

imply that a parts kit, which is not functional, cannot be

considered a “weapon.”’ The government responds that

when the parts have been manufactured and placed in kits

the rifle is as “made” as a completed rifle. A parts kit

qualifies as a weapon under the statute because it has

Seat “designed,” “made,” and is “intended” for use as

a weapon. To bolster its argument, the government con-

tends that any doubt about a parts kit being a weapon

is eliminated by the last clause of section 5845(c), which

includes rifles that can be “readily restored” to operabil-

ity, drawing a difference from the use of that language

than do the defendants.

The government further argues that the present stat-

utory ition of “rifle’’ has its origin in the National

Firearms Act of 1954, which was substantially the same

as the present statute except that the “readily restored”

of the current law was not included.® The 1954

legislative history is of no help to either party, but the

5 The 1954 statute provided:

The term “rifle” means a weapon designed or redesigned,

1954 I.R.C. § 5848(3) (as amended by Pub. L. No. 85-859, tit. II,

§ 203(f), 72 Stat. 1427 (1958)).

App. 8

government relies upon a formal ruling of the Commis-

sioner of Internal Revenue issued in conjunction with the

1954 Act. The ruling provided:

The possession or control of sufficient parts to assem-

ble an operative firearm constitutes the possession of

a firearm, and the transfer of sufficient parts to as-

semble an operative firearm constitutes the transfer

of a firearm subject to the transfer tax.

Rev. Rul. 54-606, 1954-2 C.B. 33. That ruling, the govern-

ment argues, did not receive the deference from the dis-

trict court to which it was entitled. See National Muffler

Dealers Ass’n, Inc. v. United States, 440 U.S. 472, 488

(1979). Therefore, the government asserts that we should

accept that ruling and not interpret the ruling restrictively.

The district court, however, had some reservations about

the ruling’s applicability since the ruling did not mention

the previously assembled or readily restored possibilities

now in the statute. The Commissioner’s ruling, however,

was broad and all-encompassing. It plainly states that the

statute applies if a person possesses or transfers sufficient

parts to assemble an operating firearm. That ruling did not

amend the statute, but was in keeping with the common

sense interpretation of the statute. The ruling was unaf-

fected when Congress later added the “readily restored”

language to the statute. Whether the parts are to be as-

sembled or reassembled is of no practical consequence

since a functional rifle is the result in either event. Com-

mon sense permits no other conclusion.

The government relies in part on United States v. Lauchli,

371 F.2d 303 (7th Cir. 1966), and also on United States v.

Kokin, 365 F.2d 595 (8d Cir.) (per curiam), cert. denied,

385 U.S. 987 (1966), to support its view that the Commis-

sioner’s formal ruling in construing section 5845(c) to reach

“sufficient parts to assemble an operative firearm”’ is dis-

positive of this case. In Lauchli we were concerned with

the sale of machine gun parts under the earlier 1934 Act.

Some of the machine guns were assembled at the time of

sale, some were not. We took note of the Commissioner’s

App. 9

ruling, but found it unnecessary to apply the ruling to

the particular facts of that case because the purchaser had

demanded operable machine guns and some were assem-

bled at random to demonstrate that all the guns were or

would be operable. Whether those machine guns had pre-

viously been assembled was not an issue because the stat-

ute did not yet contain the “readily restored” clause. We

held that the transaction involving all the machine guns

was within the 1934 Act.

In Lauchli, 371 F.2d at 318, we relied on Kokin, a case

involving a factual situation similar to Lauchli. Kokin held

that the transfer of firearm parts constituted a violation

of the 1934 Act because assembly was contemplated by

the buyer. The seller assisted in the assembly of some

of the firearms.

The government cited other cases indicating that the

Act covers firearms even though they are not fully assem-

bled. For example, in United States v. Woods, 560 F.2d

660, 664-65 (5th Cir. 1977), cert. denied, 435 U.S. 906

(1978), the Fifth Circuit held that a short-barrel shotgun

as defined in 26 U.S.C. § 5845(d), which was in two parts,

was within the Act. Section 5845(d) contains the same

“readily restored” phraseology. The court did not require

proof of previous assembly, but the facts did suggest that

one shotgun had been previously assembled. Thus, Woods

did not reach the exact issue we are concerned with here.

In United States v. Catanzaro, 368 F. Supp. 450, 452-53

& n.3 (D. Conn. 1973), the court held that a shotgun with

broken or missing parts was within the Act because new

parts were readily available from the factory. The shotgun

at issue was made up of both old and new parts. New or

old was immaterial, however, because a functional. shotgun

could be readily assembled or reassembled (depending on

how one views the addition of new parts). While these

cases do not reach the exact issue before us, they illus-

trate the general unwillingness of courts to interpret the

Act in an unduly restrictive manner.

App. 10

In United States v. Endicott, 803 F.2d 506, 509 (9th

Cir. 1986), and United States v. Luce, 726 F.2d 47, 48-49

(1st Cir. 1984), the courts of appeals interpreted 26 U.S.C.

§ 5845(a) to include not only an assembled silencer, but also

a silencer’s unassembled component parts. Section 5845(a)

does not contain either “combination of parts” or “readily

restored” language.® Nonetheless, the courts employed a

common sense approach to find that the statute covered

unassembled silencers.

This court has also adopted a common sense approach to

interpreting the National Firearms Act. In United States

v. Shafer, 445 F.2d 579 (7th Cir.), cert. denied, 404 U.S.

986 (1971), we held that under 26 U.S.C. § 5845(f), grenade

shells, fuses, and powder were to be considered a firearm

even though disassembled because the statute did not ex-

pressly apply only to assembled firearms. To construe the

Act otherwise, we held, would destroy the flexibility of

the applicable provision and sanction evasion of congres-

sional intent.

Section 5845(c), dealing with rifles, also allows some flex-

ibility because it covers weapons designed or redesigned,

made or remade, and intended to be fired from the shoul-

der. The additional language “and shall include a weapon

which may be readily restored” should not be read so as

to change the statute and the Commissioner’s ruling to

mean either that the rifle must be fully assembled, or if

not, must have been previously assembled -and could be

reassembled. A rifle that has been disassembled for some

reason is clearly in the same category as an identical col-

lection of rifle parts that has not yet been assembled. The

statute covers both. The added clause should not be read

to change the meaning of the statute as written and in-

terpreted.

6 The defendants point out that Congress subsequently enacted

a statutory definition of a silencer that includes a “combination

of parts” clause. See 18 U.S.C. § 921(aX24) (Supp. IV 1986). Con-

gress, however, did not amend 26 U.S.C. § 5845(a), the statutory

provision at issue in Endicott and Luce.

App. 11

Congress, in adopting the 1968 reenactments of the stat-

utory definitions found in the 1954 Act, intended to adopt

“the administrative construction of existing law.”’? That

would include the Commissioner’s ruling clarifying the stat-

utory language. Congress gave no indication that it adopted

the “readily restored” clause to add some unexplained ex-

ception to the prior administrative construction. In United

States v. Board of Comm’rs, 435 U.S. 110, 134 (1978), the

Supreme Court held that when Congress, in reenacting

a statute, voices its approval of an administrative or other

interpretation, that interpretation is treated as if Congress

expressly adopted it. Therefore, the interpretation con- —

tinues to be binding on the courts.

In adding the “readily restored” clause, Congress spe-

cifically intended to overcome United States v. Thompson,

202 F. Supp. 503 (N.D. Cal. 1962), holding that a firearm

with a missing firing pin was not a firearm under the Act.®

In reacting to Thompson, Congress did not intend to great-

ly narrow. existing coverage; the amendment was added

to make clear that the Act’s coverage is broad. The par-

ticular parts kits at issue here, even if containing all new

and previously unassembled parts, were identical to parts

that had been incorporated into many other functional

rifles ready to fire. The defendants do not claim that the

kits contained experimental parts not previously tested

in prototype models. The parts in these kits are indistin-

guishable from parts in another kit or from parts fully

assembled into a complete rifle. There is no sound reason

for conjuring up a nonsensical statutory distinction unsup-

ported by a reasonable interpretation of the statute and

its legislative history. American Tobacco Co. v. Patterson,

456 U.S. 63, 71 (1982). We find absolutely no justification

to read the statute as restrictively as the district court

did, taking it beyond the bounds of reason and common

sense.

7 S$. Rep. No. 1501, 90th Cong., 2d Sess. 46 (1968).

8 Id.

App. 12

The defendants also endeavor to extract a favorable

meaning from the statute apart from the “readily re-

stored” language. To be a rifle an object must first be

a “weapon,” and a mere collection of parts cannot be a

weapon. The weapon also has to be “‘made”’ as defined

in section 5845(i). The defendants would read this defini-

tion restrictively to exclude a complete or unassembled

parts kit. We read the statute as encompassing a complete

parts kit ready to be assembled, at least by giving meaning

to the language “otherwise producing a firearm.” Thus,

we find no merit in the defendants’ argument.

The defendants also claim that, in any event, they were

not selling short-barrel rifles since each kit included a flash

suppressor that, if attached to the barrel, would extend the

barrel beyond the regulated length. A flash suppressor,

which has limited legitimate use apart from the military

or police, is not an essential part of a rifle. A rifle fires

accurately without it. A flash suppressor is an optional

attachment that can be screwed to the end of the barrel.

It is no more a part of the barrel than the rifle stock

attached to the opposite end of the barrel. Federal regu-

lations outline how to measure a barrel from its muzzle,

which would exclude any removable attachment on the

end of the muzzle. See 27 C.F.R. § 179.11 (1987). If a flash

suppressor is permanently affixed to a barrel it may be

counted in measuring barrel length, Rev. Rul. 55-570, 1955-2

C.B. 481, but that is not the present case. Thus, the flash

ee here did not add to the barrel length of the

es.

The defendants also argue that where Congress intended

a firearms statute to encompass a parts kit, it used the

words “combination of parts” as it did for the definitions

of machine guns, 26 U.S.C. § 5845(b); mufflers and silenc-

ers, 18 U.S.C. § 921(aX24); and “destructive devices,” 26

U.S.C. § 5845(f). Pointing out the absence of such language

in the definition of a rifle, the defendants would have us

draw the conclusion that for some inexplicable reason Con-

gress intended to distinguish short-barrel rifles. The pres-

ent case is not concerned with miscellaneous parts for

App. 13

machine guns and destructive devices. Parts for those

weapons, which are regulated without limitation, are

therefore parts with only one purpose, so that a single

part could reasonably be subject to regulation. Parts for

rifles, on the other hand, encompass many parts for many

unregulated rifles. Therefore, a clause encompassing any

combination of parts for a rifle would be inappropriate

because it would include parts for unregulated rifles. We

are concerned only with complete parts kits for short-

barrel rifles. The defendants’ comparisons of statutory sec-

tions are to no avail.

The defendants also claim that the statutory framework

is too vague as applied to parts kits. The statute easily

could be clearer, but a common sense reading of the stat-

ute, combined with the Commissioner’s ruling, provides

sufficient clarity. The government relies on United States

v. Freed, 401 U.S. 601, 609-10 (1971) (quoting United States

v. Balint, 258 U.S. 250, 253-54 (1922)). Freed involved the

possession of unregistered hand grenades. Because of the

dangerous nature of such devices, the Court shifted the

burden to the person dealing in the items to ascertain

at his peril whether his activities were within the statute.

The defendants in the present case surely knew that they

were in a highly regulated business and therefore bore

some of the responsibility for ascertaining whether parts

kits are regulated. See United States v. Biswell, 406 U.S.

311, 315-16 (1972).° It is sound advice for those in such

® We share Judge Manion’s concern, expressed in his dissent, that

defendants should receive fair notice that their conduct is illegal.

Nevertheless, we believe that the defendants here could easily

have ascertained the illegality of their conduct, if not already

known to them, by making an inquiry into the applicable firearms

regulations. In addition, the fact that the defendants were deal-

ing in a highly regulated field, see United States v. Biswell, 406

U.S. 311, 315-16 (1972), reduces the fair notice concern. See Freed,

401 U.S. at 609-10; see also Village of Hoffman Estates v. The

Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498 (1982) (“{Blusi-

nesses . . . can be expected to consult relevant legislation in ad-

(Footnote continued on following page)

App. 14

a regulated business to make a fair and reasonable deter-

mination about the status of their activities, not merely

a self-serving and hopeful one.

The defendants rely on the principle that ambiguous

criminal statutes should be construed in favor of lenien-

cy. United States v. Bass, 404 U.S. 336, 347-49 (1971).

Nevertheless, we recently held that the principle of le-

nient construction does not require a court to ignore the

obvious intention of the legislature in enacting the statute.

United States v. Kenngott, No. 86-2246, slip op. at 14-15

(7th Cir. Dec. 30, 1987). As noted in United States v. Luce,

726 F.2d 47 (1st Cir. 1984), “[tJhe National Firearms Act

was designed to regulate the manufacture, possession, and

transfer of ‘modern and lethal weapons . . . [that] could

be used readily and efficiently by criminals or gangsters’.”

Id. at 49 (quoting H.R. Rep. No. 1337, 83d Cong., 2d Sess.

(1954), reprinted in 1954 U.S. Code Cong. & Admin. News

4025, 4542). The interpretation we apply is the only in-

terpretation consistent with that congressional purpose.

Thus, the defendants were not deprived of fair warning

that their transactions in short-barrel rifles would violate

the Act.

The defendants have been ably represented, but we find

no merit in the particular arguments we have addressed

or the related or other arguments that the defendants

advanced.

Reversed and remanded for such additional proceedings

as may be appropriate. No costs shall be assessed in this

court.

® continued

vance of action. Indeed, the regulated enterprise may have the

ability to clarify the meaning of the regulation by its own my pe

_.. 2’) footnote omitted); W. LaFave & A. Scott, Criminal Law

92-93 (2d ed. 1986) (where defendant engages in regulated trade,

requirements for fair warning are less stringent).

App. 15

MANION, Circuit Judge, dissenting. I agree with the

district court that § 5845 did not give the defendants fair

notice that their conduct was illegal. Therefore, I respect-

fully dissent. Since the district court has thoroughly ana-

lyzed the issue in a published opinion, United States v.

Drasen, 665 F.Supp. 598, 599-604, 607-14 (N.D. Ill. 1987),

I will add only a brief comment.

I have no quarrel with the majority’s observation that

a person dealing in a highly regulated activity such as

selling firearms must ascertain whether his activities are,

in fact, regulated. Op. at 13-14. But that observation begs

the question. I am willing to assume that the defendants

made no attempt to determine whether selling the parts

kits was illegal; the question we face, though, is whether,

if the defendants had inquired, the statute would have

fairly informed them that selling the parts kits was il-

legal.

The government is attempting to prosecute the defendants

for selling a “combination of parts.” However, where Con-

gress intended to regulate combinations of parts, it did

so precisely and explicitly. For example, the definition of

“machinegun,” § 5845(b), includes “combination of parts”

language. Contrary to the government’s assertion (which

the majority appears to have accepted, op. at 12-13), the

“combination of parts” language does not simply refer to

“any” part. The definition of ‘“machinegun’”’ also includes

“any part designed and intended solely and exclusively

. . . for use in converting a weapon into a machinegun.

.. . If the “combination of parts” language was suffi-

cient to regulate “any” part, the “any part” language

would have been unnecessary. The definition of “machine-

gun” shows that when Congress wanted to regulate com-

binations of parts, or “any” parts, it knew how to do so

with precision. Congress has not included such precise lan-

guage in the definition of rifle.

Furthermore, I would not rely on Rev. Rul. 54-606 (is-

sued in 1954) to clarify the definition of rifle and impose

criminal liability on the defendants. Revenue rulings do

App. 16

not have the force of law; they represent only the IRS’

opinion of the law. See Flanagan v. United States, 810

F.2d 930, 934 (10th Cir. 1987). More importantly, it is not

even clear from the legislative history of the 1968 Gun

Control Act that Congress intended to adopt Rev. Rul.

54-606. Although Congress stated that it intended to adopt

“the administrative construction of existing law,” Con-

gress did not mention the revenue ruling. Nor did Con-

gress even mention its understanding of the administra-

tive construction it said it was adopting. Thus, United

States v. Board of Commissioners, 435 U.S. 110, 134

(1978), cited by the majority, op. at 11, is inapposite: in

that case, the legislative history of the re-enactments in

which Congress adopted an administrative construction con-

tained ample evidence that Congress knew exactly what

the administrative construction was that it was adopting.

See 435 U.S. at 132-35. Besides, United States v. Board

of Commissioners was not a criminal case involving fair

notice.

Perhaps the majority’s construction of § 5845 is the

“common sense”’ interpretation of that section; perhaps

the majority’s construction is what Congress actually in-

tended. But Congress did not express that intent clearly

enough to provide fair notice to these defendants that

their acts violated the law. As the majority admits, “to

clarify the statute little additional language would have

been needed to accomplish what the government claims

Congress intended. The statute could have defined a rifle

as also including the parts thereof that could be readily

assembled to form a functioning weapon.” Op. at 4. But

Congress did not include such language. We should not

impose criminal liability based on imprecise statutory

language, or on an old and obscure revenue ruling that

Congress did not even rention in legislative history. Fair

notice means that people should not have to speculate on

how Congress (or a court) applies “common sense”’ when

determining whether conduct is illegal. The district court

correctly dismissed the six counts of the 13-count indict-

+g dealing with the sales of the short-barrel rifle parts

its.

App. 17

JUDGMENT—ORAL ARGUMENT

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

April 29, 1988.

Before

Hon. WALTER J. CUMMINGS, Circuit Judge

Hon. HARLINGTON Woop, JR., Circuit Judge

Hon. DANIEL A. MANION, Circuit Judge

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

No. 87-1964 VS.

GERALD DRASEN, ANTHONY ALEO,

and CYNTHIA ALEO,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 86 CR 500—Judge Susan Getzendanner.

This cause was heard on the record from the United

States District Court for the Northern District of Illinois,

Eastern Division, and was argued by counsel.

App. 18

On consideration whereof, IT IS ORDERED AND AD-

JUDGED by this Court that the judgment of the said

District Court in this cause appealed from be, and the

same is hereby, REVERSED, and the cause is RE-

MANDED, in accordance with the opinion of this Court

filed this date. No costs shall be assessed in this Court.

App. 19

APPENDIX B

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

July 5, 1988.

Before

Hon. WALTER J. CUMMINGS, Circuit Judge

Hon. HARLINGTON Woop, JR., Circuit Judge

Hon. DANIEL A. MANION, Circuit Judge

No. 87-1964

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

vs.

GERALD DRASEN, ANTHONY ALEO,

and CYNTHIA ALEO,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 86 CR 500—Susan Getzendanner, Judge.

ORDER

On consideration of the petition for rehearing and sug-

gestion for rehearing in banc filed in the above-entitled

cause by defendants-appellees on May 13, 1988, and the

App. 20

brief of amici curiae in support thereof filed on May 27,

1988, no judge in active service has requested a vote

thereon, and all the judges on the original panel have

voted to deny a rehearing. Accordingly,

IT IS ORDERED that the aforesaid petition for rehear-

ing be, and the same is hereby, DENIED.

App. 21

APPENDIX C

[DATED May 20, 1987]

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

No. 86 CR 500

UNITED STATES OF AMERICA,

Plaintiff,

Vv.

GERALD DRASEN, ANTHONY ALEO,

and CYNTHIA ALEO,

Defendants.

MEMORANDUM OPINION AND ORDER

SUSAN GETZENDANNER, District Judge:

Before this court is the government’s motion to recon-

sider this court’s Memorandum Opinion and Order of Jan-

uary 15, 1987, in which the court dismissed Counts I and

ilI-VII of a thirteen count indictment brought against

defendants Gerald Drasen, Anthony Aleo, and Cynthia

Aleo. The defendants are charged with unlawfully deal-

ing in short-barrel rifles, aiding and abetting in the

transfer of short-barrei rifles, and possessing various ma-

receivers, in violation of 26 U.S. C. $586 5861. Counts

chinegun

I and III-VII of the indictment all charge the defendants

with the sale of unregistered short-barrel rifles, not be-

cause they sold assembled short-barrel rifles, but because

App. 22

they sold constituent parts from which a short-barrel rifle

could easily be (but never had been) assembled. The court

agreed with the defendants’ contention that the sale of

such constituent rifle parts does not constitute the sale

of a “rifle” within the meaning of 26 U.S.C. §5845(c). Con-

sequently, the court dismissed those counts. The govern-

ment now moves for a reconsideration of that decision.’

The government in its motion has expressly confined

itself to three points suggested by this court’s earlier opin-

ion. First, the government argues that this court’s focus

on the portion of the “rifle” definition containing the

words “readily restored to fire” overlooked the govern-

ment’s separate contention that the constituent parts of

a rifle should be considered tantamount to the rifle itself,

without reliance on the “readily restored to” clause of

§5845(c). Second, the government maintains that the court’s

holding on the “fair notice” issue appears to be inconsis-

tent with the law governing strict liability offenses such

as those charged here. Third, the “policy ’ implications

of the court’s holding seem to be at odds with the intent

of Congress in enacting the firearms law.

As to the first point, the government argues that the

January 15 opinion proceeded on the premise that the only

portion of the statutory definition of a “rifle” which could

arguably reach the constituent parts of a short-barrel rifle

was the “readily restored to fire’ language, which was

added to the statute in 1968. After extensively discuss-

ing the issue, the court held that the “readily restored

to fire’ clause meant that the firearms statute prohibited

the sale only of unassembled rifle parts that had once

been fully assembled, and not unassembled rifle parts that

had never been assembled. Only the former could be read-

1 Actually, the government has moved this court to reconsider

its decision to “dismiss counts one through seven of the indict-

ment.” Gov. Br. of 2-4-87 at 10. The court did not dismiss Count

II of the indictment. See Mem. Op. and Order, Jan. 15, 1987 at

20-22. The court assumes that the government is only asking for

a reconsideration of the dismissal of Counts I and III-VII.

App. 23

ily “restored to fire.” The court did not, however, ex-

pressly discuss the government’s separate contention that

the constituent parts of a short-barrel rifle should them-

selves be considered a “rifle,” entirely apart from the

question of whether they can be considered “readily re-

stored to fire.” This contention was not discussed because

the government placed virtually all emphasis on the “read-

ily restored to fire” clause. However, the court now con-

siders this contention outright and rejects it.

Under 26 U.S.C. §5845(c):

The term “‘rifle’”’ means a weapon designed or rede-

signed, made or remade, and intended to be fired

from the shoulder and designed or redesigned and

made or remade to use the energy of the explosive

in a fixed cartridge to fire only a single projectile

through a rifled bore for each single pull of the trig-

ger, and shall include any such weapon which may

be readily restored to fire a fixed cartridge.

The government argues that unassembled and never-

before-assembled parts of a rifle constitute ‘a weapon

designed, . . . made, . . . and intended to be fired from

the shoulder and designed . . . and made... to use the

energy of the explosive in a fixed cartridge to fire only

a single projectile . . . .” The court does not agree that

unassembled and never-before-assembled rifle parts con-

stitute a “rifle” within the meaning of the statute. Spe-

cifically, the court has great difficulty seeing how the

never-assembled constituent parts of a rifle are themselves

a weapon “made” to fire.

The government’s support for its contention is based

first on the Internal Revenue Service’s Revenue Ruling

54-606, 1954-2 C.B. 33. This ruling, issued under pre-1968

law, stated that “the transfer of sufficient parts to assem-

ble an operative firearm constitutes a transfer of a firearm

subject to the transfer tax.” In the January 15 opinion,

the court stated that this revenue ruling provided insuf-

ficient authority to establish the conclusion that the trans-

fer of the constituent parts of a never-before-assembled rifle

App. 24

was subject to the transfer tax because the ruling did not

address the relevance of the previous history of the cur-

rently unassembled rifle parts. It only addressed the pres-

ent, unassembled status of the rifle parts and states that

if they can be assembled into a rifle, the parts are a rifle.

However, the significance of the previous history of those

parts—whether they must have been once-fully-assembled

to come within the reach of the statute—is the precise

issue before this court and was not expressly addressed

in that ruling.

The government resists this conclusion by suggesting

that if the Commissioner had really intended to limit the

meaning of the ruling to only once-assembled rifles, he

would have used more precise language. This argument

has some plausibility, but it is defeated by the govern-

ment’s own proof of legislative history. The government

has established, as the court discussed in the January

opinion, that when the Gun Control Act of 1968 added

the “readily restored to fire’ language to the rifle defini-

tion, it was Congress’s intention to ensure that the lan-

guage of the amended statute was “consistent with the

administrative construction of existing law.”’ H.R. Rep.

No. 1577, 90th Cong., 2d Sess. 46 (1968); S. Rep. No. 1501,

90th Cong., 2d Sess. 46 (1968). Thus, in Congress’ (and

the government’s) view, the “readily restored to fire”

clause merely reenacted the administrative revenue ruling.

This means that Congress interpreted the revenue ruling

as applying only to those rifle parts which could be “re-

stored” to assembled condition. Congress therefore did

not regard that ruling as applying to rifle parts which

had never before been assembled since such rifle parts

could not be “restored” to anything. The court thus re-

jects the government’s contention that revenue ruling pro-

vides authority for its theory that never-before-assembled

rifle parts are tantamount to a rifle. The enactment of the

“readily restored to fire’ clause in 1968, and the legisla-

tive history establishing that this clause merely restates

existing administrative law, strongly suggest that the rev-

enue ruling only covers rifle parts that had at some point

been previously assembled into a complete rifle.

ee ee ee

App. 25

Next, the government proffers several cases which it

argues support the conclusion that rifle parts—regardless

of their prior history—are tantamount to a rifle. First,

the government relies on United States v. Zeidman, 444

F.2d 1051 (7th Cir. 1971), a case discussed in the January

15 opinion. In Zeidman, the court affirmed a conviction

under §5681 for possession of a rifle over the defendant’s

contention that the police search which uncovered his

possession of the rifle was invalid. The police inadvertent-

ly discovered the rifle in two parts while conducting a

valid search for something else. Zeidman argued that, be-

cause the rifle was in two parts, it was not a “firearm”

within the meaning of the law and therefore there were

no grounds for justifying the seizure. The court rejected

Zeidman’s argument because the interrelationship between

the two parts was “apparent.” Id. at 1053.

Zeidman does not support the government’s position

here. That case merely established that the inadvertent

discovery of an unassembled short-barreled rifle provides

the necessary probable cause for a seizure. It did not

establish—because the issue was not relevant—that those

unassembled parts need not ever have been fully assem-

bled in order to sustain the legal sufficiency of a convic-

tion for possessing a rifle. If anything, the court’s opinion

actually suggests that the seized rifle may have once been

fully assembled. See id. at 1052 (“Zeidman told [an under-

cover investigator! that he had a fully operable .. . 9

millimeter Browning high powered pistol with a detach-

able shoulder stock.” (emphasis added)). Thus, this court

does not view Zeidman as establishing the legal proposi-

tion the government urges.

Nor is the government’s citation to United States v.

Lauchli, 371 F.2d 303 (7th Cir. 1966) persuasive. That case

affirmed a conviction for dealing in “machineguns.” At

the time of his case, the “machinegun”’ definition was simi-

lar to the current definition of “rifle.” 26 U.S.C. §5848(2)

defined a machinegun as “any weapon which shoots, or

is designed to shoot, automatically or semiautomatically,

more than one shot... .” The Seventh Circuit affirmed

App. 26

Lauchli’s conviction for selling 102 unassembled machine-

guns. This case, like Zeidman, however, does not support

the government’s conclusion that the sale of never-before-

assembled rifle parts is tantamount to the sale of a com-

plete rifle.

In affirming the conviction, the Court first discussed

Revenue Ruling 54-606, the same ruling the government

proffers in this case. The Seventh Circuit regarded that

ruling as a “recognition” that “disassembly of complete

weapons” was within the purview of the firearms statute.

Id. at 312. The Court’s use of the word “disassembly”

suggests that it viewed the ruling as reaching firearms

which had at one time been assembled (otherwise, they

could never become disassembled). The government in

that case also argued that it would be too easy to violate

the Act “if disassembly of complete weapons removes

them from the purview of the Act.” Jd. Furthermore, the

Court then stated that it “need not go so far as” the

revenue ruling to hold Lauchli’s conduct illegal. Jd. Ap-

parently, the Court felt that because the defendant knew

the buyer planned to assemble the firearms, because the

defendant had actually assisted in the assembly of some

of the firearms, and because the buyers “demanded oper-

able machineguns,” the machinegun parts in that case

were deemed “machineguns” within the meaning of the

Act, even without considering the effect of the revenue

ruling. Id. at 312-13.

The Court’s reasoning in Lauchli does not help the gov-

ernment here. First, in Lawchli the defendant indicated

his expectation that the machinegun parts would be as-

sembled into complete machineguns and that the buyers

demanded operable guns. It was because of this that the

Court felt that defendant actually sold “machineguns,” and

it could reach this conclusion without “going so far as”

the revenue ruling. In this case, there is no allegation in

the indictment or Bill of Particulars suggesting that the

defendants or the buyers expected these parts to be com-

bined into complete weapons. More importantly, though,

the Court viewed the revenue ruling (albeit in dicta) as

App. 27

only reaching disassembled firearm parts, thus implying

that the ruling reaches only previously assembled fire-

arms. Thus, in the Seventh Circuit’s view, the revenue

ruling does not help the government’s position in this

case, and neither does the Court’s actual holding in

Lauchli since here, unlike that case, there is no allega-

tion that the defendants sold the rifle parts with an ex-

pectation that they would be assembled later, or that the

buyers had “demanded” operable rifles.

This court’s reading of Lauchli is confirmed by the Sev-

enth Circuit’s remarks in another case the government

cites, United States v. Safer, 445 F.2d 579 (7th Cir. 1971).

There, the Court dealt with the possession of unassembled

“destructive vehicles.” Citing to Lawchli itself, the Court

held: ‘“‘We agree with the government that the grenade

shells, fuses, and powder here may be considered such

a firearm, even though disassembled.” Jd. at 583. Again,

the Court’s use of the word “disassembled” suggests that

the constituent parts of a firearm must have once been

assembled to be within the purview of the Act.

The Seventh Circuit’s use of the word “disassembled”

(as opposed to “unassembled”) in Lauchli and Safer should

not, I think, be regarded as accidental. As just discussed,

the Court in Lauchli was comfortable with affirming the

defendant’s conviction because of the strong evidence es-

tablishing that he had intended to sell, and the purchasers

had intended to buy, machinegun parts that could be as-

sembled into complete weapons. Thus, a defendant’s in-

tent that the constituent parts become a complete weapon

is necessary for a machinegun conviction based on the sale

of machinegun parts. Presumably, such “intent” could also

be established by evidence that the defendant had sold

weapon parts that were once fully assembled. The previ-

ous, assembled status of those parts could reasonably per-

mit the conclusion that the seller of the now-disassembled

parts intended those parts to eventually become a com-

plete weapon. Thus, the Seventh Circuit’s choice of the

word “disassembled” parallels its emphasis on the evi-

dence of Lauchli’s “intent to assemble.” Accordingly, the

App. 28

choice of the word “‘disassembled”’ should not be regarded

as an accident.?

The government brings to the court’s attention two

eases from other circuits, United States v. Luce, 726 F.2d

47 (1st Cir. 1984), and United States v. Endicott, 803 F.2d

506 (9th Cir. 1986), in which it was held that, although

there is no “combination of parts” or “readily restored

to” language in the “silencer” definition, an “unassem-

bled” silencer is a “firearm” within the statute. The gov-

ernment reads these cases as implying that the unassem-

bled parts of a rifle constitute a “rifle” within the mean-

ing of the Act. These decisions do not expressly discuss

the prior history of the currently unassembled firearm

parts involved in those cases. Without an explicit discus- -

sion of whether those parts had previously been assem-

bled, or some holding that the prior history is irrelevant,

these cases cannot stand for the proposition that never-

before-assembled rifle parts are nevertheless rifles. That

proposition, which is the issue here, simply was not raised

in those cases.

Furthermore, it does not necessarily follow that just be-

cause the unassembled parts of a rifle may be tantamount

to a “rifle” the never-before-assembled parts of a rifle also

constitute a “‘rifle’’ within the meaning of the statute. A

“rifle” is something “made, designed, and intended’’ to

fire. It is understandable that a court could view something

that happens to be currently unassembled but was once

assembled as something ‘“‘made, designed, and intended”

to fire while not simultaneously regarding a never-before-

assembled set of rifle parts as something “made, designed,

and intended” to fire. In this court’s view, it would be unduly

stretching the coverage of the statute beyond its permissi-

2 Even if one were to regard that choice as accidental, one could

not expect the defendants to have known that what the Seventh

Circuit really meant in Lauchli and Safer was that unassembled

and never-before-assembled rifle parts (and not just “disassembled”

rifle parts) are “rifles” within the meaning of the statute. This

relates to the issue of “fair notice” discussed later in this opinion.

App. 29

ble meaning, especially in light of the maxim (with which

the government agrees) that criminal statutes must be

construed strictly, to ignore this distinction.

Finally, the government reargues its main contention

from the first round of briefing on this question by stating

that the constituent rifle parts in this case can be “re-

stored to fire’ even though they have never been previ-

ously assembled. The reason, the government explains,

is that the rifle parts in this case must have been de-

signed from a model or prototype of a rifle which itself

must have at one time been fully assembled and proven

operable. That prototype was then disassembled and used

as a model for the parts that are subsequently produced.

The government then concludes that even though the rifle

parts in this case have never been assembled, they can

still be “restored” to fire because the prototype of those

parts was once fully assembled. However, there is no sug-

gestion in the statute, administrative authority, legislative

history or case law that the “readily restored to” clause

vicariously applies to never-before-assembled rifle parts

simply by virtue of some unidentified, previously assem-

bled prototype rifle from which the rifle parts are derived.

Therefore, the court rejects this argument.

Thus, the court concludes that the defendants here have

been given no “fair notice’”’ that their sales of never-be-

fore-assembled rifle parts were illegal. If anything, the

revenue ruling, when considered along with the legislative

history to the Gun Control Act of 1968, seems to sup-

port the defendants’ view more than the governrm :nt’s.

The same is true of Lauchli and Safer. True, the cases

the government cites do not expressly discuss the previ-

ous history of the firearm parts involved, and this might

be taken as a sign that the previous history is irrelevant.

It could thus be argued that those cases impliedly sug-

gest that it does not matter whether rifle parts were pre-

viously assembled or not; either way they are rifles. How-

ever, such a reading of those cases would contravene the

notion of “fair notice” discussed in the January 15 opin-

ion. If a principle is not argued by the parties and decided

App. 30

by a court, or at least expressly stated in dictum, but

instead is identified only as a possible, arguable reading

of an opinion, then individuals have not been put on “fair

notice” of a court’s actual view. That is certainly the case

here, where the cases the government cites simply do not

discuss the relevance of the previous history of current-

ly assembled firearm parts to the scope of the firearms

statute, nor have the parties to those cases argued that

relevance. Indeed, as the court has already stated, if any-

thing, the revenue ruling and cases like Lawchli implied-

ly suggest that never-before-assembled rifle parts are not

covered by the statute.

The government takes issue with the court’s analysis

of the requirement that criminal statutes must put a de-

fendant on “fair notice” that his conduct is illegal. It ap-

pears that the government reads the January 15 opinion

as requiring that the defendants in this case must receive

actual notice of the illegality of their sales before prosecu-

tion is permitted. That is not this court’s holding. Rather,

“fair notice” simply requires that the criminal statutes

be clear enough so that a person could determine that

the conduct currently under prosecution is illegal, regard-

less of whether he actually did determine that.

The government also claims that this court overlooked

the case law on §5681 establishing that $5681 is a “strict

liability” offense. Specifically, citing to United States v.

Freed, 401 U.S. 601 (1971), the government correctly but

irrelevantly argues that the statute does not require proof

that the accused knew that the firearm at issue was fed-

erally regulated. Again, no one in this case argues that

such proof was necessary. Rather the defendants only ar-

gue that the statute must be clear enough to provide in-

dividuals with a fair opportunity to determine the crim-

inality of their actions. Freed also stands for the proposi-

tion that “every person dealing in [firearms must] ascer-

tain at his peril whether that which he sells comes within

the inhibition of the statute.” Jd. at 609. The court also

agrees with this, and there is no dispute in this case that

defendants here, dealing as they did in rifle parts, were

App. 31

absolutely required to ascertain at their peril whether

their dealings were prohibited by statute. The relevant

question is whether the statute was clear enough to give

the defendants a fair opportunity to ascertain the crimi-

nality of their conduct. It is this court’s judgment that

the firearms statute was not sufficiently clear to inform

the defendants, had they attempted to ascertain the mean-

ing of the statute, that the statute actually prohibited the

sale of unassembled, and never-before-assembled rifle parts.

That due process requires criminal statutes to give peo-

ple a fair opportunity to determine what constitutes a

criminal act is of course beyond peradventure. See United

States v. Powell, 423 U.S. 37, 92-93 (1975); United States

v. Hariss, 347 US. 612, 617-18 (1954). However, in this

case, not only is the statute itself unclear as to whether

it covers the conduct the government wishes to prosecute,

but the implementing revenue ruling and the interpreta-

tive cases do not shed any further light (at least not with

any fair degree of precision) on this question. This is not

fair notice.

Finally, the government cites cases, such as United

States v. Ross, 458 F.2d 1144 (5th Cir.), cert. denied, 409

U.S. 868 (1972), and its progeny, as establishing that the

definition of “destructive device,” “silencer,” and other

types of firearms in §5845 is not so vague as to be un-

constitutional. None of those cases is pertinent here. Each

of those cases merely holds that for the particular conduct

charged therein, the applicable statutory provision was

specific and clear enough to put the defendant on constitu-

tionally adequate notice that his conduct was illegal. This

case is different precisely because a person of common

intelligence could not deduce that the conduct charged

here was within the prohibition of the statute. That there

are other cases charging defendants with different types

of conduct for which fair notice was provided is not proof

that in this case, where a different sort of conduct is al-

leged, the statute provided defendants with fair notice

that their conduct was illegal.

App. 32

The government concludes its request for reconsidera-

tion by raising “policy” arguments for the result it is urg-

ing. First, the government insists that if this court’s Jan-

uary 15 decision is allowed to stand, there will be a

loophole in federal firearms regulation inconsistent with

Congress’s intent, since the ruling will permit gun traf-

fickers to evade federal regulation by simply in

rifle parts which have never before on assembled. But

the statute, as expressly written, already permits trading

in “non-registered,” barrel rifles. Thus, it is clear that

a person can now evade the federal ns relating

to the sale of short-barrel rifles (the charged here)

by simply selling long-barrel rifles to buyers who can then

easily alter those rifles into short-barrel rifles by way of

a hacksaw. The epastar tha guegueialh edapal aigeeee

dented circumvention of an otherwise carefully drafted

scheme iting the sale of short-barrel rifles is there-

fore istic given that the statute already permits

possibilities for circumvention.

_ There is a further reason for why it is difficult to be

ur which Une governments prosecuting the defendants

is not a provision of the f Criminal Code. It is part

of the Internal Revenue Code. If this prosecution were

based on the Criminal Code, then it would be plausible

to credit Congress with an intent to prohibit a broad

range of gun-trafficking activities. But the law involved

here is part of a revenue-producing code. As such, I am

unwilling to defer to suggestion that this law is part of

an overall scheme to reduce armed violence in this coun-

try. Instead, I insist that there be “fair clarity” in a

statute which, though criminal, is part of an overall

scheme to raise money for the government and only inci-

dentally pertains to gun dealing.

The Lauchli case actually provides me with reason to

believe that Congress did not intend §5845 to apply to

the constituent “parts” of a rifle, whether unassembled

or disassembled. In a portion of the Lauchli. decision

sca tna aerated

App. 33

which the government does not discuss, the Court as-

sessed the validity of defendant’s conviction under 15

U.S.C. §901. This law, now repealed, was part of the

Federal Firearms Act of 1988. Section 901 of that

ence oe serge pe Reb ae parts” of

weapon designed to expel projectiles by the action of

explosive. See discussion at Lauchli, 371 F.2d at 313.

cause of the ‘ or parts” language, the Seventh

cuit affirmed conviction of the defendant based on

celle Ease Chadet emote tankers diem

District Court properly held ype oer

were within the broad reach of the Act as ‘parts’ of

weapon.” Jd. at 314.

Section 5845(c) (the “rifle” law relevant here) contains

no “ or parts” language. It does not have the “broad

at ee ee wy ane Tage nde otra

1938 Act’s language reveals, w ngress wanted to

cover constituent of a firearm, it knew how to say

so. That Congress not said so here is further evidence

that §5845(c) is not intended to cover the constituent parts

of rifles, as least insofar as they have never been previ-

ously assembled.

The a ee second “policy” argument is that this

court’s laces on the government an intolerable

eee pe. . In order to prosecute a person who sells

the constituent parts of a rifle, the government must now

prove that those parts were at one time previously as-

sembled into a complete rifle. This, the government main-

tains, will make prosecutions virtually impossible.

This is completely unsubstantiated. It is an assertion

by government counsel without any evidentiary basis.

More importantly, a court should not judicially rewrite

a statute to alleviate some of the burdens of proof Con-

gress has apparently chosen to place on the government.

If there is a “policy” argument relevant to this case,

it is in favor of dismissing these Counts. The govern-

ment’s attempt to prosecute the defendants for the sale

of unassembled and never-before-assembled rifle parts

Pee

TEEE

App. 34

would seem to expand the reach of $5845 to include a

whole spectrum of activity which Congress plainly did not

intent to regulate. For example, it is perfectly legal (as

the government ) for a person to deal in long-barrel

rifles. It is therefore also perfectly legal for a person to

deal in long-barrel rifle parts. But a person who deals in

such parts, and also happens to possess independently a

single short-barrel part (which is being used for some

unrelated, innocent purpose) could be prosecuted under

the government’s view of §5845. Since this dealer would

be in possession of parts which could be combined into

a short-barrel rifle, he would be vulnerable to a $5845

prosecution. Contrary to Lauchli, it would not matter that

the dealer never intended those parts to be assembled

into a short-barrel rifle. It also would not matter that the

dealer has never previously assembled those parts into

a short-barrel rifle (from which an “intent” to assemble

could otherwise be reasonably inferred). Thus, the govern-

ment’s view of §5845 would seem to contravene Congress’

own intent in limiting its regulation of gun dealing.

In summary, the court reaffirms its conclusion that the

firearms statute did not provide the defendants with a

fair opportunity for discovering that the sale of never-

before-assembled rifle comes within the purview of

the statute. No court ever held that such rifle parts

are within the purview of the statute. The statute itself

does not expressly provide this. The sole, relevant reve-

nue ruling on this subject does not state this, and given

the “readily restored to” of the Gun Control Act

of 1968 merely “restated” effect of that ruling, it is

likely that the ruling was only meant to cover only previ-

ously assembled rifle parts. Indeed, this seems to be the

implication of the Seventh Circuit in Lauchli and Safer.

True, Luce and Endicott hold that unassembled firearm

parts are tantamount to a firearm within ‘he meaning of

the law. However, those two cases were not presented

with the question whether those currently unassembled

parts must once have been assembled to come within the

reach of the statute. Nor does the reasoning of those cases

App. 35

y su, t the result the government urges, es-

t of the doctrine that criminal statutes must

strictly construed. It is because the statute itself, the

revenue ruling, and the Seventh Circuit cases have never

spoken on this question and, if anything, they may even

suggest that previous assembly is a requirement, that this

court must once again conclude that the defendants in this

case had no “fair notice’ of the criminality of the con-

duct that the government now seeks to prosecute.

Conclusion

The government’s motion to reconsider this court’s Jan-

uary 15 opinion in which Counts I and III-VII of the in-

dictment were dismissed is denied. In accordance with the

government’s request for thirty days in which to consider

this opinion and determine whether or not to ro gy the

case is set for status hearing on June 15, 1 at 9:30

a.m. At that time the government should inform the court

whether or not it will appeal the dismissal of these counts.

It is so ordered.

/s/ Susan Getzendanner

United States District Judge

DATED: MAY 20, 1987

App. 36

[DATED JANUARY 15, 1987]

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

No. 86 CR 500

UNITED STATES OF AMERICA,

Plaintiff,

¥.

GERALD DRASEN, ANTHONY ALEO,

and CYNTHIA ALEO,

Defendants.

MEMORANDUM OPINION AND ORDER

SUSAN GETZENDANNER, District Judge:

The government has brought a thirteen count indict-

ment? against defendants Gerald Drasen, Anthony Aleo,

and Cynthia Aleo. Specifically, Gerald Drasen is charged

1 On January 9, 1987, the January, 1987 Grand Jury returned a

superseding indictment in this case. In many respects it is iden-

tical to the original indictment, but there are some significant dif-

ferences. Count XIV of the original indictment is not included in

the ——-s indictment. Counts III-VII, previously alleging

only the sale of rifles through the sale of never-before-assembled

constituent parts of a rifle, have been expanded to allege that such

a “rifle” also “constituted a combination of parts from which a

machinegun can be assembled.”’ Count I, previously alleging only

that Drasen was a dealer in rifles, now alleges that he was a

dealer in rifles and machineguns. Nothing in this opinion addresses

the legal sufficiency of these new allegations.

ae Ser

sili ae eee ae

App. 37

with unlawfully dealing in short-barrel rifles, aiding and

abetting in the transfer of short-barrel rifles, and possess-

ing various machinegun receivers, in violation of 26 U.S.C.

§5861. The indictment further charges defendants Anthony

Aleo and Cynthia Aleo with aiding and abetting in the

dealing and transfer of short-barrel rifles, in violation of

the same statute. The defendants, represented by joint

counsel, have moved to dismiss the indictment. For the

reasons stated below, the motion is denied in part and

granted in part.

Motion to Dismiss

The indictment breaks down into four categories of

counts and the defendants attack the legal sufficiency of

each category. Accordingly, the court will address these

attacks category by category.

Counts I and III-VII

These counts of the indictment all charge the defendants

with the sale of unregistered short-barrel rifles, not by

the sale of assembled short-barrel rifles, but by the sale

of the constituent parts from which a short-barrel rifle

could easily be assembled. The defendants’ contention is

that the sale of such constituent parts of a rifle does not

constitute the sale of a “rifle” within the meaning of the

statute.

Title II of the Gun Control Act of 1968, under whose

provisions the defendants are charged here, requires reg-

istration of certain weapons which fall within the definition

of “firearm.” In particular, a “firearm” is, among other

things, a “rifle having a barrel or barrels of less than 16

inches.” 26 U.S.C. §5845(a). Possession of such a Title II

firearm must be registered in the central registry main-

tained by the Secretary of Treasury pursuant to 26 U.S.C.

§5841. Subsequent transfer of such a firearm must be in

compliance with 26 U.S.C. §5812 which requires a written

application to the Secretary of Treasury and the payment

of a transfer tax. Title II also defines “‘rifle” as follows:

App. 38

The term “rifle’ means a weapon designed or re-

designed, made or remade, and intended to be fired

from |the shoulder and designed or redesigned and

made or remade to use the energy of the explosive

in a fixed cartridge to fire only a single projectile

through a rifled bore for each single pull of the trig-

ger, and shall include any such weapon which may

be readily restored to fire a fixed cartridge.

26 U.S.C. §5845(c) (emphasis added). The crucial question

in these counts pertains to the legal effect of the under-

scored portion of the definition of rifle. The defendants

contend, and the government apparently agrees, that the

rifle components which defendants allegedly sold, have

never been combined to form complete rifles. Therefore,

the issue here is whether unassembled, and never-before-

assembled, parts of a rifle nevertheless constitute a “rifle”

within the meaning of the statute.

The defendants launch several persuasive arguments

suggesting that the component parts involved in this case

do not fall within the statute’s definition of “rifle.” First,

defendants argue that the plain meaning of the language

“and shall include any such weapon which may be readi-

ly restored to fire a fixed cartridge’ cannot include a

group of parts which have never been assembled into a

working firearm. According to defendants, one cannot “re-

store” to firing condition a group of parts which have

never before been in firing condition. To further support

their reading of the word “restore,” defendants contrast

the definition of “rifle” with that of ‘“‘machinegun”’ in 26

U.S.C. §5845(b), another type of “firearm,” see id.

§5845(a). The statute defines “machinegun” to include not

only any weapon which “can be readily restored to shoot”

but also “any combination of parts from which a machine-

gun can be assembled if such parts are in the possession

or under the control of a person.”

The defendants’ second argument is that no case has

applied the “readily restored to fire’ language of the

“rifle” definition to hold that a group of parts which might

be assembled into a rifle, but never has been, is neverthe-

App. 39

less a rifle. According to defendants, the cases dealing

with “rifles,” as well as “machineguns” and “shotguns”

(another type of “‘firearm”’), involve only weapons which

had once been assembled and in firing condition, though

the weapons were discovered disassembled.

Defendants’ third argument concerns the legislative his-

tory of the statute. Defendants point out that in enact-

ing the Gun Control Act of 1968, Congress expanded the

definition of “‘machinegun” to include “any combination

of parts from which a machinegun can be assembled.”

Congress supposedly considered, but rejected, a similar

expansion of the statutory definition of “‘rifle” to include

a “combination of parts” clause. See Federal Firearms

Act, Hearings Before the Subcommittee To Investigate

Juvenile Delinquency, Judiciary Committee, U.S. Senate,

90th Cong., Ist Sess. 1086-1087 (1967). Therefore, defen-

dants conclude, this court should not interpret the defini-

tion of “rifle” to cover a “combination of parts’’ which

could be made into a rifle.

The government’s response to these arguments is basically

twofold. First, the government contends that the mean-

ing of the language “readily restored to fire” in the “rifle”

definition can be determined from the legislative history,

and the defendants have erroneously read that history.

The government explains that the Gun Control Act of

1968 made two changes in the definition of “‘rifle,”’ only

one of which is relevant here. That change is the addition

of the last clause of the definition, the clause stating that

a “rifle” includes “any such weapon which may be readily

restored to fire a fixed cartridge.” The authors of this

language stated that it was their intention in making this

change to ensure that the language of the statute was

“consistent with the administrative construction of ex-

isting law.” H.R. Rep. No. 1577, 90th Cong., 2d Sess. 46

(1968); S. Rep. No. 1501, 90th Cong., 2d Sess. 46 (1968).

The government then cites a Revenue Ruling of the Com-

missioner of Internal Revenue. The ruling, although not

specifically cited in the above legislative history, never-

theless constitutes part of the then ‘administrative con-

App. 40

struction of existing law.” It stated that “(t]he posses-

sion or control of sufficient parts to assemble an operative

firearm . . . constitutes the possession of a firearm... .

Further, the transfer . . . of sufficient parts to assemble

an operative firearm is deemed to constitute the transfer

of a firearm subject to the [transfer] tax.” Rev.Rul. 54-606,

1954-2 C.B. 33. This administrative construction, which the

Gun Control Act authors apparently intended to capture

by the word “restore” does not require that the unas-

sembled parts actually once have been assembled into an

operational firearm. Instead, all that is required is that

the possessor or tranferor have parts sufficient “to assem-

ble’”’ an operative firearm. The previous history of those

“parts” is thus apparently irrelevant.

Accordingly, the legislative history provides some sup-

port for the government’s broad reading of the word “re-

store.” Nevertheless, it may seem somewhat odd that the

definition of “‘machinegun” includes both the “readily

restored” language and the “combination of parts” lan-

guage, where the definition of “rifle’’ includes only the

former. This difference must be explained.

The government explains this significance again by re-

sorting to the legislative history. In amending the defini-

tion of “‘machinegun’”’ in 1968, the authors of the legisla-

tion stated that the first sentence of section 5845(b) (the

“readily restored to” language) was meant to restate the

existing law. See H.R. Rep. No. 1577, 90th Cong., 2d Sess.

45 (1968); S. Rep. No. 1501, 90th Cong., 2d Sess. 45 (1968).

In further commenting on the “readily restored to” lan-

guage in the context of the definition of ‘“shotgun,”’ where

this same language also appears, the authors of the stat-

ute observed that it was intended to overrule a single

district court decision that interpreted the pre-1968 fire-

arms definition as not reaching a firearm (in that specific

case, a “‘shotgun’’) that was missing only the easily re-

placeable firing pin. See H.R. Rep. No. 1577, 90th Cong.,

2d Sess. 46 (1968); S. Rep. No. 1501, 90th Cong., 2d Sess.

46 (1968) (commenting on United States v. Thompson, 202

F.Supp. 503 (C.D. Cal. 1962). Thus, the “readily restored

App. 41

to” language was not meant to extend the definition of

a “firearm” to unassembled parts of a “firearm.” Accord-

ing to the previously discussed 1954 Revenue Ruling, the

definition of “firearms” such as “rifles,” ‘‘machineguns,”’

and “shotguns” already included such unassembled weap-

ons. Instead, “readily restored to”’ was meant to ensure

that a weapon missing an easily replaceable part was also

nevertheless within the reach of the statute.

The presence of “combination of parts” language, which

is found in the “machinegun” definition, but not “‘rifle”’

definition, can now be explained. The second sentence of

the “machinegun” definition contains the “combination

of parts” language. It states that “the term [machine-

gun] shall also include the frame or receiver of any such

weapon . . . 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.” A possible

interpretation of the “combination of parts” language is

that it is meant to reach the subset of “machineguns’”’

consisting of “frames” or “receivers.” That is, the second

sentence of this definition is meant to reach “any com-

bination of parts” from which a “machinegun,” i.e., a

“frame or receiver” can be made. As the government ex-

plains, this interpretation is sensible given the differing

physical characteristics of machineguns and rifles. The

frame and receiver of a rifle are lawful because they can

be used to assembled unregulated weapons, such as rifles

having barrels of 16 inches or more (non-“sawed-off’’

rifles). However, the frame and receiver of a machinegun

cannot be used in any unregulated weapon. Hence, Con-

gress specifically sought to include language in the ma-

chinegun definition to cover frames, receivers, and their

combination of parts. That may be why the “combina-

tion of parts” language appears in the “machinegun”’ defi-

nition and not in the “rifle” definition.

The government concludes its discussion on the legisla-

tive history by refuting the defendants’ interpretation of

the letter to the Senate Judiciary Committee. According

to the defendants, this letter argued against a proposal

App. 42

to include ‘‘combination of parts” language in the “rifle”

definition. As the full text of the letter indicates, the pro-

posal sought to include within the definition of “rifle,”

the frames and receivers of rifles, and presumably their

respective combination of parts. Congress decided not to

extend the definition of “rifle” to include rifle frames and

receivers and their combination of parts, so the absence

of the “combination of parts” language from the rifle

definition, does no damage to the government’s position.

Indeed, the text of the letter indicates that the author

of the letter (the General Counsel to the Department of

Treasury) considered the Gun Control Bill “to represent

the administrative construction of existing law and to

clarify a situation resulting from conflicting judicial de-

cisions concerning the status of firearms which are dis-

assembled or which are complete and operable except for

a readily restorable part or parts.” Federal Firearms Act,

1968: Hearings on S. 1854 Before the Subcomm. To In-

vestigate Juvenile Delinquency, 90th Cong., Ist Sess. 1087

(1967). This quotation is fully consistent with the govern-

ment’s position.

While the legislative history presented in this case sug-

gests that a “rifle” includes the constituent parts of a

rifle, even though those parts were never assembled, the

court is also interested in whether any cases confirm this

view. As the defendants correctly argue, there appear to

be no reported cases squarely upholding the government’s

position. Indeed, it seems that most of the pertinent “rifle”

cases involve rifle parts that, although discovered in un-

assembled form, were once assembled. In the remaining

cases, the previous history of those parts is simply not

explicitly addressed. However, just as there are no cases

squarely upholding the government’s position, none of the

defendants’ cases expressly hold that prior, assembled

status of rifle parts is necessary before unassembled rifle

parts will be deemed “rifle” under the “readily restored

to fire’ definition.

Some guidance, however, may be gained from the Seventh

Circuit’s opinion in United States v. Zeidman, 444 F.2d

App. 43

1051 (7th Cir. 1971). In that case, the Court upheld the

seizure of a short-barrel rifle that was found in two parts,

that is, in two separate drawers of the same dresser. The

Court reasoned that since the two parts could be easily

combined to form a “rifle’’ within the meaning of the fed-

eral statute, the two parts themselves also constituted a

“rifle,” and as such, the “rifle” was required to be regis-

tered under 26 U.S.C. §5841. See id. at 1053. Significant-

ly, the Court made no express finding as to whether the

two parts, at any time prior to the seizure, had ever been

- . assembled into a complete rifle. As the Court explained

the facts, investigators were on the defendants’ premises

lawfully, pursuant to a warrant to seize a “machine pistol.”’

Though they did not find the warrant-specified item, they

found the two parts of another firearm, the rifle. The

Court noted that “(njo mention was made in the warrant

of the Browning pistol and shoulder stock [the “rifle”

parts], notwithstanding that Zeidman had allegedly shown

these two items to investigator Conroy on January 11.”

444 F.2d at 1053. The use of “two” in this passage sug-

gests that the two rifle parts were not assembled when

originally presented to the undercover investigator. The

Court then upheld the seizure of the two rifle parts as

an unlawfully possessed “rifle” because the parts were

discovered in the course of a legitimate search and

“{w]Jhen viewed together, the interrelationship of these

two items is apparent, even without prior knowledge of

their connection.” Jd. This second passage seems to indi-

cate, somewhat inconsistently with the first cited passage,

that the two parts may have once been connected. How-

ever, at the same time, the passage also suggests that

the seizure of the interrelating parts was valid, even if

the investigators did not know that the rifle parts had

once been connected. In other words, the investigators

were entitled to seize the rifle parts as an unlawful, un-

registered “rifle,” (at least for probable cause purposes),

even if they had no knowledge of whether those parts

had once been connected. Thus, to the extent that the

rifle parts in Zeidman had in fact once been assembled,

the Court seemed to intimate that this may not have been

App. 44

relevant to their illegality. And to the extent that the rifle

parts had never been assembled, or the Court failed to

render an express opinion on the point, it may be reason-

able to assume that the Court did not find such prior his-

tory a be relevant to whether the two parts constituted

a 6h a

This court has expressed the government’s position as

strongly as possible. Nevertheless, the court still has

grave doubts about whether the statutory language “read-

ily restored to” has put the defendants on sufficient notice

to adequately inform them that their conduct in dealing

with never assembled rifle parts was illegal. When the

government’s rhetoric is washed aside, its position essen-

tially comes down to a single Revenue Ruling, indirectly

referred to in the legislative history. That ruling does not

even squarely support the government’s position since it

does not indicate one way or another whether rifle parts

need to have been once-before assembled in order to be

a “rifle.” It only addresses the present, unassembled status

of the rifle parts and states that if they can be assembled

into a rifle, the parts are a rifle. Thus it fails to address

the relevance of the previous history of those parts. How-

ever, that previous history is the precise issue this court

faces in evaluating this indictment. Thus, the Revenue

Ruling is a thin reed on which to hang federal prosecution.

Moreover, the Zeidman case is hardly convincing sup-

port for the government’s position. It rendered no express

opinion on the issue before the court now. The precise

issue before the Court there was whether there was

probable cause for a warrantless seizure of a rifle in two

parts. The issue here is quite different—it is whether the

indictment properly states the elements of a statutory

crime. Furthermore, no other case cited by the govern-

ment holds that the firearms statute covers rifle parts

that have never been assembled.

In view of this weak support for the government’s posi-

tion, the court must dismiss Counts I and III-VII. Al-

though there is some legislative support for the govern-

ment’s reading of “restore,” it is simply not strong

App. 45

enough to overcome the presumption against interpreting a

word to mean something other than its standard English

usage, and the presumption in favor of construing crim-

inal statutes against the government. There is no doubt

that when the government seeks to prosecute conduct it

deems punishable, it must give a person of ordinary in-

telligence fair notice that his contemplated conduct is for-

bidden by the statute. Papachristou v. City of Jackson-

ville, 405 U.S. 156, 162 (1972); see also United States v.

Petrillo, 332 U.S. 1 (1947) (the test is whether the lan-

guage conveys sufficiently definite warning as to the pro-

scribed conduct when measured by common understand-

ing and practices). There is no doubt, as the Seventh Cir-

cuit has recently demonstrated, that courts should not con-

tort the meaning of words beyond their common usage.

See United States v. DeCastris, 798 F.2d 261 (7th Cir.

1986) (observing that the words “resume or assume em-

ployment” do not necessarily cover a person who con-

tinues employment in the same job during the relevant

time period). These standards have been violated here.

All persons of common intelligence understand “restore”

to mean “return to a previous condition.” People are not

required to divine the government’s secret modification

of that definition, nor are they required to assume that

legislative histories, court decisions, and revenue rulings

resolve legal questions that are not directly presented in

those histories, decisions, and rulings.

In sum, the government in this case has attempted to

give “restore” an unusual meaning. People ordinarily do

not think that rifle parts can be “restored” to a rifle if

those parts never were previously assembled as a rifle.

The legislative history is too indirect and scant to con-

vey a “sufficiently definite warning”’ to individuals of the

government’s now-proffered definition. In these circum-

stances, the due process guarantee of “fair notice” of

criminality would be violated if prosecution proceeded on

these counts. See United States v. Powell, 423 U.S. 87,

92-93 (1975); United States v. Harris, 347 U.S. 612, 617-18

(1954). Accordingly, these counts must be dismissed, as

they appear in the original indictment.

App. 46

Counts VIII and IX

an af Ucar tate Sade: tak oe

sion of red machinegun receivers, not

ion of assembled receivers, but by possession of

unassembled constituent parts of machine gun receivers.

Drasen seeks to dismiss these counts on grounds similar

though not identical to the raised in the previous-

ly discussed counts. y, Drasen does not ow

that the federal statute covers only previously asse

machinegun receivers. Rather, he argues that while the

federal statute covers “machineguns” and weapons which

can be “readily restored to” machinegun status, and while

it also includes machinegun “receivers,” it does not in-

clude objects which can be “readily restored to” receiver

status or the constituent “parts” of machinegun receivers.

Thus, defendants that disassembled parts of a once-

assembled receiver do not constitute a receiver. As to this

argument, the court has little difficulty rejecting Drasen’s

reading of the statute.

The type of “machinegun” which must be registered

under the federal statute is defined in that statute as

follows:

The term “machinegun” means any weapon which

shoots, is designed to shoot, or can be readily re-

stored 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 re-

ceiver of any such weapon, any combination of parts

designed and intended for use in converting a weap-

. On into a machi , and any combination of

from which a machi can be assembled if such

parts are in the possession or under the control of

a person.

26 U.S.C. §5845(b). Thus, under the first sentence of the

definition, a “machinegun” is any y weapon which “shoots”

or can be “readily restored to shoot.” Under the second

sentence, a “machinegun”. | is also a “frame or receiver”

of any such weapon. ly, also under the second sen-

tence, a “machinegun” is “any combination of from

pea Rore ae Fanon ng sealers nen

earlier, since i ” includes “frames or receivers,”

the second sentence may properly be in as stat-

ing that a “machinegun”’ is also 2 phe myer d a

from which a ‘frame or receiver’ can be made.” Thus,

under the plain of the statute, Drasen’s

sion of i receiver parts comes within the reach

of the statute (assuming that those parts can be “com-

bined” to form a receiver).

Drasen resists this conclusion by pointing to the regu-

latory definition of “frame or receiver”:

That part of a firearm which provides housing for

the hammer, bolt or breechlock and firing mechanism,

and which is usually threaded at its forward end to

receive the barrel.

27 C.F.R. §179.11. Drasen argues that since this defini-

tion speaks only of “that part” rather than “that part

or parts,” it is contrary to regulatory authority to extend

the definition of receiver to include * ” of a receiver.

However, the controlling statute itself as just explained,

reaches not only a complete frame or receiver, which is

defined in the administrative regulation as one * ” but

also “any combination of parts” from which a “machine-

gun,” which by definition includes a “receiver,” can be

made. Thus, the regulation merely defines a complete re-

ceiver. However, since the controlling statute covers not

only complete receivers but also “any combination of parts

from which ‘frames or receivers’ can be assembled,” the

definition should not be interpreted to limit the

coverage of the authorizing statute.

Finally, Drasen argues that the receiver parts in ques-

tion in this case had been cut in half so as to require

welding to become a compiete “receiver.” Thus, Drasen

contends, more than a machanical operation is necessary

to restore or assemble these parts into a complete re-

ceiver and they are hence not “readily restored” to re-

ceiver status. The court must reject this argument too.

App. 48

First, it is not clear that the “readily restored to” lan-

guage of the first sentence of the “machinegun” defini-

tion applies to the court’s interpretation of the second sen-

tence which defines a machinegun as including “any com-

bination of from which ‘frames or receivers’ can be

assembled.” After all, as the court has interpreted that

sentence, it does not on its face state “from which ‘frames

or receivers’ can be readily assembled.” However, the

court will assume that such is the meaning of the statute.

Even so, the question of whether the two halves of the

receiver involved in this case can actually be readily as-

sembled into a complete receiver is a question of fact

which the court may not address on a motion to dismiss

the indictment. Accordingly, as a legal matter, Counts

VIII and IX are sufficient to withstand Drasen’s motion

to dismiss.

Counts X-XIII

In these counts of the indictment, as modified by the

Bill of Particulars, Drasen is charged with possession of

an unregistered “mini-gun” housing which the government

claims is the “receiver” of this weapon. Drasen argues

for dismissal of these counts on two grounds. First, he

contends that the housing which he allegedly possessed

is not a “receiver” within the meaning of the statute. Sec-

ond, he argues that the “mini-gun”’ is not a “machinegun”

within the meaning of the statute, and so regardless of

whether the housing is a “receiver,” registration of that

housing is not required by law since only “firearm” re-

ceivers need to be registered.

As to the first argument, Drasen maintains that no stat-

utory, regulatory, or decisional authority has ever deter-

mined that a “mini-gun” housing is a receiver. Contrary

to this assertion, there is indeed regulatory authority hold-

ing that “housing” is a “receiver.” As cited earlier in this

opinion, the definition of a “receiver” is “{tJhat part of

a firearm which provides housing for the hammer, bolt,

breechlock and firing mechanism, and which is usually

threaded at its forward portion to receive the barrel.”

App. 49

27 C.F.R. §179.11 (emphasis added). Thus, the housing of

a firearm constitutes the receiver of a firearm. The next

question, then, is whether a “mini-gun” is a “firearm”

within the meaning of the statute. As the government and

Drasen have narrowed the issue, the question really is

whether a “mini-gun” is a “machinegun.”

According to Drasen, the “7.62mm Mini-gun” is not a

typical automatic fire weapon. It is essentially a Gatling

gun with six barrels each of which has its own firing

chamber and firing mechanisms housed by a rotor which

is rotated by an electric motor. As each barrel reaches

a fixed point in its rotation, a round is fired from that

barrel. The “mini-gun”’ is really six guns lashed together

and driven by an electric motor to accomplish rapid fire.

The specific Revenue Ruling that the parties agree gov-

erns whether this device is a machinegun provides as fol-

lows:

Pursuant to consideration and evaluation of avail-

able data respecting Gatling guns, the Internal Rev-

enue Service has concluded that such guns fall within

two classifications, as follows:

1. Any crank-operated gear-driven Gatling gun

(produced under 1862 to 1893 patents) employing a

cam action to perform the functions of repeatedly

cocking and firing the weapon, as well as any such

gun actuated by an electric motor in lieu of a hand-

operated crank (produced under 1893 and later

patents), while being a forerunner of fully automatic

machineguns, is not designed to shoot automatically

or semiautomatically more than one shot with a single

function of trigger. Such weapons are held not to be

firearms within the purview of the National Firearms

Act (Chapter 53 of the Internal Revenue Code of

1954).

2. Any Gatling gun designed or redesigned to em-

ploy the hand crank only to sear off the first round

of ammunition, thence becoming a gas-operated fuily

automatic machine gun (adapter patented in 1895) is

App. 50

held to be a firearm within the purview of the Na-

tional Firearms Act, specifically, section 5848(2) [de-

fining ‘“‘machinegun’’] of the Internal Revenue Code

of 1954.

Rev. Rul. 55-529, 1955-2 C.B. 482 (emphasis original).

The indictment and the Bill of Particulars do not specify

whether the mini-gun receiver Drasen possessed was de-

signed for a mini-gun of the paragraph-one type or para-

graph-two type. Drasen’s generic description of a mini-

gun suggests that all mini-gun receivers fall within para-

graph one. However, the government insists that at trial

it will adduce expert testimony rebutting Drasen’s con-

tention that his mini-gun receivers were intended only for

the paragraph-one type. The government claims it will

prove that Drasen’s mini-gun receivers were designed for

fully automatic firearms, the paragraph-two type. Thus,

the court must reserve for trial the factual question of

whether the mini-gun receivers identified in Counts X

through XIV are intended only for weapons that can shoot

only one shot per pull of the trigger, or whether they

are intended also for weapons that can fire automatical-

ly. If only the former turns out to be the case, then under

the Revenue Ruling the receivers would not be “firearm”’

or “machinegun” receivers within the purview of the stat-

ute. Since registration of such unregulated receivers is

not required under the statute, those counts would then

have to be dismissed. But at this stage in the proceedings,

these counts of the indictment are legally sufficient to

withstand the motion to dismiss.

Count II

As amended by the Gun Control Act of 1968, the Na-

tional Firearms Act includes within the definition of ‘‘ma-

chinegun”: “any combination of parts designed and intended

for use in converting a weapon into a machinegun.”’ 26

U.S.C. §5845(b). The defendants are charged in Count II

with the unregistered sale of such a “conversion kit” in

two installments, on July 17, 1985 and August 6, 1985.

App. 51

In its Bill of Particulars, the government explains that

its prosecution is based on the sale of the constituent

parts of a conversion kit to a single purchaser on two sep-

arate days, and that such a sale constitutes the sale of

a “‘machinegun.”’

Defendants argue that the piecemeal sale of the consti-

tuent parts of a conversion kit does not come within the

reach of the federal statute. The court does not agree.

Defendants’ position assumes that it is impossible to sell

a “combination of parts designed and intended for use in

converting a weapon into a machinegun” unless that sale

occurs on one occasion. However, if a portion of that com-

bination is sold on one day, with the intention that the

other portion will be sold to the same purchaser on

another day, and in fact such other portion is later sold

to that purchaser, then the seller has indeed sold a “‘com-

bination of parts designed and intended for use in convert-

ing a weapon into a machinegun.” Of course, if the defen-

dants sold the first portion to a purchaser on one day

without intending to sell that purchaser the second portion

on another day, then the first portion, even if deemed

a “combination of parts,” would not be a “combination

of parts designed and intended for use in converting a

weapon into a machinegun.” The lack of any intent to sell

the second portion, which portion is necessary for the con-

version kit to be complete and fully operable, would neces-

sarily mean that the seller failed to sell a ‘combination

of parts designed and intended” to convert a weapon into

a machinegun.

In this case, the Bill of Particulars adequately alleges

that the defendants intended that the sale of the first por-

tion of the conversion kit would be followed by a later

sale of the remaining portion: “With respect to count two, |

the government does contend that the sale of the consti-

tuent parts of a conversion kit to a single purchaser on

two separate days, if done knowingly, does constitute the

sale of a ‘machinegun’ within the meaning of the statute.”

(emphasis added). The court construes the government’s

use of the word “knowingly” to mean that it is accusing

App. 52

the defendants of having the intention to sell a complete

kit over the course of two separate days. If this inten-

tion is not proven at trial, this count will fail. But as a

legal matter, the count alleges conduct that is prohibited

by the statute. Count II therefore will not be dismissed.

Conclusion

The defendants’ motion to dismiss the indictment is

granted as to Counts I and III-VII, and denied as to all

remaining counts. The court will address the motion to

suppress and discovery motions by separate opinion.

/s/ SUSAN GETZENDANNER

United States District Judge

January 15, 1987

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.