Petition for Writ of Certiorari — Staples v. United States

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Bupreme Court, U.S.

7 ji | | 1] FILED

No. Pen MAR 4 1993

See eS

In The

Supreme Court of the United States

October Term, 1992

HAROLD E. STAPLES, III,

Petitioner,

UNITED STATES OF AMERICA,

Respondent

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

CLARK O. BREWSTER

JeNNiFER L. De ANGELIs*

Davip A. MULLON Jr.

BREWSTER SHALLCROsS & De ANGELIS

2021 S. Lewis, Suite 675

Tulsa, OK 74104

(918) 742-2021

Attorneys for Petitioner

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-283

QUESTION PRESENTED

Whether, when enacting 26 U.S.C. § 5861(d) and 26

U.S.C. § 5845 of the National Firearms Act, and 18 U.S.C.

§ 922(0)(Supp. 1992), Congress intended to create a strict

liability crime whereby the government must only prove

that the defendant knew the device he possessed was a

gun in the general meaning of that term to secure a felony

conviction for “knowing” possession of an unregistered

“machinegun” in violation of the National Firearms Act.

TABLE OF CONTENTS

Page

QUESTION PRESEN EGD 66s 00ss000+hs50ee eee i

TABLE OF AUTHORITIES «oo 08060 e0sse0sse5 ee eee iv

OPINIONS BELOW........... 706s r0ces seen 1

FURISUUL TON cc cccccdsencceshseeue saan 2

STATUTES 2c ccccccccnscedseeeus ees p enn 2

STATEMENT OF THE CASE... .csc0seessseneunnee 2

Proceedings in the Courts Below ................ 2

FOCUS... vcccccccesneset buss ee meee n nnn 4

ARGUMENT... 00ccccncc00086s605s ene 9

A. INTRODUCTION. ...s0s00séeede5 en eee 9

THE WRIT SHOULD BE GRANTED TO

RESOLVE THE CONFLICT BETWEEN THE

UNITED STATES COURTS OF APPEALS AS TO

WHETHER THE GOVERNMENT MUST PROVE

THAT THE DEFENDANT KNEW THE

WEAPON HE POSSESSED WAS A “FIREARM”

AS THAT TERM IS DEFINED BY THE

NATIONAL FIREARMS ACT.................. 9

B. UNITED STATES SUPREME COURT DECISIONS

ANALYZING SCIBNTER....+cccccceccdapenneuee 12

C. DECISIONS OF COURTS OF APPEALS INTER-

PRETING THE NATIONAL FIREARMS ACT TO

BE A STRICT LIABILITY FELONY CRIME..... 16

D. DECISIONS OF COURTS OF APPEALS

REQUIRING PROOF OF SCIENTER UNDER

THE NATIONAL FIREARMS ACT............. 19

TABLE OF CONTENTS - Continued

Page

E. THE NINTH CIRCUIT’S DOUBLE STANDARD... 24

THE CONFLICTING INTERPRETATIONS OF

THE NFA LEAD TO UNFAIR AND INCONSIS-

TENT RESULTS, REQUIRING THE ADOPTION

OF A UNIFORM RULE ON THE ISSUE OF SCI-

EERIE ETT TEEPE TTT TTT Tree 26

TERS SheSbSseccescccccseccocccecccecs 29

APPENDIX:

Opinion of the United States Court of Appeals for

cht rece cececcedesecsescccccccccce la

Judgment on Petition for Rehearing and Sugges-

tion of Rehearing en Banc issued by the United

States Court of Appeals for the Tenth Circuit... . 32a

Order of the United States District Court dated -

i ccc eRe Gc ececcecececsccscecccces 34a

Judgment of the United States District Court

dated February 20, 1991..............2 cee eeeeeee 37a

eC ReS ace scecedcescevcceccecece 44a

TABLE OF AUTHORITIES

Page

Cases

Liparota v. United States, 471 U.S. 419, 105 S.Ct.

2084, 85 L.Ed. 2d 434 (1985)................... 21, 23

Morgan v. United States, 564 F.2d 803 (8th Cir. 1977)

Leen edédegendeessdedacescudeadcecasytens 15, 17, 18, 23

cwatecssesesencsasendedneséecdeiundeetus 12, 13, 16, 21

Se sbhateendessneineidsesiaekeas lsd a 20

United States v. Anderson, 885 F.2d 1248 (5th Cir.

Ph AndsuckdencdavecsccedeanGanmaes 19, 20, 21, 23

United States v. Bailey, 444 U.S. 394 (1980)........... 21

United States v. DeBartolo, 482 F.2d 316 (1st Cir.

ey adn n00eenduakdusbessubdecencnaeuie 15, 17, 23

United States v. Decker, 292 F.2d 89 (6th Cir. 1961) .... 17

United States v. Freed, 401 U.S. 601 (1971) ....... passim

United States v. Gonzalez, 719 F.2d 1516 (11th Cir.

1983), cert. denied, 465 U.S. 1037, 104 S.Ct. 1312,

Pee es SY i Ce es 17, 23

United States v. Harris, 959 F.2d 246 (D.C. Cir. 1992)... . 22

United States v. Herbert, 698 F.2d 981 (9th Cir.), cert.

denied, 464 U.S. 821, 104 £.Ct. 87, 78 L.Ed.2d 95

SPE 6 wddntviedueck ntadcsuusneuenaaeas 22, 23, 24, 25

United States v. International Minerals & Chemical

Covp., G32 U.S. SEB (ISTE)... cn cccccccccess 15, 16, 29

United States v. Kindred, 931 F.2d 609 (9th Cir. 1991)... . 25

TABLE OF AUTHORITIES — Continued

Page

United States v. Mittleider, 835 F.2d 769 (10th Cir.

1987), cert. denied, 485 U.S. 980 (1988)

nuebed sda dbuocdoedoeuesenessneneaeanl 10, 15, 18, 19, 28

United States v. O'Mara, 963 F.2d 1288 (9th Cir.

United States v. Ranney, 524 F.2d 830 (7th Cir.

1975), cert. denied, 424 U.S. 922, 96 S.Ct. 1130, 47

LBEDS SBS CIGGED. 2c vccccccccccvscccceccscscceces 23

United States v. Ross, 917 F.2d 997 (7th Cir. 1990).... 18

United States v. Shilling, 826 F.2d 1365 (4th Cir.

1987), cert. denied, 484 U.S. 1043, 108 S.Ct. 777,

98 L.Ed.2d 863 (1988)..........-.cee cece ee eeee passim

United States v. Staples, 971 F.2d 608 (10th Cir.

Seo ccdcvckneseenucksdednenssbecaccundsi 10, 19, 28

United States v. Thompson/Center Arms Co., ___ U.S.

mee be Se OF ree 20

United States v. United States Gypsum Co., 438 U.S.

GE Ge 0 vnc ckabeddes wcauscodedeescvescccscese: 21

United States v. Williams, 872 F.2d 773 (6th Cir.

— ererrerrerrrryT Tritt 21, 22, 23

STATUTES

Bt a FT Perrrrrrrrrrriririiri ree ttt 13

18 U.S.C. § 922(0)(Supp. 1992) .... 2... eee ee ees 2,9

rr rete 5

BG WBE. © FBG... occ cvccccccccccccsesccccncesccns 9, 1

0 i II 6 oii envcccncntassacseounson 2,3

TABLE OF AUTHORITIES - Continued

Page

ee en anenseeacesdnccdcandinessccssal 2, 3

ee ao nccuusceunbedacevecudnecta passim

Se Oe EU irncnckbadenduesbensentensocsoeedvel 5

bide tdeuesnecteniausevdavadbucuene 2

No. 92-___

In The

Supreme Court of the United States

October Term, 1992

HAROLD E. STAPLES, III,

Petitioner,

UNITED STATES OF AMERICA,

Respondent. -

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the United States Court of Appeals is

reported at 971 F.2d 608 (10th Cir. 1992) and is repro-

duced in the Appendix (hereinafter “App.”) at la-3la.

The judgment denying appellant’s Petition for Rehearing

is unpublished and is reproduced in App. 32a-33a. The

judgment and sentence of the United States District Court

dated February 20, 1991, is unpublished and is repro-

duced in App. 37a-43a. The Order denying defendant's

Motion for Judgment of Acquittal is dated February 1,

1991, and is reproduced in App. 34a-36a. On January 22,

1993, this Honorable Court granted Petitioner an exten-

sion of time to file this Writ until March 4, 1993.

JURISDICTION

On August 3, 1992, the court of appeals affirmed the

judgment of the district court thereby upholding the fel-

ony conviction of Harold E. Staples, III. On November 4,

1992, the court of appeals denied Mr. Staples’ petition for

rehearing and suggestion of rehearing en banc.

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

STATUTES

The text of the following statutes are reproduced in

the Appendix:

18 U.S.C. § 922(0)(Supp. 1992)

26 U.S.C. § 5845(a)

26 U.S.C. § 5845(b)

26 U.S.C. § 5861(d)

STATEMENT OF THE CASE

Proceedings in the Courts Below

Petitioner was charged in an indictment filed July 12,

1990, with knowingly receiving and possessing two fire-

arms alleged to have been modified so as to be

machineguns in violation of 26 U.S.C. § 5861(d). “Fire-

arms” as defined by the National Firearms Act (26 U.S.C.

§ 5845(a)) include “machineguns,” statutorily defined in

26 U.S.C. § 5845(b). The firearms involved in this case

were an M-1 .30 caliber World War || Carbine Rifle (here-

inafter the “M-1”) and an SGW .223 caliber model X

M14A\1 rifle (minus certain parts and hereinafter referred

to as the “AR-15”). The jury found petitioner not guilty of

charges relating to the M-1 because the petitioner was not

in “knowing possession” of the M-1. However, petitioner

was convicted of knowing possession of an unregistered

“machinegun” (the AR-15) on December 19, 1990. At the

close of the government's case and at the close of all the

evidence, the petitioner moved the trial court for a judg-

ment of acquittal, and on December 26, 1990, he filed a

written version of the motion. All motions were over-

ruled by the court by written order filed Fc. ruary 1, 1991.

On February 20, 1991, the district court entered its

judgment and imposed a suspended sentence, placing

petitioner on probation for five years, requiring him to

dispose of all guns and refrain from possessing guns of

any kind, and fining him $5,000.00 and a $50.00 monetary

assessment.

On March 18, 1991, petitioner filed motions to stay

execution of his sentence pending appeal, which motions

were granted by the trial court. Petitioner filed his timely

notice of appeal on February 22, 1991, and commenced

his appeal to the Tenth Circuit. On August 3, 1992, the

court of appeals affirmed the conviction. On August 17,

1992, the petitioner filed his petition for rehearing with

suggestion for rehearing en banc, which the court of

appeals denied on November 4, 1992, affirming its initial

decision.

Facts

On December 29, 1989, at approximately 7:00 p.m.,

law enforcement officers representing the City of Jenks

Police Department and the Bureau of Alcohol, Tobacco

and Firearms (hereinafter “BATF”) conducted a search of

petitioner’s home and seized the M-1 and AR-15 rifles, a

rifle bolt of unspecified nomenclature and manufacture,

and a Beeman 552, 3 x 21 scope.

The AR-15 rifle is a civilian, semi-automatic version

of the United States Military M-16 standard issue rifle.

There are certain differences between the component

parts of the fully automatic M-16 and the semi-automatic,

legal counterpart, the AR-15 rifle. Five parts used in the

manufacture of these two rifles come in both “automatic”

and “semi-automatic” versions: the bolt carrier, the selec-

tor switch, the trigger, the discornector, and the hammer.

However, even though an AR-15 can be assembled with

the fully automatic versions of the bolt carrier, selector

switch, trigger, disconnector, and hammer, the gun is still

not fully automatic without one additional part, the

“sear” or “auto-sear.” Thus, the exclusively semi-auto-

matic versions of the bolt carrier, selector switch, trigger,

disconnector and hammer are called “AR-15 parts,” while

the not exclusively fully-automatic parts of the same

nomenclature are sometimes referred to as “M-16 parts.”

The sear, or auto-sear, has no semi-automatic counterpart

and therefore, in all cases, would be called an M-16 part.

Despite this difference between M-16 parts and

AR-15 parts, many “after-market” manufacturers of civil-

ian, semi-automatic models of these rifles have made and

sold large numbers of the AR-15’s not out of strictly semi-

automatic AR-15 parts but instead out of the five M-16

fully automatic parts — the M-16 versions of the bolt

carrier, selector switch, trigger, disconnector, and ham-

mer, but minus the critical “auto-sear.” The reason for

this is that the market became flooded with “military-

reject” fully automatic M-16 internal parts. Civilian

AR-15’s equipped with M-16 internal parts were less

costly to construct than AR-15’s assembled with the more

expensive, strictly semi-automatic parts. The AR-15

involved in this case contains internal M-16 parts but

lacks the auto-sear. The government's expert testified that

the AR-15 rifles containing internal M-16 components are

still legal, semi-automatic AR-15 rifles, provided that

they are not equipped with the auto-sear.

The indictment, filed almost seven months after the

BATF’s search, charged the petitioner with knowingly

receiving and possessing unregistered firearms in viola-

tion of 26 U.S.C. §§ 5861(d), 5841 and 5871 of the National

Firearms Act. It was uncontested that the M-1 was law-

fully registered to the petitioner’s father on the National

Firearms Registry. Apparently finding that the petitioner

had been unaware that the weapon was in his home, the

jury found him not guilty of “knowing possession” of the

M-1 rifle.

At the time BATF agent Jobson seized the AR-15, it

was in a state of disrepair and missing its bolt carrier and

magazine. The petitioner testified that the AR-15 had

been defective from the date of purchase forward, and

that it would not fire even semi-automatically while in

his possession. This testimony was fully corroborated by

three witnesses. David Seabolt, the defendant’s nephew

and an infantry soldier in the National Guard, testified

that the gun had been in his possession for a number of

years before leaving it at petitioner’s residence, that he

considered the AR-15 to be his and that he could never

get it to “work right.” Brian Jobson, son of BATF agent

Lewis Jobson, testified that the weapon was malfunction-

ing and would in essence jam after discharging one shot.

Another witness, Chris Peak, testified to similar facts.

Even though the AR-15 was disassembled, missing

critical parts and in a state of disrepair, the government

prosecuted the petitioner because, it claimed, the gun was

nonetheless capable of firing multiple shots with a single

trigger pull. The government's evidence was that BATF

agents, after seizing the inoperable and disassembled

AR-15, re-assembled it with a different bolt carrier, not

the one with which it was originally equipped, cleaned

and oiled it thoroughly, and loaded it with soft primer

ammunition. After the government made these adjust-

ments, BATF Agent McLaughlin managed to cause the

gun to fire multiple shots with a single trigger pull

despite the missing auto-sear. The government's theory

as to why the AR-15 could now malfunction to fire “fully

automatic” was that apparently it had been modified by

the petitioner by filing down the selector switch, allowing

it to fire “fully automatic.”! It was undisputed that the

AR-15 had no auto-sear and had not been modified to

accommodate an auto-sear.

1 The Government's evidence that the AR-15 selector

switch had been filed down prior to the government's seizure of

the weapon was contested by the defendant and is discussed

more fully herein at sub-section F.

The petitioner called two experts to testify in his

defense, Bill Fleming and Charles Fagg. Mr. Fleming testi-

fied that AR-15 rifles with internal M-16 components but

no auto-sear will not fire “automatically more than one

shot with a single pull of the trigger” but that “occa-

sionally you will get a malfunction” resulting in two or

three sporadic shots with a single pull of the trigger. Mr.

Fleming also testified that an AR-15 can be induced to

malfunction in this way, by “down loading” the maga-

zine, using special ammunition and thoroughly cleaning

and oiling of the rifle, but that the filing off of the selector

switch alone would not make the AR-15 a “machine gun.”

This malfunction of an AR-15 equipped with internal

M-16 components, known as “hammer follow through,”

“hammer follow down” or “slam down,” was described

on direct examination by defendant’s expert witness. The

prosecution expert, BATF agent McLaughlin, conceded

that when hammer follow down occurs, the AR-15 is not

reliably firing multiple shots with a single trigger pull.

The evidence below is summarized as follows:

1. When the AR-15 was seized from the petitioner, it

was “totally disassembled” and non-functional.

2. During the seven months after seizure, the gov-

ernment re-assembled the AR-15, inserted parts, which

were not the original parts, loaded it with soft-primer

ammunition and it malfunctioned by sporadically firing

more than one shot with a single trigger pull.

3. Four witnesses, including the petitioner, testified

that the AR-15 never produced multiple shots with a

single trigger pull while possessed by the petitioner and

in fact all testified that it rarely properly functioned even

semi-automatically.

4. The selector stop was filed off the AR-15 by

someone at sometime. The government never submitted

any proof that the petitioner filed off the stop. In fact,

metal filings appear on the photo made by the govern-

ment one year after the AR-15 was seized.

5. An AR-15 with internal M-16 components, absent

an auto sear, even without a selector stop, is not a

weapon in any way violative of the National Firearms

Act.

6. AR-15’s with internal M-16 components are

owned and traded by literally thousands of sportsmen

who have no reason to know of the hammer follow down

malfunction.

7. An AR-15 with internal M-16 components could

malfunction, a phenomenon known by the government to

be hammer follow down, causing at times multiple shots

with a single trigger pull. This malfunction did not occur

when the petitioner was in possession of his AR-15. Fur-

ther, the petitioner had no reason to believe he was in

possession of any illegal device. He innocently believed

he possessed a perfectly legal sporting rifle.

The petitioner was convicted of a felony as a result of

a jury instruction making possession of this unregistered

“firearm” a strict liability crime.

ARGUMENT

A. INTRODUCTION

THE WRIT SHOULD BE GRANTED TO RESOLVE THE

CONFLICT BETWEEN THE UNITED STATES COURTS

OF APPEALS AS TO WHETHER THE GOVERNMENT

MUST PROVE THAT THE DEFENDANT KNEW THE

WEAPON HE POSSESSED WAS A “FIREARM” AS

THAT TERM IS DEFINED BY THE NATIONAL FIRE-

ARMS ACT.

This Honorable Court should grant certiorari and

clarify what degree of knowledge the government must

prove to secure a conviction for “knowing possession of

an unregistered firearm” pursuant to 26 U.S.C. § 5845, 26

U.S.C. § 5861(d) and 18 U.S.C. § 922(0)(Supp. 1992). The

United States Courts of Appeals have enunciated wide-

ranging and conflicting rules on this issue, and a uniform

rule should be established. The conflict consists of three

different positions among the Circuit Courts of Appeals

on the mental state required for a conviction for alleged

violations of 26 U.S.C. § 5861(d). The First, Fourth, Sev-

enth, Eighth and Tenth Circuit Courts allow conviction

without any evidence presented as to the defendant's

knowledge that the item he possessed was a “firearm” as

that term is defined by the Act. The Fifth, Sixth and

District of Columbia Circuit Courts in more recent deci-

sions require proof that the defendant knew he possessed

a “firearm” as defined by the Act. The Ninth Circuit

follows the strict liability rule except where the weapon

has no “external indicia” alerting the defend.unt to the

likelihood that it may be regulated under the Act.

In the instant case, the Tenth Circuit held that the

government is not required to prove actual knowledge of

10 11

a weapon’s physical properties. United States v. Staples, knows that he is dealing with a dangerous

971 F.2d 608 (10th Cir. 1992), following United States v. device of such type as would alert one to the

Mittleider, 835 F.2d 769, 774 (10th Cir. 1987), cert. denied, likelihood of regulation. If he has such know!l-

485 U.S. 980 (1988). The court further upheld the district — phe pe ry Sam % i fost age

court’s jury instructions on the issue of scienter, which

instructions stated: Mere Possession of Unregistered Firearm

Essential Elements of the Crime (26 U.S.C.

§ 5861(d))

In order to establish the offense charged in

the indictment, each of the following essential

elements must be proved beyond a reasonable

doubt:

First: that the defendant knowingly pos-

sessed the firearm described in the Indictment;

and

Second: that such firearm was not registered

to the defendant in the National Firearms Regis-

tration and Transfer Record.

The unlawful offense is complete when the

‘wo separate elements just stated are proved.

Knowingly to Possess

A person is knowingly in possession if his

possession occurs voluntarily and intentionally

and not because of mistake or accident or other

innocent reason. The purpose of adding the

word knowingly was to insure that no one

would be convicted of possession of a firearm if

he did not intend to possess it.

The Government need not prove that a

defendant knows he is dealing with a weapon

possessing every last characteristic which sub-

jects it to regulation. It is enough to prove he

Mere possession of an unregistered firearm

is a violation of the law of the United States. It is

not necessary for the Government to prove that the

defendant knew that the weapon in his possession

was a firearm within the meaning of the statute, only

that he knowingly possessed it. (Emphasis added.)

The trial court refused petitioner’s requested instruc-

tions on the knowledge issue, which read as follows:

The National Firearms Act requires no specific

intent or knowledge that a machine gun is

unregistered. It makes it unlawful for any per-

son to receive or possess a firearm which is not

registered to him. The only knowledge required

to be proved is knowledge that the instrument

possessed is a machinegun.

An essential element of the offense of possess-

ing a machine gun, is that the possessor knew

thot the gun would fire fully automatically and

the burden is upon the Plaintiff to prove that

specific knowledge.

The trial court’s jury instructions set forth above

reflect an interpretation of the National Firearms Act that

possession of an unregistered “firearm” as defined in 26

U.S.C. § 5845 is a strict liability crime. This Court has not

ruled on this issue as it relates to rifles which, unbe-

knownst to a defendant, allegedly have been modified to

be “firearms” in the sense of the Act. A discussion of

applicable United States Supreme Court decisions and an

analysis of the conflict in the law among the Circuits

follows.

B. UNITED STATES SUP«?/1E COURT DECISIONS

ANALYZING SCIENTER

The United States Courts of Appeal have decided the

scienter issue relying upon United States Supreme Court

decisions. Some Courts of Appeal have erroneously

extended the holding of United States v. Freed, 401 U.S.

601 (1971), finding that Freed stands for the proposition

that knowledge of the type of device possessed by the

defendant is not required to secure a conviction for

knowing possession of an unregistered “firearm.” The

Petitioner urges this Court to settle this important federal

question. An analysis of pertinent United States Supreme

Court decisions follows.

An oft-quoted legal premise arose from this Court's

opinion in Morissette v. United States, 342 U.S. 246 (1952):

The contention that an injury can amount to a

crime only when inflicted by intention is no

provincial or transient notion. It is as universal

and persistent in mature systems of law as belief

in freedom of the human will and a consequent

ability and duty of the normal individual to

choose between good and evil. A relation

between some mental element and punishment

for a harmful act is almost as instinctive as the

child’s familiar exculpatory “But I didn’t mean

to,” and has afforded the rational basis for a

tardy and unfinished substitution of deterrence

and reformation in place of retaliation and ven-

geance as the motivation for public prosecution.

Morissette, 342 U.S. at 250, 251.

In Morissette, the defendant salvaged spent bomb

casings belonging to the United States and sold them for

$84.00. He was convicted pursuant to 18 U.S.C. § 641

which provides that “whoever embezzles, steals, purloins

or knowingly converts” government property is punish-

able by fine and imprisonment. The defendant had no

criminal record. He testified that he believed the casings

were abandoned and that he did not intend to steal them.

The statute under which the defendant was convicted

omitted criminal intent as an element of the offense. The

Court held that the mere omission of any mention of

intent will not be construed as eliminating that element

from the crimes denounced. Morissette, 342 U.S. at 263.

The Court reasoned:

The Government asks us by a feat of construc-

tion radically to change the weights and bal-

ances in the scales of justice. The purpose and

obvious effect of doing away with the require-

ment of a guilty intent is to ease the prosecu-

tion’s path to conviction, to strip the defendant

of such benefit as he derived at common law

from innocence of evil purpose, and to circum-

scribe the freedom heretofore allowed juries.

Such a manifest impairment of the immunities

of the individual should not be extended to

common law crimes on judicial initiative. Mor-

issette, 342 U.S. at 263.

Almost twenty years later, this Court decided United

States v. Freed, 401 U.S. 601 (1971). The Freed decision has

been extensively relied upon by federal appellate courts

in deciding the issue of scienter and its application, if any,

under the National Firearms Act. In Freed, this Court

upheld the amended provisions of the National Firearms

Act as not violative of the Self-Incrimination Clause of

the Fifth Amendment. More pertinent to this case, the

Court in Freed concluded that the “District Court erred in

dismissing the indictment for absence of an allegation of

scienter” for knowing possession of an unregistered fire-

arm, a hand grenade. Freed, 401 U.S. at 607.

In reaching its rule in Freed, this Court stated:

This is a regulatory measure in the interest of

public safety, which may well be premised on the

theory that one would hardly be surprised to learn

that possession of hand grenades is not an innocent

act. They are highly dangerous and offensive

weapons, no less dangerous than the narcotics

involved in United States v. Baliant, 258 U.S. 250,

254 .. . Freed, 401 U.S. at 609. [Emphasis added.]

Thus, this Court in Freed held that ignorance of the

law is no excuse in finding that it was no defense that the

defendant did not know of the regulation. Justice Brenan

states as follows in his concurring opinion:

The Government and the Court agree that the

prosecutor must prove knowing possession of

the items and also knowledge that the items

possessed were hand grenades. Thus, while the

Court does not hold that no intent at all need be

proved in regard to one element of the offense -

the unregistered status of the grenades - know]l-

edge must still be proved as to the other two

elements [that the appellees possessed certain

items and that the items possessed were hand

grenades]. Consequently, the National Firearms

Act does not create a crime of strict liability as

to all its elements. Freed, 401 U.S. at 612.

Despite this pronouncement, United States Courts of

Appeal have cited Freed for the holding that sufficient

intent is established if the defendant is shown to have

possessed an item which he knew to be a firearm in the

general meaning of that term. See, Morgan v. United States,

564 F.2d 803 (8th Cir. 1977); United States v. Mittleider, 835

F.2d 769 (10th Cir. 1987); United States v. Shilling, 826 F.2d

1365 (4th Cir. 1987); United States v. DeBartolo, 482 F.2d

316 (1st Cir. 1973).

The Freed decision was relied upon by this Court in

deciding United States v. International Minerals & Chemical

Corp., 402 U.S. 558 (1971), where the defendant was

charged by information that he shipped sulfuric acid and

hydroflusilicic acid in interstate commerce and know

ingly failed to show on the shipping papers the required

classification of said property. International Minerals, 402

U.S. at 559. The district court dismissed the information

for the government's failure to allege a “knowing viola-

tion.” The defendant claimed he did not know of the

registration requirement. This Court again followed the

premise that “ignorance of the law is no excuse.” [nterna-

tional Minerals, 402 U.S. at 563. However, even under

International Minerals, mistake of fact would still be a

defense:

So far as possession, say, of sulfuric acid is

concerned, the requirement of “mens rea” has

been made a requirement of the Act as evi-

denced by the use of the word “knowingly.” A

person thinking in good faith that he was shipping

distilled water when in fact he was shipping some

dangerous acid would not be covered. International

Minerals, 402 U.S. at 563, 564. [Relying on Mor-

issette v. United States, 342 U.S. 246 (1952);

emphasis added. ]

Thus, the Court in International Minerals distin-

guished knowledge of the regulatory scheme or the

extent of its reach, which is not an element of the offense,

from knowledge of the nature or condition of a thing that

causes it to be regulated, which is an element of the

offense. The courts applying the strict liability standard

(see next section) ignore or misunderstand this Court’s

distinction in International Minerals.

C. DECISIONS OF COURTS OF APPEALS INTER-

PRETING THE NATIONAL FIREARMS ACT TO BE

A STRICT LIABILITY FELONY CRIME

Relying upon the foregoing Supreme Court decisions,

the Circuit Courts of Appeals have formulated inconsis-

tent rules on the scienter issue. In United States v. Shilling,

826 F.2d 1365 (4th Cir. 1987), the defendant possessed

some fifty guns, ten of which were originally legal semi-

automatic rifles that had been internally altered to fire

automatically. The defendant contended that the govern-

ment must prove that he had specific knowledge of the

automatic firing capability of the weapons. Shilling, 826

F.2d at 1367. Although the court noted that “there is

substantial circumstantial evidence that Shilling knew the

weapons were converted,” Id. at 1368, it held (per curiam):

Sufficient intent is established if the defendant

is shown to have possessed an item which “he

knew to be a firearm within the general mean-

ing of the term,” Shilling, 826 F.2d at 1368, citing,

Morgan v. United States, 564 F.2d 803 (8th Cir.

1977); United States v. Decker, 292 F.2d 89 (6th

Cir. 1961); and United States v. Gonzalez, 719 F.2d

1516 (11th Cir. 1983).

As noted in Shilling, the Eighth Circuit Court of

Appeals advocates the position that the government need

only prove that the defendant “possessed an item which

he knew to be a firearm within the general meaning of

that term.” Morgan v. United States, 564 F.2d 803, 805 (8th

Cir. 1977). The defendant in Morgan was convicted for

knowing possession of a Colt M-16 machine gun despite

his contention that he had no knowledge that it was

designed to fire automatically.

The First Circuit Court of Appeals in United States v.

DeBartolo, 482 F.2d 312 (1st Cir. 1973), ruled on this issue

when the defendant was in possession of a “sawed-off”

shotgun that was unregistered. The defendant claimed

that he did not know the shotgun had a barrel length

under 18 inches long. The court held that the defendant

must only know that he is dealing with a dangerous

device of such type as would alert one to the likelihood of

regulation.

A shotgun in today’s society plainly falls within

this category. One knowingly participating in

the sale of such a lethal instrumentality cannot

escape liability by failing to inspect the length of

its barrel any more than by failing to inquire

into whether it is registered. DeBartolo, 482 F.2d

at 316.

The Seventh Circuit Court of Appeals follows the

rule stated in Shilling and Morgan, supra. In United States

v. Ross, 917 F.2d 997 (7th Cir. 1990), the defendant was in

possession of a 1915 French Chauchet machine gun which

had a plug of weld inside its chamber rendering it inca-

pab'e of firing a shot. The defendant contended he did

not register the gun because he believed it to be only a

replica, but the BATF showed that the gun could be

readily restored to shoot. Ross, 917 F.2d at 998. In a per

curiam decision, the court held:

The crime is possessing an unregistered firearm,

- not “knowingly” possessing an unregistered

firearm, or possessing a firearm knowing it to be

a firearm, or possessing a firearm knowing it to

be unregistered. There is no knowledge require-

ment in § 5861(d) . . . Traditional notions of

punishment require consciousness of the acts

being done. But some statutes create liability

without knowledge, and the principal question

in Freed was whether § 5861(d) is such a statute.

The Court held that it is - at least to the extent

the prosecution need not prove that the defen-

dant was aware that the weapon was unregis-

tered. Although the Court did not address

whether the defendant needed to know that the

item was a “firearm” in either lay or legal

senses, the holding that § 5861(d) dispenses

with any mental state concerning one element of

the offense implies that mental states are unnec-

essary concerning the others in the same subsec-

tion. Ross, 917 F.2d at 1000.

The Tenth Circuit decision of United States v. Mit-

tleider, 835 F.2d 769 (10th Cir. 1987), cert. denied, 485 U.S.

980 (1988), follows the rules adopted by the First, Fourth,

Seventh and Eighth Circuits. The evidence in Mittleider

was that the defendant had acquired a semi-automatic

J-15 rifle which had been converted to fully automatic by

the time he sold it to an undercover agent. The defendant

also sold a semi-automatic AR-15 rifle with a conversion

kit to the same agent. The Mittleider court concluded that

the defendant had actual knowledge that his guns were

in fact fully automatic but extended its holding to encom-

pass even defendants without such knowledge. The court

stated:

We are in accord with the rule adopted by the

Fourth Circuit in Shilling that the government is

not required to prove actual knowledge of a

weapon’s physical properties. Id. at 774.

The Mittleider rule was followed in the Tenth Cir-

cuit’s decision below in United States v. Staples, 971 F.2d

608 (10th Cir. 1992). The Staples decision is discussed at

length in Section F herein.

D. DECISIONS OF COURTS OF APPEALS REQUIR-

ING PROOF OF SCIENTER UNDER THE

NATIONAL FIREARMS ACT

Three of the Circuit Courts of Appeals require the

government to prove that accused knew he possessed a

“firearm” as defined in the National Firearms Act. The

Fifth Circuit’s en banc decision of United States v. Ander-

son, 885 F.2d 1248 (5th Cir. 1989), is the leading case.

Defendant Anderson was convicted for possessing two

fully automatic pistols and silencer parts. The jury was

instructed that the government need only prove the that

the defendant knew the guns were firearms in a general

sense. Anderson, 885 F.2d at 1249. The initial appellate

decision at 853 F.2d 313 (5th Cir. 1988) upheld the convic-

tion with reservations:

We have some concern that allowing a person to

be convicted of a very serious offense like the

one involved here, without requiring knowledge

of such facts as would alert a reasonable person

to the likelihood of regulation, in this case

knowledge that the two pistols could fire or had

been modified to fire automatically, might be

inconsistent with the due process clause of the

Fifth Amendment. Anderson, 853 F.2d at 313,

318.

After rehearing en banc, the Fifth Circuit noted that

“where a wrong turn has been taken, back is the shortest

way forward” and reversed Anderson’s conviction, over-

ruling that court’s own precedent. Anderson, 885 F.2d at

1255. The court emphasized the technical meaning of the

term “firearm” as used in the Act, a meaning which

“bears little if any correspondence to that in common

usage,” Id. at 1250, a point that this Court recently made,

too, when it said that “the word ‘firearm’ is a term of art

in the NFA.” United States v. Thompson/Center Arms Co.,

__ US. __, 112 S.Ct. 2102 (1992). The Anderson court

distinguished cases with facts existing in Anderson (and

Staples) from those in United States v. Freed, supra:

It is one thing for the Court to liken hand gre-

nades to narcotics, as it did in Freed, quite

another to draw such a parallel where ordinary

skeet guns or target rifles are concerned. For the

National Firearms Act does not treat conven-

tionally manufactured, normal revolvers, semi-

automatic pistols, hunting rifles or shotguns as

anything other than perfectly innocent legal

items. Anderson, 885 F.2d at 1254.

The court further stated:

We think it far too severe for our community to

bear — and plainly not intended by Congress — to

subject to ten years imprisonment one who pos-

sesses what appears to be, and what he inno-

cently and reasonably believes to be, a wholly

ordinary and legal pistol, merely because it has

been, unknown to him, modified to be fully

automatic. Anderson, 885 F.2d at 1254.

Thus, the Anderson court held:

Although § 5861(d) does not contain express

wording such as “knowingly” — imposing a mens

rea requirement, it is well settled that “far more

than the simple omission of the appropriate

phrase from the statutory definition [of the

offense] is necessary to justify dispensing with”

a mens rea requirement. Anderson, 855 F.2d at

1253. [Citing Liparota v. United States, 471 U.S.

419 (1985); United States v. United States Gypsum

Co., 438 U.S. 422 (1978); United States v. Bailey,

444 U.S. 394 (1980); and Morissette v. United

States, 342 U.S. 246 (1951).]

Relying in part on the dicta in the first Anderson

decision, the Sixth Circuit has also concluded that the

government must show that defendants knew that a

“firearm” as legislatively defined was being transferred.

United States v. Williams, 872 F.2d 773, 777 (6th Cir. 1989).

In Williams, the defendant appealed convictions for

willfully and knowingly transferring an unregistered

fully automatic weapon which had been converted from a

semi-automatic to a fully automatic rifle by internal mod-

ifications without changing the external appearance of

the gun. Williams, 872 F.2d at 774. The court quoted

extensively from United States v. Herbert, 698 F.2d 981 (9th

Cir. 1983), cert. denied, 464 U.S. 821 (1983):

.. » [W]e do not find that an ordinary firearm

that is internally and undetectably modified to

be automatic yet legal in appearance and mark-

ings fall within the category of [a dangerous

device of such type as would alert one to the

likelihood of regulation]. If the law was as

stated in this instruction then any person who

possessed an internally modified weapon with

absolutely no knowledge or method of verifica-

tion of the modification would be in violation of

the law. We are sure that Congress did not

intend to be so draconian. Williams, 872 F.2d at

776.

The Williams court further stated that “the elimina-

tion of the element of criminal intent does not violate the

due process clause where (1) the penalty is relatively

small, and (2) where the conviction does not gravely

besmirch.” Williams, 872 F.2d at 777. That is certainly not

the case with a felony conviction under the Act.

The Anderson and Williams decisions were cited with

approval by the District of Columbia Circuit Court of

Appeals in United States v. Harris, 959 F.2d 246 (D.C. Cir.

1992). The jury in Harris was charged “to convict [under

5861(d)] if it found that the defendants knowingly pos-

sessed a weapon and that the weapon was in fact a

machinegun.” Harris, 959 F.2d at 258. The Harris court

stated:

It may well be that all guns of whatever kind are

dangerous, but Congress decided to require reg-

istration of only certain kinds of firearms that it

thought were highly dangerous. Were we to

accept the government’s argument that so long

as a defendant has knowledge that he possesses

a gun of any type, the defendant is absolutely

liable for possessing a proscribed “firearm,” we

would implicitly expand Congress’ negative

judgment concerning the possession of certain

particularly dangerous guns to ail guns.

The circuits are split on this issue. The govern-

ment’s position has been accepted in five cir-

cuits, see United States v. Shilling, 826 F.2d 1365,

1367-68 (4th Cir. 1987), cert. denied, 484 U.S.

1043, 108 S.Ct. 777, 98 L.Ed.2d 863 (1988); United

States v. Gonzalez, 719 F.2d 1516, 1522 (11th Cir.

1983), cert. denied, 465 U.S. 1037, 104 S.Ct. 1312,

79 L.Ed.2d 710 (1984)); Morgan v. United States,

564 F.2d 803, 805 (8th Cir. 1977); United States v.

Ranney, 524 F.2d 830, 832 (7th Cir. 1975), cert.

denied, 424 U.S. 922, 96 S.Ct. 1130, 47 L.Ed.2d 330

(1976); United States v. DeBartolo, 482 F.2d

312,316 (1st Cir. 1973), and rejected in three, see

United States v. Anderson, 885 F.2d 1248, 1251

(5th Cir. 1989) (en banc); United States v. Wil-

liams, 872 F.2d 773, 777 (6th Cir. 1989); United

States v. Herbert, 698 F.2d 981, 986-87 (9th Cir.),

cert. denied, 464 U.S. 821, 104 S.Ct. 87, 78 L.Ed.2d

95 (1983). We agree with the latter group, which we

note, includes the more recent cases.

We think the reasoning of the Fifth, Sixth, and

Ninth Circuits comports better with the traditional

understanding of the criminal law as punishing only

truly culpable conduct. See Liparota v. United

States, 471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d

434 (1985). [Emphasis added.]

Harris, 959 F.2d at 260.

Subsequent to the United States v. Herbert decision,

cited in the quote from Harris, above, the Ninth Circuit

decided United States v. O'Mara, 963 F.2d 1288 (9th Cir.

1992), wherein it adopted a strict liability standard to be

applied in certain instances, thereby creating a three-way

split among the Circuit Courts of Appeals on the mens rea

issue.

E. THE NINTH CIRCUIT’S DOUBLE STANDARD

The Ninth Circuit Court of Appeals appears to apply

two distinct standards on the mens rea element depending

on the external characteristics of the weapon involved. In

United States v. O'Mara, supra, the defendant testified that

he believed the weapon to be a semi-automatic replica of

a “Sten,” even though the gun had a “visible, external

selection switch designed to permit firing in both semi-

automatic and automatic modes.” O’Mara, 963 F.2d at

1291. The court ignored the defendant’s testimony find-

ing:

Under the cases of this circuit, there is strict

liability under the statute when the firearm in

question, by its very nature or appearance,

alerts its owner of the likelihood of regulation.

Our cases recognize an exception where the

nature of the weapon is not evident.

O'Mara, 963 F.2d at 1291.

In United States v. Kindred, 931 F.2d 609 (9th Cir.

1991), the defendant was convicted of possessing an

unregistered firearm, an inoperable World War | vintage

German machine gun. The gun seized by the government

had no ammunition and was missing several important

parts, including the bolt, firing pin and breech block.

Kindred, 931 F.2d at 610. An expert for the government

testified that although the gun could not fire, it was

possible to restore the gun to firing condition. The court

held:

To secure a conviction under the Act, the gov-

ernment must prove that the defendant knew

that he possessed a dangerous device of a type

that would alert one to the likelihood of regula-

tion. Kindred, 963 F.2d at 612.

In United States v. Herbert, 698 F.2d 981 (9th Cir. 1983),

cert. denied, 464 U.S. 821 (1983), the Ninth Circuit affirmed

the conviction of one defendant for knowing possession

of unregistered firearms which had been converted only

internally to machine guns because the court found “over-

whelming evidence that John Herbert knew that the

weapons were automatic.” Herbert, 698 F.2d at 987.

Apparently, then, in the Ninth Circuit, where the

external characteristics of the gun would not necessarily

alert its owner to the “likelihood of regulation,” the gov-

ernment must prove knowledge that the gun was a “fire-

arm” in the sense of the Act. But where those

characteristics are apparent, the Ninth Circuit applies

strict liability as in O'Mara.

F. THE CONFLICTING INTERPRETATIONS OF THE

NFA LEAD TO UNFAIR AND INCONSISTENT

RESULTS, REQUIRING THE ADOPTION OF A UNI-

FORM RULE ON THE ISSUE OF SCIENTER

The split in the Circuit Courts of Appeals on the

question of mens rea or scienter is not an academic prob-

lem, especially in cases where, as here, there is evidence

that, though the accused knew he was in possession of a

firearm in the lay sense of the word, he may not have

known he possessed a firearm which, as a result of physi-

cal modifications and special loading techniques, either

was or had the potential to be a “firearm” within the

meaning of the Act.

The evidence below was that Mr. Staples purchased

the AR-15 at an annual gun show in Tulsa, Oklahoma, in

1983, and gave it to his nephew, Seabolt, in the summer of

1983. The petitioner testified that at all times when the

AR-15 was in his possession, it was non-functional due to

its defective bolt carrier. The evidence was undisputed

that post-seizure, the government installed a bolt carrier,

not the original bolt carrier, cleaned and oiled the

weapon, used soft primer ammunition and caused the

gun to fire sporadically multiple shots with a single trig-

ger pull. At some point in time, the selector switch had

been modified to allow the switch to turn to automatic

mode but this modification alone would not cause an

AR-15 to fire multiple shots with a single trigger pull.

The government’s photographer, Robert Yerton, testi-

fied that he photographed the AR-15 and the modified

switch on December 13, 1990, almost one year after the

gun was seized from the defendant’s home. BATF Agent

Lowell Sprague testified that he photographed all seized

evidence at the Staples’ garage on December 29, 1989, but

these photographs were never introduced in evidence

and no testimony was elicited regarding the condition of

the selector switch at the time of seizure. Although BATF

Agent Blair Ward testified that “when he saw . . . the

receiver of this weapon . . . he saw a dot on the side of the

receiver [and] . . . that indicated that the post had been

grinded off to go into fully automatic position,” the time

frame of Mr. Ward’s examination was never established.

Further, Mr. Yerton conceded that in his December 13,

1990 photograph there appeared to be metal filings

around the stop, arguably evidencing a RECENT grind-

ing of the stop. Petitioner himself clearly testified that he

did not know about the modification of the stop, and that

the gun at all times in his possession malfunctioned,

rarely firing even one shot with a single trigger pull. The

petitioner believed he was in possession of a legal sport-

ing rifle.

With the jury instructions quoted in section A, above,

and approved by the Tenth Circuit in Staples, the peti-

tioner was deprived of the benefit of all of the foregoing

evidence tending to show he lacked knowledge of the

gun’s potential to fire automatically, and he was con-

victed of a felony. Had the trial court allowed petitioner’s

requested instruction requiring knowledge that the gun

was a “firearm” as defined by the Act, he may have been

acquitted.

The Staples decision reaffirms that the Tenth Circuit

falls within those circuit courts which hold that violations

of 26 U.S.C. § 5861(d) are strict liability felony crimes.

While in Mittleider, supra, it would have made no differ-

ence in the outcome had the jury been instructed that the

government must prove knowledge of the defendant of

the automatic capability of the rifle, because Mittleider

admitted that he knew the gun would fire automatically,

here petitioner denied such knowledge. This factual dis-

tinction made no difference to the court of appeals below:

Staples attempts to avoid Mittleider by labeling

this and other critical language as “dicta” since

this Court concluded from its review of the

record that the defendant also had actual know!l-

edge that the firearm had been converted into

an automatic weapon. We are not persuaded.

The court’s reference to the defendant’s knowl-

edge was simply an additional reason support-

ing the conviction. It did not diminish the force of

the independent conclusion that actual knowledge is

not an element of the offense. [Emphasis added.]

Staples, 971 F.2d at 612, 613. =

In the circuits adopting the strict liability standard,

including the Tenth Circuit, persons knowing they pos-

sess a firearm but not knowing the firearm has been

modified in such a way as to become a “firearm” within

the meaning of the Act are at risk of a felony conviction,

while such persons in circuits requiring knowledge, like

the Fifth Circuit, are not. Here, there was substantial

evidence that petitioner lacked the knowledge that the

AR-15 in question was a “firearm” under the Act, evi-

dence which the jury certainly disregarded given the trial

court’s instructions quoted above.

CONCLUSION

This Honorable Court is respectfully petitioned to

resolve the conflict between the United States Courts of

Appeals over the issue of scienter as an element of the

offense for the government to secure a conviction for

knowing possession of an unregistered “firearm,” by

adopting a rule, consistent with International Minerals,

requiring proof that the defendant knew that he pos-

sessed a “firearm” as that term is defined in the National

Firearms Act. The Court is further requested to find that

the trial court’s instructions on the issue of scienter were

erroneous and that the petitioner’s conviction must be

reversed.

Respectfully submitted,

Crark O. BREWSTER

Jennirer L. De ANcEeELIS*

Davip A. MULLON Jr.

BrewsTER SHALLCROsS & De ANGELIS

2021 S. Lewis Ave., Suite 675

Tulsa, OK 74104

(918) 742-2021

Attorneys for Petitioner

*Counsel of Record

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, )

Plaintiff-Appellee, No. 91-5033

7 (Filed

HAROLD E. STAPLES, » Aug. 3, 1992)

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE NORTHERN

DISTRICT OF OKLAHOMA

(D.C. NO. 90-CR-75-C)

Susan W. Pennington, Assistant United States Attorney

(Tony M. Graham, United States Attorney and Neal B.

Kirkpatrick, Assistant United States Attorney, with her on

the brief), for Plaintiff-Appellee.

Clark O. Brewster of Brewster and Shallcross, (Jennifer L.

DeAngelis with him on the brief), Tulsa, Oklahoma, for

Defendant-Appellant.

Before ANDERSON and EBEL, Circuit Judges, and

ANDERSON,” District Judge.

* The Honorable Aldon J. Anderson, Senior Judge, United States

District Court for the District of Utah, sitting by designation.

ANDERSON, Circuit Judge.

Harold E. Staples, III, appeals from his conviction on

one count of unlawful possession of an unregistered

machine gun in violation of 26 U.S.C. §§ 5841, 5861(d),

and 5871. Staples contends that the district court erred:

(1) by failing to instruct the jury that scienter is an ele-

ment of unlawful possession under 26 U.S.C. § 5861; (2)

by excluding certain documentary evidence under Fed. R.

Evid. 401; and (3) by refusing to submit to the jury his

proffered instruction on the word “automatically” as it is

used in 26 U.S.C. § 5845(b). On its own motion, the court

has also raised the issue of the constitutionality of

§ 5861(d) as a result of our recent opinion in United States

v. Dalton, 960 F.2d 121 (10th Cir. 1992). For the reasons

stated below, we affirm.

BACKGROUND

On December 29, 1989, members of the police depart-

ment of Jenks, Oklahoma, and the Bureau of Alcohol,

Tobacco, and Firearms (BATF) conducted a search of Sta-

ples’ home pursuant to a warrant. Among the items

seized was an SGW .223 caliber Model X M14A\I assault

rifle (“AR-15”), which Staples had purchased on April 9,

1983. Appellant’s App. Vol. I at 185, Tab K. There is no

dispute that the AR-15 had never been registered to Sta-

ples under the National Firearms Act (NFA), 26 U.S.C.

§ 5841, as a registerable automatic weapon.

At the time of the search, the AR-15 contained nei-

ther a bolt carrier nor a magazine. Numerous weapons

parts were found in the room where the AR-15 was stored

including the bolt carrier for an M-16 military rifle. The

M-16 bolt carrier was discovered in the pocket of a brief-

case located in the room.

BATF agents examined the AR-15 in their Washing-

ton, D.C., laboratory. The examination showed that the

AR-15 had been assembled with certain internal parts

originally manufactured for fully automatic military rifles

like the M-16 including the hammer, disconnector, and

trigger. The weapon did not, however, have an auto-sear.

The sole function of that part is to permit automatic fire.

The gun had a three-position selector switch. BATF Agent

Joseph McLaughlin testified at trial that an external pin

or “stop” on the side of the weapon’s receiver had been

removed by filing. This external modification enabled a

user of the weapon to rotate the selector switch to the full

automatic position.

When the BATF agents cleaned and oiled the AR-15,

inserted an appropriate magazine, used the M-16 bolt

carrier found in the same room as the AR-15, loaded the

weapon with “soft-primer” ammunition, and rotated the

selector switch to full automatic, the weapon fired more

than one shot with a single pull of the trigger.

After a two-day trial, the jury found Staples guilty of

possession of the unregistered AR-15 while acquitting

him on a separate count of possessing an unregistered

M-1 rifle also found in the search. Staples filed motions

for acquittal at the end of the government's case and

following the verdict. Both were denied. Consistent with

the federal sentencing guidelines, the court sentenced

Staples to five years probation with certain conditions, a

$5,000 fine, and a $50 special assessment. The sentence

has been stayed pending the outcome of this appeal.

DISCUSSION

I. CONSTITUTIONALITY OF STAPLES’ CONVICTION

UNDER 26 U.S.C. § 5861(d)

In United States v. Dalton, 960 F.2d 121 (10th Cir.

1992), an opinion issued during the pendency of this

appeal, we held a prosecution under § 5861(d) to be

unconstitutional because that statute required the regis-

tration of a firearm which the government refused to

May 19, 1986 by 18 U.S.C. § 922(0).! Summarizing our

position, we stated:

Dalton was found guilty of possessing and

transferring an unregistered firearm in violation

of the National Firearms Act, I.R.C.

§§ 5861(d),(e) (NFA). A separate criminal statute

prohibits the possession of any machinegun

1 18 U.S.C. § 922(0) provides in pertinent part:

(o)(1) Except as provided in paragraph (2), it shall be

unlawful for any person to transfer or possess a machinegun.

(2) This subsection does not apply with respect to -

(B) any lawful transfer or lawful possession of a

machinegun that was lawfully possessed before the date

this subsection takes effect.

18 U.S.C. § 922(0) (emphasis added). “The date this subsection

takes effect” for § 922(0)(2)(B) is May 19, 1986. See Pub.L. 99-308,

§ 110(c).

made after that statute’s effective date in 1986.

18 U.S.C. § 922(0) (1988). It is undisputed that

the government will not permit the registration

of machineguns covered by section 922(0), and

will not accept the tax which would otherwise

be required by the registration requirements of

the National Firearms Act. Dalton contends that

due process bars his conviction under a statute

which punishes his failure to register when that

registration is precluded by law. We agree and

reverse.

As a resu't of section 922(0), compliance

with section 5861 is impossible.

Dalton, 960 F.2d at 122, 126.

Because of the general similarity of the prosecution

in this case with Dalton, and the fundamental nature of

the issue involved, we raised the constitutional issue and

permitted supplemental briefing by the parties. Since this

is a potentially controlling issue, we address it first,

applying the plain error standard of review.

After reviewing the record and arguments of the

parties, we conclude that Dalton is distinguishable. Dalton

concerned a weapon that was possessed for the first time

in 1989, three years after the May 19, 1986, effective date

of 18 U.S.C. § 922(0); whereas the gun in this case was

purchased in 1983. Section 922(0)(2)(B) specifically

exempts machineguns which were lawfully possessed

(i.e., registered) prior to May 19, 1986. There is no dispute

that machineguns could be registered prior to that date;

thus, the reasoning in Dalton does not apply to the charge

against Staples.

Neither of the parties address this distinction. The

government contends mainly that Dalton is in error.

Appellee’s Suppl. Br. at 6. However, even if Dalton

applied to this case we could not overrule a previous

opinion of this court. United States v. Spedalieri, 910 F.2d

707, 710 n.3 (10th Cir. 1990). En route to its conclusion,

the government argues that § 5861(d) remains valid after

Dalton because there are reasons the court did not cite to

support upholding the provision, including Congress’

power to regulate the interstate movement of

machineguns pursuant to the Commerce Clause. Appel-

lee’s Suppl. Br. at 3, 5.

These arguments completely ignore the issue here -

the requirement and date of registration of Staples’

AR-15. Our statement in Dalton that since 1986 the gov-

ernment has refused to register machineguns (apparently

for any reason, whether regulatory or revenue), was con-

firmed by testimony in this case by the government's

witness, BATF Agent McLaughlin. He testified that the

government would not register machineguns after the

May 19, 1986 effective date of § 922(o0).?

2Q: So, the day before his house was searched, he

couldn’t have even registered the gun then?

A: No, sir.

Q: The gun wasn’t registerable by him, was it?

A: No, sir.

Q: . . . The day before anything ever happened, he

couldn’t have complied with the law if he wanted to,

could he?

A: No, because the law was amended on May 1986

which forbade the private ownership of newly manu-

factured machine guns to civilians.

Q: If he owned the gun prior to 1986 and it fired in

semi-automatic fashion but owned it after that act

Likewise, Staples’ arguments miss the point. He

merely “adopts Dalton’s argument in toto that due pro-

cess bars his conviction under a statute which punishes

his failure to register when that registration is precluded

by law.” Appellant’s Suppl. Br. at 7-8.

Staples does not, and, as explained above, cannot,

argue that Dc’ton calls into question the validity of the

nexus between § 922(0) and 26 U.S.C. § 5861(d) for any

time prior to May 19, 1986.

His basic defense at trial was not that he could not

machinegun under 26 U.S.C. § 5845 and, thus, was not

subject to registration under the NFA. Alternatively, he

contended that if his weapon was a machinegun, he did

not know it; therefore, he lacked the requisite scienter to

violate the registration requirement. See Reply Br. at 14-15.

Staples had ample opportunity at trial to demonstrate that he

that you’re talking about, how could - he couldn’t

A: Well, something obviously happened to the

weapon from the time that he owned it until the time

it was seized. Because if it was semiautomatic before

May 16th, 1986, there would have been no need to

Q: He could have lawfully possessed it prior to the

act taking effect?

A: Certainly. As long as it didn’t function automat-

ically, no problem.

Q: But if it then functioned automatically through

this hammer follow down concept after 1986, he

couldn’t register it, could he?

A: No. Because at that point, sir, it was contraband.

Appellant’s App. Vol. II at 350-52, Tab Q.

complied with the registration provisions of the NFA prior to

May 19, 1986, or that the weapon was converted into a

machinegun after that date, but failed to do so.3

3 The district court clearly understood this point as is

obvious in its colloquy with Assistant United States Attorney

Neal Kirkpatrick at a motions hearing only four days before the

trial:

THE COURT: You would agree that the issue of

when the stop was taken off the gun is a fact that goes to

the jury, don’t you.

MR. KIRKPATRICK: They can argue it if they

want.

THE COURT: If the stop was there at the time the

gun was in the possession of the defendant it was not an

automatic weapon.

MR. KIRKPATRICK: I would agree, yes, sir.

THE COURT: All right. All right.

THE COURT: [S]uppose Mr. Gilbert with Mr.

Brewster looking over his shoulder finds that there is

a regulation in effect that would prohibit the register-

ing of this gun.

MR. KIRKPATRICK: Judge, that does not

relieve us of the question, whether or not in fact when

the nipple was filed off the side of the receiver. And there is

still a question of fact the jury can decide. The case

should not be continued. It has been continued.

THE COURT: I think what you're telling me is.

then, the sole issue is when was the nipple filed off.

MR. KIRKPATRICK: Yeah, the defendants -

THE COURT: Because if it was filled |sic] off and

in the possession of the defendant it makes no difference

whether he can register it, because it obviously becomes

registerable; is that right?

MR. KIRKPATRICK: Yes, sir.

THE COURT: So, one of the issues the Court should

probably submit to the jury is a finding as to whether the

Il. SCIENTER UNDER 26 U.S.C. § 5861

Staples asserts that the district court failed to instruct

the jury properly on the elements necessary to secure a

conviction under § 5861 of the National Firearms Act.

The court instructed the jury as follows:

Essential Elements of the Crime (26 U.S.C.

§ 5861(d))

In order to establish the offense charged in

the indictment, each of the following essential

elements must be proved beyond a reasonable

doubt:

First: that the defendant knowingly pos-

sessed the firearm described in the Indictment;

and

Second: that such firearm was not registered

to the defendant in the National Firearms Regis-

tration and Transfer Record.

The unlawful offense is complete when the

two separate elements just stated are proved.

ipple was there such that it could not be placed in auto-

matic while it was in the possession of the defendant.

Appellant’s App. Vol. I at 160, 163-64, Tab J (emphasis added).

Staples, however, failed to pursue this argument at any

point during the trial. Instead, he waited until the filing of his

reply brief to attempt to argue that the government “did not

establish when the stop was filed off.” Reply Br. at 3. As the

court correctly observed in the above-quoted colloquy, that was

a question of fact that Staples properly should have presented to

the jury.

4 This section makes it unlawful for any person “to receive

or possess a firearm which is not registered to him in the

National Firearms Registration and Transfer Record.” 28 U.S.C.

§ 5861.

10a

Appellant's App. Vol. I at 21, Tab D.

Knowingly to Possess

A person is knowingly in possession if his

possession occurs voluntarily and intentionally

and not because of mistake or accident or other

innocent reason. The purpose of adding the

word knowingly was to insure that no one

would be convicted of possession of a firearm if

he did not intend to possess it.

The Government need not prove that a defen-

dant knows he is dealing with a weapon possessing

every last characteristic which subjects it to regula-

tion. It is enough to prove he knows that he is

dealing with a dangerous device of such type as

would alert one to the likelihood of regulation. If he

has such knowledge, and if the particular item is in

fact regulated, he acts at his peril.

Appellant’s App. Vol. I at 25, Tab D (emphasis added).

Mere Possession of Unregistered Firearm

Mere possession of an unregistered firearm

is a violation of the law of the United States. /t is

not necessary for the Government to prove that the

defendant knew that the weapon in his possession

was a firearm within the meaning of the statute, only

that he knowingly possessed it.

Appellant’s App. Vol. I at 26, Tab D (emphasis added).

Staples contends that these instructions violate due pro-

cess in that a jury could find him guilty of the offense

charged without his having had any knowledge that he

possessed a weapon subject to registration. Specifically,

Staples argues that “scienter,” “actual knowledge,” or

lla

“specific intent”> is a requisite element of the offense of

§ 5861.°

The threshold question is whether, as the district

court concluded, our decision in United States v. Mit-

tleider, 835 F.2d 769 (10th Cir. 1987), cert. denied, 485 U.S.

980 (1988), controls the disposition of this issue. In

Mittleider, we upheld a jury instruction substantively

identical to the instructions challenged here,” stating that

“(w]e are in accord with the rule adopted by the Fourth

Circuit in [United States v. Shilling, 826 F.2d 1365, 1368

(4th Cir. 1987),] that the government is not required to

prove actual knowledge of a weapon's physical proper-

ties.” 835 F.2d at 774.

5 Staples uses these terms interchangeably in discussing

what he perceives the mens rea requirement should be under

the statute. Each envisions a specific intent type of standard to

which a mistake of fact defense could be raised.

ffering the following instruction: “[a]n essential element of the

offense of possessing a machine gun, is that the possessor knew

that the gun would fire fully automatically and the burden is

upon the Plaintiff to prove that specific knowledge.” Appel-

lant’s App. Vol. I at 42, Tab E.

? The jury instruction in Mittleider read: “The mere posses-

sion of a firearm which is required to be registered and has not

been registered is a violation of the laws of the United States. It

is not necessary for the government to prove that the defendant

knew that the weapon in his possession was a machine gun

within the meaning of the statute or that he knew that registra-

tion was required. It is sufficient if you find beyond a reasonable

doubt that he knowingly possessed it.” 835 F.2d at 774. That

instruction was based upon 2 E. Devitt and C. Blackmar, Federal

Jury Practice and Instructions, § 59.04 (3d Ed. 1977).

12a

Staples attempts to avoid Mittleider by labeling this

and other critical language as “dicta” since the court

concluded from its review of the record that the defen-

dant also had actual knowledge that the firearm had been

converted into an automatic weapon. We are not per-

suaded. The court’s reference to the defendant's knowl-

edge was simply an additional reason supporting the

conviction. It did not diminish the force of the indepen-

dent conclusion that actual knowledge is not an element

of the offense. This is apparent in the next section of the

opinion in which the court states:

In a related argument, defendant next

claims there was insufficient evidence to show

that he had actual knowledge that the J-15 fire-

arm was an automatic weapon. His claim is

premised on the implicit, and unsupported,

assumption that the government was required to

prove that he knew that the weapon was auto-

matic. As discussed above, that assumption is

unfounded. See United States v. Shilling, 826 F.2d

at 1367-68; Morgan v. United States, 564 F.2d at

805-06.

Mittleider, 835 F.2d at 774-75 (emphasis added).

Staples also seeks to escape the clear command of

Mittleider by claiming that his case is distinguishable on

the facts. Staples asserts that Mittleider addressed a situa-

tion where a firearm contained external modifications

while, in his own case, the weapon had only internal

modifications. We do not read the record similarly. The

uncontested testimony at trial by BATF Agents Ward and

McLaughlin was that the weapon's selector switch,

located on the exterior of the receiver, could be turned to

the automatic fire position and that there was a shiny

13a

spot on the receiver indicative of tampering. See Appel-

lant’s App. Vol. II at 286, 291, Tab Q; Appellee’s Suppl.

App. at 16-17. Since the weapon contained external mod-

ifications, there is no basis to distinguish this case from

Mittleider.®

We conclude that Mittleider controls this case and that

the trial court properly instructed the jury on the substan-

tive elements necessary for conviction under § 5861(d).

Staples essentially concedes the inescapability of this con-

clusion by asking us to “reverse” Mittleider, Appellants

Reply Br. at 15, which, of course, we are powerless to do

even if so inclined. United States v. Spedalieri, 910 F.2d 707,

710 n.3 (10th Cir. 1990) (a three-judge panel may not

overrule a previous opinion of this court).

Ill. ADMISSIBILITY OF CERTAIN EXHIBITS

Staples next argues that the district court erred by

excluding certain documents that he obtained through

discovery from BATF and sought to introduce as evidence

at trial. These documents were: Defendant's Exhibit 4, an

unpublished internal BATF memorandum concerning

8 We note that the circuits have diverged on the issue of

whether actual knowledge is an element under § 5861(d). Com-

pare United States v. Ross, 917 F.2d 997 (7th Cir. 1990); United

States v. Shilling, 826 F.2d 1365 (4th Cir. 1987) (knowledge not

required that weapon is subject to NFA) with United States v.

Anderson, 885 F.2d 1248 (5th Cir. 1989) (en banc); United States v.

Williams, 872 F.2d 773 (6th Cir. 1989) (need “mens rea” or knowl-

edge that weapon is covered by the NFA for § 5861 conviction).

Even those circuits that diverge from Mittleider do so in light of

different factual situations. In both Williams and Anderson, the

weapons at issue had no external modifications.

14a

AR-15’s manufactured with M-16 parts; Defendant's

Exhibit 8, a letter discussing AR-15’s with installed M-16

parts, sent by BATF in response to a constituent inquiry

to Senator Mark Hatfield’s office; Defendant’s Exhibits 9,

10, 13, and 14 discussing the registrability of an auto sear;

Defendant’s Exhibit 15, a BATF letter to a gun manufac-

turer discussing AR-15’s and auto sears; and Defendant's

Exhibit 5, an internal BATF report from 1967 concerning

the test-fire of a particular AR-15 Sporter gun.

Staples argues variously that these exhibits either

establish or tend to show that: (1) absent an auto sear, an

AR-15 does not need to be registered under the NFA,

Appellant’s Principal Br. at 23; (2) an AR-15 without an

auto sear could not be registered pursuant to 18 U.S.C.

§ 922(0); (3) his weapon was not registerable, id.; (4) BATF

knew that an AR-15 with M-16 parts could malfunction to

fire more than one shot with a single pull of the trigger,

id. at 27; (5) although BATF knew about the possibility of

malfunction, it did not notify gun owners of this situa-

tion, id. at 2629; (6) Staples had no personal notice of this

“malfunction” condition known as “hammer-follow-

down”; (7) his weapon is not a machine gun except by

malfunction; (8) notice of registrability is an element of

the crime of possession; and (9) that it was fundamentally

unfair, amounting to a deprivation of due process, for the

government to have prosecuted him when the govern-

ment knew that this type of weapon could malfunction to

fire automatically but did not publish a warning to gun

owners alerting them of this problem.

The district court sustained objections to the admis-

sibility of the documents, primarily on the grounds of

15a

relevance. The court did allow Staples to use the docu-

ments during cross-examination, and to place his position

before the jury.

A district court is granted broad discretion in deter-

mining the relevancy of evidence. United States v. Alex-

ander, 949 F.2d 1293, 1301 (10th Cir. 1988). We review a

trial court’s decision to admit or exclude a given piece of

evidence under an abuse of discretion standard. Id. (cita-

tions omitted).

Fed. R. Evid. 401 defines “relevant evidence” as “evi-

dence having any tendency to make the existence of any

fact that is of consequence to the determination of the

action more probable or less probable than it would be

without the evidence.”

As explained below, the proffered documents had no

tendency to establish any fact of consequence to the

determination of this action. The offense charged is pos-

session of a machine gun, defined in § 5845(b) as “any

weapon which shoots . . . automatically more than one

shot ... by a single function of the trigger.” 26 U.S.C.

§ 5845(b) (emphasis added). The exhibits bore no direct

relationship to any of the elements of the offense charged,

making it more probable or less probable that this AR-15

with M-16 parts, having had its selector switch filed off,

constituted a firearm subject to registration under the

NFA.

Staples argues that an AR-15 without an auto sear is

not a machine gun as defined under § 5845(b) and so does

not have to be registered under the NFA. It is undisputed

that weapons defined as “firearms” under § 5845 must be

registered while weapons outside the definition need not

l6a

be registered. It is also true that auto sears must be

registered under the NFA.?

Staples attempts to deduce from this that “(t]he implica-

tion is, of course, that absent an auto sear, the AR-15 with

M-16 internal components is not a National Firearms Act

weapon and thus, not registerable.” Appellant’s Principal Br.

at 29. The district court refused to accept the implication that

Staples advanced. The court noted variously: “Show me the

regulation that says that you [can] not register a fully auto-

matic AR-15 that doesn’t have a sear.” Appellant’s App. Vol.

II at 433, Tab S.

[I]f this man is charged, and I haven't heard it,

with failure to register an auto sear, or an auto

sear is some way involved in this case involving

the registration, then I'll let you use it... . But

the mere fact they’ve said that an auto sear must

be registered and is an automatic weapon under

the statute doesn’t mean that nothing else is.

Id. at 467. We agree. The fact that an auto sear requires

registration does not mean that all weapons which do not

have auto sears are exempt from registration. The ques-

tion is whether Staples’ sear-less AR-15 could fire auto-

matically. Automatic weapons must be registered.

Defendant’s Exhibits 9, 10, 13, 14, and 15 were not ger-

mane to any issue in the case, and it was not an abuse of

discretion to exclude their admission.

9 See Appellant’s Reply Br. at 9; BATF Ruling 81-4; 27 C.FR.

§ 179.11. But see United States v. Sullivan, 919 F.2d 1403, 1412 n. 8

(10th Cir. 1990) (court observed that an AR-15 could be modified

to fire fully automatic even without an auto sear).

17a

In a related argument, Staples contends that his

weapon was malfunctioning causing it to fire automat-

ically more than one shot with a single pull of the trigger.

In other words, if the weapon was a machine gun, it was

so wholly by accident. He asserts that a weapon malfunc-

tioning because of hammer-follow-down cannot consti-

tute a firearm under the NFA and so does not have to be

registered. We do not need to reach the broader question

of whether a weapon that malfunctions can constitute a

firearm under the NFA.

Staples pursued his malfunction argument vigor-

ously at trial both on direct and cross-examination. He

testified himself, and elicited testimony from multiple

witnesses, that his AR-15 had never fired more than one

round with a single pull of the trigger. The government

challenged that theory as part of its proof in support of

the charge. The jury examined the weapon and saw vid-

eotapes of the weapon being fired. Thus it.was able to

evaluate Staples’ weapon and make an independent judg-

ment as to its capabilities.

Staples next asserts that his conviction cannot stand

because he had no notice that his weapon needed to be

registered. This argument embraces two assertions: (1)

that knowledge of registrability is an element of the

offense; and (2) that a governmental agency has an affir-

mative duty to notify the public of what actions consti-

tute a violation in the view of the agency.

Mittleider rejects the position that knowledge of regis-

trability constitutes an element of the offense. The gov-

ernment is not required to prove that a defendant knows

“that registration of the weapon was required.” 835 F.2d

18a

at 774; see also United States v. Freed, 401 U.S. 601, 607

(1971). Since neither knowledge nor notice of regis-

trability is an element of the offense, it was not an abuse

of discretion for the district court to find that documents

discussing this point were irrelevant. Furthermore, the

statutes themselves are the source of notice, and they are

clear on the subject.

For these and other reasons, Staples’ other assertion

is equally unavailing. BATF’s regulatory silence does not

necessarily imply that his weapon was not subject to

registration. See Appellant’s Principal Br. at 27.

The district court aptly made that point stating:

Your next question has dealt with the other five

M-16 parts, whether they were registerable.

Now, as I said at the bench, if this expert [Agent

McLaughlin] can testify that the mere posses-

sion of the five parts together with an AR-15

gun constitutes a failure to register, then you

would be permitted to put in anything where

they have ruled that it’s a non-registerable item.

The facts of this case though are that there is a

gun in being, there are installed parts . . . that by

reason of the manner in which the installation

has actually occurred, that it shoots fully auto-

matic and therefore falls within the definition of

a machine gun.

Now, I will tell you once again, if you have got

anything that is relative to this case, that where a

gun with these installed parts that shoots fully auto-

matic is not registerable, | will let you get into it.

Appellant’s App. Vol. II at 427, Tab S (emphasis added).

Staples did not pursue the district court’s offer and has

cited no case, statute, or BATF regulation to support his

19a

contention that the AR-15, as modified, was not subject to

registration, or could not be registered under the NFA.

Even if BATF ruled that a generic AR-15 with M-16 parts

did or did not constitute a firearm requiring registration

under the NFA, such a general ruling would not deter-

mine the issue of the registrability of Staples’ gun as a

matter of law. Staples does not discuss, for instance,

weapons where the selector switch has been externally

modified by filing to allow the weapon to fire automat-

ically instead of just semiautomatically; and he does not

discuss the impact of the statute on specific weapons

which, however configured generally, operate in fact as a

machine gun.!0

10 Staples’ citation of Defendant’s Exhibit 4, a March 11,

1986 BATF memorandum is unhelpful. In the memorandum to

the file, the author noted:

The proposed draft ruling would hold that an

ARI15 type rifle in combination with an M16 hammer,

trigger, disconnector, selector and bolt carrier is a

combination of parts from which a machine gun can

be assembled and is a machine gun if such rifle and

parts are in the possession or under control of a per-

son. It would also hold that an AR15 type rifle in

combination with any M16 part or parts (whether

assembled or unassembled) which, when assembled,

shoots automatically by manipulation of the selector

or removal of the disconnector is also a machine gun.

The Bureau has determined not to issue the ruling at

this time... .

Appellant’s App. Vol. I at 45, Tab F.

Staples concludes that the non-issuance of an unpublished,

internal BATF ruling implies that his weapon is exempt from the

NFA. He cites no authority to support this novel proposition.

20a .

Staples’ final contention is that these exhibits prove it

was fundamentally unfair for the government to pros-

ecute him. The unfairness of the prosecution is based on

two grounds: (1) that the government knew that weapons

of this type could malfunction yet concealed that fact

from gun owners; and (2) that Staples’ gun was unre-

gisterable as a matter of law. Both points are disposed of

by our discussion above."!

In sum, exclusion of the proffered exhibits did not

constitute reversible error.

IV. “AUTOMATICALLY” UNDER 26 U.S.C. § 5845

Staples’ final argument is that the district court erred

when it refused to give his tendered instruction on the

word “automatically” as used in § 5845(b).

Section 5845(b) defines “machine gun” in relevant

part as:

any weapon which shoots, is designed to shoot, or

can be readily restored to shoot, automatically

more than one shot, without manual reloading, by a

single function of the trigger. The term shall also

include... 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.

26 U.S.C. § 5845(b) (emphasis added).

1! The testimony by Agent McLaughlin, set out in n.2, cited

bv Staples in support of the proposition that his weapon was

unregisterable, neither stands for that proposition nor, more to

the point, compelled the admission of the exhibits in question.

21a

The district court instructed the jury in these terms, and

refused the following instructions proffered by Staples.

AUTOMATIC - DEFINED

By automatic is meant self-acting, or the elim-

ination of human agency or volition which

results in the saving of labor and increased cer-

tainty and uniformity of operation. Citing Tripp

Giant Leveler Co. v. Rogers, 61 F. 289, 290-91 (D.

Mass. 1894).

AUTOMATICALLY - DEFINED

The word “automatically,” as applied to a mech-

anism, is in common use and is unambiguous. It

means “self-acting,” and it implies a certain

cycle of movements which the machine itself

makes without outside control. . . . In the devel-

opment of many machines there can be traced a

constantly increasing extent of automatism; by

which is meant that many steps or processes,

which formerly had to be started, stopped, or

controlled by the operative, are now started,

stopped, or controlled by the machine itself.

Citing American Roll Gold Leaf Co. v. W.H. Coe

Mfg. Co., 212 F. 720, 724 (1st Cir. 1914).

Appellant’s Principal Br. at 35.

Staples asserts that his instructions properly inject

concepts of “reliability” and “lack of human agency” into

the definition of “automatically.” Appellant’s Principal

Br. at 36. He also repeats his argument that knowledge is

a necessary element to be proved by the government - in

22a

this instance, knowledge of possession of a weapon

which reliably fires automatically. Id. at 38.

Staples bases his reliability and lack of human agency

argument on authority from a 1914 case out of the First

circuit and an 1894 district court opinion. He concedes

that “[t]hey were patent cases, but they weren't firearm

cases.” Appellant’s App. Vol. II at 488, Tab T. He does not

cite and this court can not find any authority for employ-

ing the definition of automatically that he commends to

us in the context of the National Firearms Act.

This Court must determine whether in light of the

record as a whole the jury instructions »s given correctly

stated the applicable law and provided the jury with

adequate understanding of the issues involved in the

case. United States v. Agnew, 931 F.2d 1397, 1410 (10th Cir.

1991); United States v. Willis, 890 F.2d 1099, 1104 (10th Cir.

1989). We are satisfied that this standard was met by the

court’s instructions.

We have examined all of Staples’ arguments, address-

ing those deemed appropriate, and we find no reversible

error in the proceedings below. Accordingly, the judg-

ment of conviction is AFFIRMED.

No. 91-5033 - U.S. v. Staples.

EBEL, Circuit Judge, concurring.

I concur in the result of the majority opinion in this

case because I agree that this panel is bound by our

precedent in United States v. Mittleider, 835 F.2d 769 (10th

Cir. 1987), cert. denied, 485 U.S. 980 (1988). I write sep-

arately because in my view the growing trend in the law

is to require the government to prove knowledge of the

23a

characteristics of the weapon that make its possession a

crime.

Like the instant case, Mittleider dealt with possession

of an unregistered automatic weapon. In Mittleider, we

held that the government need only prove that the defen-

dant knowingly possessed a gun and need not “prove

actual knowledge of a weapon's physical properties” to

couvict under the National Firearms Act (“NFA”). Id. at

774. In Mittleider, however, the defendant “had actual

knowledge that [the rifle] had been converted into an

automatic weapon,” id., and thus the government's less-

ened burden of proof did not lead to an unjust result in

that case.

In cases in which the defendant is truly ignorant of

the automatic characteristics of the gun, on the other

hand, the law as construed in Mittleider may lead to

draconian results. Consider, for example, a situation in

which a person who knows nothing about guns inherits a

rifle from a relative. Unbeknownst to the recipient, the

gun is defective and occasionally discharges two rounds

of ammunition after a single pull of the trigger, or per-

haps it has been converted by a prior owner into an

automatic weapon. Because he has no use for the rifle, the

recipient stores it with other unnecessary possessions in

his basement or attic without having ever used it or

indeed even examined it. Under Mittleider, that person

may be prosecuted and convicted for violation of 26

U.S.C. § 5861 and may receive a sentence of twenty-seven

to thirty-three months’ imprisonment. See U.S.S.G.

§ 2K2.1(a)(5).

24a

Whether the appellant in the instant case is such an

innocent victim is an open question because the jury was

precluded from considering his knowledge of the gun’s

capabilities. Principles of justice and fair play suggest

that we ought to overturn Mittleider and let the jury

decide whether the defendant knowingly possessed an

automatic weapon.

I start with the basic premise that strict liability is

disfavored and generally should be reserved for less

serious crimes in which the potential punishment is not

severe. Congress’ mere failure specifically to include an

intent requirement when defining an offense is not ade-

quate by itself to indicate Congress’ desire to depart from

the normal assumption in criminal law that scienter is a

necessary part of the offense. See Liparota v. United States,

471 US. 419, 426 (1985) (“criminal offenses requiring no

mens rea have a ‘generally disfavored status’ ”) (citation

omitted); United States v. United States Gypsum Co., 438

U.S. 422, 438 (1978) (“far more than the simple omission

of the appropriate phrase from the statutory definition is

necessary to justify dispensing with an intent require-

ment”); Morissette v. United States, 342 U.S. 246, 250 (1952)

(“The contention that an injury can amount to a crime

only when inflicted by intention is no provincial or tran-

sient notion. It is as universal and persistent in mature

systems of law as belief in freedom of the human will and

a consequent ability and duty of the normal individual to

choose between good and evil.”) (footnote omitted);

Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law

§3.8(c), at 248 (2d ed. 1986). Against this backdrop, | look

to the law.

25a

As I read the case law, four circuits, including our

own, have held that a defendant is strictly liable for

possession of an automatic weapon even though the

defendant did not know the automatic characteristics of

the weapon. In other words, the defendant need not

know that the gun can fire more than one round after a

single pull of the trigger. See United States v. Ross, 917 F.2d

997, 999-1001 (7th Cir. 1990) (per curiam), cert. denied, 111

S. Ct. 1078 (1991); Mittleider, 835 F.2d at 774; United States

v. Shilling, 826 F.2d 1365, 1367-68 (4th Cir. 1987) (per

curiam), cert. denied, 484 U.S. 1043 (1988); Morgan v.

United States, 564 F.2d 803, 805-06 (8th Cir. 1977) (per

curiam).

On the other hand, six circuits have rejected strict

liability to varying degrees, holding that the individual

must have actual or constructive knowledge that the

weapon was not an ordinary gun. See United States v.

Harris, 959 F.2d 246, 257-61 (D.C. Cir. 1992) (“We believe

that if Congress, against the background of widespread

lawful gun ownership, wished to criminalize the mere

unregistered possession of certain types of firearms -

often indistinguishable from other, non-prohibited types

- it would have spoken clearly to that effect. . . . Because

the jury was not charged that it had to find that [appel-

lants}] knew they were receiving a proscribed firearm

(machine gun) . . . , appellants’ convictions . . . must be

reversed.”), petition for cert. filed (May 7, 1992) (No.

91-8167) and petition for cert. filed (May 19, 1992) (No.

91-8328); United States v. Kindred, 931 F.2d 609, 612 (9th

Cir. 1991) (“[T]he district court erred by instructing that

the government need only prove that the defendant knew

that the object was a gun. To secure a conviction under

26a

the act, the government must prove that the defendant

knew that he possessed a dangerous device of a type that

would alert one to the likelihood of regulation.”); United

States v. Anderson, 885 F.2d 1248, 1254-55 (Sth Cir. 1989)

(en banc) (“We think it far too severe for our community

to bear - and plainly not intended by Congress -- to

subject to ten years’ imprisonment one who possesses

what appears to be, and what he innocently and reason-

ably believes to be, a wholly ordinary and legal pistol

merely because it has been, unknown to him, modified to

be fully automatic.”); United States v. Williams, 872 F.2d

773, 777 (6th Cir. 1989) (“the government was required to

prove defendants’ knowledge of the weapon’s automatic

quality” because strict liability for a felony may offend

due process); United States v. Gonzalez, 719 F.2d 1516, 1522

(11th Cir. 1983) (“There are two elements the government

had to prove .. . to sustain a conviction under Section

5861(d): (1) that [the defendant] . . . knowingly possessed an

automatic weapon, and (2) that the automatic weapon was

not... registered... . ”) (emphasis added), cert. denied,

465 U.S. 1037 (1984);' United States v. DeBartolo, 482 F.2d

1 Several cases cite Gonzalez as support for the strict lia-

bility view. See, e.g., Harris, 959 F.2d at 260; Williams, 872 F.2d at

775. In Gonzalez, the defendant made no contention that he

believed the machinegun to be an ordinary gun. The court held

that the government must prove that the defendant “knowingly

possessed an automatic weapon,” but that the government need

not “prove that the defendant knew that the weapon in his

possession was a ‘firearm’ within the meaning of the statute. . . .

There is no scienter required to be proven.” Gonzalez, 719 F.2d at

1522. The court in Gonzalez cited United States v. Cheramie, 520

F.2d 325, 329 (5th Cir. 1975), which approved a jury instruction

stating that “for purposes of [26 U.S.C. § 5861] the defendant's

27a

312, 316 (1st Cir. 1973) (“The Government need not prove

that a defendant knows he is dealing with . . . a weapon

possessing every last characteristic which subjects it to

regulation. It is enough to prove he knows that he is

dealing with a dangerous device of such type as would alert

one to the likelihood of regulation.”) (emphasis added).?

knowledge that his acts violated the law is not a prerequisite to

a guilty verdict.” | read Gonzalez to mean that the government

must prove that the defendant knew the weapon was automatic

but need not prove that the defendant knew that such a weapon

was illegal under the statute. This states no more than that

ignorance of the law is no excuse, but ignorance of fact is an

excuse if it deprives the actor of the requisite intent. See discus-

“sion of this distinction infra.

? Several courts have also cited DeBartolo as a case support-

ing strict liability for possession of an automatic weapon. See,

e.g., Harris, 959 F.2d at 260; Williams, 872 F.2d at 775. However,

while this case does not go as far as the D.C. Circuit, Sixth

Circuit, and Fifth Circuit in holding that the government must

prove actual knowledge of the characteristics that render the

weapon a “firearm” within the meaning of the statute, it does

require, like the Ninth Circuit, that the government prove

knowledge that the weapon is “a dangerous device of such type

as would alert one to the likelihood of regulation.” DeBartolo,

482 F.2d at 316; see Kindred, 931 F.2d at 612; United States v.

Herbert, 698 F.2d 981, 986 (9th Cir.), cert. denied, 464 U.S. 821

(1983). In contrast, the strict liability circuits have held that the

government need only prove that the defendant knew the item

in question was a firearm in the ordinary sense, i.e., a gun. See

Ross, 917 F.2d at 999; Mittleider, 835 F.2d at 774; Shilling, 826 F.2d

at 1368; Morgan, 564 F.2d at 805. The First Circuit in DeBartolo

held that a shotgun was a sufficiently dangerous device that it

would put the owner on notice of the possible need for registra-

tion. Although I would not necessarily agree with that conclu-

sion, here we are dealing with a rifle. As the Ninth Circuit has

recognized explicitly, an ordinary firearm (such as a rifle) may

not necessarily be a “dangerous device of such type as would

28a

Moreover, of the last five circuits that have considered

this issue, four have rejected strict liability for possession

of an automatic weapon, which supports my view that

alert one to the likelihood of regulation.” Kindred, 931 F.2d at

612; Herbert, 698 F.2d at 986.

I note that the jury instruction in the instant case might

arguably pass muster under the First and Ninth Circuits’

approach, because it stated in part that “[t]he Government need

not prove that a defendant knows he is dealing with a weapon

possessing every last characteristic which subjects it to regula-

tion. It is enough to prove he knows that he is dealing with a

dangerous device of such type as would alert one to the likeli-

hood of regulation.” 1 Appellant’s App., Tab D at 25. However,

the court later instructed the jury that “[mlere possession of an

unregistered firearm is a violation of the law of the United

States.” Id., Tab D at 26. This instruction seemingly contradicts

the previous instruction and would appear to impose strict

liability for possession of an unregistered firearm, even if it was

not a “dangerous device of such type as would alert one to the

likelihood of regulation.” Because we cannot tell which instruc-

tion the jury followed, we must assume that it based its decision

on the strict liability instruction. Cf. Griffin v. United States, 112

S. Ct. 466, 471 (1991) (“where a provision of the Constitution

forbids conviction on a particular ground, the constitutional

guarantee is violated by a general verdict that may have rested

on that ground”). Moreover, Mittleider does not require even the

above instruction. It [sic] Mittleider, we approved the following

instruction:

The mere possession of a firearm which is required to

be registered and has not been registered is a viola-

tion of the laws of the United States. It is not neces-

sary for the government to prove that the defendant

knew that the weapon in his possession was a

machine gun within the meaning of the statute. .. . It

is sufficient if you find beyond a reasonable doubt

that he knowingly possessed it.

Mittleider, 835 F.2d at 774.

29a

the trend is to reject the Mittleider view of strict liability

under this statute.

There is some confusion in the above cases regarding

the word scienter. Scienter under section 5861 requires

that the defendant know of the physical characteristics of

the gun that make it registerable. Scienter does not

require that the defendant know that the law requires a

gun with such characteristics to be registered, nor does it

require that the defendant know that the gun is a “fire-

arm” within the definition of the statute. In other words,

ignorance of the law is no defense, but a mistake of fact

is. By analogy, to be guilty of larceny, an individual need

not know that the taking of the property of another is

illegal, but he must know that the property he is taking

belongs to another.

Similar reasoning applies in United States v. Freed, 401

U.S. 601 (1971), a case that every circuit, regardless of

whether or not it favors strict liability, has cited in sup-

port of its resolution of the issue. In Freed, the Supreme

Court held that the government need not prove that the

defendant knew that hand grenades had to be registered

or that his hand grenades were not registered. However,

the Court did require the government to prove that the

defendant had “knowledge that the instrument possessed

was a firearm.” Id. at 607. The statute defined “firearms”

to include hand grenades, so presumably the government

had to prove that the defendant knew the items in his

possession were, in fact, hand grenades. Id. One must

assume that if the defendant had believed the items were

merely movie props simulating hand grenades, he would

have lacked the requisite intent necessary for conviction.

Similarly, automatic weapons (but not unmodified rifles)

30a

are defined as “firearms” under the NFA. As I read Freed,

the government must prove that the defendant “had

knowledge that the instrument possessed was a firearm”

~ that is, that it was an automatic weapon. Id. If the

defendant did not know he possessed a weapon that was

capable of firing multiple times after a single pull of the

trigger, then he did not know he possessed a “firearm.”

Freed requires at least that much knowledge or scienter

before a defendant can be convicted under section 5861.

The scienter rejected in Freed related to knowledge of

regulation, not knowledge of the reality of what one

possessed.

Although the defendant does not need to know the

statutory definition of “firearm,” the court must look to

the statutory definition to see what physical items are

described therein as requiring registration. The defendant

must know that he possesses such a physical item. Here,

although the statute uses the generic term “firearm,” it

defines that term as a term of art to exclude unmodified

rifles, but to include automatic weapons. Thus, it is neces-

sary to show that the defendant knew he possessed not

simply an ordinary rifle, but one with the capability of

firing multiple shots after a single pull of the trigger.

Were we not bound by precedent, I would have voted

to reverse the appellant’s conviction and to remand for a

new trial. While there were some external signs that the

gun in question had been modified, there was also some

evidence that the appellant did not know of the gun’s

apparent automatic capabilities. Thus, whether the appel-

lant did have such knowledge was a question for the jury,

but the jury instructions in this case prevented the jury

3la

from considering this question. It is not within our prov-

ince to substitute our factfinding for that of the jury on

this critical issue.

Thus, I concur in the result reached in the opinion.

However, I would welcome the opportunity for our cir-

cuit to reexamine this issue if the appellant files a timely

suggestion for rehearing en banc. See Fed. R. App. P. 35;

10th Cir. R. 35.

32a

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

7 Plaintiff - Appellee, No. 91-5033

HAROLD E. STAPLES,

)

Defendari - Appellant. )

JUDGMENT

Entered November 4, 1992

Before McKAY, Chief Judge, LOGAN, SEYMOUR,

MOORE, ANDERSON, TACHA, BALDOCK, BRORBY,

EBEL, and KELLY, Circuit Judges, and ANDERSON’, Dis-

trict Judge.

*The Honorable Aldon J. Anderson, Senior Judge, United

States District Judge for the District of Utah, sitting by

designation.

This matter comes on for consideration of appellant's

petition for rehearing and suggestion for rehearing en

banc.

Upon consideration whereof, the petition for rehear-

ing is denied by the panel that rendered the decision.

In accordance with Rule 35(b), Federal Rules of

Appellate Procedure, the suggestion for rehearing en

banc was transmitted to all of the judges of the court who

33a

are in regular active service. The court having polled on

the suggestion for rehearing en banc, Rule 35, Federal

Rules of Appellate Procedure, rehearing en banc is

denied. Judges McKay, Seymour, and Ebel would grant

rehearing.

Entered for the Court

ROBERT L. HOECKER, Clerk

By: /s/ Patrick Fisher

Patrick Fisher, Chief

Deputy Clerk

34a

IN THE UNITED STATES COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA,

Plaintiff,

HAROLD E. STAPLES, III,

)

VS. ) No. 90-CR-75-C

)

Defendant. )

ORDER

(Feb. 1, 1991)

Before the Court is the motion of the defendant to set

aside verdict and enter judgment of acquittal, pursuant to

Rule 2%(c) FR.Cr.P. Defendant was found guilty of a

violation of 26 U.S.C. § 5861(d) on December 19, 1990.

The defendant’s contentions regarding scienter are

dealt with easily. The Court followed the holding of

United States v. Mittleider, 835 F.2d 769, 774 (10th Cir.

1987), cert. denied, 485 U.S. 980 (1988). A district court

must follow the precedent of its circuit. United States v.

Spedalieri, 910 F.2d 707, 709 n.2 (10th Cir. 1990).

The defendant also argues that the firearm in ques-

tion was malfunctioning and did not in fact fire more

than one shot with a single trigger pull “automatically”.

In view of contrary evidence presented at trial by the

government, the Court submitted these factual questions

to the jury. Obviously, the jury was not persuaded. The

Court, viewing the evidence in the light most favorable to

the government, sees no basis for reversal. See United

35a

States v. Peveto, 881 F.2d 844, 860 (10th Cir.), cert. denied,

110 S.Ct. 348 (1989).

Next, defendant argues that ATF Ruling 81-4, which

held that an AR-15 could be converted to a machinegun

with the addition of the “auto sear” renders the present

prosecution a violation of due process. He argues, in

essence, that the agency should have published a supple-

ment to Ruling 81-4 making clear that an AR-15 (i.e.,

some AR-15 rifles with M-16 parts) could be considered a

machinegun even without the auto sear.

The Court disagrees, based upon United States v.

Green, 515 F.Supp. 517 (D.Md. 1981), the decision cited by

defendant, and the cases cited therein. In Green, the court

made clear that published ATF rulings, pursuant to 27

C.F.R. §71.41(d), merely provide precedent forATF deci-

sions in other cases. They are not binding upon a court

when they are contrary to the clear intent of Congress as

expressed by the plain language of the statute. 515

F.Supp. at 520-21. Broad language in a criminal statute

may have been enacted with a view that prosecutorial

discretion will refrain from bringing indictments under

certain facts. Whether this Court agrees with the exercise

of that discretion is irrelevant. The Court has concluded

that the prosecution in question falls within the language

of the statute, and that the conviction should stand.!

' Defendant's citation of York v. Secretary of the Treasury, 774

F.2d 417 (10th Cir. 1985) is inapposite as it involved a civil

proceeding. Deference to an agency interpretation is not impli-

cated regarding criminal statutes See Crandon v. United States,

110 S.Ct. 997, 1011 (1990) (Scalia, J., concurring).

36a

Finally, defendant argues for acquittal because he

possessed the firearm before the effective date of 18

U.S.C. §922(0). Defendant was not charged with violation

of this statute, and its application is irrelevant.

It is the Order of the Court that the motion of the

defendant to set aside verdict and enter judgment of

acquittal is hereby DENIED.

IT IS SO ORDERED this 1st day of February, 1991

/s/ H. Dale Cook

H. DALE COOK

Chief Judge,

U.S. District Court

37a

UNITED STATES DISTRICT COURT

NORTHERN District of OKLAHOMA

UNITED STATES OF JUDGMENT IN A

AMERICA CRIMINAL CASE

V (For Offenses Committed

, On or After

Harold Edward Staples, November 1, 1987)

Ill Case Number:

(Name of Defendant) 90-CR-075-001-C

Clark Brewster

Defendant’s Attorney

THE DEFENDANT:

[ ] pleaded guilty to count(s)

[x] was found guilty on count(s) One of the Indictment

after a plea of not guilty.

Accordingly, the defendant is adjudged guilty of such

count(s), which involve the following offenses:

Date

Title & Nature of Offense Count

Section Offense Concluded Number(s)

26:5861(d) Possession of 12-29-89 One

Unregistered

Firearm

United States District Court )

Northern District of Oklahoma )

I hereby certify that the foregoing is a

true copy of the original on file in this

Court.

Jack C. Silver, Clerk

By Jack C. Silver

Deputy

38a

The defendant is sentenced as provided in pages 2

through 4 of this judgment. The sentence is imposed

pursuant to the Sentencing Reform Act of 1984.

{ ] The defendant has been found not guilty on count(s)

and is discharted as to such count(s).

[ ] Count(s) (is) (are) dismissed on the motion

of the United States.

[x] It is ordered that the defendant shall pay a special

assessment of $ 50 , for count(s) One , which

shall be due [x] immediately [ |] as follows:

IT IS FURTHER ORDERED that the defendant shall

notify the United States attorney for this district within

30 days of any change of name, residence, or mailing

address until all fines, restitution, costs, and special

assessments imposed by this judgment are fully paid.

Defendant's Soc. Sec. No.: February 20, 1991

446-56-9981 Date of Imposition of

Sentence

Defendant's Date of Birth: /s/ H. Dale Cook

araree Signature of Judicial

, 7F Officer

a po ee The Honorable

H. Dale Cook

1412 North Second Street Chief

Jenks, Oklahoma 74037 ,

U.S. District were

Defendant's Residence ame itle o

Address: Judicial Officer

Same as mailing

Date

39a

PROBATION

The defendant is hereby placed on probation for a

term of Five (5) years

While on probation, the defendant shall not commit

another Federal, state, or local crime, shall not illegally

possess a controlled substance, and shall not possess a

firearm or destructive device. The defendant also shall

comply with the standard conditions that have been

adopted by this court (set forth below). If this judgment

imposes a fine or restitution obligation, it shall be a

condition of probation that the defendant pay any such

fine or restitution. The defendant shall comply with the

following additional conditions:

(1) Dispose of all firearms.

(2) Pay $5,000 fine.

STANDARD CONDITIONS OF SUPERVISION

While the defendant is on probation pursuant to

this judgment, the defendant shall not commit

another federal, state or local crime in addition:

1) the defendant shall not leave the judicial district

without the permission of the court or probation

officer;

2) the defendant shall report to the probation officer as

directed by the court of probation officer and shall

submit a truthful and complete written report within

the first five days of each month;

3) the defendant shall answer truthfully all inquiries

by the probation officer and follow the instructions

of the probation officer;

10)

11)

12)

40a

the defendant shall support his or her dependents

and meet other family responsibilities;

the defendant shall work regularly at a lawful! occu-

pation unless excused by the probation officer for

schooling, training, or other acceptable reasons;

the defendant shall notify the probation officer

within 72 hours of any change in residence or

employment;

the defendant shall refrain from excessive use of

alcoho! and shall not purchase, possess, use, distrib-

ute, or administer any narcotic or other controlled

substance, or any paraphernalia related to such sub-

stances, except as prescribed by a physician;

the defendant shall not frequent places where con-

trolled substances are illegally sold, used, distrib-

uted or administered;

the defendant shall not associate with any persons

engaged in criminal activity and shal! not associate

with any person convicted of a felony unless

granted permission to do so by the probation officer.

the defendant shall permit a probation officer to

visit him or her at any time at home or elsewhere

and shall permit confiscation of any contraband

observed in plain view by the probation officer;

the defendant shall notify the probation officer

within seventy-two hours of being arrested or ques-

tioned by a law enforcement officer;

the defendant shall not enter into any agreement to

act as an informer or a special agent of a law

enforcement agency without the permission of the

court;

4la

13) as directed by the probation officer, the defendant

14)

shall notify third parties of risks that may be occa-

sioned by the defendant’s criminal record or per-

sonal history of characteristics, and shall permit the

probation officer to make such notifications and to

confirm the defendant’s compliance with such noti-

fication requirement;

the defendant shall submit to urinalysis as directed

by the Probation Office.

FINE

The defendant shall pay a fine of $5,000. The fine

includes any costs of incarceration and/or supervisor.

{ ] This amount is the total of the fines

imposed on individual counts, as follows:

{ ] The court has determined that the defen-

dant does not have the ability to pay interest. It

is ordered that:

{[ ] The interest requirement is waived.

{ ] The interest requirement is modified

as follows:

This fine plus any interest required shall be

paid:

[xx] in full immediately.

[ ] in full not later than __.

{ ] in equal monthly installments over a

period of __ months. The first payment is

due on the date of this judgment. Subse-

quent payments are due monthly thereafter.

[ ] in installments according to the fol-

lowing schedule of payments:

42a

If the fine is not paid, the court may sentence the defen-

dant to any sentence which might have been originally

imposed. See 18 U.S.C. § 3614.

STATEMENT OF REASONS

{ ] The court adopts the factual findings and guide-

lines application in the presentence report.

[XX] The court adopts the factual findings and guideline

application in the presentence report except (see

attachment, if necessary):

The Court finds the defendant possessed the fire-

arm in question for sporting purposes and reduces the

offense level to 6 pursuant to 2K2.1(b)(1).

Guideline Range Determined by the Court:

Total Offense Level: 6

Criminal History Category: |

Imprisonment Range: 0 to 6 + months

Supervised Release Range: 2 to 3 _ years

Fine Range: $ 500 to $ 5,000

[ ] Fine is waived or is below the guide-

line range, because of the defendant's inability

to pay.

Restitution: $N/A

{ ] Full restitution is not ordered for the

following reason(s):

43a

[xx] The sentence is within the guideline range, that

range does not exceed 24 months, and the court

finds no reason to depart from the sentence called

for by application of the guidelines.

{ ] The sentence is within the guideline range, that

range exceeds 24 months, and the sentence is

imposed for the following reason(s):

The sentence departs from the guideline range

{ ] upon motion of the government, as a ,,

result of defendant’s substantial assistance.

{ ] for the following reason(s):

44a 45a

STATUTES . (b) Machinegun. - The term “machinegun”

means any weapon which shoots, is designed to

shoot, or can be readily restored to shoot, automat-

ically more than one shot, without manual reload-

ing, by a single function of the trigger. The term

- , ‘ shall also include the frame or receiver of any such

weapon, any part designed and intended solely

(0)(1) Except as provided in paragraph (2), it shall and exclusively, or combination of parts designed

be unlawful for any person to transfer or possess a and intended, for use in converting a weapon into

mechinegien. a machinegun, and any combination of parts from

which a machinegun can be assembled if such

parts are in the possession or under the control of a

18 U.S.C. § 922. Unlawful acts

(a) It shall be unlawful -

(2) This subsection does not apply with respect to -

(A) a transfer to or by, or possession by or

under the authority of, the United States or any

department or agency thereof or a State, or a

department, agency, or political subdivision

thereof; or

(B) any lawful transfer or lawful posses-

sion of a machinegun that was lawfully pos-

sessed before the date this subsection takes

effect.

26 U.S.C. § 5845. Definitions

For the purpose of this chapter -

(a) Firearm. - The term “firearm” means

(6) a machinegun; ... The term

“firearm” shall not include an antique fire-

arm or any device (other than a machinegun

or destructive device) which, although

designed as a weapon, the Secretary finds

by reason of the date of its manufacture,

value, design, and other characteristics is

primarily a collector’s item and is not likely

to be used as a weapon.

person.

26 U.S.C. § 5861. Prohibited acts

It shall be unlawful for any person -

* * *

(d) to receive or possess a firearm which is

not registered to him in the National Firearms

Registration and Transfer Record; or

* * *

26 U.S.C. § 5871. Penalties

Any person who violates or fails to comply

with any provision of this chapter shall, upon

conviction, be fined not more than $10,000, or be

imprisoned not more than ten years, or both.

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.