Petition for Writ of Certiorari — Owens v. United States

eVerwmy Wil, U.S.

FILED.

961559 APR 21997

Case No. OFFICE OF THE CLERK

_—

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1996

CHARLES OWENS,

Petitioner,

Vv -

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

ROBERT AUGUSTUS HARPER

Robert Augustus Harper

Law Firm, P.A.

325 West Park Avenue

Post Office Box 10132

Tallahassee, Florida 32302-2132

(904) 224-5900/fax (904) 224-9800

FL Bar No. 127600 RECEIVED

GA Bar No. 328360 ‘

COUNSEL FOR PETITIONER APR ~ 2.99!

OFFICE OF THE CLERK

SUPREME COURT, U.S.

y)

——

ce rrr a mr gg ee

A. QUESTIONS PRESENTED FOR REVIEW

1. Whether the Eleventh Circuit Pattern Jury

Instructions in Criminal Cases (1985) relative 26 U.S.C.

§5861(d) in a short-barreled rifle prosecution satisfy the mens

rea requirement of Staples v. United States, 511 U.S. 600

(1994), as required by the Due Process Clause?

ee Whether the United States Courts of Appeal are

giving proper application to the decision of this Court in

Staples v. United States, 511 U.S. 600 (1994), when an

unaltered weapon is capable of configuration as both an

unregulated weapon and a regulated firearm?

i Whether 26 U.S.C. §5861(d) _—is

unconstitutionally vague in its definition and notice of

proscribed criminal cides relative a manufactured carbine

kit capable of a configuration both as a regulated and

unregulated rifle under United States v. Thompson/Center

Arms Co., 504 U.S. ---, 112 S.Ct. 2102, 119 L.Ed.2d 308

(1992)?

4, Whether 26 U.S.C. §5861(d) may be

constitutionally applied to a part-time shop employee who

attaches a short rifled barrel to a receiver which he thinks is

a pistol “just like the Thompson Contender”?

a steer hati

ee OD err = =

B. PARTIES INVOLVED

The parties are identfied in the style of the case.

C. |TABLE OF CONTENTS AND TABLE OF

AUTHORITIES

1. Table of Contents

A. QUESTIONS PRESENTED FOR REVIEW .... i

B. PARTIC; TIVGILVEO 6 vie iccesvesenes iii

. TABLE OF CONTENTS AND TABLE

OP Ar, hE oo a he oe ead iv

1, Te I bn eos Cha iv

2. Table of Authorities ......2002000% vi

D CITATIONS TO OPINIONS BELOW ....... 1

E. ss a be EE ewes e nes 2

F, CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED .... 2

G STATEMENT OF THE CASE ........02: 4

l The Basis for Jurisdiction Below ...... 4

‘a Facts Pertinent to the Questions

PO id oN ee a 8 we 5

a Course of the Proceedings. ......... 9

H. | REASONS FOR GRANTING THE WRIT .... 13

iv

A. The Eleventh Circuit Pattern Jury

Instruction on 26 U.S.C. §5861(d)

approved in the opinion below conflicts

with the mens rea requirement

announced in Staples v. United States,

511 U.S. 600, 114 S.Ct. 1793, 128

L.Ed.2d 608 (1994), which issue is

TEES WO DOOUE. i 5 in. 5 baal ara sors 13

= Decisions between federal courts of

appeal conflict with decisions of other

sister courts on the Staples issue ...... 15

: ms The Thompson/Center Arms issue

presents a question of great public

importance because 26 U.S.C.

§5861(d) was given unwarranted

construction by the Court of Appeals in

order to save its constitutionality ...... 17

4, The Eleventh Circuit Court of Appeals

announced an unwarranted construction

of 26 U.S.C. §5861(d) as clearly

Congress never intended that 26

U.S.C. §5861(d) be applied to the

innocent conduct of a part-time sales

, clerk which occurred in this case ...... 22

| et ey 4 Cr oe a ee ere 25

Ze Table of Authorities

Cases Page

Ratzlaf v. United States, 510 U.S. 135,

oe 8 ee rere 15

Staples v. United States, 511 U.S. 600

EN ho a6 Ay ok ce a i, 9, 11-16, 21, 24

United States v. Barr, 32 F.3d 1320 (8th Cir. 1994)... 16

United States v. Edwards, 90 F.3d 199 (7th Cir. 1996) . 16

United States v. Gaudin, 115 S.Ct. 2310 (1995) ..... 15

United States v. Mains, 33 F.3d 1222 (10th Cir. 1994) . 16

United states v. Moore, 97 F.3d 561 (D.C. Cir. 1996) . 17

United States v. Owens, 103 F.3d 953

CEU Te sea Es 1, 4, 14, 22, 24

United States v. Rogers, 94 F.3d 1519

CE NES bee 6 eee eee ee 14

United States v. Thompson/Center Arms Co.,

504 U.S. ---, 112 S.Ct. 2102,

ESD 1, Se See CUPS) oc vccveces i, 17, 19, 21

Statutes, Rules and Constitutional

Provisions

onl oa ok od ota ee eS 13

SP en TE, 6 2b Vale bien s celvldawaiaeds 3, 12

BP ED Ae b. 00 CUR Ke Cede eeev ewes 2

26 U.S.C. §5861(d) ..... i-4, 11-13, 15-17, 20, 22, 23

| errr Tre rier rr ese 2

i ) C60 ecu ce a4 0s Ceecs aw) On 4

Other Authorities

PPT CEC ERT eee 2

PETITION FOR WRIT OF CERTIORARI

The Petitioner respectfully prays the Court to issue its

writ of certiorari to review the judgment of the United States

Court of Appeals for the Eleventh Circuit entered in this case

on 22 January 1997, rehearing denied 07 March 1997.

D. CITATIONS TO OPINIONS BELOW

The opinion beiow is reported United States v. Owens,

103 F.3d 953 (11th Cir. 1997). (Appendix, hereinafter “A,”

pp. 1-7).

E. JURISDICTION

The United States Court of Appeals for the Eleventh

Circuit entered its judgment on 22 January 1997. (A-1-7). A

timely filed Petition for Rehearing was denied by the Court of

Appeals on 07 March 1997. (A-8-9). The jurisdiction of the

Supreme Court of United States is invoked pursuant to 28

U.S.C. §1254(1).

F. CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. Constitutional Provisions.

The Due Process Clause of the Fifth Amendment to the

Constitution of the United States provides in pertinent part

that:

. nor be deprived of life, liberty, or

property, without due process of law; ....

2. Statutory Provisions.

26 U.S.C. §5845(c) provides:

The term “rifle” means a weapon designed or

redesigned, made or remade, and intended to

be fired from the shoulder and designed or

redesigned and made or remade to use the

energy of the explosive in a fixed cartridge to

fire only a single projectile through a rifled

bore for each single pull of the trigger, and

shall include any such weapon which may be

readily restored to fire a fixed cartridge.

26 U.S.C. §5861(d) provides:

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.

26 U.S.C. §5845. Definitions

For the purpose of this chapter—

(a) Firearm.

(3) a rifle having a barrel or barrels of less

than 16 inches in length;

G. STATEMENT OF THE CASE

1. The Basis for Jurisdiction Below.

A federal criminal prosecution was initiated in the

Northern District of Florida, Tallahassee Division, against

Charles David Owens for an alleged violation of 26 U.S.C.

§5861(d). The prosecution resulted in a conviction as charged

on 19 May 1995.

On 08 August 1995, Mr. Owens was sentenced to 33

months imprisonment. On the same day he filed his Notice of

Appeal and Motion for Bail Pending Appeal. Judge William

Stafford, Senior Judge, granted reléase pending appeal.

Pursuant to 28 U.S.C. §1291, Mr. Owens prosecuted

his appeal to the United States Court of Appeal for the

Eleventh Circuit which affirmed on 22 January 1997. United

States v. Owens, 103 F.3d 953 (11th Cir. 1997). (A-1-7).

Petition for Rehearing was filed on 12 February 1997, and

denied on 07 March 1997. (A-8-9).

2. Facts Pertinent to the Questions Presented.

On 05 October 1994, at approximately 2:30 p.m.,

Special Agent Donald Williams of the Bureau of Alcohol,

Tobacco and Firearms with a group of agents as backup went

to the Sports and Athletic Consignment Shop in Tallahassee,

Florida, in an undercover capacity wearing a transmitter and

a recording device. (R3-62). Acting on a “tip” that an

unassembled short-barreled "firearm" present on a shelf in the

store was being offered for sale, Special Agent Williams made

an audio cassette of the conversation that he had with part-

time sales clerk Charles David Owens and shop owner Howell

Tony Williams. The transcript of the tape was introduced into

evidence as Government's Exhibit 3C.

Agent Williams initiated contact with Mr. Owens, who

initially was the only employee behind the counter, about a

mini Uzi which the shop had offered for sale for $1,795.00.

The price included six magazines, two barrels, extra trigger

grips, barrel shroud, extra set of grips, a sling, instruction

manual, cleaning kit, cleaning tool, and a shoulder holster.

(3C-1; 3C-5; 3C-8). One of the barrels was a manufactured

7-inch barrel, and the other a longer manufactured 19 3/4-inch

barrel which Mr. Owens described as “the Carbine barrel."

(3C-2).

Mr. Owens informed Special Agent Williams, "If you

decide to buy it...make sure...that whoever is here classifies

it as a pistol. Not a...rifle.” (3C-5). Mr. Owens advised the

agent that with the short barrel attached, it could not legally

be carried as a rifle. But, if it were classified as a pistol! it

would be lawful to carry, as long as the agent got a concealed

pistol permit, and waited the mandatory three day waiting

period pursuant to Florida law. (3C-70). Mr. Owens stated

' The weapon was recorded on the receipt book of the

Sports and Athletic Consignment Shop by the owner, Howell

Tony Williams, as a pistol. (R3-164).

6

ee

that the weapon could be classified either as a rifle or a pistol

depending on which of the two barrels was attached. "You

just took a pistol and put a longer barrel on it.” “Just like the

Thompson contender single shot rifles.” (3C-10). “[I]t’s just

like the Thompson Contenders.” (3C-16).

An unidentified customer who observed the transaction

also “confirmed” on the tape that the gun would be illegal if

classified as a rifle, and stated that a person would have to

attach the longer barrel in order to classify the weapon as a

rifle. With a shorter barrel, the weapon should be classified

as a pistol.

Special Agent Williams then said, "I see, the barrel's

got to be eighteen inches long."

Mr. Owens answered, "Right. If you classify it as a

pistol... you can take this [short barrel] and carry it concealed,

if you have the permit."

MR. OWENS: Yea, if it's got the big [barrel]

one on there, o.k., you can classify, you can

have, you can classify it as a rifle. Since it has

the shorter barrel, you classify it as a pistol.

The serial number is classified as a pistol. You

just took a pistol and put a longer barrel on it.

id ” ial

MR. OWENS: Just like the Thompson

contender single shot rifles.

When the agent questioned Mr. Owens about possibly

running afoul of the law with the different barrels, Mr. Owens

assured him that "You bought it legally.” (3C-9). Later,

shop owner Howell T. Williams’ came into the shop and

engaged in the transaction with Mr. Owens and Agent

Williams. Further discussions occurred among the three as to

whether the gun was a pistol (like the Thompson Contender),

or a rifle, and the consequences of each classification.

Ultimately, it was decided, after checking the manufacturer’s

manual, to classify the weapon as a carbine. (3C-22). Agent

Williams then excused himself saying he needed to get his

? Howell Williams pled guilty of false record keeping

and was convicted of a misdemeanor. (R2-2).

check book from his car; the arrest was then made.

3. Course of the Proceedings.

It was the government's position at trial that the

unassembled receiver and barrel being on the top shelf under

the counter qualified under the statute as possession of a

regulated short-barreled rifle. (R3-114). The government

also wanted language added to the pattern jury instructions

used in the Eleventh Circuit (A-10-11) that because the rifle

was disassembled it did not mean it could not be possessed.

(R3-115). Trial counsel for the defendant relied on Staples v.

United States, 511 U.S. 600 (1994), and argued to the

contrary. (R3-116).

When the district court judge announced its rulings

regarding the jury instructions, he stated that he had looked at

Staples but had decided to instruct the jury as to the elements

of the offense as follows:

The defendant can be found guilty of this

offense charged in this indictment only if the

following facts are proved beyond a reasonable

doubt, if all of the following facts are proved

beyond a reasonable doubt (sic): First, that the

defendant knowingly possessed a rifle having a

barrel less than 16 inches in length; and

second, that this short-barreled rifle was not

then registered to the defendant in the National

Firearms Registration and Transfer record. It

is not necessary for the government to prove

that the defendant knew that the item described

in the indictment was a firearm that the law

requires to be registered. What must be

proved beyond a reasonable doubt is that the

defendant knowingly possessed a rifle having a

barrel less than 16 inches in length and that this

rifle was not then registered to the defendant in

the National Firearms Registration and

Transfer records.

(R3-205-206). The jury instructions delivered at trial follow

the Eleventh Circuit Pattern Jury Instructions, which are

reprinted in the Appendix, (A-10).

The jury left the courtroom at 3:54 p.m., and at 5:20

p.m. returned a verdict of guilty as charged of possession of

an unregistered short-barreled rifle. (R3-212).

The case was set for sentencing on 08 August 1995 at

which time Mr. Owens was sentenced to 33 months in prison.

10

On the same date, undersigned counsel first appeared and filed

a Notice of Appeal and a motion for bail pending review,

which was granted.

On appeal to the United States Court of Appeals for

the Eleventh Circuit, Mr. Owens argued: (1) The district

court committed reversible error when it did not instruct the

jury on the knowledge state of mind element of the offense as

requested by the defendant and required by the United States

Supreme Court in Staples v. United States, (infra); (2) The

prosecution under 26 U.S.C. §5861(d) for the offense of

possession of an unregistered short-barreled rifle denied the

defendant due process; (3) 26 U.S.C. §5861(d) is

unconstitutional as applied to the facts of the case; and (4) As

a part-time employee in a consignment sporting goods shop,

Mr. Owens did not have a sufficient possessory interest in the

firearm to be subject to regulation under the National Firearms

Act.

11

The Eleventh Circuit, Judge Anderson, writing for

Senior Judges Kravitch and Henderson, chose not to address

Mr. Owens' argument that §5861(d) was ambiguous as

applied to the facts of the case because Mr. Owens had,

allegedly during the course of the transaction with the agent,

assembled a firearm when he placed the shorter barrel on the

receiver. (A-3). Mr. Owens' argument that Staples required

an instruction to the jury that Mr. Owens must have

knowledge of the characteristics of the weapon which brought

the weapon under the proscription of 26 U.S.C. §5845 was

expressedly addressed and rejected by the panel. (A-4). The

Eleventh Circuit Pattern Instruction on 26 U.S.C. §5861(d)

(A-10-11), which was delivered by the district court to the

jury (A-4), was reconfirmed in the opinion with language

which explicitly tracked, with approval, the pattern instruction

language. In footnote (fn. 1), the Eleventh Circuit addressed

and rejected the issue of Mr. Owens' transitory possession as

12

a part-time employee of a licensed sports consignment shop.

(A-5). Similarly, in footnote (fn. 4) the Eleventh Circuit

addressed, and rejected, the due process argument that 26

U.S.C. §5861(d) conflicted with 18 U.S.C. §922(b)(4). (A-

6).

H. REASONS FOR GRANTING THE WRIT

1. The Eleventh Circuit Pattern Jury

Instruction on 26 U.S.C. §5861(d) approved in the opinion

below conflicts with the mens rea requirement announced

in Staples v. United States, 511 U.S. 600, 114 S.Ct. 1793,

128 L.Ed.2d 608 (1994), which issue is likely to recur.

The instructions to the jury tracked the Eleventh

Circuit’s Pattern Jury Instructions in Criminal Cases. The

Pattern Instructions are reproduced in the Appendix. (A-10-

11). The pattern jury instructions adopted by the Eleventh

Circuit in 1985 are legally insufficient under Staples. The

error will be repeated in every prosecution under 26 U.S.C.

13

§5861(d) in Florida, Georgia, and Alabama until the mens rea

element of the Pattern Jury Instructions is corrected by the

Supreme Court. The current erroneous pattern instruction has

already spawned litigation in the area under Staples. See

United States v. Rogers, 94 F.3d 1519 (11th Cir. 1996). The

errors raised in Rogers were addressed under a harmless error

analysis, because the characteristics of the weapon obviously

required registration.

Owens is different in quality and kind from Rogers.

The defendant was working in a store, not on the street. The

defendant was trying to explain how to comply with the law,

not how to circumvent it. The defendant did not know the

receiver was a rifle receiver while it was in his possession and

never evidenced any knowledge of the chzracteristics of the

receiver which required registration. The Eleventh Circuit

pattern instruction given to the jury effectively took away

from the jury any issue of innocent intent by failing to

14

adequately and accurately describe the requisite state of mind

for a legitimate prosecution under 26 U.S.C. §5861(d).

United States v. Gaudin, 115 S.Ct. 2310 (1995).

The Court should take jurisdiction of this case to

explain that this line of offenses is not a strict liability crime.

While knowledge of the law is not a defense, Ratzlaf v. United

States, 510 U.S. 135, 137; 114 S.Ct. 655, 657 (1994), guilty

knowledge is still an issue for the jury.

2. Decisions between federal courts of appeal

conflict with decisions of other sister courts on the Staples’

issue.

There is already disagreement among the circuits over

how Staples applies to sawed-off weapons, i.e., whether it

requires that the defendant knew that the weapon was shorter

than the prescribed length or merely that the defendant knew

> Staples v. United States, 511 U.S. 600, 114 S.Ct.

1793, 128 L.Ed.2d 608 (1994).

15

that it was sawed off.‘ Compare, e.g., United States v.

Edwards, 90 F.3d 199, 203 (7th Cir. 1996) (“We begin by

noting that the Circuits are split on whether the mens rea

requirement set forth in Staples is applicable to sawed off

shotguns.”); United States v. Mains, 33 F.3d 1222, 1230 (10th

Cir. 1994) (stating that the defendant must have knowledge of

“the length of the barrel or the overall length of the gun” to be

convicted under the Act) with United States v. Barr, 32 F.3d

1320, 1324 (8th Cir. 1994) (holding that a sawed-off shotgun

is “quasi-suspect” and that, therefore, the Government need

only prove that the defendant possessed the “quasi-suspect”

weapon and observed its characteristics). In this case, the

issue is whether §5861(d) requires a defendant know that the

“In the Owens’ prosecution, the facts dealt exclusively

with a manufactured weapon which could be assembled into

a firearm. The weapon and aggregation of parts were not

“altered” or “sawed off.”

16

characteristics of the receiver which made the weapon a rifle,

not merely whether the overall length of the rifle was shorter

than sixteen inches. See United States v. Moore, 97 F.3d 561

(D.C. Cir. 1996).

a The Thompson/Center Arms issue presents a

question of great public importance because 26 U.S.C.

§5861(d) was given unwarranted construction by the Court

of Appeals in order to save its constitutionality.

Mr. Owens, a part-time employee at a sporting goods

consignment shop, was charged with possession of a

manufactured, not an altered, short-barreled xifle which was

on display in the store where he worked and had no

proprietary interest. After demonstrating the firearms to an

ATF agent, he was arrested. The firearm in question had

been received into the shop as a “pistol” and was recorded on

the books of the store by the owner as a pistol. (R3-164).

Mr. Owens, in a transaction entirely captured on audio tape,

17

(Government’s Exhibit 3C), referred to the gun consistently

as a pistol if the shorter barrel were attached and as a rifle if

the longer barrel were attached. Mr. Owens’ obvious

ignorance was not of the law, nor of the length of the barrel,

but rather the characteristics of the receiver to which the

barrel would be attached. The characteristics of the weapon

which required firearm registration were the carbine (rifle)

nature of the receiver, not merely the barrel length.

Yet, remarkably this innocent nonsecretive conduct on

the floor of an open licensed business establishment in the

presence of other customers has subjected Mr. Owens to

thirty-three months in prison. The store owner, who

admittedly falsely reported the nature of the weapon in the

first place, was treated more lightly (a misdemeanor

conviction). The receiver had no externally visible indication

that it was a carbine (rifle) receiver as opposed to a pistol

receiver. Mr. Owens’ repeated assertions that the gun was

18

“just like the Thompson Contender” is evidence of his clean

hands and his ignorance of the characteristics of which

required the gun to be registered.

Congress never intended that a part-time store clerk

handling a weapon which he stated on an undercover tape was

a pistol “just like a Thompson Contender” should be subjected

to 33 months imprisonment because unknown to the clerk, the

receiver on the weapon was a rifle receiver, not a pistol

receiver. This is the case where the “the line should be drawn

in deciding what combinations of parts are ‘made’ into [or

possessed as] short-barreled rifles,” United States v.

Thompson/Center Arms Co., 504 U.S. ---, 112 S.Ct. 2102,

119 L.Ed.2d 308 (1992). The store clerk, in effect, relying

on the ambiguity noted in Thompson/Center was subjected to

criminal prosecution.

The Government prosecuted under the theory that the

defendant[s}] possessed the unassembled short-barreled rifle

19

merely by the simultaneous presence of the unassembled parts

on the floor-room shelf of the sporting goods consignment

store. (R3-2). In conversation with the undercover agent the

defendant no less than three times referred to the fact that the

short-barreled rifle was “just like the Thompson Contenders."

[Government’s Exhibits 3C-10, 3C-16, 3C-16 (sic)].

Mr. Owens argued in the Eleventh Circuit Court of

Appeals that prosecution under 26 U.S.C. §5861(d) denied

him due process because the case involved an arms length

transaction over the counter with an unassembled aggregation

of parts which could be innocently configured into an

unregulated firearm or a regulated firearm depending on the

intent of the party. It was Mr. Owens position that at all

times his actions and words, which were contemporaneously

recorded, evidenced no guilty knowledge and no guilty intent,

because at all times when the weapon was in his possession,

he erroneously thought the receiver bore the characteristics of

20

a pistol, ["just like the Thompson Contenders”]. Therefore,

the controlling issue was not merely the length of the barrel

intended to be placed on the receiver which triggered the

registration requirements, but also the characteristics of the

receiver. (See Staples issue above.) Mr. Owens argued to

the Eleventh Circuit that the notion of “an unassembled

machine gun is probably broader than that of an unassembled

rifle, but just where the line is to be drawn on short-barreled

rifles is not demonstrated by textual considerations.” United

States v. Thompson/Center Arms Co., supra, 112 S. Ct at

2109. Mr. Owens argued in the Eleventh Circuit that the

statute was ambiguous. The Eleventh Circuit sidestepped the

issue. (A-3). ‘

As prophetically noted by Justice White in

Thompson/Center:

The Court today thus closes one loophole ---

one cannot circumvent the NFA simply by

offering an unassembled collection of parts ---

only to open another of equal dimension ---

21

one can circumvent the NFA by offering a

collection of parts that can be made either into

a "firearm" or an unregulated rifle.

The Owens’ prosecution squarely places the issue

before the Court in a criminal law context.

4. The Eleventh Circuit Court of Appeals

announced an unwarranted construction of 26 U.S.C.

§5861(d) as clearly Congress never intended that 26 U.S.C.

§5861(d) be applied to the innocent conduct of a part-time

sales clerk which occurred in this case.

26 U.S.C. §5861(d) was not intended to apply to the

conduct which occurred in this case. The statute was designed

to prosecute the underworld, those in the underhanded

business of dealing instruments intended for death and

destruction. The conduct here occurred on the showroom of

a licensed sporting goods shop. The defendant was a part-

time employee who had just started to work. The gun was

being purchased as a Christmas gift for the customer/agent's

brother. The transaction was shoveboard: three unidentified

customers were also captured on the audio tape. One gave

(erroneous) advice as to whether the gun should be classified

as a pistol or a rifle. (3C-5). The other two made unrelated

conversation. (3C-12). Congress did not intend draconian

sentences for these circumstances or this conduct.

The conduct engaged in below is sufficiently regulated

by the administrative law process, and the fact that a

knowledgeable special agent of the Bureau of Alcohol,

Tobacco and Firearms has sufficient tactical skill to convince

a part-time clerk, whose other part-time employment was as

a private security guard for Globe Airport Security (R3-119),

to demonstrate that the short barrel will fit onto the mini-Uzi

receiver is not sufficient to trigger 26 U.S.C. §5861(d) where

there is a lack of conscious intent that a crime be committed.

"Possession" in the context of 26 U.S.C. §5861(d) has

two separate and distinct concepts, (a) knowledge of the

23

presence of a weapon and (b) knowledge of the characteristics

of the weapon which require regulation. In a drug

prosecution, the Government must prove the defendant knew

the existence of the package and must prove the defendant

knew, or had constructive knowledge, that the package

contained a controlled substance. The Court in Staples stated

that a defendant must know he has a weapon and must know

the weapon has the chare“teristics of a fully automatic. In

Owens, the defendant knew he had a weapon, but the Eleventh

Circuit does not require that the defendant know the weapon

had the characteristics which required it to be registered. The

jury was not instructed properly and was not given proper

latitude to evaluate innocent intent.

24

5 GE: ARONA ONT RE

I, CONCLUSION

The petition for writ of certiorari should be granted,

and that relief is respectfully requested.

espectfully Submitted,

GUSTUS HARPER

Robert Augustus Harper

Law Firm, P.A.

325 West Park Avenue

Post Office Box 10132

Tallahassee, Florida 32302-2132

(904) 224-5900

fax (904) 224-9800

FL Bar No. 127600

GA Bar No. 328360

COUNSEL FOR PETITIONER

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

TABLE OF CONTENTS

Document(s) Page

United States Court of

Appeals for the Eleventh

Circuit, Opinion Filed

Se SU eo 6 8 oes Ele eee hee A-l

United States Court of

Appeals for the Eleventh

Circuit, order Denying )

Rehearing Filed 07 March 1997............... A-8

Pattern Jury Instructions,

Criminal Cases, With Annotations

and Comments, Committee on Pattern

Jury Instructions, District Judges Association,

Eleventh Circuit, West Publishing Co..,

St. Paul, Minn. (1985 Edition) .............. A-10

(To be reported at: 103 F.3d 953)

(Cite as: 1997 WL 4553 (11th Cir.(Fla.)))

UNITED STATES of America, Plaintiff-Appellee,

v.

Charies OWENS, Defendant-Appellant.

No. 95-3107.

United States Court of Appeals,

; Eleventh Circuit.

Jan. 22, 1997.

Robert Augustus Harper, Tallahassee, FL, for

Defendant-Appellant.

P. Michael Patterson, U.S. Atty., Audrey A. Butler, Asst. U.S.

Atty., Tallahassee, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Northern

District of Florida.

Before ANDERSON, Circuit Judge, and HENDERSON and

KRAVITCH, Senior Circuit Judges.

ANDERSON, Circuit Judge:

Defendant-appellant Charles David Owens was convicted by a

jury for possession of an unregistered rifle with a seven-inch

barrel in violation 26 U.S.C.A. §5861(d). On appeal, Owens

contends the following: (1) that his due process rights were

violated because 26 U.S.C.A. § 5861(d) is ambiguous; and, (2)

that the district court committed reversible error in failing to

instruct the jury that the government must prove that Owens

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knew that the NFA required the short-barreled rifle in his

possession to be registered. [FN1]

I. FACTS

At the time of his arrest, appellant was working part-time at the

Sports and Athletic Consignment Shop. While at work on

October 5, 1994, appellant waited on undercover Agent Donald

Williams of the Bureau of Alcohol, Tobacco and Firearms

(ATF). [FN2] Upon observing an Uzi mini-carbine on the

second shelf of a glass case, Agent Williams asked Owens how

it was operated, and what parts were included with it. Owens

offered to sell to Agent Williams the following parts with the

carbine: six magazines, two barrels (one seven inches, and one

nineteen and three quarters inches), an extra trigger shroud, an

extra trigger grip, a barrel shroud, a sling, an instruction manual,

a cleaning kit, a cleaning tool and a shoulder holster. The two

barrels which Owens offered to sell with the carbine also were

on the second shelf of the glass case. Agent Williams testified

that during the course of their discussion regarding the operation

of the carbine, Owens placed the seven-inch barrel into the

carbine. It is undisputed that the weapon was not registered. At

trial, Owens denied putting the seven-inch barrel onto the

carbine.

II. DISCUSSION

A. Whether appellant's conviction under 26 U.S.C.A. § 5861(d)

denied him of due process.

Under the National Firearms Act (NFA), 26 U.S.C.A. § 5861(d)

makes it unlawful for any person to “possess a firearm which is

not registered to him in the National Firearms Registration and

Transfer Record.” The term “firearm" is defined in 26 U.S.C.A.

§ 5845(a)(3) as, inter alia, “a rifle having a barrel or barrels of

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less than 16 inches in length." [FN3] A “rifle” is defined as:

[A] weapon designed or redesigned, made or remade,

and intended to be fired from the shoulder and designed

or redesigned and made or remade to use the energy of

the explosive in a fixed cartridge to fire only a single

projectile through a rifled bore for each single pull of the

trigger, and shall include any such weapon which may be

readily restored to fire a fixed cartridge.

26 U.S.C.A. § 5845(c).

On appeal, appellant argues that he was denied due process

guaranteed by the Fifth Amendment because the statute under

which he was prosecuted, 26 U.S.C.A. § 5861(d), is ambiguous.

[FN4] According to appellant, it is unclear whether § 5861(d)

covers the mere possession of unassembled parts without being

registered, when those parts can be assembled into either an

illegal or legal weapon. In support of his contention, appellant

relies upon the plurality opinion authored by Justice Souter in

United States v. Thompson/Center Arms Co., 504 U.S. 505,

112 S.Ct. 2102, 119 L.Ed.2d 308 (1992) (Rehnquist, C.J.,

O'Connor, J., joining in the opinion). Although

Thompson/Center arose in a somewhat different context,

appellant contends that it supports his argument that § 5861(d)

does not unambiguously prohibit the possession without

registration of the unassembled parts involved in this case. We

need not address this argument because the jury found that

appellant Owens assembled the weapon with the seven-inch

barrel, and as assembled it was clearly an unregistered rifle

“having a barrel ... of less than 16 inches in length." 26 U.S.C.A.

§ 5845(a)(3). Thus, Owens possessed the weapon assembled

with the seven-inch barrel. Because the statute, as applied to

Owens, clearly was not vague, we need not consider whether the

effect of the statute is uncertain with respect to other litigants.

See United States v. Nat'l Dairy Products Corp., 372 U.S. 29,

83 S.Ct. 594, 9 L.Ed.2d 561 (1963); United States v. Hicks,

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980 F.2d 963 (Sth Cir.1992), cert. denied, 507 U.S. 998, 113

S.Ct. 1618, 123 L-Ed.2d 178 (1993).

B. Whether the district court's jury instructions constituted

reversible error.

Appellant contends that the district court's jury instructions

amounted to reversible error. At the charge conferences,

appellant had argued that Staples v. United States, 511 U.S.

600, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994), requires the

government to prove not only that the defendant knowingly

possessed a rifle with a barrel of less than 16 inches, but also to

prove that the defendant knew the firearm had to be registered

under the NFA. The district court rejected appellant's

interpretation of Staples and charged the jury as follows:

The defendant can be found guilty of this offense

charged in this indictment only if the following facts are

proved beyond a reasonable doubt ...: First, that the

defendant knowingly possessed a rifle having a barrel

less than 16 inches in length; and second, that this

short-barreled rifle was not then registered to the

defendant in the National Firearms Registration and

Transfer Record. It is not necessary for the government

to prove that the defendant knew that the item described

in the indictment was a firearm that the law requires to

be registered.

We reject appellant's interpretation of Staples, and find no error

in the district court's instructions. [FN5] Appellant reads

Staples broader than its self-described "narrow" holding.

Staples, 511 U.S. at ----, 114 S.Ct. at 1804. While Staples

requires the government to prove a defendant's "[knowledge] of

the features of [the weapon] that brought it within the scope of

the Act," id., it does not require that the government prove that

a defendant knew that the firearm in his or her possession had to

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be registered under the Act. Id. at ---- - ----, 114 S.Ct. at

1798-99 (distinguishing Staples from United States v. Freed,

401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971), which

held that where a defendant knows the items he possessed had

the features described in the statute (grenades there), the

government need not prove that the defendant also knew they

were unregistered); see also id. at ---- n. 3, 114 S.Ct. at 1806

n. 3 ("a defendant who knows he possesses a weapon with all of

the characteristics that subject. it to registration, but was

unaware of the registration requirement ... may be convicted

under § 5861(d)"); accord United States v. Mains, 33 F.3d

1222, 1229 (10th Cir.1994) (where the Tenth Circuit held that

the district court's jury instructions which required that the

defendant have "knowingly possessed a shotgun with a barrel

length of less than 18 inches or an overall length less than 26

inches" were consistent with Staples, the court stated that the

government was not required to prove that the defendant knew

that such possession was illegal).

III. CONCLUSION

For the foregoing reasons, appellant's.conviction is affirmed.

AFFIRMED.

FN1. Appellant also contends that the evidence

regarding Owens’ possessory interest in the firearm is

insufficient to sustain his conviction. Specifically, he

argues that he had merely transitory possession of a

weapon. We need not in this opinion define the outer

limits of conduct amounting to possession because

Owens actually placed the seven-inch barrel in the

carbine while selling it to the undercover Bureau of

Alcohol, Tobacco and Firearms agent, Donald Williams.

In light of the ample evidence of possession in this case,

we readily conclude that appellant actually possessed the

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firearm. See United States v. Pedro, 999 F.2d 497, 498

(11th Cir.1993); United States v. Bogden, 865 F.2d 124

(7th Cir.1988), cert. denied, 490 U.S. 1010, 109 S.Ct.

1652, 104 L.Ed.2d 166 (1989). Appellant's other

arguments on appeal are also without merit and warrant

no discussion.

FN2. The undercover investigation was initiated because

the Bureau was notified by U.S. Customs Agent William

Maxey, who is a federal firearms licensee, that a

short-barreled Uzi carbine was in the consignment shop.

FN3. A rifle with a barrel of longer than 16 inches is not

regulated by the NFA.

FN4. Appellant also argues that his due process rights

were violated because there is an inherent conflict

between 26 U.S.C.A. § 5861, which prohibits possession

of an unregistered rifle with a barrel of less than 16

inches, and 18 U.S.C.A. § 922(b)(4), which prohibits

"any licensed importer, licensed manufacturer, licensed

dealer, or licensed collector to sell or deliver--to any

person any ... short-barreled shotgun, ... except as

specifically authorized by the Secretary consistent with

public safety and necessity." Appellant's argument is

foreclosed by our decision in United States v. Rivera, 58

F.3d 600 (lith Cir.1995). See also United States v.

Ardoin, 19 F.3d 177 (Sth Cir.), cert. denied, --- U.S.

----, 115 §.Ct. 327, 130 L_Ed.2d 287 (1994); United

States v. Ridlehuber, 11 F.3d 516, 526 (Sth Cir.1993);

United States v. Ross, 9 F.3d 1182 (7th Cir.), vacated

on other grounds, 40 F.3d 144 (7th Cir.1993); United

States v. Jones, 976 F.2d 176 (4th Cir.1992), cert.

denied, 508 U.S. 914, 113 S.Ct. 2351, 124 L_Ed.2d 260

(1993); United States v. Aiken, 974 F.2d 446, 448 (4th

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Cir. 1992).

FNS. This Court's decision in United States v. Rogers,

94 F.3d 1519 (11th Cir. 1996), is distinguishable from

this appeal. In Rogers, “the district court, over a

defense objection, refused to inform the jury that the

Government had the burden of showing Rogers ‘knew

th[e] items in question were firearms’ under the Act" (i.e.

the court did not tell the jury that the defendant had to

know the weapon had the characteristics or features that

brought it within the scope of the NFA). Id. at 1523.

Filed

U.S. Court of Appeals

Eleventh Circuit

Mar -7 1997 ©

Miguel J. Cortez

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 95-3107

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHARLES OWENS,

Defendant-Appellant.

On Appeal from the United States District Court for the

Northern District of Florida

BEFORE: ANDERSON, Circuit Judge, and KRAVITCH and

HENDERSON, Senior Circuit Judges.

PER CURIAM:

ASR ea CT i NII emai Se ae Fe 3 acca

The petition(s) for rehearing filed by Appellant,

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CHARLES OWENS is Denied.

ENTERED FOR THE COURT:

/s/R. Lanier Anderson, III

United States Circuit Judge

PATTERN JURY INSTRUCTIONS

68.1

POSSESSION OF UNREGISTERED

FIREARM

26 USC §5861(d)

(Note: Willfulness not an essential element.)

Title 26, United States Code, Section 5861(d), makes it

a Federal crime or offense for anyone to possess certain kinds of

firearms which are not registered to him in the National Firearms

Registration and Transfer Record.

Title 26, United States Code, Section 5845, defines

“firearm” as including

The Defendant can be found guilty of that offense only

if all of the following facts are proved beyond a reasonable

doubt:

First: That the Defendant possessed a

“firearm,” as defined above; and

Second: That the “firearm” was not then

registered to the Defendant in the National

Firearms Registration and Transfer Record.

It is not necessary for the Government to prove that the

Defendant knew that the item described in the indictment was a

“firearm” which the law requires to be registered. What must be

proved beyond a reasonable doubt is that the Defendant

knowingly possessed the item as charged, that such item was a

“firearm” as defined above, and that it was not then registered

to the Defendant in the National Firearms Registration and

Transfer Record.

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Annotations and Comments

26 USC §5861(d) provides:

“Tt shall be unlawful for any person...to...possess

a firearm which is not registered to him in the

National Firearms Registration and Transfer

Record...”

[Note: For the definition of “firearm” within the context of this

statute, see 26 USC §5845].

Maximum Penalty: Ten(10) years imprisonment and $10,000

fine. 26 USC §5871.

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