Opposition Brief — Owens v. United States

Supreme Court, ¥.

ee & DB

JUN 2 97

No. 96-1559

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1996

CHARLES OWENS, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

SRIEF FOR THE UNITED STATES IN OPPOSITION

WALTER DELLINGER

Acting Solicitor Genera

JOHN C. KEENEY

l

Acting Assistant Attorney

Gereral

THOMAS M. GANNON

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

tal

o.

i,

QUESTIONS PRESENTED

1. Whether the district court correctly instructed

the jury on the mens rea required for a violation of

26 U.S.C. 5861(d), which prohibits possession of an

unregistered, short-barreled firearm.

2. Whether Section 5861(d) is unconstitutionally

vague.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Chapman v. United States, 500 U.S. 453 (1991) ..... 10

Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479

ARS ESE RSD iis SARS TE REE HER Se NCTE 10-11

Staples v. United States, 511 U.S. 600 (1994) ......... 4,6

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

a upapnetoconcse 8

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

aa a se wenn 6-7, 8

United States v. Freed, 401 U.S. 601 (1971) ............ 6

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

a a sbuhemenoonees 7,8

United States v. Moore, 97 F.3d 561 (D.C. Cir

en i a eam rcnanees 8

United States v. Powell, 423 U.S. 87 (1975) ............ 10

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

1996), cert. granted, No. 96-1279 (May 27, 1997) ..... 7

United States v. Thompson/Center Arms Co.,

I a snecenecnenes 10

United States v. Turkette, 452 U.S. 576 (1981) ....... 11

Wisniewski v. United States, 353 U.S. 901 (1957) ... 7

Statutes:

National Firearms Act, 26 U.S.C. 5801 et seg. ........... 4

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Sy ee ETT nb pisichctbtidadebinheccheasinddbesacecserusesabs 5, 9

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IV

Statutes—Continued: Page

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2B U.S.C. SBBIA) <.....ccccsescarcesscsecosese 2, 4, 6, 7, 9, 10, 11

Racketeer Influenced and Corrupt Organizations

Act, 18 U.S.C. 1961 e€ 809. ...........ccccccccoccsccccessccrcessee 10

26 TYE aces posniesenndnisesdsvsciscesnccinsesscaisnscsiciits 2

18 U.S.C. G2A(aN(B) ..........ccccccccccsccssssccscccscccsssesccsscscecs 2

In the Supreme Court of the Gnited States

OCTOBER TERM, 1996

No. 96-1559

CHARLES OWENS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. A1-

A7) is reported at 103 F.3d 953.

JURISDICTION

The judgment of the court of appeals was entered on

January 22, 1997. A petition for rehearing was denied

on March 7, 1997. Pet. App. A8-A9. The petition for

a writ of certiorari was filed on April 2, 1997. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the Northern District of Florida, petitioner

was convicted of possessing an unregistered, short-

(1)

2

barreled firearm in violation of 26 U.S.C. 5861(d). The

district court sentenced him to a term of 33 months’

imprisonment, to be followed by three years of super-

vised release, and fined him $1,000.' The court of ap-

peals affirmed. Pet. App. A1-A7.

1. Petitioner was a part-time employee at a gun

store called the Sports and Athletic Consignment

Shop in Tallahassee, Florida. Howell Williams, the

owner of the business, had accepted an Uzi mini-

carbine with a long barrel on consignment from Lee

Minor. Minor later brought a short barrel to Howell

Williams to fit the Uzi rifle, and told Howell Williams

that the weapon needed to be registered with a Class

III gun dealer. Gov’t C.A. Br. 2.

On September 29, 1994, Bill Maxey, a United States

Customs agent and a federal firearms licensee, went

to Howell Williams’s gun shop on his lunch hour to

‘Sust look around.” Petitioner showed Maxey an Uzi

mini-carbine with a short barrel, a longer barrel, a

flash suppressor, and a carrying case. Maxey asked

petitioner if the short barrel fit in the Uzi carbine,

and petitioner placed the short barrel in the weapon.

Howell Williams joined the two men while petitioner

was putting other attachments on the weapon. Maxey

was aware that a short-barreled rifle was required to

be registered. He questioned Howell Williams and

petitioner about registration requirements for the

weapon. Howell Williams said the requirement was

contingent on the manner in which the weapon was

1 Petitioner’s co-defendant, Howell Williams, pleaded

guilty to the misdemeanor of making a false entry in records

required to be kept by a federally licensed firearms dealer in

violation of 18 U.S.C. 922(m) and 924(a)(3). See Gov’t C.A.

Br. 1.

3

recorded on ATF Form 4473.’ According to Howell

Williams, if the weapon was recorded as a handgun,

not a rifle, it would be legal to put the short barrel on

it and use it. Petitioner agreed with Howell Williams.

The next day, Maxey called ATF Special Agent Don

Williams to report what had transpired at the gun

shop. Gov’t C.A. Br. 2-3.

On October 5, 1994, Don Williams went to the gun

shop and posed as a customer interested in buying the

Uzi mini-carbine. Don Williams wore a recording

device and other agents were stationed outside the

store. Petitioner, the only employee in the store at

that time, showed the Uzi to Don Williams. Peti-

tioner offered the weapon, along with six magazines,

two barrels (a seven-inch barrel and a 19 3/4-inch

barrel), and multiple accessories, for $1,795. Gov’t

C.A. Br. 3.

While selling the weapon to Don Williams, peti-

tioner placed the seven-inch barrel in the carbine.

During the conversation, petitioner advised Don

Williams about how to circumvent the law by making

sure that the Uzi was classified as a pistol, not a rifle,

at the time of sale. Petitioner told Don Williams that,

if classified as a pistol, the weapon could be carried

concealed, with a permit. Petitioner assured Don

Williams that the authorities could do nothing about

his possession of the short-barreled carbine provided

it had been classified as a pistol when sold. Petitioner

also advised Don Williams that the weapon did not

have to be registered with anyone. Gov’t C.A. Br. 3-5.

2 ATF Form 4473 is completed when a weapon is sold in a

gun shop. The form provides information to ATF about the

purchaser and the type of weapon sold. Gov’t C.A. Br. 3 n.1.

4

Howell Williams came into the store as the pur-

chase of the weapon was being completed. Don Wil-

liams asked him about the short barrel. Howell Wil-

liams said that he was not sure about it, and would

have to refer to the Uzi manual. The manual stated

that the weapon was a mini Uzi automatic carbine.

Howell Williams said that he would let the “feds”

argue about it, and instructed Don Williams not to

put the short barrel on the rifle while in the store.

Howell Williams knew that a carbine is a rifle, and

that the short barrel should not accompany the gun

unless it was registered. Gov’t C.A. Br. 5.

2. At the charging conference held after the gov-

ernment presented its case, petitioner requested, in

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

(1994), that the jury be instructed that, in order to

convict him of a violation of 26 U.S.C. 5861(d), it had to

find that he knew that the weapon was required to be

registered under the National Firearms Act (NFA).

After a review of Staples, the district court rejected

the instruction. It concluded instead that the jury

was required to find only that petitioner knew the

characteristics of the weapon that made it subject to

registration. Gov’t C.A. Br. 8.°

3 In pertinent part, the district court instructed 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 know-

ingly 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

5

3. Petitioner testified in his own defense. He de-

nied showing the weapon to Maxey, attempted to

establish an alibi with records from another place of

employment, claimed that he had not been fully

trained by the gun shop, suggested that he knew little

about firearms, denied attaching the seven-inch bar-

rel to the carbine, and stated that he was merely a

“volunteer” at the gun shop, without liability for what

happened there. Gov’t C.A. Br. 5-6.

4, The court of appeals affirmed. Pet. App. Al-A7.

Noting that the jury had found that petitioner “as-

sembled 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,’”

the court rejected petitioner’s claim that the statute

he was charged with violating was unconstitution-

ally vague as applied to him. Pet. App. A3 (quoting 26

U.S.C. 5845(a)(3)). The court of appeals further ob-

served that, because the statute was not vague as

applied to petitioner, it had no occasion to consider

whether the statute would be vague if applied to other

defendants. Jbid.

The court of appeals also rejected petitioner’s claim

that the district court erred in declining to instruct

the jury that the government had to prove not only

that petitioner knowingly possessed a rifle with a

barrel of less than 16 inches, but also that petitioner

knew that the firearm had to be registered under the

NFA. Pet. App. A4-A5. The court reasoned (ibid.)

that, although Staples requires the government to

item described in the indictment was a firearm that the law

requires to be registered.

Pet. App. A4. That instruction followed the Eleventh Circuit

Pattern Jury Instructions. See id. at A10.

6

prove that a defendant knew the features of a firearm

that brought it within the NFA’s registration re-

quirements, that case does not require the govern-

ment to prove that the defendant was aware that the

firearm had to be registered.‘

ARGUMENT

1. Petitioner contends (Pet. 13-15) that the

Eleventh Circuit’s pattern jury instruction on the

elements of a violation of 26 U.S.C. 5861(d), which the

district court followed here, fails to convey the mens

rea requirement announced in Staples v. United

States, 511 U.S. 600 (1994). The courts below properly

rejected that argument.

The “narrow” holding of Staples requires the gov-

ernment to prove a defendant’s “[knowledge] of the

features of [the weapon] that brought it within the

scope of the [NFA].” 511 U.S. at 619. It does not re-

quire the government to prove that the defendant

knew that the firearm he possessed was required to

be registered under the Act. See id. at 608-610; see

also id. at 622 n.3 (Ginsburg, J., concurring in the

judgment) (“a defendant who knows he possesses a

weapon with all of the characteristics that subject it

to registration, but was unaware of the registra-

tion requirement, * * * may be convicted under

§ 5861(d)”); United States v. Freed, 401 U.S. 601, 607

(1971) (Section 5861(d) does not require government

to prove that defendant knew grenades in his pos-

session were unregistered); accord United States v.

4 Petitioner had also argued (Pet. C.A. Br. 41-43) that the

evidence was insufficient to show possession of the weapon.

The court of appeals found the evidence of possession “ample,”

and rejected petitioner’s other arguments on appeal with little

or no discussion. Pet. App. A5-A7 nn.1, 4-5.

7

Edwards, 90 F.3d 199, 202 & n.3 (7th Cir. 1996) (Sta-

ples requires gun owners “to be aware of the particu-

lar characteristics that bring their firearm within

the statutory definition”; once such knowledge “is

proven, the holding of Freed would suggest that

strict liability kicks in with respect to registration”);

United States v. Mains, 33 F.3d 1222, 1229 (10th Cir.

1994) (jury instruction requiring defendant to have

“knowingly possessed a shotgun with a barrel length

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

inches” is consistent with Staples; government is not

required to prove defendant knew that such posses-

sion was prohibited under NFA). Accordingly, as the

court of appeals correctly held (Pet. App. A4-A5), the

district court did not err in the instruction it gave

the jury as to the mens rea required for a violation of

Section 5861(d).°

5 Petitioner notes (Pet. 14) that the Eleventh Circuit has

also addressed the instruction required under Staples in

United States v. Rogers, 94 F.3d 1519 (1996). On May 27, 1997,

this Court granted certiorari in Rogers, limited to the question

whether a district court’s failure to instruct the jury on an

element of an offense is harmless error where, at trial, the

defendant admitted that element. Rogers v. United States,

No. 96-1279. Because the court of appeals in this case held that

there was no instructional error, the harmless-error issue the

Court will review in Rogers is not presented here. Moreover,

the court of appeals in this case distinguished Rogers on the

ground that the jury in that case was not told that “the

defendant had to know the weapon had the characteristics or

features that brought it within the scope of the NFA.” Pet.

App. A7 n.5. In any event, any conflict between Rogers and

the decision in this case would be a matter for the court of

appeals, not this Court, to resolve. See Wisniewski v. United

States, 353 U.S. 901 (1957) (per curiam).

8

Petitioner suggests (Pet. 15-17) as a basis for

review that the courts of appeals are in conflict over

whether Staples’ mens rea requirement applies to

prosecutions under Section 5861(d) for possession of

sawed-off shotguns. Compare Edwards, 90 F.3d at

204 (government required to prove defendant knew

sawed-off shotgun barrel was shorter than 18 inches)

and Mains, 33 F.3d at 1229-1230 (jury required to find

defendant knew sawed-off shotgun was less than 26

inches long or its barrel was shorter than 18 inches)

with United States v. Barr, 32 F.3d 1320, 1324 (8th

Cir. 1994) (because sawed-off shotgun “is clearly not a

traditionally lawful weapon,” defendant “had no legiti-

mate expectation that the weapon was not subject to

regulation,” and Staples did not require government

to prove “defendant knew of the specific characteris-

tics which make the weapon subject to the [NFA]”);

see also United States v. Moore, 97 F.3d 561, 564 (D.C.

Cir. 1996) (recognizing disagreement among courts of

appeals in application of Staples to possession of

sawed-off shotguns). This case, however, does not in-

volve that conflict because petitioner was convicted of

possessing an unregistered short-barreled rifle, not a

sawed-off shotgun. In any event, petitioner would not

stand to benefit from review of that claim because the

court of appeals held that Staples applied to this case

and that the jury was instructed to find and did find

that petitioner knowingly possessed a rifle with

characteristics that made it subject to regulation.

Pet. App. A3-A4.°

6 As noted above, in cases involving sawed-off shotguns,

some courts of appeals would not require that the jury be

instructed to make such a finding. The Department of Justice,

however, has instructed prosecutors that, in all prosecutions

9

2. Petitioner also argues (Pet. 17-22) that, because

he did not know that the Uzi mini-carbine had the

characteristics of a rifle instead of a pistol, his

conduct was not criminal, and that, because Section

5861(d) is ambiguous, it cannot be constitutionally |

applied to him. The court of appeals correctly re-

jected those claims.

The NFA makes it unlawful for any person to

“possess a firearm which is not registered to him in

the National Firearms Registration and Transfer

Record.” 26 U.S.C. 5861(d). In pertinent part, 26

U.S.C. 5845 defines a “firearm” as “a rifle having a

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

26 U.S.C. 5845(a)(3). A “rifle” is defined in 26 U.S.C.

5845(c) as

a weapon designed or redesigned, made or re-

made, and intended to be fired from the shoulder

and designed or redesigned and made or re-

made 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.

Petitioner’s claim fails because the evidence

showed and, by its guilty verdict, the jury found that

petitioner possessed the weapon with a seven-inch

barrel. As thus assembled, the weapon was an unreg-

istered rifle “having a barrel * * * of less than 16

inches in length.” Because petitioner possessed such

under Section 5861(d), the government must prove that the

defendant knew the features of the firearm that brought it

within the scope of the statute and that the defendant is

entitled to an instruction to that effect.

10

a weapon, the NFA was not unconstitutionally am-

biguous as applied to him, and potential ambiguities in

the NFA’s application to other litigants is irrelevant.

See, e.g., Chapman v. United States, 500 U.S. 453, 467

(1991); United States v. Powell, 423 U.S. 87, 92 (1975).

In support of his argument that Section 5861(d)

is so ambiguous that it cannot be constitutionally

applied to him, petitioner relies (e.g., Pet. 21) on

the plurality opinion in United States v. Thompson/

Center Arms Co., 504 U.S. 505 (1992). That case,

however, is inapposite. Applying the rule of lenity,

the plurality in Thompson/Center Arms Co. con-

cluded (id. at 507, 517-518) that the mere packaging of

a pistol with a carbine kit containing a rifle stock that

permitted the conversion of the pistol into a short-

barreled rifle did not create a short-barreled rifle that

is regulated under the NFA. Because the present

case involves not the mere packaging of disassembled

firearm parts, but rather an assembled short-barreled

rifle, the finding of ambiguity in Thompson/Center

Arms Co. has no application to this case.

Finally, in a variation of his claim that there was

insufficient evidence to support his conviction, peti-

tioner contends (Pet. 22-24) that Congress intended

that Section 5861(d) be applied to “the underworld,

those in the underhanded business of dealing instru-

ments intended for death and destruction,” not the

“innocent conduct of a part-time sales clerk” in a gun

shop. That claim should also be rejected.

As with the Racketeer Influenced and Corrupt

Organizations Act (RICO), which is aimed at organ-

ized crime but reaches all who fall within the statu-

tory requirements, the scope of Section 5861(d) is not

limited to the specific class of criminals that prompt-

ed its enactment. See Sedima, S.P.R.L. v. Imrex Co.,

11

473 U.S. 479, 497-500 (1985) (civil RICO reaches re-

spected and legitimate businesses as well as mobsters

and organized criminals); United States v. Turkette,

452 U.S. 576, 588-593 (1981) (RICO’s broad definition

of “enterprise” includes criminal enterprises as well

as legitimate businesses that might be infiltrated by

organized crime). The record in this case contains

ample evidence from which a reasonable jury could

conclude that petitioner knowingly possessed a rifle

with a barrel less than 16 inches long, and Section

5861(d) requires no more. Moreover, regardless of

petitioner’s personal characteristics, prosecution of

persons illegally possessing short-barreled firearms

is relevant to preventing the harm that could result

from the sale or transfer of such weapons to persons

petitioner describes (Pet. 22) as “the underworld,

those in the underhanded business of dealing instru-

ments intended for death and destruction.”

7 Petitioner also notes (Pet. 18) that his co-defendant,

Howell Williams, who pleaded guilty to keeping false records,

received more lenient treatment. The disposition of charges

against Howell Williams has no relevance to petitioner’s claims.

12

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

WALTER DELLINGER

Acting Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney

General

THOMAS M. GANNON

Attorney

JUNE 1997