U.S. v. (08–1363)

• Decision Date: 03 August 2011
• Docket Number: 08–1452,Nos. 08–1363,08–1569.,s. 08–1363
• Citation: 651 F.3d 578
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Gary THEUNICK (08–1363), Maxwell Garnett (08–1452), and Frederick MacKinnon (08–1569), Defendants–Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

651 F.3d 578

UNITED STATES of America, Plaintiff–Appellee,

v.Gary THEUNICK (08–1363), Maxwell Garnett (08–1452), and Frederick MacKinnon (08–1569), Defendants–Appellants.

Nos. 08–1363

08–1452

08–1569.

United States Court of Appeals, Sixth Circuit.

Argued: April 20, 2011.Decided and Filed: June 30, 2011.Rehearing and Rehearing En Banc Denied Aug. 3, 2011.

ARGUED: Jacob A. Manning, Dinsmore & Shohl LLP, Wheeling, West Virginia, Pamela C. Dausman, Foster, Swift, Collins & Smith, PC, Lansing, Michigan, Paul L. Nelson, Federal Public Defender's Office, Grand Rapids, Michigan, for Appellants. Janet L. Parker, Assistant United States Attorney, Bay City, Michigan, for Appellee. ON BRIEF: Jacob A. Manning, Dinsmore & Shohl LLP, Wheeling, West Virginia, Michael J. Newman, Dinsmore & Shohl LLP, Cincinnati, Ohio, Pamela C. Dausman, Frank Harrison Reynolds, Donald E. Martin, Foster, Swift, Collins & Smith, PC, Paul L. Nelson, Federal Public Defender's Office, Grand Rapids, Michigan, for Appellants. Janet L. Parker, Assistant United States Attorney, Bay City, Michigan, for Appellee.Before: MARTIN, SILER, and ROGERS, Circuit Judges.

OPINION

SILER, Circuit Judge.

Gary Theunick, Frederick MacKinnon, and Maxwell Garnett (collectively, “Defendants”) were convicted of possessing automatic weapons and making false entries on weapons application and transfer forms in violation of 26 U.S.C. §§ 5861(d), 5861( l ), and 7206(2). The Defendants raise various issues on appeal, including the constitutionality of the statutes charged, double jeopardy, discovery errors, and sentencing errors. For the following reasons, we AFFIRM.

I.

A.

MacKinnon was elected Ogemaw County prosecutor in 1993, where he worked until losing his reelection bid in 2000. In 1997, he hired Theunick as chief assistant prosecutor. During MacKinnon's tenure, he and Theunick were the only prosecutors in Ogemaw County.

Garnett was the chief of police in Rose City, Michigan. During this time, Rose City was comprised of one square mile with a population of 800. The Rose City Police Department (“RCPD”) had one full-time patrol officer and one police car.

In 1997, MacKinnon and Theunick began purchasing machine guns and silencers under the authority of the Ogemaw County prosecutor's office. They purchased these weapons using Federal Bureau of Alcohol, Tobacco, and Firearms (“ATF”) forms for the tax-exempt transfer and registration of firearms. The sellers, or transferors, of the weapons were National Firearms Act (“NFA”) vendors. The ATF forms indicated that the firearms were “being transferred to ... a government entity.” The forms contained a box to check if the firearm was being acquired “for personal use,” and these boxes were not marked. The forms also indicated that the weapons were tax-exempt by nature of their use by a government entity.

MacKinnon and Theunick purchased these weapons using their personal funds. They never sought repayment from the Ogemaw County Board of Commissioners, which is the usual procedure for bills incurred at Ogemaw County offices. The Ogemaw County sheriff and the Michigan State Police in Ogemaw County were unaware of the firearms.

In April 2000, Garnett, MacKinnon, and Theunick simultaneously purchased three handguns with silencers, and three additional silencers. Garnett sent the firearms dealer a letter on Rose City letterhead stating, “please accept this letter as an official order.... payment made in advance by the county prosecutor Gary Theunick and i [sic] understand that he also will be ordering on his letterhead.” The letter also stated that the purchase “is for official law enforcement use only and is not subject to any state or federal taxs [sic].”

After MacKinnon was not reelected as county prosecutor in 2000, he and Theunick executed ATF forms to transfer the weapons and silencers to the RCPD. Separately, Theunick had a document prepared indicating that he donated the weapons to the RCPD. When MacKinnon and Theunick left the prosecutor's office in December 2000 and the incumbent prosecutor arrived, there was no record at the Ogemaw County office of the purchase, possession, or transfer of the firearms.

Theunick then worked as assistant prosecutor in Newaygo County. RCPD records indicate that Theunick also worked a few hours at the RCPD in May 2001. MacKinnon was employed as assistant prosecutor in Midland County, but there is no record of MacKinnon's working at the RCPD. Between February 2001 and April 2001, Theunick and Garnett purchased more machine guns and silencers. On the ATF forms, they identified the RCPD as the transferee. In March 2001, Garnett signed a letter on RCPD letterhead to purchase an AK47 automatic rifle. Theunick negotiated and paid for that purchase, and faxed Garnett's letter from the Newaygo County prosecutor's office to the firearms dealer.

In May 2001, ATF agents conducted an investigation into the transfers from the Ogemaw County prosecutor's office to the RCPD, but found none of the firearms at the RCPD. Garnett told an agent that Theunick and MacKinnon “never surrendered possession of the weapons.” Two months later, the firearms were seized from the RCPD by the Michigan State Police.

In June 2001, Garnett instituted a logbook for signing out the various guns registered to the RCPD. The logbook entries indicate that Theunick and Garnett regularly checked out NFA machine guns and silencers. Other officers signed out only non-NFA firearms. Theunick did not work any hours for the RCPD in June 2001, and worked approximately 40 hours for the RCPD in 2001.

In 2002, MacKinnon possessed a machine gun registered under the RCPD, and shot the machine gun at Garnett's residence with Theunick and other individuals. In February 2003, Garnett and Theunick purchased an additional machine gun under the authority of the RCPD. Garnett's and Theunick's employment with the RCPD was terminated in July 2004. The logbook entries indicate that Theunick kept one machine gun and silencer continuously from December 2003 to December 2004.

B.

In 2005, MacKinnon, Theunick, and Garnett were indicted by a grand jury in the Eastern District of Michigan. Each was charged with conspiring to violate 26 U.S.C. § 5861(b), (d), (e), and ( l ), by receiving, possessing, and transferring machine guns and silencers in violation of the NFA, and by making and causing false entries on NFA applications. The Defendants were also charged with violating 26 U.S.C. § 7206(2) by falsely claiming that the firearm transactions were tax-exempt. They were further charged with the knowing possession of six machine guns and nine silencers not registered in the National Firearms Registration and Transfer Record to the Defendant in possession in violation of 26 U.S.C. § 5861(d), and with making and causing materially false representations to the ATF regarding the identity of the persons obtaining the firearms in violation of 26 U.S.C. § 5861( l ).

The Defendants moved to dismiss the indictment for failing to state a criminal act. They argued that they had authority to possess the weapons based on the documentation they submitted. The district court denied the motion, pointing out that the question presented was whether the Defendants made false representations on such documentation. The Defendants then challenged the constitutionality of §§ 5861(d), 5861( l ), and 7206(2) as applied. The district court held that the charging statutes provided adequate notice of the prohibited conduct and denied the motion to dismiss.

The Defendants were convicted of the conspiracy charge and seven counts of tax evasion in violation of § 7206(2). Theunick individually was convicted of ten counts under § 5861(d) and seven counts under § 5861( l ). Theunick received concurrent sentences of 60 months on the conspiracy conviction, 63 months for the §§ 5861(d) and ( l ) convictions, and 26 months for the § 7206(2) conviction. MacKinnon was sentenced to concurrent sentences totaling 60 months. Garnett received aggregate sentences of 71 months.

The Defendants raise various issues on appeal. Each Defendant challenges the constitutionality of §§ 5861(d), 5861( l ), and 7206(2) as applied. Theunick individually claims his sentences under both § 7206(2) and § 5861( l ) violate the Double Jeopardy Clause, and that the district court erred in refusing to reduce his sentence for acceptance of responsibility. Garnett challenges the district court's refusal to give a public authority jury instruction, contests a discovery ruling, and raises various sentencing issues.

II.

A.

We review questions of statutory interpretation de novo. United States v. Morris, 203 F.3d 423, 424 (6th Cir.2000). Vagueness challenges that do not involve First Amendment freedoms must be analyzed as applied to the specific facts of the case at hand. Maynard v. Cartwright, 486 U.S. 356, 361, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988).

A criminal statute is unconstitutionally vague if it “fails to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits,” or fails to provide standards that prevent arbitrary and discriminatory enforcement. City of Chicago v. Morales, 527 U.S. 41, 56, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999). “[T]he practical necessities of discharging the business of government inevitably limit[s] the specificity with which legislators can spell out prohibitions.” Boyce Motor Lines v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 96 L.Ed. 367 (1952). It is fair “to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line.” Id.

The Defendants argue the statutes charged are unconstitutional as applied. They contend that the Internal Revenue Code and NFA statutes charged, in addition to an uncharged provision in 18 U.S.C. § 922( o ),¹ “quite clearly permit some governmental employees to possess and transfer automatic weapons, but those statutes are silent as to under whose...