U.S. v. Anderson

• Decision Date: 28 September 1989
• Docket Number: No. 87-2905,87-2905
• Citation: 885 F.2d 1248
• Parties: The UNITED STATES of America, Plaintiff-Appellee, v. Joe Alvin ANDERSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1248

885 F.2d 1248

The UNITED STATES of America, Plaintiff-Appellee, v. Joe Alvin ANDERSON, Defendant-Appellant.

No. 87-2905.

United States Court of Appeals, Fifth Circuit.

Sept. 28, 1989.

Stanley G. Schneider, Thomas D. Moran, Houston, Tex., for defendant-appellant.

Paula C. Offenhauser, Frances H. Stacy and Don Degabrielle, Asst. U.S. Attys., Houston, Tex., for defendant-appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before CLARK, Chief Judge, GOLDBERG, GEE, REAVLEY, POLITZ, KING, JOHNSON, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, and DUHE, Circuit Judges. ^*

GEE and GARWOOD, Circuit Judges:

Today's case presents an unusual issue: whether or not we should continue to adhere to Circuit precedent permitting conviction of certain felonies without proof of mens rea. Concluding that such a rule is aberrational in our jurisprudence--a jurisprudence largely based on the Anglo-Saxon common law--we discard it.

Facts

Defendant Joe Alvin Anderson was arrested for possessing two automatic pistols and various silencer parts in violation of a provision of the National Firearms Act, 26 U.S.C. Sec. 5861. ¹ The weapons, along with several semi-automatic pistols, were found in a vault in Anderson's home. The premises had been searched pursuant to a warrant covering both it and an adjacent business property also owned by Anderson; a magistrate had issued the warrant based upon the affidavit of a witness who had observed evidence of drug-dealing activity, primarily at the business address but also at Anderson's residence. No prohibited substances were found during the search.

Anderson was tried and convicted on the weapons charges. He then appealed to our court, contending that there was no probable cause to support the warrant to search his house; that the jury instruction requiring for conviction only that he knew the guns were firearms in a general sense, as opposed to knowing that they were automatic weapons, was erroneous; and that the evidence was insufficient to support conviction on either count. A panel of our court affirmed. United States v. Anderson, 853 F.2d 313 (5th Cir.1988).

Writing for the panel majority, however, Judge Garwood strongly suggested that United States v. Vasquez, 476 F.2d 730 (5th Cir.), cert. denied, 414 U.S. 836, 94 S.Ct. 181, 38 L.Ed.2d 72 (1973), holding that proof of specific knowledge that a weapon is automatic is not required for a conviction, was wrongly decided, even though he was bound by that decision. Anderson, 853 F.2d at 317-21. Judge Jolly urged that Vasquez be reexamined en banc. Id. at 322 (Jolly, J., concurring). We granted rehearing en banc in order to reconsider our holding in Vasquez. 860 F.2d 166 (5th Cir.1988). We reverse the panel's holding on mens rea and overrule Vasquez, but adopt the panel's treatment of the remaining issues. ²

Background

The Act, 26 U.S.C. Sec. 5861 et seq., prohibits the ownership or transfer of certain enumerated "firearms" that have not been registered and approved as required. As used in the Act, the word "firearms" is a term of art that includes primarily weapons thought to be of a military nature and of no legitimate use for sport or self-defense. Conventional revolvers and semi-automatic pistols are not among the covered "firearms" enumerated in section 5845; "machine guns," however, are. ³ The fully automatic pistols possessed by the instant defendant qualify as "machine guns," as they will fire more than one round of ammunition in response to a single pull of the trigger. Section 5845(b). ⁴

"Firearms," such as machine guns, that fall under the Act are subject to elaborate registration and approval procedures. Sections 5812, 5841. In this case, Anderson was charged with violating section 5861(d), which makes it unlawful for any person to "... possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record...."

A little over sixteen years ago, in United States v. Vasquez, 476 F.2d 730 (5th Cir.1973), a panel of our court construed a portion of the National Firearms Act to have been meant by the Congress to subject citizens innocent of any mens rea to the heavy fines and penalties provided by it--up to ten years imprisonment, up to a $10,000 fine, or both. Today, we reverse the judgment of the trial court and overrule that decision.

The Act and the Issue

The National Firearms Act is drafted in a peculiar manner. Reading through the first of its general provisions, Section 5841, one would at first think it a comprehensive enactment indeed. The first sentence of that section commences, "The Secretary shall maintain a central registry of all firearms in the United States...." Upon arriving at Section 5845, however, our reader, if he or she persevered so far, would discover that the term "firearms," as used in the Act, is an extreme instance of usage in the manner that lawyers term "words of art." Indeed, at no point in the Act is "firearms" used in its general dictionary sense, "A weapon from which a shot is discharged by gunpowder--usually used only of small arms." Webster's Third New International Dictionary Unabridged.

Instead, the term is defined in the Act so as to narrow its meaning vastly in most respects and vastly to expand it in a few, producing a statutory meaning of "firearm" that overlaps the area covered by the common meaning of the term to an insignificant degree only. Generally speaking, all such categories of ordinary rifles, pistols and shotguns as might be found in a gunshop are excluded from its meaning, with only a few easily-concealable items such as sawed-off shotguns included, along with machine guns. In addition, various items entirely outside the commonly understood sense of the term are included in the Act's definition of "firearms": artillery pieces, mines, bombs, grenades and the like, along with silencers. In short, the term as used in the Act bears little if any correspondence to that in common usage, much as though the word "animal" were defined in some supposititious National Zoo Act to exclude all mammals, reptiles and birds except lions and tigers, but to include freight trains, teddy bears, feather-boas and halltrees. So much for the Act and its "firearms": what signifies for present purposes is that knowing or proving that a thing is a firearm in the ordinary sense of the term tells almost nothing about whether it is a "firearm" for purposes of the Act; and of this, more later.

The issue on which we disagree with the earlier Vasquez holding is legally narrow but factually broad--that regarding semi-automatic weapons that have, without the changing of their external appearance, been altered by design or by the effects of use and wear so that they fire more than one shot at a pull of the trigger and so have become "machine guns" for purposes of the Act.

Countless numbers of semi-automatic weapons stand in the closets and gun cabinets of this land. Several of the most popular shotgun models, many handguns, and not a few rifles are autoloaders; and either wear and tear or a simple operation can convert any of these from a firearm in the ordinary sense into a "firearm" in the sense defined by the Act. Where, as here, the criminal charge is that of possessing such an arm--one that looks like only a firearm but is in fact a "firearm"--we conclude that a conviction should require that the charged party knew it was a "firearm" in the Act sense, not that he (or she) merely knew it was a firearm. ⁵

Freed

In reconsidering the Vasquez decision, we turn first to United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971), upon which it is largely based. We do so because if, as Vasquez maintains, this is apposite Supreme Court precedent, then we are bound by it and our inquiry is at an end. The Vasquez interpretation of Freed reads as follows:

In the majority opinion in Freed, Justice Douglas stated the following rule:

By the lower court decisions at the time [the Act was amended] the only knowledge required to be proved was knowledge that the instrument possessed was a firearm. See Sipes v. United States, 8 Cir., 321 F.2d 174, 179, and cases cited.

....

These two explicit references to Sipes and its cited cases, including [United States v.] Decker, [292 F.2d 89 (6th Cir.1961) ], make it abundantly clear that Justices Douglas and Brennan used the term "firearm" in its general meaning, not in its technical statutory meaning.

476 F.2d 730, 731-32 (5th Cir.) cert. denied, 414 U.S. 836, 94 S.Ct. 181, 38 L.Ed.2d 72 (1973).

Our reading of Freed is otherwise.

What the Vasquez panel overlooked is that the issue upon which it was pronouncing was not before the Freed court at all and that the expressions from that opinion on which it founded its position are not even dicta upon the question that we face today, but merely observations along the way to decision of a different issue entirely. That issue, as shown both by the somewhat cryptic opinion of the Freed Court and by the briefs of the parties in that appeal, summarized at 28 L.Ed.2d 1007 et seq., was not the issue in today's case-- which is whether the defendants could be convicted only if they knew what they possessed was a "firearm" in the Act sense or whether their knowledge merely that it was a firearm in the ordinary sense would suffice. Indeed, that neither was nor could have been the issue in Freed, for what the Freed defendants possessed was hand grenades; and hand grenades are not firearms in the general or dictionary sense at all. Such an issue was not before the Court, and the Court did not decide it. Indeed, it could not have done so, for--as is made embarrassingly clear by passages from the Government's Freed brief, quoted in the margin--the Government conceded that it had to prove that the item possessed was known to the defendant to be a "firearm" in the Act sense. ⁶

What it did decide is plainly shown by the full...