U.S. v. Ardoin

• Decision Date: 06 April 1994
• Docket Number: No. 93-4272,93-4272
• Parties: -1799, 73 A.F.T.R.2d 94-2432, 62 USLW 2702 UNITED STATES of America, Plaintiff-Appellee, v. Wendell ARDOIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 177

19 F.3d 177

73 A.F.T.R.2d 94-1799, 73 A.F.T.R.2d

94-2432, 62 USLW 2702

UNITED STATES of America, Plaintiff-Appellee, v. Wendell ARDOIN, Defendant-Appellant.

No. 93-4272.

United States Court of Appeals Fifth Circuit.

April 6, 1994.

Glen Vamvoras, Stacey W. Moreau (court-appointed), Office of Vamvoras, Lake Charles, LA, for defendant-appellant.

Josette L. Cassiere, William Flanagan, U.S. Atty., Shreveport, LA, for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before VAN GRAAFEILAND, ^* SMITH, and WIENER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Wendell Ardoin appeals his conviction of possessing, manufacturing, failing to register, and failing to pay taxes on illegal machineguns. Ardoin argues that the statute under which he was charged, requiring registration and payment of taxes, was implicitly repealed by a statute declaring machineguns manufactured after 1986 ("post-1986 machineguns") illegal. He also claims that the statute prohibiting "making" of firearms is unconstitutionally vague. Furthermore, he challenges the district court's refusal to grant a new trial based upon new evidence and his sentence under the Sentencing Guidelines (the "Guidelines"). We conclude that the statute under which Ardoin was convicted was not implicitly repealed and is not unconstitutionally vague, and we affirm his conviction and sentence.

I.

A.

Ardoin is an avid gun collector and dealer. He is a member of the local sheriff's and police department reserves. In 1989, he became a gun dealer and obtained a Class I gun license by filing the appropriate forms with the Bureau of Alcohol, Tobacco, and Firearms ("ATF"). He then filed a Form 11 with ATF to obtain his Class III license to buy and sell machineguns.

In 1989, Ardoin also became a Colt distributor for law enforcement agencies. As a distributor, he was able to sell to law enforcement agencies any class of weapons, including machineguns, as long as he maintained his Class III license. ¹ Ardoin also purchased Colt semi-automatic weapons from the Welsh, Louisiana, Police Department in exchange for supplying the department with free equipment and/or weapons. Furthermore, he obtained four automatic weapons from the Baton Rouge Police Department on behalf of the Welsh Police Department's chief.

The semi-automatic weapons purchased through the Welsh Police Department did not require the filing of forms with ATF or the payment of transfer tax, as they were not automatic weapons. The Baton Rouge weapons, however, were automatic, and Ardoin filed a Form 10 with ATF. Form 10 is used to register weapons to a particular law enforcement agency and to obtain a tax-exempt status on the transfer. After filing the forms, Ardoin obtained the machineguns through the Welsh Police Department.

Also in 1989, Ardoin's partner, Michael Hebert, converted some semi-automatic weapons to automatic guns for the use of local police and sheriff's departments. Before converting the weapons, Ardoin filed a Form 10 with ATF for each weapon.

B.

On November 6, 1991, Ardoin was indicted on fourteen counts of conspiracy to violate the National Firearms Act ("NFA"), 26 U.S.C. Secs. 5861(d), (e), and (l ) and 7201, making of machineguns without having filed a written application or paying the making tax (in violation of Secs. 5861(f) and 5871), evading the payment of taxes (in violation of Sec. 7201), engaging in the business as a dealer without having paid the special occupational tax (in violation of Secs. 5861(a) and 5871), making false entries on applications for tax-exempt transfers and registrations (in violation of Secs. 5861(l ) and 5811), and possession of unregistered firearms (in violation of Secs. 5861(d) and 5871. At trial, the government contended that the various weapons were in the physical possession of Ardoin's partnership, Bayou State Armory, not the local police departments. Therefore, Ardoin should have filed a Form 1 instead of a Form 10 and should have paid a making tax. Ardoin responded that the Welsh Police Department had authorized him to receive the weapons and that he was a commissioned officer acting on the department's behalf. Furthermore, ATF had sent out a circular stating that it would no longer accept Form 1's and that the guns were tax-exempt, since they were made for a government agency. Ardoin was unable to obtain a copy of the ATF circular, and ATF agent Paul Rash testified that no such circular existed.

A jury found Ardoin guilty on all twelve counts. ² He moved for a new trial after obtaining a copy of the ATF circular. The motion for new trial was denied. The sentencing court adopted the factual findings contained in the presentence investigation report ("PSR"), which recommended a range of forty-six to fifty-seven months' imprisonment. Ardoin was sentenced to forty-six months on each of the twelve counts, to run concurrently.

II.

This case presents a novel constitutional issue in this circuit: whether Sec. 102(9) of the Firearms Owners' Protection Act of 1986 ("FOPA"), 18 U.S.C. Sec. 922(o ), which amended the Gun Control Act of 1968 by making possession of machineguns illegal, implicitly repealed portions of the NFA. We review such legal questions de novo. United States v. Guajardo, 950 F.2d 203, 206 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1773, 118 L.Ed.2d 432 (1992).

Ardoin argues that 26 U.S.C. Secs. 5821, 5861(d), (e), (f), (l ), 5871, and 5845 are unconstitutional because they were originally based upon Congress's taxing power. ³ He reasons that since individuals may not possess machineguns manufactured after May 19, 1986, and ATF refuses to accept applications to register or to pay the tax on such weapons, the constitutional authority for provisions of the NFA dealing with the registration and taxing of post-1986 machineguns is gone. Consequently, criminal liability imposed under the NFA for failure to comply with these provisions has also been repealed.

Ardoin cites United States v. Rock Island Armory, 773 F.Supp. 117 (C.D.Ill.1991), and United States v. Dalton, 960 F.2d 121 (10th Cir.1992), as authority for this position. In Rock Island Armory, the court held portions of the NFA to have been implicitly repealed by the FOPA.

Two bases exist for declaring the portions of the NFA pertaining to post-1986 machineguns to have been implicitly repealed. First, the fact that ATF no longer collects taxes or accepts registration forms for such weapons makes compliance with Sec. 5861(d) impossible. Second, and more importantly in the Rock Island Armory court's view, the refusal to tax these weapons undercuts the constitutional basis of registration, since the NFA was originally upheld under Congress's power to tax. The Tenth Circuit adopts this view in Dalton.

The government cites United States v. Jones, 976 F.2d 176 (4th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 2351, 124 L.Ed.2d 260 (1993), to rebut these two arguments. The court held in Jones that in the absence of an affirmative showing of an intention to repeal a statute, the only permissible justification for repeal by implication is when the earlier and later statutes are irreconcilable. Id. at 183 (quoting Morton v. Mancari, 417 U.S. 535, 550, 94 S.Ct. 2474, 2482-83, 41 L.Ed.2d 290 (1974)).

But 18 U.S.C. Sec. 922(o ), prohibiting post-1986 machineguns, can be reconciled with Sec. 5861. Citing Minor v. United States, 396 U.S. 87, 96-97, 90 S.Ct. 284, 288-89, 24 L.Ed.2d 283 (1969), for the proposition that Congress can tax illegal conduct such as the sale of narcotics, the court concluded that the prohibition of post-1986 machineguns does not mean that Congress cannot tax them. Although it is illegal to possess or manufacture these weapons, one illegally doing so would be required to register them with ATF and pay taxes on them. And if ATF refuses to allow registration or the payment of taxes, one can comply with Sec. 5861(d) by not violating Sec. 922(o ), i.e., by not possessing or manufacturing any post-1986 machineguns. Jones, 976 F.2d at 183 (citing Minor ). ⁴ Thus, the Jones court rejected the Tenth Circuit's view that compliance with Sec. 5861 was impossible and therefore that the statute was implicitly repealed.

Jones dealt with the taxing authority argument in two ways. First, ATF has the authority to tax now-illegal machineguns. Although it chooses not to allow tax payments or registration, it still has the authority to do so. Thus, the basis for ATF's authority to regulate--the taxing power--still exists; it is merely not exercised. Second, the court noted that although the NFA was originally upheld under Congress's taxing power, no one could seriously contend that the regulation of machineguns could not also be upheld under Congress's power to regulate interstate commerce. ⁵

We adopt the analysis of the Fourth Circuit. The NFA can be upheld on the preserved, but unused, power to tax or on the power to regulate interstate commerce. Since the provisions of the NFA can be reconciled with the FOPA, the doctrine of implicit repeal must be rejected.

III.

Ardoin next challenges the constitutionality of his conviction for "making" a firearm, as the Supreme Court has recently held that the term "making" is ambiguous. We review this legal issue de novo. Guajardo, 950 F.2d at 206.

In United States v. Thompson/Center Arms Co., --- U.S. ----, 112 S.Ct. 2102, 119 L.Ed.2d 308 (1992), the Court recently considered the meaning of the term "make" as used in the NFA. In Thompson/Center, the defendant manufactured a single shot pistol. Included with the gun, however, was a conversion kit that allowed the purchaser to convert the gun into a short-barreled rifle, a gun regulated by ATF. The defendant paid the "maker" tax but sued ATF for a refund. The Court held that the term "maker" in 26 U.S.C. Secs. 5821 and 5845 was ambiguous as applied to unassembled parts, as there was only the possibility of their...