U.S. v. Drasen, 87-1964

• Decision Date: 05 July 1988
• Docket Number: No. 87-1964,87-1964
• Parties: -6037 UNITED STATES of America, Plaintiff-Appellant, v. Gerald DRASEN, Anthony Aleo, and Cynthia Aleo, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 731

845 F.2d 731

62 A.F.T.R.2d 88-6037

UNITED STATES of America, Plaintiff-Appellant, v. Gerald DRASEN, Anthony Aleo, and Cynthia Aleo, Defendants-Appellees.

No. 87-1964.

United States Court of Appeals Seventh Circuit.

Argued Nov. 30, 1987.

Decided April 29, 1988.

Rehearing and Rehearing In Banc Denied July 5, 1988.

Lawrence E. Rosenthal, Asst. U.S. Atty., Chicago, Ill., Anton R. Valukas, U.S. Atty., for plaintiff-appellant.

Paul J. Petit, Betar & Petit, P.C., Chicago, Ill., for defendants-appellees.

Before CUMMINGS, WOOD, Jr., and MANION, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

This is an interim appeal ¹ by the government from the dismissal of six counts of a fourteen-count indictment. The first count charged the defendant Gerald Drasen, aided and abetted by defendants Anthony Aleo and Cynthia Aleo, with engaging in business as a dealer in rifles having barrels of less than sixteen inches in length without having paid the special occupational tax required by 26 U.S.C. Sec. 5801, and without having registered with the Secretary of the Treasury as a dealer as required by 26 U.S.C. Sec. 5802, in violation of 26 U.S.C. Sec. 5861(a). ² Counts three through seven charged defendants Anthony Aleo and Cynthia Aleo, aided and abetted by defendant Gerald Drasen, with transferring five different firearms, all having barrels of less than sixteen inches, in violation of 26 U.S.C. Sec. 5845.

I. THE ISSUE

The defendants in this case were not dealing in assembled rifles, but were selling complete rifle parts kits. The government conceded during discovery that all of the short-barrel rifles involved were unassembled when the defendants sold and transferred them. The indictment was predicated upon the government's theory that the simultaneous transfer of the unassembled constituent parts of a short-barrel rifle constituted the transfer of a "rifle" within the meaning of 26 U.S.C. Sec. 5845, in violation of 26 U.S.C. Sec. 5861(e). ³ The defendants moved to dismiss six counts on the basis that the statute did not cover unassembled rifles that had never been assembled. The district judge so held and dismissed these counts. 665 F.Supp. 598. The question, therefore, is whether or not the unassembled and never previously assembled constituent parts of a rifle, which might or might not be assembled to form a short-barrel rifle, are in fact a short-barrel rifle within the meaning of the National Firearms Act, 26 U.S.C. Sec. 5845 (1982) (the Act). The government claims that assembled and unassembled rifles are the same under the statute, but the defendants argue that the statute excludes parts of previously unassembled rifles. ⁴ The issue distilled from this situation is easier to state than to decide: we must determine the meaning of the statutory term "rifle" under the National Firearms Act. The place to begin and end is with the statute and its legislative history.

II. OVERVIEW

Section 5845(a)(3) defines "firearm" to include "a rifle having a barrel ... of less than 16 inches in length." "Rifle" is defined in section 5845 as follows:

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. Sec. 5845(c) (1982).

The government reads that provision to include a complete rifle parts set, which it claims is the functional equivalent of an assembled firearm. The government argues that it is "only natural that Congress would have wanted to regulate all devices 'designed ... made ... and intended' to operate as short barrel rifles, and a parts set surely meets that definition." According to the government, a 1954 ruling by the Commissioner of Internal Revenue issued before Congress added the "readily restored to fire" language to the statute supports the government's view. The government argues that in the 1968 amendment to the Act, Congress stated its intention to endorse that administrative construction. Even though the government's statutory interpretation has some difficulty in accommodating the "readily restored" language, the government contends that, contrary to the district court's view, the statute nevertheless provided fair notice to the regulated firearms industry as to what is or is not unlawful. The government also argues that the defendants could have inquired to determine whether they were acting within the law.

The defendants' response is simply that a previously unassembled collection of rifle parts sold as a kit, although ready for assembly into a functioning rifle, does not violate the Act provisions requiring licensing and registration of certain rifles. The defendants find unsupportable the government's theories that the complete collection of parts in a kit is the functional equivalent of an assembled weapon and that the Act reaches a previously unassembled weapon that can be readily assembled. Furthermore, the defendants argue that we should construe an ambiguous criminal statute in favor of the defendants.

Applying the facts of this case, the statute on its face is not clear. Each of the parties therefore has some difficulty supporting their respective positions. Considering the statutory definition of "rifle" set out in section 5845(c), it is apparent that to clarify the statute little additional language would have been needed to accomplish what the government claims Congress intended. The statute could have defined a rifle as also including the parts thereof that could be readily assembled to form a functioning weapon. The omission of some clarifying language does not mean, however, that a reasonable interpretation of the statute does not yield the same result.

III. ANALYSIS

The rifle kits at issue are not a sackful of miscellaneous parts that an ordinary person could not easily sort out and assemble into a functioning rifle. The parts kits here are composed of major rifle sections already assembled, leaving only a few of the assembled sections to be quickly and easily slipped into position so as to be ready to fire. The government would have a more difficult task in claiming that a collection of totally separate parts, all unassembled and mixed, was the equivalent of a functional rifle. If the rifle parts kit is largely assembled, but not quite, the government may have an easier task. There are other complicating possibilities. A parts kit might not be totally complete, unlike the kits at issue. One part could be omitted. The rifles, therefore, would not function, but that one part might be available at a shop next door.

The statutory language "readily restored" is somewhat ambiguous. That language suggests, as the defendants argue, that if the rifle had previously been assembled, although now in a parts kit, it would be within the statute. The statute, therefore, would not cover rifle parts never before assembled into a functioning rifle. If, then, the seller demonstrated for a purchaser how easily a rifle could be assembled from a previously unassembled kit, and then disassembled the rifle and put it back in the kit for sale, all are in agreement, it appears, that the statute would cover that particular kit. There are other hypothetical possibilities, but it is clear that the statute's intended meaning is not as readily discernible as could be desired.

The term "make," used in section 5845(c), is defined in section 5845(i):

The term "make," and the various derivatives of such word, shall include manufacturing (other than by one qualified to engage in such business under this chapter), putting together, altering, any combination of these, or otherwise producing a firearm.

26 U.S.C. Sec. 5845(i) (1982). This definition suggests that, to produce a firearm, "putting together" the parts is necessary. Thus, if the parts have never been put together, the defendants argue that no firearm has in fact been made. According to the government's interpretation, however, what is "made" need not be a weapon ready to fire at that moment; the parts merely need be "capable of being made into" a weapon. The defendants argue that manufacturing parts is only one step in the production of a weapon. Even after the rifle parts have been manufactured, the rifle is not complete until the parts are assembled so that the rifle is ready to be fired. The defendants analogize that a car is not a car until it rolls off the assembly line ready to drive away.

The government suggests that the district court's and the defendants' statutory interpretation would allow criminals to legally possess short-barrel rifles in a disassembled state even though it might take very little assembly to make a functional rifle. The defendants' response is that the district court confined its ruling to rifle kits that had never, even temporarily, been assembled into functioning rifles. If the buyer of the kits does the assembling, then the buyer, not the dealer or manufacturer, would be the one required to register the rifle and pay the applicable tax. If that particular rifle were then disassembled, although capable of being readily restored to firing condition, the statute would still apply. The defendants' explanation is not the way Congress intended the statute to work.

A parts kit cannot fire a fixed cartridge, nor can the unused parts be readily "restored" to fire a fixed cartridge if "restored," as the defendants argue, means to return to a previous condition. In the defendants' view, assembling a previously unassembled parts kit would not be a restoration, but the original creation of a rifle. This would allow rifle dealers and manufacturers to use parts kits to take advantage of a possible statutory loophole. That supposed loophole, however, would be difficult...