U.S. v. Endicott

• Citation: 803 F.2d 506
• Decision Date: 27 October 1986
• Docket Number: 85-3129,Nos. 85-3128,s. 85-3128
• Parties: UNITED STATES of America, Plaintiff/Appellee, v. Rex G. ENDICOTT, Defendant/Appellant. UNITED STATES of America, Plaintiff/Appellee, v. John Stuart ROBERTSON, Defendant/Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 506

803 F.2d 506

UNITED STATES of America, Plaintiff/Appellee, v. Rex G. ENDICOTT, Defendant/Appellant.

UNITED STATES of America, Plaintiff/Appellee, v. John Stuart ROBERTSON, Defendant/Appellant.

Nos. 85-3128, 85-3129.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 6, 1986.

Decided Oct. 27, 1986.

Gene S. Anderson, U.S. Atty., Andy Hamilton, Asst. U.S. Atty., Seattle, Wash., for plaintiff/appellee.

John Lundin, Terrence Kellogg, Seattle, Wash., for defendants/appellants.

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

Before POOLE, NORRIS and BEEZER, Circuit Judges.

POOLE, Circuit Judge:

Two codefendants, Rex G. Endicott and John S. Robertson, appeal their convictions for conspiracy to illegally receive, possess, transfer and import firearms and for substantive violations of federal firearms laws. We deal with each appeal separately.

REX G. ENDICOTT

FACTS AND PROCEEDINGS BELOW

In November, 1982, the Drug Enforcement Administration ("DEA") began an undercover investigation of the Bandido Motorcycle gang for suspected violations of federal narcotics laws. The investigation subsequently focused on possible violations of federal firearms laws. A DEA informant implicated Endicott, a licensed gun dealer running a firearms business out of his home, as a potential source of illegal guns. The DEA investigation culminated in the illegal transfer of a machinegun by Endicott to the informant on April 2, 1984. In 1984, the Bureau of Alcohol, Tobacco and Firearms ("BATF") began a separate investigation of suspected firearms violations. In the course of this investigation, an undercover informant, Dick Jones, purchased a machinegun and two undocumented pistols from Endicott.

On February 21, 1985, federal agents executed a search warrant at appellant's residence in Bellingham, Washington, seizing a machinegun and undocumented firearms. This warrant was issued on the basis of the affidavit of BATF Special Agent Robert Hausken. Hausken's affidavit drew on information provided by Jones, some of which is preserved on taped recordings of conversations between Jones and Endicott. Endicott made a pretrial motion to suppress the evidence obtained in the execution of the search warrant. After an evidentiary hearing, the district court denied the motion.

Endicott was convicted on seven counts of a twelve count indictment: conspiracy to illegally receive, possess, transfer and import firearms (Count I); knowingly transferring two machineguns without paying transfer tax and failing to comply with transfer provisions (Counts II and IV); failure to maintain proper records concerning the sales of two pistols (Counts III and V); illegal possession of a machinegun (Count VI) and illegal possession of a silencer (Count VII).

DISCUSSION

Endicott challenges his convictions and sentences on the following grounds: (1) the district court erred in instructing the jury that a device may be a silencer even if unassembled; (2) evidence seized in the February 21st search of his home should have been suppressed because the search warrant affidavit contained misrepresentations and omissions; (3) the district court abused its discretion in sentencing Endicott; (4) the district court erred in instructing the jury that a firearms dealer must record the transfers of personal firearms and (5) the evidence was insufficient to support convictions on Counts II and IV.

I. The Silencer Instruction.

Unassembled silencers were found in appellant's attic in the course of the February 21st search. The district court instructed the jury: "[y]ou may find that a device is a silencer although its parts are not assembled, if you find beyond a reasonable doubt that all of its component parts are readily available and only a brief and a minimal effort is required to assemble the complete design by reason of the nature and location of the parts." Endicott contends that this instruction was error because the statutory definition of a silencer does not include unassembled component parts. The Government responds that this interpretation of the definition of a silencer is supported both by Congressional intent and common sense.

As the district court's instruction involved the interpretation of a statute, it presents a question of law, which we review de novo. United States v. Douglass, 780 F.2d 1472, 1475 (9th Cir.1986); United States v. Wilson, 720 F.2d 608, 609 n. 2 The National Firearms Act, 26 U.S.C. Sec. 5845(a), provides: "The term 'firearm' means * * * (7) a muffler or a silencer for any firearm whether or not such firearm is included within this definition." Endicott argues that if Congress had intended this definition of a silencer to include its unassembled component parts, it would have so defined it in the statute. He points out that 26 U.S.C. Sec. 5845(b) expands the definition of a machinegun by providing that "[t]he term 'machinegun' [includes] * * * any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person." 26 U.S.C. Sec. 5845(b). He argues that since Congress did not use similar phraseology in the definition of a silencer, it is reasonable to conclude that Congress did not intend a silencer to include its unassembled parts.

(9th Cir.1983), cert. denied, 465 U.S. 1034, 104 S.Ct. 1304, 79 L.Ed.2d 703 (1984).

This issue is one of first impression in our circuit. The First Circuit addressed this issue in United States v. Luce, 726 F.2d 47 (1st Cir.1984). In Luce, defendant challenged his conviction for possessing and transferring an unregistered silencer, putting forward the argument Endicott presses here. The trial court had given the jury the same instruction as the district court gave in the case at bar. The First Circuit rejected defendant's claim that this instruction was error and "agree[d] with the district court that Congress clearly intended this common sense interpretation" of the statutory definition. Id. at 49.

Congress clarified the reach of the National Firearms Act in 1954, emphasizing that it was directed, not at antique guns and their collectors, but at "such modern and lethal weapons * * * as could be used readily and efficiently by criminals or gangsters." H.R.Rep. No. 1337, 83rd Cong., 2nd Sess., (1954) reprinted in 1954 U.S.Code Cong. & Ad.News 4025, 4542. As the First Circuit stated in Luce:

"A person of common intelligence would recognize that a readily and easily assembled silencer serves no innocent purpose but is designed to facilitate the killing of another or to effectuate some other pernicious purpose by reducing the noise level of a fired weapon. [citation omitted] Under Luce's interpretation, a person could legally carry a silencer in two unassembled parts even though the two parts could be joined together within a few seconds and used to silence a lethal weapon. This would clearly frustrate Congress' intent to control the use of 'gangster-type' devices."

Luce, 726 F.2d at 49. We are persuaded by this analysis, and accordingly hold that the district court's instruction was correct.

II. Suppression of Evidence.

Endicott contends that his pretrial motion to suppress evidence seized in the search of his home should have been granted because of material omissions and misrepresentations in Agent Hausken's search warrant affidavit.

In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court set forth the procedure for challenging the validity of a search warrant for omissions and misrepresentations. A defendant must make a substantial preliminary showing that the affidavits in support of the warrant contained intentionally or recklessly false material statements. If this preliminary showing is made, the court must then hold a hearing to examine the affidavits. The court must see if, excluding the misrepresentations, probable cause would exist on the basis of the remaining information. If, without the exclusions, probable cause is lacking, the search warrant is defective and the evidence seized thereunder is excluded. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

In this case, defendant Endicott was afforded the opportunity to make a preliminary showing of intentional or reckless material falsity at an evidentiary hearing. The district court found no evidence that Hausken intentionally, or with reckless disregard, misrepresented or omitted any facts in order to improperly secure a search We review the district court's factual findings as to intentional falsity or reckless disregard under the "clearly erroneous" standard. Fed.R.Civ.P. 52(a); United States v. Ritter, 752 F.2d 435, 439 (9th Cir.1985).

                warrant, stating, "although the affidavits of Agent Hausken may have contained minor errors or omissions concerning the date of alleged conversations and/or the exculpating statements made by defendant Endicott, the affidavits were essentially an accurate presentation of the information known to the affiant."    Having concluded that Endicott failed to show any intentional falsity or reckless disregard, and that any errors or omissions were "minor" (i.e., not material), the court had no occasion to re-examine the issue of probable cause
                

Appellant asserts the transcripts of taped conversations between informant Jones and Endicott, presumably available, along with BATF reports about the meetings, to Agent Hausken, demonstrate the intentional falsity or reckless disregard of Hausken's affidavit. After reviewing the excerpts of the transcripts provided by appellant, Hausken's affidavit and the motions made below, we conclude that the district court's finding was not clearly erroneous, and therefore we also do not reach the issue of probable cause.

III. Endicott's Sentence.

The district court sentenced Endicott to two years in jail on Count I, two years on Counts II through VI to run concurrently with the sentence on...