U.S. v. Evans, No. 89-30188

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Before WALLACE, HALL and WIGGINS; WIGGINS
• Citation: 928 F.2d 858
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Creed Miles EVANS, Defendant-Appellant.
• Docket Number: No. 89-30188
• Decision Date: 20 March 1991

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928 F.2d 858 UNITED STATES of America, Plaintiff-Appellee,
v.
Creed Miles EVANS, Defendant-Appellant. No. 89-30188. United States Court of Appeals,
Ninth Circuit. Argued April 12, 1990.
Submission Deferred April 17, 1990.
Submitted April 19, 1990.
Decided March 20, 1991.

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Michael W. Cotter, Cotter & Cotter, Great Falls, Mont., for defendant-appellant.

Robert J. Brooks, Asst. U.S. Atty., Butte, Mont., and Larry L. Nickell, Sp. Asst. U.S. Atty., Bureau of Alcohol, Tobacco & Firearms, San Francisco, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the District of Montana.

Before WALLACE, HALL and WIGGINS, Circuit Judges.

WIGGINS, Circuit Judge:

Creed M. Evans appeals from his conviction following a plea of nolo contendere for making false statements to the Bureau of Alcohol, Tobacco and Firearms in violation of 18 U.S.C. Sec. 1001 (1988). Evans claims that the district court improperly denied his motions to dismiss prior charges and suppress evidence relating to those charges--charges which the government subsequently dropped in exchange for his plea of nolo contendere on the false statements charge. We affirm.

BACKGROUND

Evans was originally indicted, along with three others, on charges of (1) conspiracy to cause illegal possession of machine guns, and (2) aiding and abetting the unlawful possession of machine guns. The government alleged that Evans and codefendant Burns jointly agreed to sell and sold to any paying customer all the parts necessary to assemble machine guns which, prior to May 19, 1986, private persons could not legally possess without registering, 26 U.S.C. Sec. 5861(d) (1982), and after May 19, 1986, private persons could not legally possess at all, 18 U.S.C. Sec. 922(o ) (1988). According to the charge, Evans obtained, for Burns to sell, kits consisting of all component parts of Sten MKII submachine guns except receiver tubes. Evans sold customers blank receiver tubes along with step-by-step instructions (including

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drawings and receiver tube templates) for making the receiver tubes function and assembling them, with the component parts kits, into functioning Sten MKII submachine guns. Evans and Burns then referred their customers to each other.

After the district court denied Evans' motions to dismiss the charges against him and suppress evidence, Evans entered into a plea agreement with the government, whereby he would plead nolo contendere to a superseding information charging him with making false statements to the Bureau of Alcohol, Tobacco and Firearms, but he reserved his right to appeal the district court's denial of his previous motions and to withdraw his plea if that appeal proved successful. Pursuant to that understanding, he pled guilty to the false statements charge and the indictment relating to the machine gun offense was dismissed. ¹

DISCUSSION

All the issues in this case are legal questions subject to de novo review, see United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984), except the Brady question, which is reviewed for abuse of discretion, United States v. Clegg, 740 F.2d 16, 18 (9th Cir.1984).

A. Due Process

Evans contends that his original prosecution violated due process because the Bureau of Alcohol, Tobacco and Firearms sanctioned his actions before he committed them. In support of an estoppel by entrapment argument, Evans notes that the government told him that the blank receiver tubes could not be registered as machine guns until they were "cut, drilled, and ready to accept internal parts." He also states that the government gave him a permit to import the gun parts which he acquired. However, although the government does not dispute that it took these actions, a jury question exists concerning whether these actions misled Evans into reasonably believing that if he agreed to sell and actually sold all these gun parts to third parties with the intent that the third parties assemble the parts into functional machine guns, he would not be guilty of conspiring to cause the illegal possession of machine guns or aiding and abetting the unlawful possession of machine guns. See United States v. Hsieh Hui Mei Chen, 754 F.2d 817, 821 (9th Cir.) ("In order to show that entrapment exists as a matter of law, there must be undisputed testimony making it patently clear that an otherwise innocent person was induced to commit the act complained of by trickery, persuasion, or fraud of a government agent. The controlling question on review is whether the defendant lacks the predisposition to commit the act.") (citations omitted), cert. denied, 471 U.S. 1139, 105 S.Ct. 2684, 86 L.Ed.2d 701 (1985). Contrary to Evans' assertions, there is nothing surprising about the fact that an act can be legal in isolation but illegal when combined with other acts and a particular state of mind.

Evans also argues that the Bureau of Alcohol, Tobacco and Firearms' failure to adopt a formal ruling enumerating what items it would treat as constituting "any combination of parts from which a machine gun can be assembled" within the meaning of 26 U.S.C. Sec. 5845(b) violates due process. However, an agency's failure to issue an interpretative rule clarifying the meaning of a criminal statute, not otherwise seriously argued to be void for vagueness, does not render a defendant's prosecution for violating that statute violative of due process.

B. Failure to State an Offense

Evans contends that his original indictment failed to state an offense. He points out that the indictment alleges that he conspired to cause and aided and abetted the illegal possession of a part which requires further refinement from the form

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in which he sold it before it can be used in a machine gun. Therefore, he argues, it does not fit the congressional definition of "machine gun," which includes "any combination of parts from which a machine gun can be assembled if such parts are in the possession or under the control of a person." 26 U.S.C. Sec. 5845(b).

We need not determine whether "can be assembled" countenances parts that need further refinement before assembly, even when those parts are combined with detailed instructions on how to refine them. Evans was not charged with actual...