U.S. v. Evans, 89-30188

Decision Date20 March 1991
Docket NumberNo. 89-30188,89-30188
Citation928 F.2d 858
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Creed Miles EVANS, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

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 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 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 possession of machine guns. He was charged only with conspiracy to cause the illegal possession of machine guns and aiding and abetting the illegal possession of machine guns. Thus, even if some of the parts were not sufficiently refined to fall within the statutory definition of "machine gun," he would still be guilty of the conspiracy charge if he simply intended that those to whom he sold the parts actually refined them into parts which could be readily assembled into machine guns. Cf. United States v. Orozco-Prada, 732 F.2d 1076, 1080 (2d Cir.) (defendant who laundered money from transactions involving controlled substances guilty of conspiracy to distribute controlled substance), cert. denied, 469 U.S. 845, 105 S.Ct. 154, 155, 83 L.Ed.2d 92 (1984); United States v. Barnes, 604 F.2d 121, 154-55 (2d Cir.1979) ("Importers, wholesalers, purchasers of cutting materials, and persons who 'wash' money are all as necessary to the success of the [drug] venture as is the retailer. They can all be held to have agreed with one another in what has been called a 'chain' conspiracy."), cert. denied, 446 U.S. 907, 100 S.Ct. 1833, 64 L.Ed.2d 260 (1980). Similarly, Evans would be guilty of the aiding and abetting charge if those who received the parts actually did assemble them into machine guns. Cf. United States v. Perry, 643 F.2d 38, 44 (2d Cir.) (defendants who "agreed to distribute diluents with the intent that they be mixed with heroin and distributed by one or more heroin networks" could be convicted of conspiring to aid and abet the distribution of heroin), cert. denied sub nom., Dewees v. United States, 454 U.S. 835, 102 S.Ct. 138, 70 L.Ed.2d 115 (1981).

The indictment charges that Evans conspired to cause the illegal possession of machine guns and aided and abetted the illegal possession of machine guns. Therefore, it does not fail to state an offense.

C. Grand Jury Misconduct

Evans argues that the district court should have dismissed his original indictment because of grand jury misconduct. The government admits that when Agent Wachtel testified before the grand jury that handed down Evans' original indictment he represented that an informal ruling by the Bureau of Alcohol, Tobacco and Firearms was a formal ruling by the agency that parts of the type possessed by Evans met the statutory definition of "machine gun." Even assuming that Wachtel's misrepresentation was perjury, 2 perjured testimony must be material to support dismissal. United States v. Claiborne, 765 F.2d 784, 791 (9th Cir.1985), cert. denied, 475 U.S. 1120, 106 S.Ct. 1636, 90 L.Ed.2d 182 (1986). But as the district court noted,

[t]he misrepresentation did not pertain to a historical fact bearing upon the issue of whether the defendants knowingly possessed the physical items as alleged, or knowingly conspired to cause the illegal possession of those same items. The misrepresentation regarding the stature of the informal letter ruling in issue, does not carry with it, any impermissible connotation which would have bore upon the determination of probable cause made by the grand jury. The term "formal" as used in the context of Wachtel's testimony is significant in a purely legal sense, and its use in the context of testimony to the grand jury would be of no practical consequence.

United States v. Evans, 712 F.Supp. 1435, 1446 (D.Mont.1989). Furthermore, because Evans does not contend that the other received testimony was insufficient to support the indictment the district court did not err in refusing to dismiss. Claiborne, 765 F.2d at 791-92.

D. Constitutionality of 26 U.S.C. Sec. 5861(d) and 18 U.S.C. Sec. 922(o)

Evans contends that Congress lacks the...

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