U.S. v. Harvey, 91-30320

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: Before ALARCON, RYMER and T.G. NELSON
• Citation: U.S. v. Harvey, 972 F.2d 1345 (9th Cir. 1992)
• Decision Date: 07 August 1992
• Docket Number: No. 91-30320,91-30320
• Parties: NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. William A. HARVEY, Defendant-Appellant.

Page 1345

972 F.2d 1345

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee, v. William A. HARVEY, Defendant-Appellant.

No. 91-30320.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 6, 1992.

Decided Aug. 7, 1992.

Before ALARCON, RYMER and T.G. NELSON, Circuit Judges.

MEMORANDUM ^*

William Harvey ("Harvey") appeals from his conviction and sentence following a jury trial for possession of an unregistered machine gun in violation of 26 U.S.C. § 5861(d). Harvey seeks reversal on six grounds:

One. The district court failed to instruct the jury that knowledge of the weapon's automatic firing capability was a necessary element of a violation of 26 U.S.C. § 5861(d).

Two. The district court failed to instruct the jury that the effective date of 18 U.S.C. § 922(o) was May 19, 1986, and that all of the parts of the machine gun must have been transferred to Harvey after that date.

Three. The Government failed to prove that Harvey acquired a machine gun before the effective date of 18 U.S.C. § 922(o).

Four. The principal Government witness, Seth Lukens, committed perjury.

Five. The district court improperly denied Harvey a downward adjustment in his sentence pursuant to § 2K2.1(b)(1) because Harvey possessed the weapon solely for sporting or recreational purposes.

Six. The warrant obtained to search Harvey's residence was not supported by probable cause.

We disagree and affirm.

I.

Harvey contends that his conviction must be reversed because the district court failed to instruct the jury that knowledge of a weapon's automatic capability is a necessary element of a violation of 26 U.S.C. § 5861(d). There is a split in the law of this circuit regarding whether a district court's refusal of a proposed jury instruction is reviewed under an abuse-of-discretion standard or de novo. United States v. Ayers, 924 F.2d 1468, 1475 (9th Cir.1991); United States v. Whitehead, 896 F.2d 432, 434 (9th Cir.), cert. denied, 111 S.Ct. 342 (1990). This conflict can only be resolved in an en banc proceeding. United States v. Slaughter, 891 F.2d 691, 699 (9th Cir.1989). En banc review is not necessary in this matter, however, because the result would be the same under either standard. The district court's jury instructions accurately set forth the scienter elements of a section 5861 violation as required by this court's decisions in United States v. Herbert, 698 F.2d 981 (9th Cir.1983), cert. denied, 464 U.S. 821 (1983), and United States v. Kindred, 931 F.2d 609 (9th Cir.1991).

In order to convict a defendant of possession of an unregistered machine gun, the Government must establish three factual elements: (1) the defendant possessed a certain item, (2) the item was a machine gun, and (3) the machine gun was not registered. Kindred, 931 F.2d at 611 (citing United States v. Freed, 401 U.S. 601, 612 (1971) (Brennan, J., concurring)). In addition to these factual elements, the Government must also show "that the defendant knew that he possessed 'a dangerous device of such type as would alert one to the likelihood of regulation.' " Kindred, 931 F.2d at 612 (quoting United States v. Thomas, 531 F.2d 419, 421 (9th Cir.), cert. denied, 425 U.S. 996 (1976)).

Harvey was found in possession of a Colt AR-15 assault rifle. As manufactured, an AR-15 is a semiautomatic weapon. An M-16 is the military version of an AR-15. An M-16 is an automatic weapon. Harvey's AR-15 contained five parts from an M-16. These parts were placed in the interior of Harvey's AR-15. As converted, Harvey's AR-15 was capable of automatic fire. Harvey did not register the weapon as a machine gun.

In Herbert, we held that where a semiautomatic weapon has been altered internally so that an external examination would not indicate that it is capable of being fired automatically, the jury must be instructed that the Government must prove that the defendant " 'knows that he is dealing with a dangerous device of such type as would alert one to the likelihood of regulation.' " 698 F.2d at 986 (quoting United States v. De Bartolo, 482 F.2d 312, 316 (1st Cir 1973)).

In Kindred, we applied the rule adopted in Herbert to an inoperable World War I type German machine gun. We reversed because the district court had instructed the jury that the Government need only prove the object was a gun. 931 F.2d at 612. We stated the applicable rule as follows:

To secure a conviction under the act, the government must prove that the defendant knew that he possessed a dangerous device of a type that would alert one to the likelihood of regulation.

Id.

In the instant matter, the district court instructed the jury as follows:

No. 11. An act is done knowingly if done voluntarily and intentionally and not because of mistake or accident or other innocent reason.

Specific intent is not an element of the crime of possession of an unregistered firearm. While it is necessary for the defendant to knowingly do the act, it is not necessary, however, to prove the defendant knew he was violating the law.

In regard to the charge in the indictment, the mere possession of a firearm which is required to be registered but has not been so registered is a violation of the laws of the United States. It is not necessary for the Government to prove that the defendant knew that the weapon in his possession was a firearm as defined earlier within the meaning of the statute or that he knew that registration was required. It is sufficient if you find beyond reasonable doubt that he knowingly possessed it.

The defendant also does not need to know all the characteristics of the weapon which subject it to regulation. It is enough to prove he knows that he is dealing with a dangerous device of such type as would alert one to the likelihood of regulation.

RT 479-80 (emphasis added). " 'A trial judge is given substantial latitude in tailoring the instructions so long as they fairly and adequately cover the issues presented.' " Ayers, 924 F.2d at 1475 (quoting United States v. Cruz, 783 F.2d 1470, 1472 (9th Cir.), cert. denied, 476 U.S. 1174 (1986)); see also United States v. Echeverry, 759 F.2d 1451, 1455 (9th Cir.1985) ("So long as the instructions fairly and adequately cover the issues presented, the judge's formulation of those instructions or choice of language is a matter of discretion.") The district court's instruction that the Government had to prove Harvey had knowledge that the weapon was of a type subject to regulation faithfully followed the words used in this court's explanation in Herbert and Kindred regarding the mental state which must be shown to sustain a conviction for possession of an unregistered machine gun that has been altered internally. Therefore, the district court's instruction was not erroneous.

II.

Harvey contends that the district court erred in failing to instruct the jury that he could not be convicted under section 5861(d) unless the Government proved that he acquired all of the parts of the machine gun after the effective date of 18 U.S.C. 922(o)(2)(b), i.e., May 19, 1986. Harvey also contends that the Government's failure to prove he acquired all the parts prior to May 19, 1986, constitutes an ex post facto law.

To support this argument, Harvey relies upon the following portion of the Firearm Owners Protection Act of 1986, codified in 18 U.S.C. § 922:

(1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machine gun.

(2) This subsection does not apply with respect to--

.............................................................

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* * *

(B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect [i.e., May 19, 1986].

18 U.S.C. § 922(o). Harvey then discusses another portion of the Firearm Owners Protection Act that amends the definition of machinegun contained in 26 U.S.C. § 5845. Harvey points out that prior to the passage of the Firearm Owners Protection Act, the definition of a machinegun included any automatic weapon, as well as:

any combination of parts designed and intended, for use in converting a weapon into a machinegun, and 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.

Under the amended version of section 5845(b) effective May 19, 1986, any single part designed or intended exclusively to convert a weapon to automatic fire also constitutes a machinegun:

The term ["machinegun"] shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and 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.

Pub.L. No. 99-308, 100 Stat. 449 (1986) (emphasis added).

Perhaps because the amendment to the definition of machine gun contained in section 5485 was passed as part of the same act as 18 U.S.C. 922(o), Harvey assumes that the grandparent clause applicable to section 922(o) should also apply to the amendment of section 5485. Thus, Harvey argues that if he possessed "any part" of the machine gun prior to May 19, 1986, that part was not subject to registration in 1989 and cannot be used to support his conviction. Harvey concludes by stating that the Government failed to prove he acquired the M-16 parts used to convert his semiautomatic after May 19, 1986.

There are several flaws in Harvey's argument. First, the grandparent clause contained in section 922(o) does not apply to section 5485. The language of section 922(o)(2) expressly limits the...