U.S. v. Mack

• Decision Date: 12 January 1999
• Docket Number: No. 97-50364,97-50364
• Citation: 164 F.3d 467
• Parties: 99 Cal. Daily Op. Serv. 339, 99 Daily Journal D.A.R. 390 UNITED STATES of America, Plaintiff-Appellee, v. Dennis Charles MACK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 467

164 F.3d 467

99 Cal. Daily Op. Serv. 339, 99 Daily Journal

D.A.R. 390

UNITED STATES of America, Plaintiff-Appellee, v. Dennis Charles MACK, Defendant-Appellant.

No. 97-50364.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 3, 1998.

Decided Jan. 12, 1999.

Don B. Kates (Argued), Benenson & Kates, Novato, California, and C.D. Michel (On the Briefs), Michel & Associates, Los Angeles, California, for the defendant-appellant.

Patrick J. Walsh, Assistant United States Attorney, Los Angeles, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; William J. Rea, District Judge, Presiding. D.C. No. CR-96-00414-WJR-1.

Before: REINHARDT, TROTT, and T.G. NELSON, Circuit Judges.

OPINION

TROTT, Circuit Judge:

OVERVIEW

This case is about contraband firearms outlawed by Congress and targeted for confiscation and destruction, and who can and cannot possess them once seized by a law enforcement agency.

Dennis Charles Mack, a private citizen, challenges his convictions for unlawful possession of sawed-off shotguns and rifles in violation of 26 U.S.C. § 5861(d), and possession of handguns with obliterated serial numbers in violation of 18 U.S.C. § 922(k). He argues that because he intended to destroy the weapons as an agent of the local law enforcement agencies from which he obtained them, he is exempt from punishment under the statutes. Mack also challenges the constitutionality of the statutes under which he was convicted. He argues that the statutes: (1) exceed Congress's power to legislate under the Commerce Clause; (2) violate the Second Amendment; and (3) interfere with the sovereignty of the states. Mack also claims that he received ineffective assistance of counsel. Finally, Mack argues that the district court erred by refusing to instruct the jury on the defenses of entrapment by estoppel and reliance on public authority. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

FACTS

From 1982 to 1996, Defendant-Appellant Dennis Charles Mack was a federally licensed private firearms dealer who owned several gun shops in the Los Angeles area. As early as 1992, Mack contacted local police departments and offered to dispose of illegal weapons the police had seized in exchange for the ability to keep and sell the legal weapons they had confiscated. In 1994, Mack told William Thompson, the property control officer for the Kern County Sheriff's Department, that his federal license authorized him to possess and to destroy illegal National Firearms Act registry weapons (NFA weapons). ¹ When the prosecutor asked Thompson, "What did Mr. Mack tell you [in 1994] about his federal firearms license?," Thompson's answer was, "He indicated that he could take our guns, that it was no problem for him to take the guns, both the salable guns and guns that we had for destruction also." ² As a result of Mack's solicitations, various local law enforcement agencies entrusted him with numerous illegal weapons with the expectation that the weapons would be destroyed. ³

On September 21, 1994, Inspector Ramiro Wong of the Federal Bureau of Alcohol, Tobacco, and Firearms (ATF) inspected Mack's premises and found ten illegal NFA weapons. Wong conducted this inspection on information from an apprehensive gun dealer hired by a bankruptcy trustee appointed to inventory the guns in the defendant's shop. Upon discovering the weapons, Wong told Mack that he was not authorized to possess NFA weapons. Mack replied that he was allowed to possess the contraband because he was an agent of the police departments from which he had obtained them so that they could be destroyed. Wong informed Mack that he was mistaken. Wong explained to Mack that he was simply a private person and that he was not allowed to possess NFA weapons. Wong himself could not confiscate the weapons because he was not authorized to do so.

Wong returned to Mack's shop for another inspection in January 1995, and discovered that Mack had not heeded his warning. Mack was still in possession of the NFA weapons. Wong informed Mack for a second time that he was not allowed to possess NFA weapons. As he had before, Mack replied that he could possess the weapons because he was an agent of the police and that he still intended to destroy the weapons on their behalf.

On February 7, 1995, Wong returned to Mack's shop and issued Mack a Report of Violations for possessing NFA firearms. The report ordered Mack to refrain from taking possession of NFA firearms and to abandon all NFA firearms currently in his possession to the ATF or to the local police departments from which he had received them. Mack signed the report.

Despite Wong's oral and written warnings, Mack continued to receive more NFA firearms from local law enforcement agencies, including the Kern County Sheriff's Department and the Huntington Police Department. In July 1995, an ATF special agent went to Mack's shop and confiscated ten sawed-off shotguns. The special agent again informed Mack that he could not legally possess NFA weapons.

After Mack's Federal Firearm's License was revoked at the recommendation of Inspector Wong, Mack called ATF Deputy General Counsel Daniel Cronin to discuss his agency theory. Cronin also told Mack that he could not possess the weapons.

In November 1995, Mack sought renewal of his federal firearm's license, but he sent in the renewal form three days late. The ATF has authority under 18 U.S.C. § 923(g) to conduct compliance inspections on federally licensed gun shops without consent. However, the ATF must ask for consent to inspect gun shops when an applicant is applying for a new license. After Inspector Wong reviewed Mack's late request for renewal, Wong contacted Cronin to discuss how the consent issue should be handled on a late renewal request. Cronin and Wong agreed that Wong must get Mack's consent to inspect because the renewal was late.

On November 21, 1995, Wong went to Mack's shop to discuss the firearm's license renewal. With Mack's acquiescence, Wong inspected Mack's gun shop and discovered more than 60 NFA firearms. After the inspection, Wong and Cronin again discussed the inspection, and Wong informed Cronin that he had asked for and received Mack's consent to inspect the premises. Wong returned seven days later to inventory the firearms.

On December 14, 1995, ATF agents searched Mack's gun shop pursuant to a search warrant based on Wong's November inspection information. The government seized the 63 NFA firearms that form the basis of the indictment in this case. The firearms appeared to be randomly stored at various unsecured locations in his shop.

After the seizure, Mack again called William Thompson. Thompson had previously released over 200 guns from the Kern County Sheriff's Department to Mack for off-site destruction based on Mack's misleading representation about the scope of his federal license. Mack asked Thompson to send him a letter stating that Mack was an agent of Kern County. Thompson told Mack that his department did not have agents and that he did not have the authority to write such a letter.

Subsequently, Mack was indicted on charges of possession of unregistered firearms in violation of 26 U.S.C. §§ 5861(d) and 5872, and possession of firearms with obliterated serial numbers in violation of 18 U.S.C. § 922(k). Mack moved to suppress the seized guns based on his allegation that Wong did not ask for consent to inspect in November.

At the suppression hearing, Mack testified that Wong told him that Wong was there to do a compliance inspection. Mack testified that he believed that under those circumstances he had no choice but to allow Wong to inspect his gun shop. Wong testified that he was conducting an application inspection and that he had asked for Mack's consent before inspecting the gun shop. The district court concluded that the issue of consent turned on credibility. Finding that Mack had consented to the search, the court found Wong's testimony to be more credible than Mack's. The court denied the motion to suppress.

In a pretrial ruling on a motion in limine, the district court ordered excluded all evidence designed to establish that Mack was a duly authorized agent of any state or local law enforcement agency that entrusted him with the contraband weapons. The court accepted the prosecutor's argument on behalf of the government, that only federal law enforcement agencies could authorize such possession. Accordingly, the court told Mack's counsel, "you can introduce evidence of what Mr. Mack was told by the federal officers, but as far as the state officers are concerned, no." The district court also said, correctly we believe, that "it doesn't matter whether the local police appointed [Mack] as an agent."

Consistent with these rulings, the district court refused Mack's request to instruct the jury that if it found that Mack possessed the weapons on behalf of and with the authorization of a local police agency for the purpose of destroying the firearms, he was not guilty of the offense charged.

The jury found Mack guilty on all charges. On June 27, 1997, he was sentenced to 15 months in prison, three years supervised release, and a fine of $12,500.00. Mack challenges his convictions on appeal.

STANDARD OF REVIEW

We review the district court's interpretation of a statute de novo. Tierney v. Kupers, 128 F.3d 1310, 1311 (9th Cir.1997). A claim of insufficient evidence is reviewed in the light most favorable to the government to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Randolph, 93 F.3d 656, 660 (9th Cir.1996). A claim for ineffective assistance of counsel is reviewed de novo. United States v. Benlian, 63 F.3d 824, 826 (9th Cir.1995). We review the constitutionality of a statute de novo. United States v. Hicks, 103 F.3d 837, 847 (9th Cir....