U.S. v. Olofson

• Decision Date: 01 May 2009
• Docket Number: No. 08-2294.,08-2294.
• Citation: 563 F.3d 652
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David OLOFSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

563 F.3d 652

UNITED STATES of America, Plaintiff-Appellee, v. David OLOFSON, Defendant-Appellant.

No. 08-2294.

United States Court of Appeals, Seventh Circuit.

Argued January 22, 2009.

Decided May 1, 2009.

Gregory J. Haanstad, Attorney (argued), Michelle L. Jacobs, Attorney, Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

Robert Sanders, Winston Salem, NC, William J. Olson, Herbert W. Titus (argued), William J. Olson, P.C., McLean, VA, for Defendant-Appellant.

Before MANION and KANNE, Circuit Judges, and KENDALL, District Judge.^*

MANION, Circuit Judge.

David Olofson was indicted for knowingly transferring a machinegun in violation of 18 U.S.C. § 922(o). A jury convicted Olofson of the charged offense following a two-day trial, and the district court sentenced him to thirty months' imprisonment. Olofson appeals his conviction. For the following reasons, we affirm.

I. Background

Robert Kiernicki saw a "for sale" advertisement for a Colt AR-15 rifle that David Olofson had posted at a gas station in New Berlin, Wisconsin. Kiernicki called Olofson at the phone number listed on the ad to inquire about the weapon. Olofson informed Kiernicki that the advertised gun was no longer available but agreed to order and assemble another Colt AR-15 for Kiernicki. In the meantime, Olofson loaned Kiernicki an AR-15¹ and hundreds of rounds of ammunition on four separate occasions. The selector switch on the borrowed AR-15 had three positions: one marked "fire," one marked "safety," and one that was unmarked. Olofson and Kiernicki discussed the unmarked setting on July 13, 2006, which was the fourth time that Olofson loaned Kiernicki the weapon. Olofson told Kiernicki that putting the selector switch in the unmarked position would enable the AR-15 to fire a three-round burst with a single pull of the trigger, but the gun would then jam.

While at a shooting range that same day, Kiernicki (for the first time since using the gun) switched the AR-15 to the unmarked position and pulled the trigger; three or four rounds were discharged before the gun jammed. Kiernicki fired the weapon in that fashion several times, and each time it jammed after a short burst of three or four rounds. Police received a telephone complaint of automatic gunfire at the shooting range. When officers arrived at the range, they confiscated the AR-15 from Kiernicki. Kiernicki told the police that he had borrowed the gun from Olofson. Several days later, agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") interviewed Olofson while executing a search warrant at his home. During that conversation, Olofson acknowledged loaning the AR-15 to Kiernicki.

On December 5, 2006, a grand jury indicted Olofson for knowingly transferring a machinegun in violation of 18 U.S.C. § 922(o). Shortly before trial, Olofson filed a motion to compel the government to disclose evidence of the ATF's firearms testing procedures, correspondence between the ATF and the manufacturer of Olofson's AR-15 about the use of M-16 parts in AR-15 rifles, and the ATF's registration history of AR-15 rifles that contain M-16 parts. The district court denied that motion on the first day of trial after concluding that the information the defendant was seeking was not exculpatory under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

At trial, the government asked the district court to exclude Olofson's expert witness from the courtroom during the testimony of its firearms expert. Over Olofson's objection, the court granted the government's request. The government's expert testified that he used military-grade ammunition the first time he test-fired the AR-15 with the selector switch in the unmarked position and that the gun fired only one round. Later, using civilian-grade ammunition, he conducted two more test-fires of the weapon in the unmarked mode. In one of those tests, he held the trigger down and the gun fired all of its ammunition (twenty rounds) before stopping. He also emptied two twenty-round magazines in five- or ten-round bursts by depressing, holding, and releasing the trigger several times. The government's expert stated that such firing capabilities did not result from a "hammer-follow" malfunction but rather were intended features of the gun.

After the close of the evidence, the court used the definition of a "machinegun" from 26 U.S.C. § 5845(b) to instruct the jury and chose not to define the word "automatically" from that statute as the defendant had requested. Following deliberation, the jury returned a guilty verdict. Olofson then moved for a judgment of acquittal, arguing that the evidence presented at trial was insufficient to convict him of the charged offense and that the statutes under which he was prosecuted are unconstitutionally vague. The district court denied that motion and sentenced Olofson to thirty months in prison. Olofson appeals, challenging his conviction on five grounds.

II. Discussion

A. Olofson's Proposed Jury Instruction

Title 18 U.S.C. § 922(o)(1) provides that, subject to exceptions not relevant here, "it shall be unlawful for any person to transfer or possess a machinegun." The applicable definition² of a "machinegun" is

any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term 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.

26 U.S.C. § 5845(b) (emphasis added). The district court instructed the jury using the first sentence of § 5845(b) but did not give any guidance on the meaning of the word "automatically." Olofson contends that the court inaccurately stated the law when it did not instruct the jury using the definition of "automatically" that derives from Staples v. United States, 511 U.S. 600, 602 n. 1, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994), and that we allegedly adopted in United States v. Fleischli, 305 F.3d 643, 655 (7th Cir.2002).³ Whether jury instructions correctly state the law is a matter we review de novo. United States v. Thornton, 539 F.3d 741, 745 (7th Cir.2008). We will reverse only if the instructions viewed as a whole misled the jury to the defendant's prejudice. Id.

In Staples, the defendant was convicted of possession of an unregistered machinegun. 511 U.S. at 603-04, 114 S.Ct. 1793. At trial, the defendant insisted that he did not know that the weapon was capable of firing automatically (which is one of the features of a "machinegun" under § 5845(b)) and requested a jury instruction that the government must prove beyond a reasonable doubt that he knew the gun could fire in such a manner. Id. The district court refused to give the defendant's proposed instruction; instead, it gave an instruction that discounted the defendant's need for knowledge of every characteristic of the weapon that made it subject to regulation. Id. at 604, 114 S.Ct. 1793. The Tenth Circuit affirmed, holding that "the Government need not prove a defendant's knowledge of a weapon's physical properties to obtain a conviction." Id. In reversing, the Supreme Court held that the government was required to prove that the defendant knew of the characteristics of the gun that brought it within the ambit of the statute. Id. at 619, 114 S.Ct. 1793.

At the beginning of its opinion, the Court quoted the statutory definition of "machinegun" from § 5845(b) and stated that "any fully automatic weapon is a `firearm' within the meaning of the Act." Id. at 602, 114 S.Ct. 1793. In a footnote, the Court then said the following:

As used here, the terms "automatic" and "fully automatic" refer to a weapon that fires repeatedly with a single pull of the trigger. That is, once its trigger is depressed, the weapon will automatically continue to fire until its trigger is released or the ammunition is exhausted. Such weapons are "machineguns" within the meaning of the Act.

Id. at n. 1, 114 S.Ct. 1793 (emphasis added).

The narrow holding from Staples is that mens rea was an element of the crime in question—i.e., that the government had to prove the defendant's knowledge of the features of the weapon (including automatic firing capability) that brought it within the proscriptive purview of the statute. Id. at 619, 114 S.Ct. 1793. The precise definition of "automatically" was not at issue; therefore, the Court's discussion of the terms "automatic" and "fully automatic" was immaterial to its holding. Indeed, the Court prefaced its explanation of the terms "automatic" and "fully automatic" with the phrase "[a]s used here." Thus, rather than interpreting a statute, the Court simply was providing a glossary for terms frequently appearing in the opinion. Therefore, Staples did not establish a requirement for district courts to instruct juries on the meaning of "automatically" from § 5845(b).

The same is true of our decision in Fleischli. In that case, the defendant was convicted of two counts of possession of machineguns in violation of 18 U.S.C. § 922(o)(1). Fleischli, 305 F.3d at 647. The defendant argued that a certain weapon was not a machinegun under § 5845(b) because it did not fire automatically and did not have a trigger. Id. at 654. Fleischli relied upon the definition of a semiautomatic rifle from 18 U.S.C. § 921(a)(28) to assert that a gun does not fire automatically "unless it uses a portion of the energy of a firing cartridge to extract the fired cartridge and chamber the next round without a separate pull of the trigger." Id. at 655. This court concluded that the gun's electronic on/off switch that initiated the firing sequence was a trigger and, having...