U.S. v. Staples, 91-5033

Decision Date03 August 1992
Docket NumberNo. 91-5033,91-5033
Citation971 F.2d 608
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Harold E. STAPLES, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Susan W. Pennington, Asst. U.S. Atty. (Tony M. Graham, U.S. Atty. and Neal B. Kirkpatrick, Asst. U.S. Atty., with her on the brief), for plaintiff-appellee.

Clark O. Brewster of Brewster and Shallcross, (Jennifer L. DeAngelis, with him on Before ANDERSON and EBEL, Circuit Judges, and ANDERSON, * District Judge.

the brief), Tulsa, Okl., for defendant-appellant.

STEPHEN H. ANDERSON, Circuit Judge.

Harold E. Staples, III, appeals from his conviction on one count of unlawful possession of an unregistered machinegun in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. Staples contends that the district court erred: (1) by failing to instruct the jury that scienter is an element of unlawful possession under 26 U.S.C. § 5861; (2) by excluding certain documentary evidence under Fed.R.Evid. 401; and (3) by refusing to submit to the jury his proffered instruction on the word "automatically" as it is used in 26 U.S.C. § 5845(b). On its own motion, the court has also raised the issue of the constitutionality of § 5861(d) as a result of our recent opinion in United States v. Dalton, 960 F.2d 121 (10th Cir.1992). For the reasons stated below, we affirm.

BACKGROUND

On December 29, 1989, members of the police department of Jenks, Oklahoma, and the Bureau of Alcohol, Tobacco, and Firearms (BATF) conducted a search of Staples' home pursuant to a warrant. Among the items seized was an SGW .223 caliber Model X M14A1 assault rifle ("AR-15"), which Staples had purchased on April 9, 1983. Appellant's App. Vol. I at 185, Tab K. There is no dispute that the AR-15 had never been registered to Staples under the National Firearms Act (NFA), 26 U.S.C. § 5841, as a registerable automatic weapon.

At the time of the search, the AR-15 contained neither a bolt carrier nor a magazine. Numerous weapons parts were found in the room where the AR-15 was stored including the bolt carrier for an M-16 military rifle. The M-16 bolt carrier was discovered in the pocket of a briefcase located in the room.

BATF agents examined the AR-15 in their Washington, D.C., laboratory. The examination showed that the AR-15 had been assembled with certain internal parts originally manufactured for fully automatic military rifles like the M-16 including the hammer, disconnector, and trigger. The weapon did not, however, have an auto-sear. The sole function of that part is to permit automatic fire. The gun had a three-position selector switch. BATF Agent Joseph McLaughlin testified at trial that an external pin or "stop" on the side of the weapon's receiver had been removed by filing. This external modification enabled a user of the weapon to rotate the selector switch to the full automatic position.

When the BATF agents cleaned and oiled the AR-15, inserted an appropriate magazine, used the M-16 bolt carrier found in the same room as the AR-15, loaded the weapon with "soft-primer" ammunition, and rotated the selector switch to full automatic, the weapon fired more than one shot with a single pull of the trigger.

After a two-day trial, the jury found Staples guilty of possession of the unregistered AR-15 while acquitting him on a separate count of possessing an unregistered M-1 rifle also found in the search. Staples filed motions for acquittal at the end of the government's case and following the verdict. Both were denied. Consistent with the federal sentencing guidelines, the court sentenced Staples to five years probation with certain conditions, a $5,000 fine, and a $50 special assessment. The sentence has been stayed pending the outcome of this appeal.

DISCUSSION
I. CONSTITUTIONALITY OF STAPLES' CONVICTION UNDER 26 U.S.C. § 5861(d)

In United States v. Dalton, 960 F.2d 121 (10th Cir.1992), an opinion issued during the pendency of this appeal, we held a prosecution under § 5861(d) to be unconstitutional because that statute required the registration of a firearm which the government refused to register due to the ban on machineguns imposed after May 19, 1986 by 18 U.S.C. § 922(o). 1 Summarizing our position, we stated:

Dalton was found guilty of possessing and transferring an unregistered firearm in violation of the National Firearms Act, I.R.C. §§ 5861(d), (e) (NFA). A separate criminal statute prohibits the possession of any machinegun made after that statute's effective date in 1986. 18 U.S.C. § 922(o)(1988). It is undisputed that the government will not permit the registration of machineguns covered by section 922(o), and will not accept the tax which would otherwise be required by the registration requirements of the National Firearms Act. Dalton contends that due process bars his conviction under a statute which punishes his failure to register when that registration is precluded by law. We agree and reverse.

....

As a result of section 922(o), compliance with section 5861 is impossible.

Dalton, 960 F.2d at 122, 126.

Because of the general similarity of the prosecution in this case with Dalton, and the fundamental nature of the issue involved, we raised the constitutional issue and permitted supplemental briefing by the parties. Since this is a potentially controlling issue, we address it first, applying the plain error standard of review.

After reviewing the record and arguments of the parties, we conclude that Dalton is distinguishable. Dalton concerned a weapon that was possessed for the first time in 1989, three years after the May 19, 1986, effective date of 18 U.S.C. § 922(o); whereas the gun in this case was purchased in 1983. Section 922(o )(2)(B) specifically exempts machineguns which were lawfully possessed (i.e., registered) prior to May 19, 1986. There is no dispute that machineguns could be registered prior to that date; thus, the reasoning in Dalton does not apply to the charge against Staples.

Neither of the parties address this distinction. The government contends mainly that Dalton is in error. Appellee's Suppl. Br. at 6. However, even if Dalton applied to this case we could not overrule a previous opinion of this court. United States v. Spedalieri, 910 F.2d 707, 710 n. 3 (10th Cir.1990). En route to its conclusion, the government argues that § 5861(d) remains valid after Dalton because there are reasons the court did not cite to support upholding the provision, including Congress' power to regulate the interstate movement of machineguns pursuant to the Commerce Clause. Appellee's Suppl. Br. at 3, 5.

These arguments completely ignore the issue here--the requirement and date of registration of Staples' AR-15. Our statement in Dalton that since 1986 the government has refused to register machineguns (apparently for any reason, whether regulatory or revenue), was confirmed by testimony in this case by the government's witness, BATF Agent McLaughlin. He testified that the government would not register machineguns after the May 19, 1986 effective date of § 922(o). 2 Likewise, Staples' arguments miss the point. He merely "adopts Dalton's argument in toto that due process bars his conviction under a statute which punishes his failure to register when that registration is precluded by law." Appellant's Suppl. Br. at 7-8.

Staples does not, and, as explained above, cannot, argue that Dalton calls into question the validity of the nexus between § 922(o) and 26 U.S.C. § 5861(d) for any time prior to May 19, 1986.

His basic defense at trial was not that he could not register a machinegun, but that his weapon was not a machinegun under 26 U.S.C. § 5845 and, thus, was not subject to registration under the NFA. Alternatively, he contended that if his weapon was a machinegun, he did not know it; therefore, he lacked the requisite scienter to violate the registration requirement. See Reply Br. at 14-15. Staples had ample opportunity at trial to demonstrate that he complied with the registration provisions of the NFA prior to May 19, 1986, or that the weapon was converted into a machinegun after that date, but failed to do so. 3

II. SCIENTER UNDER 26 U.S.C. § 5861

Staples asserts that the district court failed to instruct the jury properly on the elements necessary to secure a conviction under § 5861 of the National Firearms Act. 4 The court instructed the jury as follows:

Essential Elements of the Crime (26 U.S.C. § 5861(d))

In order to establish the offense charged in the indictment, each of the following essential elements must be proved beyond a reasonable doubt:

First: that the defendant knowingly possessed the firearm described in the Indictment; and

Second: that such firearm was not registered to the defendant in the National Firearms Registration and Transfer Record.

The unlawful offense is complete when the two separate elements just stated are proved.

Appellant's App. Vol. I at 21, Tab D.

Knowingly to Possess

A person is knowingly in possession if his possession occurs voluntarily and intentionally and not because of mistake or accident or other innocent reason. The purpose of adding the word knowingly was to insure that no one would be convicted of possession of a firearm if he did not intend to possess it.

The Government need not prove that a defendant knows he is dealing with a weapon possessing every last characteristic which subjects 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. If he has such knowledge, and if the particular item is in fact regulated, he acts at his peril.

Appellant's App. Vol. I at 25, Tab D (emphasis added).

Mere Possession of Unregistered Firearm

Mere possession of an unregistered firearm is a violation of the law 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 within the meaning of the statute, only...

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