United States v. Bishop, 18-4088

• Decision Date: 10 June 2019
• Docket Number: No. 18-4088,18-4088
• Citation: 926 F.3d 621
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Scott Ray BISHOP, Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

926 F.3d 621

UNITED STATES of America, Plaintiff - Appellee,
v.
Scott Ray BISHOP, Defendant - Appellant.

No. 18-4088

United States Court of Appeals, Tenth Circuit.

FILED June 10, 2019

Jessica Stengel, Assistant Federal Public Defender (Scott Keith Wilson, Interim Federal Public Defender, with her on the briefs), Office of the Federal Public Defender for the District of Utah, Salt Lake City, Utah, appearing for Appellant.

Ryan D. Tenney, Assistant United States Attorney (John W. Huber, United States Attorney, with him on the brief), Office of the United States Attorney for the District of Utah, Salt Lake City, Utah, appearing for Appellee.

Before BRISCOE, HOLMES, and McHUGH, Circuit Judges.

BRISCOE, Circuit Judge.

This is a direct criminal appeal from Defendant Scott Bishop’s convictions on one count of unlawfully manufacturing machineguns, in violation of 26 U.S.C. § 5861(a), and one count of unlawfully possessing

926 F.3d 624

or transferring machineguns, in violation of 18 U.S.C. § 922(o). 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." 26 U.S.C. § 5845(b). "The term ... also include[s] ... any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun ...." Id. Defendant designed and manufactured a device, referred to as a TCGTR, that he intended his customers to install in their AR-15 semiautomatic rifles to increase the speed at which their guns fired. The government offered evidence that the TCGTR was a machinegun because it increased an AR-15’s rate of fire by causing the gun to fire multiple bullets per pull of the trigger.

Defendant, who proceeded pro se at trial, took the stand in his own defense and testified that he did not intend the TCGTR to convert an AR-15 into a machinegun. The district court excluded portions of Defendant’s testimony after finding that it was expert testimony not properly disclosed to the government. Defendant, now represented by counsel on appeal, argues that the jury’s verdict should be set aside because the district court denied him his constitutional right to present a defense, erred when instructing the jury on the elements of a § 5861(a) offense, improperly admitted hearsay testimony about the legality of the TCGTR, and allowed unsupported expert testimony on an ultimate issue of fact. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

I

In 2015, the Bureau of Alcohol, Tobacco, Firearms and Explosives recovered a "machine gun conversion device" while executing a search warrant in an unrelated case. App. Vol. III at 77. The device "had paperwork with it that explained how it worked and it had pictures on it that showed how [to] install th[e] device." Id. The paperwork indicated that the device was sold by a company called "TCGTR" through a website called "arfakit.com." Id. Using state business registration records, ATF linked the TCGTR business and arfakit.com to Defendant.

A TCGTR¹ is a small piece of metal that, when properly bent according to Defendant’s instructions, fits inside an AR-15.

[T]he "TCGTR" (trigger control group travel reducer) was a custom-made metal device, approximately 2.4 inches in length, and approximately 1/2 inch at its major width. As sold by [Defendant], the ... device required one[ ]final bend for the device to become operational as a machinegun. The purchaser could ... go back to [Defendant’s] website ... and obtain the instructions on how to complete the device. The device is premarked at the bend location with a stencil. ... [Defendant also] gave his customers very detailed written instructions, including photos, for making the final bend to their [TCGTRs]. [Defendant] also sold a "raw materials" variation of his kit, which was the same kit, but a flat piece of metal that required a total of four bends.

App. Vol. II at 18. As part of its investigation, ATF ordered multiple TCGTRs from Defendant and, after following Defendant’s instructions for bending and installing a TCGTR, tested the effect on an AR-15.

"The AR-15 is the civilian version of the military’s M-16 rifle, and is, unless modified, a semiautomatic weapon."

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Staples v. United States , 511 U.S. 600, 603, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994). A semiautomatic "weapon ... fires only one shot with each pull of the trigger." Id. at 602, n.1, 114 S.Ct. 1793. Conversely, an "automatic" or "fully automatic" "weapon ... 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 [National Firearms] Act[, 26 U.S.C. §§ 5801 – 5872 ]." Id. Based on its testing, ATF concluded that the TCGTR was a machinegun because it caused an AR-15 to "fire[ ] automatically more than one round without manually reloading it with a single function of the trigger." App. Vol. III at 468.

In December 2016, Defendant was indicted for violating 26 U.S.C. § 5861(a) by "knowingly engag[ing] in the business of manufacturing and dealing in firearms, to wit: machinegun conversion devices for AR-15 style rifles, without having paid the special occupational tax ... and without having registered" with the federal government. App. Vol. I at 14. Defendant was also indicted for violating 18 U.S.C. § 922(o) by "knowingly possess[ing] and transferr[ing] machineguns, to wit: machinegun conversion devices for AR-15 style rifles." Id. Defendant represented himself at the jury trial with the assistance of standby counsel. At the hearing held pursuant to Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), Defendant acknowledged that he would "be required to comply with all of the court rules and the Rules of Procedure and the Rules of Evidence and all of the rules and procedures that pertain in a jury trial." App. Vol. III at 4.

At trial, the government called ATF Special Agent Michael Powell to testify as an expert about why the TCGTR was a machinegun. He explained that an AR-15 contains a part called a disconnector that "prevent[s] the firearm from firing a second shot without [the operator] releasing the trigger and then pulling it a second time." Id. at 486. Powell then explained that the TCGTR "overrides or negates the function of the disconnector while the trigger is pulled and the weapon is" firing. Id. He testified that, by disabling the disconnector, the TCGTR allows an AR-15 to "fire[ ] automatically." Id. at 468. In Agent Powell’s expert opinion, this meant that the TCGTR met "the statutory definition of a machinegun" in 26 U.S.C. § 5845(b). Id. at 469.

When it was Defendant’s turn to present his case, he testified about his design for the TCGTR. Defendant acknowledged that he designed the TCGTR "for an increased rate of fire," but maintained that he "wanted to do it legally." Id. at 553. Defendant then testified that he designed the TCGTR "to contact the trigger group assembly," though ostensibly without disabling the disconnector. Id. at 554. When Defendant began to testify about what part of the "trigger group assembly" the TCGTR was designed to contact, he asked the court whether he could "show the jury an animation that is on YouTube showing how that trigger group works." Id. at 555. Defendant also offered to draw a diagram of the trigger group on a whiteboard.

The government objected, arguing that the testimony "presents both technical and specialized knowledge and under Rule 702 it would be required to come in through a qualified expert witness." Id. The district court sustained the government’s objection because it found that Defendant’s testimony concerned "technical and specialized knowledge," id. at 561, but had not been disclosed as required by Federal Rule of Criminal Procedure 16. The court acknowledged that Defendant had "the right to present a defense," but noted that Defendant

926 F.3d 626

also had "an obligation to follow the rules, the Rules of Criminal Procedure." Id. at 564; accord id. at 572. Defendant concluded his testimony and rested his case shortly thereafter.

The jury returned a guilty verdict on both counts. Defendant was sentenced to 33 months’ imprisonment, followed by 36 months’ supervised release. Defendant timely appealed his convictions.²

II

Defendant argues that the district court erred when it sustained the government’s objection to his testimony about how he intended the TCGTR to interact with the AR-15 trigger mechanism. The district court excluded this testimony after finding that it was expert testimony subject to Federal Rule of Evidence 702, but that Defendant had not timely disclosed his expert testimony to the government, as required by Federal Rule of Criminal Procedure 16. Defendant further argues that the district court’s limitation on his testimony violated his Fifth and Sixth Amendment right to present a defense.

A defendant’s right to present a defense is cabined by the Federal Rules of Evidence...