United States v. Kelly

• Decision Date: 06 October 1982
• Docket Number: Crim. No. 82-163.
• Citation: 548 F. Supp. 1130
• Parties: UNITED STATES of America v. Kevin KELLY.
• Court: U.S. District Court — Eastern District of Pennsylvania

548 F. Supp. 1130

UNITED STATES of America v. Kevin KELLY.

Crim. No. 82-163.

United States District Court, E. D. Pennsylvania.

October 6, 1982.

Peter F. Vaira, U. S. Atty., Thomas H. Lee, Asst. U. S. Atty., Philadelphia, Pa., for plaintiff.

Mark S. Pinnie, Media, Pa., for defendant.

MEMORANDUM

RAYMOND J. BRODERICK, District Judge.

Defendant Kevin Kelly was found guilty by a jury on both counts of a two-count indictment charging him with (1) knowingly and unlawfully possessing a machine gun not registered to him in the National Firearms Registration and Transfer Record, in violation of 26 U.S.C. § 5861(d), and (2) making a machine gun without complying with the requirements of Chapter 53, § 5822 of the National Firearms Act, in violation of 26 U.S.C. § 5861(f). At trial, the government produced evidence on the basis of which the jury found, beyond a reasonable doubt, that the bolt and trigger housing of a UZI semi-automatic weapon were sent to the defendant by a Special Agent of the Bureau of Alcohol, Tobacco and Firearms, and that the defendant sent back to the agent a bolt and trigger housing modified in such a manner that the Agent was able to insert the modified bolt and trigger housing into a UZI semi-automatic gun so that it operated as an automatic weapon.

Defendant has now moved for an arrest of judgment under Fed.R.Crim.P. 34, and for a new trial under Fed.R.Crim.P. 33. For the reasons stated below both motions are denied.

Defendant's Motion for Arrest of Judgment.

Defendant seeks arrest of the judgment against him on the ground that the Government failed to allege and prove that he possessed the entirety of parts capable of constructing a completed machine gun. Under Fed.R.Crim.P. 34, judgment may be arrested only if the indictment does not charge an offense against the United States or if the Court was without jurisdiction of the offense charged. Such a motion must be based on a defect apparent upon the face of the indictment itself, and not upon the evidence or its sufficiency. United States v. Sisson, 399 U.S. 267, 280-81, 90 S.Ct. 2117, 2124-25, 26 L.Ed.2d 608 (1970); United States v. Frezzo Bros., 461 F.Supp. 266, 268 (E.D.Pa.1978).

The Court holds, as it ruled in denying defendant's motion to dismiss the indictment, that the indictment was sufficient as a matter of law to charge the offenses of making and possessing a machine gun in violation of 26 U.S.C. § 5861. The indictment states the specific sections of the statute which were violated, gives the approximate dates of the offenses, and gives a brief description of the offenses. Defendant thus had sufficient notice of the offense for which he was charged. See United States v. Miah, 433 F.Supp. 259, 263-64 (E.D.Pa.1977). Further, the indictment tracks the language of the applicable statute, and alleges the elements necessary to prove each offense.

It was not necessary for the indictment to describe in detail what portions of the machine gun the Government intended to introduce at trial. United States v. Curtis, 520 F.2d 1300, 1302 (1st Cir. 1975). Defendant's contention that the Government's proof at trial was insufficient to make out a violation of the statute is properly raised in a motion for a new trial, and will be discussed below.

Defendant's Motion For A New Trial

Defendant moves under Fed.R.Crim.P. 33 for a new trial on the following six grounds: (1) the verdict was against the law as it existed at the time of trial; (2) the Court erred in charging the jury that possession and fabrication of any combination of parts designed and intended for the construction of a machine gun, rather than of all parts necessary to construct a completed machine gun, was sufficient to constitute a violation of 26 U.S.C. § 5861; (3) the Court erred by not charging the jury that proof that the defendant knew that what he possessed was a firearm within the common meaning of the term was required; (4) the Court erred in allowing the government to introduce evidence of other machine gun modifications performed by the defendant similar to that for which he was charged and for which he was not charged in the instant trial; (5) the Court erred in failing to answer two questions submitted by the jury during its deliberation and reiterating its original charge; and (6) the verdict was against the weight of the evidence.

Defendant's first two contentions are based upon the statutory definition of a machine gun as set forth in 26 U.S.C. § 5845(b), which reads:

The term "machine gun" means 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 include the frame or receiver of any such weapon, any combination of parts designed and intended for use in converting a weapon into a machine gun, and any combination of parts from which a machine gun can be assembled if such parts are in the possession or under the control of a person.

Defendant asserts that under this definition the bolt and trigger housing he possessed and modified did not constitute a "machine gun". Defendant relies upon United States v. Seven Miscellaneous Firearms, 503 F.Supp. 565 (D.D.C.1980), and the use of the word "and" in the second sentence of the definition. Defendant argues that possession or control of a "combination of parts designed and intended for use in converting a weapon into a machine gun" does not alone constitute possession or control of a machine gun. Rather, defendant argues, a person must also possess or control a "frame or receiver", as well as "any combination of parts from which a machine gun can be assembled" before he possesses a machine gun within the meaning of § 5845(b).

The Court considered and rejected this argument in denying defendant's motion to dismiss the indictment prior to trial, following a consideration of the statute, its legislative history, and the cases cited by both sides. The Court therefore instructed the jury that under § 5845(b) "any combination of parts designed and intended for use in converting a weapon into a machine gun" constituted a "machine gun" within Congress' definition and was thus a firearm for the purposes of the counts charged in the indictment. The Court adheres to its earlier determination.

In Seven Miscellaneous Firearms it was stated that since the statute uses the term "frame or receiver" in the conjunctive with conversion parts and any combination of parts from which a machine gun can be assembled, these terms are "not contemplated in isolation, but together." 503 F.Supp. at 575. Seven Miscellaneous Firearms holds that a person must possess a frame or receiver and conversion parts, as well as a combination of parts from which a completed machine gun could be assembled, in order to violate the Act.

This Court finds more persuasive, however, the holdings of the two Courts of Appeals which have considered this issue. In United States v. Campbell, 427 F.2d 892 (1970), the Fifth Circuit held that possession and transfer of conversion kits, assembled on trigger housings, designed and intended for use in converting a standard M-1 carbine into a machine gun, constituted a machine gun under 26 U.S.C. § 5845(b). Also, in United States v. McCauley, 601 F.2d 336 (8th Cir. 1979), a type 96 machine gun lacking the magazine necessary for automatic firing was held to be a "machine gun" under § 5845(b) because it could be "readily restored to shoot". In neither of these cases was the defendant required to possess all the parts necessary to construct a completed machine gun.

The sentence of the statute upon which defendant places reliance in arguing that a person must have possession or control of a frame or receiver, conversion parts, and a combination of parts from which a machine gun can be assembled simultaneously in order to have possession or control of a "machine gun", was added to the National Firearms Act by amendments included in the Gun Control Act of 1968, Pub.L.No. 90-618, § 201, 82 Stat. 1234. The principal purpose of this legislation was to "strengthen federal controls over interstate and foreign commerce in firearms." 1968 U.S.Code Cong. and Adm.News 4410, 4411. The Conference report on the legislation stated:

The present National Firearms Act covers gangster-type weapons such as machine guns, sawed-off shotguns, short-barreled rifles, mufflers and silencers. Under the amendment it would also cover machine gun frames and receivers, so-called "conversion kits" for turning over weapons into machine guns, and combinations of machine gun parts when in the possession of a single person.

Clearly, the word "and" used in this sentence reflects a purpose to include three new categories of weapons within the definition of a machine gun. This purpose is even more evident in the Senate report which discussed the amended definition as it now reads:

The second sentence is new. It provides three new categories as included within the term "machine gun": (1) the frame or receiver of a machine gun, (2) any combination of parts designed and intended for use in converting a weapon other than a machine gun into a machine gun; for example, so-called conversion kits, and (3) any combination of parts from which a machine gun can be assembled if such parts are in the possession of a person. This is an important addition to the definition of "machine gun" and is intended to overcome problems encountered in the administration and enforcement of existing law. It is intended that the three additional categories be subject to all the provisions of the chapter applicable to serviceable machine guns.

S.Rep.No.1501, 90th Cong., 2d Sess. 45-46 (1968).

Additional support for reading the word "and" in § 5845(b) as incorporating three separate and individually sufficient definitions of "machine gun" within one sentence comes from a reading of 26 U.S.C. § 5845(a), where "and" is used in a similar manner to...