United States v. Kuzma

• Decision Date: 03 August 2020
• Docket Number: No. 18-10042,18-10042
• Citation: 967 F.3d 959
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas F. KUZMA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

967 F.3d 959

UNITED STATES of America, Plaintiff-Appellee,

v.Thomas F. KUZMA, Defendant-Appellant.

No. 18-10042

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 4, 2019 San Francisco, California

Filed August 3, 2020

Davina T. Chen (argued), Glendale, California, for Defendant-Appellant.

Angela W. Woolridge (argued), Assistant United States Attorney; Robert L. Miskell, Appellate Chief; United States Attorney's Office, Tucson, Arizona; for Plaintiff-Appellee.

Before: Richard A. Paez and Daniel P. Collins, Circuit Judges, and Jennifer Choe-Groves,^* Judge.

COLLINS, Circuit Judge:

Defendant-Appellant Thomas Kuzma appeals his convictions for possession of a machinegun in violation of 18 U.S.C. § 922(o ) and possession of an unregistered machinegun in violation of 26 U.S.C. § 5861(d). He argues that the statutory definition of "machinegun" underlying both counts is unconstitutionally vague and that, to the extent the term does have any determinate meaning, the device he possessed does not qualify as a machinegun. We disagree with these contentions and with most of the other challenges that Kuzma raises to his convictions. However, because we agree that Kuzma's two convictions are improperly multiplicitous, we remand to the district court with instructions to vacate one of the two convictions.

I

A

Thomas Kuzma was the manager of D&D Sales and Manufacturing ("D&D"), a supplier of gun parts in Tucson, Arizona. D&D operated out of a residence owned by its cofounder, Donald Tatom, and at all relevant times, Kuzma lived alone in that residence. After an investigation suggested that D&D might be involved with unlawful machineguns, the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") obtained a search warrant for D&D's premises in early 2017. The search warrant was executed on March 21, 2017, and during the search, ATF agents found an "Uzi-type" receiver on a shelf in the garage, which functioned as D&D's workshop.¹ The receiver was later marked as Government's Exhibit 12 at trial, and we therefore will refer to it as "Exhibit 12." As shown in a photograph attached to the report of the Government's firearms expert (William Swift), Exhibit 12 looked like this at the time ATF seized it:

In the condition in which it was found, Exhibit 12 could not shoot at all, much less shoot automatically.² The device was missing certain components needed to make it operable, including the bolt, some springs, and the top cover. It did, however, contain a machinegun barrel at the front, as well as a machinegun feed ramp. Swift's report contained the following photograph showing the position of the machinegun feed ramp:

Exhibit 12 lacked a "blocking bar," which is a piece of metal that is welded into the receiver of a semi-automatic firearm to prevent an unmodified machinegun bolt from being used. A blocking bar, however, is not a foolproof method for preventing automatic operation. As Swift testified at trial, there are machinegun bolts that "have a slot machined into them," which allows them to fit in a gun with a blocking bar. Nonetheless, ATF has generally taken the position that a receiver with a blocking bar will not be deemed to be a machinegun. The following photograph from Swift's report shows where the holes were on Exhibit 12 for installing a blocking bar:

About a month after Exhibit 12 was seized, Swift tested it at an ATF facility. Using parts from that facility, Swift added the missing features needed to make Exhibit 12 an operable weapon. He installed an automatic bolt, as well as a machinegun top cover. Because the barrel that was on Exhibit 12 when it was seized was fitted for .45 caliber ammunition and Swift did not have a compatible bolt, Swift removed that barrel and replaced it with a 9mm barrel. He also added a compatible magazine. His report included this photograph of the pieces he added:

Swift tested the fully assembled weapon, and it fired automatically. As shown in the photograph accompanying Swift's report, Exhibit 12 looked like this when it was fully assembled (the arrow identifies the position of the device's selector switch, which was set for automatic operation):

During and after the search, Kuzma made several statements to ATF investigators. To facilitate the execution of the search warrant at D& D, Agent Alexander Tisch used a ruse to get Kuzma to meet him about a quarter-mile away from the property. When Kuzma arrived, Tisch asked him to sit in Tisch's vehicle so that he could explain what was going to happen. Tisch stated that the ATF agents would be looking for machineguns, and Kuzma replied that they would find one on a shelf in the garage. When Tisch asked whether that device would function as a machinegun, Kuzma responded, "Yes, it will." Kuzma also admitted to Tisch that he did not have the "special" firearms license that would allow him to deal in machineguns. After this conversation, Tisch left Kuzma to participate in the search, but he subsequently went back to Kuzma to show him Exhibit 12 as well as another firearm that had been found. Kuzma identified Exhibit 12 as the machinegun that he had referred to earlier, and he stated that the other firearm was only a semi-automatic. In distinguishing between the two weapons, Kuzma noted that Exhibit 12's blocking bar had been removed, but the other device still had one welded in.

The next day, Tisch again spoke with Kuzma, this time by phone. Kuzma again stated that Exhibit 12 was a machinegun, and he added that it had not had a blocking bar for "[a]bout a month." Tisch spoke again with Kuzma in person on March 29, and Kuzma admitted that, although Donald Tatom had asked him to get the sort of license that would cover certain special types of firearms (such as machineguns), Kuzma had "just forgot[ten]" to do that.

B

Kuzma was indicted on two counts based on his possession of Exhibit 12 at D& D. Specifically, Kuzma was charged with possession of a "machinegun" in violation of 18 U.S.C. § 922(o ) and with possession of an unregistered machinegun in violation of 26 U.S.C. § 5861(d).

In attempting to demonstrate at trial that Exhibit 12 was a "machinegun" for purposes of § 922(o ) and § 5861(d), the Government relied principally on Tisch's testimony concerning Kuzma's statements and the search, as well as on Swift's examination and testing of Exhibit 12. In trying to show that Exhibit 12 was unregistered, the Government relied on Tisch to describe the National Firearms Registration and Transfer Record ("NFRTR") created under 26 U.S.C. § 5841. Tisch explained that certain types of firearms regulated under the National Firearms Act ("NFA"), such as machineguns, must be registered in the NFRTR. Tisch testified that he inquired as to whether Exhibit 12 was registered to Kuzma in the NFRTR, and in response he received a "Record Search Certificate" prepared by another ATF employee, stating that there was no record that a device bearing Exhibit 12's serial number was registered to Kuzma.

Kuzma testified in his own defense at trial. He stated that he knew that ATF considered Exhibit 12 to be a machinegun due to the lack of a blocking bar, but he claimed that in the initial interview with Agent Tisch, he had said that Exhibit 12 was not a machinegun. On cross-examination, however, Kuzma acknowledged that he "[a]pparently ... did" tell Tisch that Exhibit 12 was a machinegun, but he stated that he "didn't recall that until [he] read the transcript" of that interview.

Kuzma further claimed that a September 23, 2005 letter from ATF to Donald Tatom "exempt[ed] us from that"—i.e. , ATF's view that Uzi-type receivers without blocking bars were machineguns—"until we sell these to the public." That letter explained that a particular "Uzi-type receiver stamping "³ submitted by D& D to ATF did not constitute a "machinegun," but the letter also warned that, if the stamping was assembled into a "complete UZI receiver," it "must have a bolt blocking bar installed." The letter therefore cautioned D& D to advise its customers "that a bolt blocking bar must be installed to prevent the possession of an unregistered machinegun." Kuzma asserted that, even though Exhibit 12 was a complete Uzi-style receiver, it was equivalent to the stamping discussed in the September 2005 letter and therefore, under his reading of that letter, such a device is "not a machine gun until it was sold to the public."

Kuzma acknowledged that D&D was never licensed to manufacture NFA firearms, a category that includes machineguns. He and other witnesses at trial referred to the necessary license as an "SOT," after the Special Occupational Tax that accompanies such licensing. He claimed that he did not think that he needed such a license for the "testing" that he was doing, which in his view did not involve "manufacturing."⁴ In this regard, Kuzma insisted that, when he told Timothy Sink, a D& D employee, to remove the blocking bar from Exhibit 12, he did so only to enable D& D to test bolts. Kuzma insisted that Exhibit 12 "was never intended for anything but shop testing." Kuzma testified that he told Sink to put the blocking bar back into the receiver after the testing was completed, but Sink failed to do so.

As to whether Exhibit 12 had been registered in the NFRTR, Kuzma testified that he "didn't register it because it wasn't a machine gun."

Relying on the September 2005 letter, Kuzma requested a jury instruction on the affirmative defense of entrapment by estoppel. In a written pre-trial order, however, the district court had concluded that there was insufficient evidence to permit such a defense because the device discussed in that letter was not the same as Exhibit 12. After the close of the evidence at trial, the district court again reached the same conclusion, and the court therefore denied the requested instruction.⁵

After less than two hours of deliberation, the jury returned a verdict of guilty on both counts. Both before and after the verdict, Kuzma moved for a judgment of...