United States v. Rowold
| Decision Date | 18 December 2019 |
| Docket Number | Case No. 3:18CR387 |
| Citation | 429 F.Supp.3d 469 |
| Parties | UNITED STATES of America, Plaintiff, v. Richard ROWOLD, et al. Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
Thomas P. Kurt, Toledo, OH, for Defendants.
On July 11, 2018, the government filed a two-count indictment against defendants Richard Rowold and Steven Robison for violations of the Gun Control Act of 1968 ("GCA"), 18 U.S.C. § 922, et seq.
Count 1 alleges that both defendants violated § 922(a)(6) by making a false statement in connection with the acquisition of fifty Anderson AM-15 lower receivers.1 Count 2 alleges that Rowold violated § 922(g)(1) by possessing fifteen Anderson AM-15 lower receivers.
Defendant Robison filed a motion to dismiss Count 1. (Doc. 39). Rowold filed a motion to adopt Robison's motion to dismiss Count 1 and to apply the motion to Count II. (Doc. 40). I allowed these requests.
The government filed an opposition to the defendants' dismissal motions. (Doc. 41). Both defendants filed replies. (Docs. 43, 44). On September 26, 2019, I held an evidentiary hearing and heard oral argument. I gave leave to the parties to file supplemental briefs, which they have done. (Docs. 64, 70, 72).
For the reasons that follow, I grant the defendants' motions to dismiss both counts of the indictment.2
The defendants assert that the indictment fails to allege facts constituting an offense that, if proved, would establish prima facie commission of a crime. (Doc. 39). More specifically, the defendants claim that the AR-15 lower receiver is not a "firearm" as required by and defined in § 921(a) of the GCA. Id.3
At the evidentiary hearing defense witness Daniel O'Kelly and government witness Daniel Hoffman, an employee with the ATF Firearms and Technology Division,4 testified about the components of an AR-15. The testimony established a set of pertinent undisputed facts about the weapon and its universally common structural components.
The AR-15 firearm platform is a two-part system comprised of an "upper receiver" and a "lower receiver." (Doc. 60 Pg ID 466). Neither the upper nor the lower receiver can, standing alone, cause the weapon to fire. Id. at 581. The upper receiver houses the bolt and enables insertion of the barrel. The lower receiver provides housing for the hammer and the firing mechanism. Id. at 466. The AM-15 lower receiver at issue here is a container that would, in a fully assembled weapon, house only the hammer and the firing mechanism. Id. at 472. The specific items in this case were, when purchased, simply empty containers, shown by defendants' Exh. A.
To be legally sufficient, an "indictment must assert facts which in law constitute an offense; and which, if proved, would establish prima facie the defendant's commission of that crime." United States v. Maney , 226 F.3d 660, 663 (6th Cir. 2000) (citing United States v. Superior Growers Supply, Inc. , 982 F.2d 173, 177 (6th Cir. 1992).
Pursuant to Fed. R. Crim. P. 12(b), the defendant may file a pretrial motion to dismiss an indictment on the basis that it fails to state an offense, i.e. , that "the indictment does not charge a crime against the United States." United States v. Cotton , 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (quoting Lamar v. United States , 240 U.S. 60, 65, 36 S.Ct. 255, 60 L.Ed. 526 (1916).
When a defendant argues that "as a matter of law the undisputed facts do not constitute the offense charged in the indictment, the Court is reviewing a question of law, not fact." United States v. McMichael, 350 F.Supp.3d 647, 650 (W.D. Mich. 2018) (quoting United States v. Vertz , 40 F. App'x 69, 70 (6th Cir. 2002) ). Thus, for a motion to dismiss to qualify for consideration, the relevant facts must be undisputed, and the dispositive issue must involve a question of law. E.g. United States v. Hofstetter, 2018 WL 1704241, *6 (E.D. Tennessee 2018).
The pending motions satisfy these requirements. There is no factual dispute about what part of an AM-15 (and all AR-15s) is the lower receiver or about its components. The only dispute is whether, as a matter of law, the lower receiver is a "firearm" under the GCA.
The Sixth Circuit directs that "[t]he language of the statute is the starting point for interpretation..." United States v. Jackson , 635 F.3d 205, 209 (6th Cir. 2011) (quoting United States v. Choice, 201 F.3d 837, 840 (6th Cir. 2000) ).
Under § 922(a)(6), it is unlawful:
For any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement...., intended or likely to deceiver such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter.
To sustain a conviction under § 922(a)(6), the government must prove that "(1) the defendant knowingly made (2) a false or fictitious oral or written statement that was (3) material to the lawfulness of the sale or disposition of a firearm, and was (4) intended to deceive or likely to deceive a firearms dealer." United States v. Harvey , 653 F.3d 388, 393 (6th Cir. 2011).5
The GCA defines a "firearm" as "(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device." § 921(a)(3) (emphasis supplied).
The statute does not itself define "frame or receiver."
That being so, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has adopted a gap-filling regulation that defines the term "frame or receiver" as "[t]hat part of a firearm which provides housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel." 27 C.F.R. § 478.11 (emphasis supplied).
As with all exercises in statutory interpretation, "we look first to the plain and unambiguous meaning of the regulation." In re Arctic Exp. Inc., 636 F.3d 781, 791 (6th Cir. 2011).
Read plainly, the definition in § 478.11 is not difficult to understand. Using a serial comma, it unambiguously states what is needed for a receiver to be a firearm, and thus within the scope of, and thus covered by, the GCA: namely, all three parts – one of which must be either the bolt or breechblock.
Case law requires dismissing an indictment where the undisputed facts of the case simply do not fall within the statute and implementing regulations.
For example, in United States v. Moss, 872 F.3d 304 (5th Cir. 2017), the court considered the definition of "You." Following a fatal welding accident on an offshore oil platform, the government indicted the platform's owner and several oil platform contractors for violating the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. §§ 1331, et seq., the Clean Water Act, 33 U.S.C. §§ 1251 et seq., and involuntary manslaughter, 18 U.S.C. § 1112. Id. at 305.
As does the indictment here, the indictment in Moss asserted that the defendants had violated the statute's enabling regulations. The specific allegation was that the defendants had failed to perform pre-work inspections on the days before the welding accident. Id. at 307. The contractors moved to dismiss. Id.
As I am doing here, the court in Moss analyzed the regulatory provisions on which the government based the indictment. There the district court concluded that none of the OCSLA regulations applied to oilfield contractors. Id. Instead, the court determined, the regulations' term, "You," applied only to the owner, and not to the contractors. Id.
The applicable OCSLA regulation stated: "You" means "a lessee, the owner, or the holder of operating rights, a designated operator or agent of the lessee(s), a pipeline right-of-way holder, or a State lessee granted a right-of-use and easement." 30 C.F.R. § 250.105.
Missing from the definition are contractors, subcontractors, and service providers. Id. at 308. Noting that only the owner-defendant "is the owner, lessee, or holder of operating rights," the district court granted the contractors' motion to dismiss. Id.
In a case closer to this, though not under the GCA, United States v. McMichael , 350 F.Supp.3d 647 (W.D. Michigan 2018), the court dismissed an indictment charging unlawful possession of firearms and ammunition by one who had been committed to a mental institution.
The government charged the defendant after reviewing one of the defendant's old renewal applications to renew a firearms license. Id. at 651. His application stated, "No," in response to "have you ever been committed to a mental institution?" Id. (emphasis supplied).
The issue in McMichael was whether the defendant had been "committed" to a mental institution.
In May 2014, after the defendant's wife had filed a petition and application for hospitalization with a probate court, the defendant completed a "Request to Defer Hearing on Commitment" form, whereby he agreed to a combined hospitalization and alternative treatment program. Id. at 651. The probate court deferred the commitment hearing. Id.
The government based its charge in McMichael on 18 U.S.C. 922(g)(4), which provided:
It shall be unlawful for any person...(4) who has been adjudicated as a mental defective or has been committed to any mental institution, to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
In his motion to dismiss, the defendant argued that his May 2014 hospitalization was not a "commitment to a...
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