US v. Evans

Decision Date16 May 1989
Docket NumberNo. CR-88-035-GF.,CR-88-035-GF.
Citation712 F. Supp. 1435
PartiesUNITED STATES of America, Plaintiff, v. Creed Miles EVANS, John William Burns, Dan Michael Burns, and Mark John Krapf, Defendants.
CourtU.S. District Court — District of Montana


Byron Dunbar, U.S. Atty., D. Mont., Billings, Mont., Robert J. Brooks, Asst. U.S. Atty., Butte, Mont., for plaintiff.

Michael W. Cotter, Great Falls, Mont., for Creed Miles Evans.

Mark Higgins, Gary Zadick, Ugrin, Alexander, Zadick & Slovak, Great Falls, Mont., for defendants.


HATFIELD, District Judge.

On April 28, 1988, the United States of America filed a 37-count indictment against defendants Creed Miles Evans, John William Burns, Dan Michael Burns, and Mark John Krapf, alleging, inter alia, violations of the National Firearms Act, 26 U.S.C. § 5801, et seq., and the Gun Control Act of 1982, 18 U.S.C. § 921, et seq. Defendants Creed Miles Evans and John William Burns1 have filed four separate motions requesting the court dismiss the indictment herein.2


Count One of the indictment charges Creed Miles Evans and John William Burns with conspiring to cause the illegal possession of firearms, namely, machine guns, as that term is defined by 26 U.S.C. § 5845(b),3 in violation of 18 U.S.C. § 371 (conspiracy to illegally receive, possess, transfer and import firearms), 922(o)4 and 26 U.S.C. § 5861(d) (unlawful receipt or possession of a machine gun). Counts Two through Ten charge John William Burns, doing business as DMB Enterprises, with aiding and abetting the unlawful possession of machine guns by various individuals.5 Finally, Count Twenty-Seven charges John William Burns with conspiring to illegally possess a machine gun.

With respect to the conspiracy charge in Count One, the Government asserts Burns organized DMB Enterprises for the purpose of purchasing Sten MKII submachine gun component parts from Evans and advertising and selling said parts as kits. The Government further alleges Burns knew that Evans, through a business known as BSI, was producing, advertising and selling blank receiver tubes for Sten MKII submachine guns along with detailed step by step instructions, including drawings and a receiver template, to be followed in the assembly of functioning Sten MKII submachine guns from the tube and component parts kits. The Government maintains Burns referred his customers to BSI for blank receiver tubes and machine gun assembly instructions, while, on the other hand, Evans allegedly referred his customers to DMB Enterprises for Sten MKII submachine gun parts kits.6 Accordingly, the crux of the conspiracy charged in Count One is that Evans and Burns illegally conspired to sell and deliver to any paying customer all the parts necessary to assemble machine guns, which could not legally be possessed or assembled by private persons after May 19, 1986, the effective date of 18 U.S.C. § 922(o).

1. Failure to State an Offense

Burns and Evans contend the indictment, in its entirety, fails to state an offense against either of them. They assert the allegations of the respective counts contained in the indictment simply fail to set forth that these defendants illegally possessed or conspired to cause the illegal possession of a "machine gun," as that term is defined in 26 U.S.C. § 5845(b). Specifically, Burns and Evans contend the allegations that they dealt in unregulated Sten parts (excluding frames or receivers),7 and in unregulated pieces of metal pipe, are insufficient, as a matter of law, to satisfy the statutory definition of a "combination of parts from which a machine gun can be assembled."8 The absence of any specific allegations that a "frame" or "receiver" was involved, the defendants submit, renders the indictment insufficient as a matter of law. Burns and Evans protest that the Government is impermissibly attempting to expand the statutory definition of "machine gun" to include any combination of raw material from which a machine gun can be fabricated or manufactured, as opposed to simply "assembled" from complete component parts.

In response, the Government maintains a plain reading of section 5845(b) reveals an intent on the part of Congress to regulate the possession of machine guns in all of their various forms and permutations. The Government asserts that an acceptance of the defendants' argument would serve to unravel the fabric of the statute that Congress drafted to comprehensibly regulate machine guns. Upon review, the court is compelled to agree.

Prior to 1968, the statutory definition of "machine gun," i.e., 26 U.S.C. § 5845(b), referred only to fully assembled machine guns. In 1968, however, the definition was amended by the Gun Control Act of 1968 to include "any combination of parts from which a machine gun can be assembled." Finally, in 1986, the definition of "machine gun" was expanded to include "any part designed and intended solely and exclusively ... for use in coverting a weapon into a machine gun...." The stated purpose for the 1986 amendment was "to help control the sale of incomplete machine gun conversion kits that now circumvent the prohibition on selling completed kits." United States v. Goff, 677 F.Supp. 1526, 1545 (D.Utah 1987), citing, H.Rep. No. 945, 99th Cong., 2d Sess. 28, reprinted in 1986 U.S. CODE CONG. & ADMIN.NEWS pp. 1326, 1354.

In United States v. Goff, supra, 677 F.Supp. 1526, the court addressed an issue similar to that raised by the defendants herein.9 Specifically, the defendants in Goff moved to suppress certain evidence seized by agents of the Bureau of Alcohol, Tobacco and Firearms, namely, 833 aluminum blocks alleged to be ARDCO AM 180, M-2 machine gun receivers and 356 aluminum receiver blocks alleged to be receivers in various stages of production. Defendants asserted the search warrants under which the BATF agents were operating only permitted seizure of those receivers which would qualify as "firearms."

In rejecting defendants' contentions, the court stated the BATF agents were authorized to seize, in any stage of their production, receivers that allegedly had been ordered by the defendants for production after May 19, 1986, the effective date of section 922(o). Goff, supra, 677 F.Supp. at 1545. The court went on to state that while the defendants might question whether an aluminum block is a "part" as contemplated in 26 U.S.C. § 5845(b), "the clear congressional intent permeating the statute is that the prohibition on the possession of machine guns, including receivers, extends to materials intended for use in their production. Here, there is no question that the aluminum blocks seized were intended for use in the assembly or fabrication of receivers." Id. at 1546.

In the case sub judice, it is beyond dispute that the steel tubes at issue were destined, despite defendants' assertions to the contrary, to be fitted as machine gun receivers. Accordingly, in conformance with the Goff decision, this court is constrained to conclude said tubes fall within the statutory definition of "machine gun" and, therefore, defendants' contention that the indictment fails to allege an offense against them is without merit.

In the alternative, Burns and Evans take the position that even if they supplied others with unregulated machine gun parts or tubes from which a receiver could be fabricated, the indictment fails to allege they intended, knew or agreed that anyone would possess or use such parts and tubes unlawfully. Suppliers of legal commodities, including firearm parts, are entitled, defendants submit, to the presumption that purchasers will use the commodities lawfully. Accordingly, they assert the indictment fails to allege they conspired or aided and abetted an illegal act, i.e., illegal possession of a machine gun. Upon review, the court is constrained to reject defendants' argument.

There exists a paucity of case law addressing the precise issue sub judice. However, the court is guided by the reasoning employed by several courts in addressing the analogous issue in the context of drug conspiracies. See, e.g., U.S. v. Orozco-Prada, 732 F.2d 1076, 1080 (2nd Cir.1984), cert. denied, 469 U.S. 845, 105 S.Ct. 155, 83 L.Ed.2d 92 (1984); U.S. v. Barnes, 604 F.2d 121, 154-55 (2nd Cir. 1979), cert. denied, 446 U.S. 907, 100 S.Ct. 1833, 64 L.Ed.2d 260 (1980) ("Importers, wholesalers, purchasers of cutting materials, and persons who `wash' money are all as necessary to the success of the venture as is the retailer. They can all be held to have agreed with one another in what has been called a `chain' conspiracy.")

In United States v. Perry, 643 F.2d 38, 44 (2nd Cir.1981), cert. denied, 454 U.S. 835, 102 S.Ct. 138, 70 L.Ed.2d 115 (1981), the court held defendants who "agreed to distribute diluents with the intent that they be mixed with heroin and distributed by one or more heroin networks" could be convicted "under 21 U.S.C. § 846 of conspiring to violate 21 U.S.C. § 841 by aiding and abetting the distribution of heroin." The Court further stated that "the knowing supply of a raw material necessary for the commission of a crime by another constitutes aiding and abetting that crime." Finally, in United States v. Washington, 858 F.2d 590 (10th Cir.1988), the court upheld a conviction for conspiracy to manufacture phencyclidine ("PCP") as against certain defendants whose only acts in furtherance of the alleged conspiracy were to enter into a conspiracy to obtain piperidine.10

The above-referenced decisions stand for the proposition that an agreement to engage in actions that are integral to the success of a drug venture prohibited by 21 U.S.C. § 841—such as laundering proceeds, or supplying cash or raw materials —violates 21 U.S.C. § 846 as a conspiracy to aid and abet the distribution of controlled substances. Orozco-Prada, supra, 732 F.2d at 1080. Analogizing those decisions to the facts in the present action, the court is...

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