*2 subjective pos- the ultimate intent of CARTER, and Before BROWNING sessor or transferor. BYRNE,* Judges, District Circuit and Judge. Crime On June Omnibus (Pub.L. Control and Safe Streets signed 90-351, (1968)) 82 Stat. Judge: BYRNE, District WILLIAM M. Act, by the of the President. Title IV by appellant appeal Oba an This is 921-928, to related which 18 U.S.C. §§ guil- plea of a from his conviction commerce, de- of firearms control ty of an indict- and Two Counts One follows: fined device” as charging possessing an him ment with unlawfully and with un- made firearm device’ term ‘destructive “The transferring lawfully incendiary, firearm any explosive, same or means 5861(c) and bomb, grenade, poison gas mine, of 26 U.S.C. rock- violations § plead- (e), respectively. device; time of missile, At the et, or similar retained, permis- ing guilty, any type Oba which includes * any Byrne, (3) sporting purposes; William M. com- Honorable for Judge, designed District in- States District or Central either bination of California, sitting by designation. any converting device tended use for in sub- a defined destructive device as paragraphs from which § 5845. Definitions “ * * readily may as- be a destructive device “(f) Destructive term device’ device.- —The ‘de- term sembled. ‘destructive any explosive, any structive device’ means which include shall not poison (A) bomb, incendiary, gas (B) redesigned use as or for or neither (C) propellant although grenade, having device, originally any weapon; rocket a (D) charge ounces, which is of more than four mis- use as for explosive incendiary pyro- having signaling, sile an or as a use charge one-quarter ounce, throwing, safety, technic, similar of more than or line loaned, mine, (F) (2) any sold, (E) device; surplus device; or or similar ordnance Army pur- weapon by Secretary type given by known whatever name readily will, provisions con- of section 4684 which or which suant expel projectile by to, (2), 4685, the action title 10 verted or 4686 Code; explosive propellant, or other device of an other United States Treasury Secretary or barrels of have a barrel which bore which the likely diameter, delegate be used is not more than one-lialf finds inch his shotgun antique cept shotgun weapon; a rifle or is shell or is as a solely gen- Secretary delegate or his finds intends to which the owner erally recognized particularly sporting purposes.” suitable may readily admitted that
orwill
destroy
prop
expel
projectile
device was
converted to
bomb
erty
any explosive
of others. He also stated
action of
Oregon,
May
Eugene,
he
one-half
barrel with
bore
one Robert
transferred
device to
inch or more in diameter.”
to detonate
Caufield with instructions
*3
this defini-
Specifically
from
excluded
Oregon.
Eugene,
premises in
on certain
designed or re-
devices “not
tion were
sum,
object
that the
a “de
In
said
designed
for use as
or used or
* *
device”
in U.S.C.
structive
as defined
26
(s).”
beyond controversy.
5845(f) is
§
year,
Congress, in or-
Later
light
of this device
In
nature
provide
control of
“to
for better
der
purpose, it seems ab-
its admitted
enacted
traffic in firearms”
interstate
question
with-
surd to even
its inclusion
1968. The bill
Control Act of
the Gun
device”
in the definition
approved by the Conference
which was
approved
Congress,
or to assert
Congress,
Committee
later
weapon.
not a
The definition
Fire-
cluded amendments to the National
originally
“any device, although
cluded
5801-5862,
Act, 26
as
arms
U.S.C. §§
for use
bill’s
as to the
Act. This
well
Omnibus
redesigned
signaling, pyro-
for use as a
constitutes
formulation as to what
technic,
safety,
throwing,
line
or similar
in Foot-
forth
“destructive device”
set
Here,
(Emphasis added).
ap-
device.”
definition of
note 1.
same
“de-
pellant’s
own
establishes
admission
applied to the
structive device” was
weapon in
had
rede-
the
signed
issue
not been
as the
amended Omnibus Act as well
such use.
revised National Firearms Act.
discussion,
adjunct
to this
As
reading
A clear
of the Statute
point
exception
out that the
created
we
coupled with an
of the in
examination
by Congress,
e.,
i.
“The term ‘destructive
dictment to which
entered a
device’shall
include
device which
object
guilty plea, demonstrates that the
is neither
Subparagraph
was a destructive device.
weapon,”
use as a
in substance consti
5845(f) provides
that a “de
§
defense, which,
tutes an
asserted,
affirmative
structive device” includes
combina
negated beyond
rea
must
tion of
either
or intended
Here,
prosecution.
sonable doubt
converting any
for use
into
device
appellant’s guilty plea
in the
resulted
destructive device as defined
sub- waiving
relieving
defense,
of such
thus
paragraphs (1)
and from which
government
prosecutorial
of this
may
readily
a destructive device
as
Hughes
States,
burden.
United
371
v.
added.)
(Emphasis
Simply
sembled.”
(8th
1967);
F.2d 694
Cir.
United States
stated,
a device
be “converted” in
Ptomey,
;
1966)
(3rd
v.
F.2d
366
759
Cir.
to a destructive
as defined
Davis v. United
895 munity.’ Murphy 1116, Waterfront 356 v. 28 L.Ed.2d 91 S.Ct. Comm’n, 52, 79, “that amend- 378 S.Ct. (1971), [84 held U.S. the Court This, 678], 1594, 1610, 12 L.Ed.2d violate the ed Act does not Self-Incrimi- against protection combined with Amendment.” Fifth nation Clause of the prove prior or of- use to concurrent specifically re- holding, the court In so fenses, Amendment satisfies the Fifth us jected before set forth the contention requirements respecting self-incrimi- pro- compliance the transfer 5812(a) nation.” and the vision of 26 U.S.C. § provision payment tax 26 U.S.C. § at at 1116. 401 U.S. 91 S.Ct. 5811(a) open is an invitation See, Jones, F.2d United States v. agencies
prosecutorial (9th 1971); States Cir. day information one use this secure (8th Harflinger, Cir. F.2d 928 for a later act of criminal- conviction Ramsey, 1970); United States v. *4 ity. prophylactic lan- Because of the (5th F.2d 565 Cir. 3 guage 5848(a) the of and 26 U.S.C. § judgment of convic- affirm the We “practice” of the Internal Revenue Serv- tion. making agen- not such of available to ice
cies, federal, informa- state as well as resulting compliance, the tion from such Judge (dissent- BROWNING, Circuit tention was court position U.S. tration, 889]. prints tration eral L.Ed.2d information, other confronted current but nishing hazards son of the 54, “The in States, reason of the the future. But was in a 88 S.Ct. merely agencies. argument, however, federal will Cf. Minor United data, supra, offenses, of the the prosecution 283]. as if he had not of wholly unavailability by local, state, incriminate incrimination’ —first statutory photograph he is ‘trifling [90 S.Ct. [697] ‘substantial and agencies view [390 a matter Marchetti Since the without v. and second the claimant left 705 that such U.S. barrier and other the transferee or never see prior in the same of viability: [19 is that of (39)] v. imaginary state the given adminis- L.Ed.2d against “real” or con- finger- a con- regis- fur- rea- fed- 53- 396 not the by 24 it, ’ tivity; with military ordnance —two monly indictment ognizable types of length ment as “a with amended ing) : the cient to constitute tion of Act of tends indictment Appellant Appellant meaning seven sticks of “firearm” transferring of copper that, dynamite associated of black gangster-type 1968, the National by this is not is commercial destructive does was argues Title II of the Act wire 26 U.S.C. § dynamite caps.” object convicted with described not state facts a that weaponry not “firearm” of the Gun weapons and dynamite offense. Firearms lawful “firearm” within equipped objectively rec- the Act Appellant of blasting ma- in the therefore 5801 private possessing consisting in viola- wrapped together Act, as Control with et applies indict- major suffi- com- con- seq. the the ac- in which manner privilege in the ‘had assembled but claimed his terial * * * law- ordinarily grant for use assembled im- absence of a of it is * * directly used, or in- perti- 5848(a) provides, sliall § 3. 26 U.S.C. per- against directly, part, as evidence nent as follows: proceeding with re- criminal “No or evidence obtained son information occurring spect law application, registration, a violation rec- from an or filing concurrently with the required prior to or re- ords submitted registration, application person a natural order tained containing compiling records comply provision of the thereunder, chapter regulations or evidence.” information issued potential demolition,1 is rather use. The 2and industrial ful parked vehicle can be motor types identified weapon of by perversion definitions; made lethal the dis statutory and that purpose. the statute that com its Since it held when erred court trict articles it blasting aimed at kind of evil assembled for material mercial scribes, perversions of and not at evil way con usual detonation of innocent com- the use of articles mean “firearm” within into verted na- alteration their merce without ing because the statute operation, it must be purp ture or mode of unlawful to use the articles were concluded oses.2 the statute and that the indict- within Only considered one court has ment is ill-founded.” statutory interpretation question Judge Dooling’s items conclusion by appellant. In United States raised question not “fire- (E.D.N.Y. of the kind in are Schofer, F.Supp. 1292 fully purpose, supported arms” is 1970), that commercial court held language, history Act. fuses, caps con- did not meaning “firearm” stitute a within I regardless posses- statute, (310 Judge Dooling said intent. sor’s imposes National Firearms 1297-1298): F.Supp. at heavy controls and severe taxes involving indicate that it “The statute’s terms “firearms” transactions *5 ordi- applies except reach such transac- was not to the Act — through nary commercial materials a state or the tions with language implies subdivisions, an official political ‘intent’ alone. The or its (cid:127) 5851, presence organization. ‘in- police minimum the 26 U.S.C. at §§ manufacturer, Every into importer, to ‘convert’ ‘device’ tended’ 5853. reg- those device akin to re- in must destructive dealer “firearms” and such (2), 5802) 5845(f) annually pay spe- (§ in and ferred to and ister § 5801). A occupational (§ tax of have definite non-indus- all of which cial tax imposed here “firearm” made trial characters. The articles each on $200 5821), subsequent (§ the fa- each could be assembled into and charge; blasting 5811). application (§ industrial the miliar transfer Written Secretary the anti-social here be made risk of use was must to Treasury prior approval inherent suit- obtained be- the articles or 5822), ability they (§ had to made for ‘conversion’ fore “firearm” ‘mine,’ (§ weapon subsequent non-industrial but transfer and before each manufacturer, importer, potential perversion 5812). in the of their Each dispute another, depending 1. The this does not on characteristic object possessor. characterization involved. And the intent of the indeed complaint statutory explosive act, particular The describes the ma- defini- in this ” “Dupont Dynamite”; Logger terial tion itself ‘intend.’ uses the word knowledge it is a matter of common Alternatively, Dooling Judge held that 3. fuse, dynamite, the combination of the intention to section referred 5845 caps the indictment indispensable (f) be an ele- would commonly employed dem- industrial offense, and the indictment ment of olition. because this be invalid its face would on holding F.Supp. alleged. 2. In intent intent was not 310 at blasting the assembled commercial materi- 1298. unlawfully majority distinguishes al made material a “fire- on The Schofer statute, meaning ground arm” within the certainly blasting caps said, into the trial court “There’s had not been assembled nothing they present single in the unusual the law characterize had object way depend- Majority opinion, If one n. 2. dif- or another case. Many argues against ing possessor. significance, on intent of the has ference legal majority’s position. note See articles criminal law have one
897 register required to each it more maker Firearms was to make [the Act] manufactures, gangster imports, or difficult for the he element to ob- “firearm” makes; types type subsequent weapons. tain transferor certain and each register provisions transfer with “firearm” must which these of a 5841). types (§ are transferee The manu- concerned are the it was thought facturer, maker, importer primarily by must iden- would be used number, by gangster-type tify H.R.Rep.No. a serial element.” each “firearm” Cong., (1959), by specified by 86th 1st other means the Sec- 2 Sess. retary 5842). quoted (§ Importers, manufac- at at 87 n. 88 390 U.S. S.Ct. turers, keep at and dealers must records Secretary and render returns re- Act Crime Control of 1968 amend- garding importation, manufacture, mak- ed the National Firearms to broaden Act ing, receipt, sale, disposition of or other coverage First, respects. its two ‘ 5843). (§ “firearms” fail Those who weapons number of were added to the comply any way (§ with the Act “gangster-type” weapons ini list of covered 5861) subject lengthy prison are terms Act, namely, gun machine kits heavy 5871), (§ fines and to the for- parts, pistols smoothbore and revolvers (§ feiture the “firearm” involved shotgun shells, to fire and con- shotguns. cealable combination rifles and Second, coverage obviously The Act is to dis- was
courage any dealing entirely in “firearms” tended to include an different cov- Act, except govern- type weapon: ered “a destructive device.” mental entities. prompted This addition second surplus military weapons
the influx or
country
II
into
from other nations.
Cong.,
2d Sess.
therefore,
surprising,
It is not
find
(1968);
Cong.Rec.
applies
the National Firearms Act
(remarks
Dodd);
Brook-
Senator
*6
only
narrow, precisely
to two
defined
lyn
433,
S.Rep.No.1097,
L.Rev.
438. Cf.
dangerous
groups
highly
weapons
Cong.,
in-
90th
2d
It was
Sess. 77-78.
thought
Congress
be,
which
in them-
to
bring
tended to
within the Act items
selves,
by
so amenable to antisocial use
heavy military
that had no
ordnance
private parties
justify
as to
strictest
legitimate private
use and constituted
regulation.
public safety,
substantial
like
threat
to
gangster-type weapons
1968,
commonly
Prior
theretofore
to
the Act was
covered
known as the
Act.
“Machine Gun Act.”
It
applied
carefully
weapons
to
identified
The “firearms”
covered
the Act
(short-barreled
shotguns
rifles,
and
ma-
hearings,
were referred to
committee
guns,
“deceptive” weapons
chine
certain
reports,
committee
and on
floor
gun
person,
concealable on the
and
si- Congress
falling
these two class-
into
lencers)
principally by
which were “used
“gangster-type weapons,”
es:
and “de-
engaged
persons
in unlawful activities.”
“military-
structive devices” described as
Haynes
87,
85,
390 U.S.
type weapons”
“primarily weapons
722, 725,
(1968).
88 S.Ct.
within mines. Cong.Rec. Mr. Yes. DODD. legiti- that a Mr. So METCALF.
Ill prospector— mate in ex- evidence that is additional There un- is not included Mr. He DODD. tending Act the National Firearms provisions der at all. Congress devices,” dyna- get could Mr. METCALF. He military add ordnance mite? use, appropriate civilian little or no provision Mr. has DODD. This explosives commercial not such common nothing type do of busi- here. The Omnibus as those involved specifically ness. It excludes such Act of Crime Control Safe Streets items be used in commer- which would predecessor proposal cial construction business activi- months less than six before the Senate ties.” passage of the Crime Control before the a definition of Act of included IV structive not unlike that later devices added to the Firearms Act National language of the Firearms National the Crime Act of 1968. In Control strongly supports inference Act of course of debate on the Omnibus gang- applicable only the Act exchange following be- occurred military ster-type weapons and ordnance tween Metcalf of Montana Senator specifically Act, does Dodd, a member of Senator the Judici- ordinary extend commercial *7 ary representing pro- Committee blasting materials such as those involved Cong.Rec. ponents (114 of the Act here. (1968)): operative provisions The of the Act apply only “firearms,” “Mr. a METCALF. Let me ask terma defined question in 5845(a), before our time runs out. meticulous detail in section explosive printed margin.5 de- The has included Senator The first seven weapon 5. “Sec. 5S45. Definitions. a rifle modified such purpose chapter- length For of this lias an overall than 26 less (a) Firearm.-The term ‘firearm’ inches or a barrel or barrels of less (1) shotgun having length; (5) any means a a barrel than 16 inches in other (e) weapon, ; or barrels of in less than 18 indies in as defined subsection length; (2) weapon (6) machinegun; (7) a a made from a muffler or a shotgun weapon any if such modified lias firearm whether or silencer length an overall of less than 26 inches not such a firearm is included within ; (S) or a barrel or barrels of less than 18 this definition and a destructive de- length; (3) having in indies a rifle not vice. The term ‘firearm’ shall antique any barrel or barrels of less than 16 indies firearm clude an or length; (4) weapon (other machinegun in made from than a destruc- or 5845(a) Cong., list subparagraphs Subparagraph (2) of section 2d Sess. gun plus 5845(f) weapons, or specific spe- silencers of section also describes a clearly mufflers, adapted military-type weapon to criminal gun all cific hav- —a activity ing inappropriate use. for lawful a barrel awith bore more than one- not contend that The does half in inch diameter.7 explosive in this involved commercial Obviously appellant’s assembly com- any subpara case comes within of these dynamite, fuse, caps mercial is describing graphs 5845(a) of section weapon type sub- gangster-type weapons. paragraph (2). gov- Neither does the “A destructive device” added ernment contend that it can classified by subpara the definition of “firearm” military as one of the items of ordnance 5845(a). gov graph (8) of section The subparagraph listed argues logger ernment government’s argument The for cover- caps constituted age (3) upon subparagraph rests instead such a device. “Destructive device” device,” of the definition of “destructive 5845(f).6 defined section parts combination reads: exception, Without the devices listed designed either or intended for use in statutory definition of “destructive converting any device into a destructive specific, objectively device” are identifi- (1) subparagraphs device as defined in able, military highly destructive items of (2) from which a destructive de- having proper private ordnance no may readily vice assembled.” Subparagraph (1) hands. of section 5845(f) explosive, incendiary, government’s position appears an or lists gas bomb, poison grenade, rocket, every explosive mis- or be that “homemade” power; mine; having sile of or a pow- substantial substantial vice destructive (which “similar brought device” subpara- must be taken er is within the Act military (3) 5845(a), subject graph to mean a similar section those listed. See to an affirmative that a defense device) which, although any (3) tive combination either weapon, Secretary as a or his dele- intended for use convert- gate ing any finds reason of the date of its device into a destructive device manufacture, value, design, subparagraphs other as defined primarily characteristics a collector’s and from which a destructive device likely readily item and is not to be used as a bo assembled. term weapon.” ‘destructive device’ shall include device which is neither 6. “Sec. 5845. Definitions. redesigned weapon; for use as a chapter- For of this any device, although originally designed for use as a which is (f) Destructive ‘de- Device. —The term signaling, pyrotechnic, for use as a line structive device’ means throwing, safety, device; or similar sur- plosive, incendiary, poison gas (A) plus sold, loaned, given ordnance bomb, (B) grenade, having (C) rocket Secretary Army pursuant propellant charge of more than four provisions 4684(2), 4685, of section ounces, (D) explosive missile or 4686 of title 10 of the United States incendiary charge than *8 more one- any Code; other device which the quarter ounce, (E) mine, (F) similar Secretary Treasury or his dele- device; (2) any type weapon by of gate likely finds is not as to be used will, whatever name known which antique a an rifle or is or is a may readily to, which be converted ex- solely which the owner intends to use pel projectile by the action of an sporting purposes.” for explosive propellant, or other the bar- (2) expressly Subparagraph rel or barrels of which have 7. a bore excludes the diameter, only weapon readily of more than one-lialf inch in that mind comes except shotgun shotgun military-type is not shell that ordnance Secretary delegate likely proper which the or his finds that is to have uses generally recognized particularly private shotgun particularly is hands —a sporting sporting purposes. purposes; suitable for suitable for any (2) col- (1) also paragraphs but “neither particular device was same parts those from which weapon.” of lection for use as may assembled. be devices flatly government’s states: The brief in the indictment described “the device ap- (3) Thus, does not subparagraph de- plainly the definition falls within all, in- the present at ply case combined, since, devices when structive completed device describes dictment destruc- parts used the could have been parts from than a collection rather that tively. is no need to show There might assembled.8 be a device which such use.” intended for the device was (3) ap- did subparagraph And even govern- nothing By government as- the pleading guilty, ply, the it add would show, completed right case, serts, de- the the for unless waived ment’s way defense, the is with- indictment described affirmative vice (2) (1) it cannot subparagraphs for use as device was not (3).9 weapon. subparagraph be within major There are difficulties with two legislative history indicates subparagraph (3) interpretation this subparagraph (3) in- were the words of 5845(f). of section respect, convey, what in this tended to they drafted, difficulty initially say. plainly 1. The most obvious is As bring subparagraph (3) language subparagraph itself does not was statute; it consistent, respect, instead mean- device within one brings ing a collection of within statute now attributes parts may early from as- subparagraph. which device draft In Moreover, “A,” sembled. referred subparagraphs the device were lettered numbered; to is one “B,” to which statute would rather than and “C” apply. Subparagraph (3) subparagraph otherwise listed and what is now pressly provides that device device” the as an included “destructive following: from collection of be assembled “(C) combination parts must “a destructive device for use and intended (2).” subparagraphs defined in Thus, (1) and converting any into a destructive device completed unless the device would S.1854, Cong., 1st device.” See military-type weapons be one of the de- Sess. The General Counsel (2), subparagraphs (1) scribed in Treasury pointed the guage out that this lan- parts” the “combination of from type “would define a of destruc- device to be assembled is no more tive de- terms ‘destructive completed within the statute than term itself been vice’ without the vice would be. The evident suggested completely defined.” He subparagraph (3) simply to foreclose subparagraph “as defined in words easy by making a means of evasion it (A) and this third (B),” be added to only clear that the statute covers subparagraph of the definition. completed devices suggestion making sub- adopted, thus Thus the fact though “Molotov cocktail” —an effective caps yet involved in crudely military made, weapon, having had not been Sehofer stronger legitimate assembled makes private that case a one no use in A hands. coverage subparagraph objectively under regoniza- rath- Molotov cocktail * * * contrary, majority er than the “incendiary as the ble as bomb” suggests. See subparagraph (1), note 3. within and is therefore a “destructive device” within the Act. distinguishes empty 9. This the “four bot- Because the device defendant Davis tles, strips gal- a number of cloth and two tended to assemble was a “destructive de- gasoline” lon can of involved in United subparagraph (1), vice” within Davis, F.Supp. 710, (D. States v. reason, for that “in- materials were Conn.1970). was, indeed, That a mere *9 assembling parts. tended for use” in a “destruc- collection of unassembled More- over, subparagraph (3) the device that tive defendant device” within Davis parts tended to assemble from those was a and were therefore within the Act. Cong., The miner 2d Sess. device” 90th the term clear lumberjack weapons who assembled completed only those included caps, in the normal and fuse for use subparagraphs of first two listed required parts his work be course of would of definition, and combinations register pay as a weapons manufacturer could specific those from which tax, applica- prescribed Hearings make written the Sub- before assembled. be Treasury Secretary for Investigate to the De- tion Juvenile committee materials, permission to assemble the on the Ju- linquency the Committee of Cong., for materials Senate, mark assembled 1st diciary, 90th U. S. identification as directed the Sec- 1967) Fire- (July-Aug. Federal Sess. retary, register them the Secre- with arms Act 1089.10 tary, and so forth. difficulty major A second gov- suggest, as the It is no answer to government’s interpretation does, charged gov- read, ernment that a defendant as the subparagraph were of Act it, bring under the criminal sections reads within ernment may prove which, as an affirmative defense parts “when combination * * “designed combined, the device involved was could have been weapon” for coverage use as a but destructively,” used blasting. ordinary industrial rather for expanded in an absurd Act would be “designed” from the fact wholly Aside unintended manner. clearly quite physical refers here to parts The sum of the would exceed structure and not completed weapon would not A whole. subjective intent, simply maker’s it is unless it listed within the statute was Congress in- to assume that reasonable “firearm,” but com- the definition of subject ordi- tended to all those who use weapon parts bination of the of this same nary explosives commercial to this ex- would be within Act if the combined tremely rigorous regulatory scheme, en- destructively parts could be used —which by heavy penalties, forceable criminal virtually every would be true of con- subject only ability to their to establish weapon. ceivable an affirmative defense in a criminal Moreover, since the violating prosecution for the Act. pressly rejects the notion that the char- weapon acter of a a “firearm” V maker or termined the intent of the miscellany possessor, weapons A further should be said of word devices, earlier, government’s view, drawn into the Act as “destruc- mentioned they capable of by pleading guilty tive are devices” because waived use, subject destructive to all “would involved contention that the device provisions (S.Rep.No.1501, act” the statute. was not within subparagraph existing 10. The source of is rea- law.” tion and enforcement sonably clear, sup- Cong., and lends additional 45- 2d 90th Sess. port interpretation. copied Conf.Rep.No.1956, (1968). to this It was See also proposed Cong., from a amendment to section 2d Sess. 34 Thus 5845(b), expanding prior 5845(b) purpose definition the new section “any “maehinegun” parts language to include com- that could was to reach parts designed weapons bination of and intended into ma- be used to convert other converting weapon chineguns, for use in into a ma- some new rather than to reach chinegun.” According By “maehinegun.” the Senate re- kind of and different port, analogy, language this addition covered combina- the same parts designed 5845(f) subparagraph tion of and intended section converting ma- other than a to reach that could be used chinegun maehinegun; example, into a into “destructive de- convert other devices * * * already defined, rather than to so-called kits. This conversion vices” variety important bring new of “destructive addition to the definition of some ‘maehinegun’ and is intended to overcome device” within Act. problems encountered the administra- *10 902 government’s position rests “de-
The the indictment is not a scribed interpretation meaning its the statute em- structive device” the within bracing any statute, de- device that used indictment the the there- through structively charge the term fore does offense under device,” giving question and as de- an affirmative the The of affirmative statute. possessor fense to the innocent defenses is never reached.
plosives through purposes for commercial Appellant’s contention that indict- the provision excluding the charge ment does not an offense would which is neither by an not be waived even unconditioned weapon.” for use as a guilty. plea 12(b) (2); Fed.R.Crim.P. out, States, government leg- points As the the Kolaski v. United 362 F.2d history (5th 1966); Hopkins islative makes it that the 848 clear Cir. provision States, (8th latter does create an af- United F.2d 234 indeed 1965); firmative defense. Cir. Michener v. United Cong., 1948). appel- (8th 2d But F.2d Sess. Cir. More- rely upon over, lant it ap- does not He this defense. clear on this record that contends, rather, government’s pellant preserve that the to the conten- interpretation tion, it; guilty plea and not “destructive device” is to the waive wrong. by appellant’s interpretation appellant accepted If is was tendered correct, be, as it seems to by the device express court the on that condition.11 11. indictment was facts sufficient argued Thereafter ute sor’s ject memorandum ment on the the trict court’s gued again. statute answer sessor’s intent statute, indictment the ground intent. counsel then informed the statute Fifth (C.T. 4). pellant Appellant The Later, appellant This On the wishes to enter a ruling; MR. statute “THE statute would was within the whether Fifth Amendment (C.T. 6-17). intent Amendment This court that whether the would argued that so wished to depended upon day ELLIS: COURT: the motion to dismiss was ar- and under renewed construed, applied (C.T. His memorandum in colloquy moved to (R.T. 70-71). Appellant’s prior ruling, issue determined ground the set for In denied arguing be as that (R.T. 2-22). to accordance with object 19-26). argued object rights (R.T. 37-64). depend upon guilty plea? constitute an filed a the motion to dismiss trial, covered that followed: plead the Yes, violated The dismiss You statute, appellant object object response whether was whether it was within the motion on the (C.T. court Your mean guilty did procedure was supplemental government’s court was was the indict- appellant’s possessor’s not state then the the stat- the assumed violated the dis- support that he offense 58-63). posses- Honor. within within denied (R.T. your pos- the ap- ob- in accordance with for no peal” court ing waiver “Petition to Enter Plea of ernment “Yes, sir, der in the certificate of his Although peal” respects (C.T. 42). the the if prejudice you dure we intend tion relevant tion about that. Appellant (R.T. 72) ¡¡i MR. MR. THE words “without accepting you guilty guilt guilty day. that are asked Haynes Haynes legal questions to dismiss. to his court (R.T. 76) other ELLIS: And moved to dismiss an indictment ELLIS: And guilty, COURT: right (R.T. as construed motion is Appellant’s facts but “because to petition satisfy [*] The court but with whether (emphasis added). added the petition then reason,” appellant case, appeal case, appeal accompanying you 76-77), required appeal” guilty (emphasis to objections waiver :!: denied, it would be without questioned appellant Rule and as recommended Yes, can you (R.T. follow then entered raised in the mo- lawyer” (C.T. 42). counsel also added I am then enter words plea there’s no changed (C.T. 41) are the trial court for a and under the right conviction on did [*] Guilty” 71). is the added). right guilty “as was relying * * When the certificate say “without in some replied, finding prayed an or- proce- plead- to his ques- filed that plea gov- ap- ap- on
9Q3 include,” first, “any Doyle, de- F.2d device’ shall United States See designed (2d vice which is neither nor re- Cir. designed or, second, weapon” for use as a although designed “any originally device, VI redesigned for use as a which is Turning majority opinion, to the signaling, pyrotechnic, line for use as a reading majority’s noted that the will be throwing, safety, or device.” similar 5845(f) subparagraph (3) of section regarding majority’s point the The government that the differs from “As an ad- first exclusion is not clear. major- major respect. The at least one majority junct discussion, to” its the meaning ity subparagraph (3) as reads provision recites of the statute may into a be “converted” that a device provides de- an affirmative notes that it intention of device” the “destructive by pleading fense that waived to de- the defendant to use the device guilty. unlawfully, stroy property the of others suggest that majority If means to government the interpretation that the by pleading guilty appellant his waives explicitly rejects. See note 14. that device contention reading subpara- majority’s The come within the indictment does not is, (3) best, graph con- at strained. The untenable, statute, suggestion for is text demonstrates that the “intention” already (V). discussed reasons subparagraph referred to in that is majority’s position is that purpose If the a “de- to convert a device into is neither device which subpara- exclusion of structive device as defined general for use graphs (1) (2),” nor and not a majority’s weapon” supports view destroy intention to create a may Thus, the defendant property one that of others.12 whether the intention explosives ordinary “designed” gov- emphasizes (with commercial convert ernment) (with device” within into or “intended” the ma- a “destructive untenable, jority), statute, position subparagraph (3) is also that cannot be any following bring terpreted reasons. for within the statute “destructive devices” other than those legislative proceedings af- First, specifically subparagraphs identified in language fecting exclu- of the first (1) (2). deliberately Congress that sion indicate majority a consideration intention as The relies the first two excluded subject determining exclusionary provisions is a device in section whether agrees (f), namely, ‘destructive The “The term to the statute.13 unassembled, objection parts as an made no reserva- combination of military- tion, disassembled, gangster- petition, and in court his of his right appeal grounds type weapon urged kind described sub- on paragraph his motion to dismiss the indictment. parts themselves are If the assigning There an obvious reason de- a “destructive a device into convert specific a decisive role to a defendant’s subparagraph language vice,” then the intention to assemble a “destructive irrele- intention is makes it clear parts vice” from a collection of parts of such combination vant —a entirely general consistent with a con- design re- statute without is within the apply gressional the Act possessor’s gard intent. Thus objectively gangster- identifiable grenade fragmentation parts con- of a objec- military-type weapons. The without device” “destructive stitute proof physical tive characteristics of disassem- possessor intended to assem- reflect the nature bled ble the device. glass container, of the assembled device —a strip cloth, gasoline, example, Grime Control IV of the Omnibus 13. Title signal necessarily presence which re- do not Safe Streets Act, excepted placed Firearms the Federal an unassembled Molotov cocktail. device” from definition of defendant’s intention removes the am- its rede- biguity, establishing is not “device which the character of the weapon in Second, admission establishes the ex- this conclusion.14 redesigned for redesigned,” had not been “designed issue says ception “intent,” “rede- such use.” “design” means subpara- meaningless. Third, signed” meaning majority’s is obscure. “designed” suggestion graph both words: uses again, however, Here *12 Fourth, Fifth serious “designed” “intended.” in- means that to be seems created, problems weap- would Amendment tended, the exclusion and that Final- comparable below. non-weapon to those noted use “redesigned” ons materially the stat- ly, weaken possessor it would that that device means unregistered possessor of an if a ute weapon within a to use as intends mortar, bazooka, meaning, for ex- grenade, majority’s If this is Act. asserting he that
ample,
suggesting
defend
again
could
majority is
or if the
weapon.
a
to use it as
did not intend
guilty plea
an
appellant’s
involved
that
that
contention
that bars his
admission
despite
concluded,
it
if were
But even
offense,
allege an
not
the indictment did
considerations,
first ex-
that
these
discussing
already
said
has
been
what
not
to
ception
an intention
means that
applicable
equally
exception
first
weapon
that
excludes
use a device as
here.
sup-
Act,
would not
from the
device
government points
Finally,
out
as the
majority’s
port
proposition that an
(note 13), substantial
self-incrimination
use a device as a
intention to
(or
problems
if a maker
be raised
would
subject
Act.
to the
would
that device
required
transferor)
to
of a device were
Otherwise, every weapon including ev-
—
it
he intended to use
destruc-
admit
that
shotgun
ery sporting
rifle
—that
course,
tively as,
be if his
would
he
—
would be
intended to use as such
owner
became a “destructive
device”
device
Act.
within the
only
possessed
subject
statute
he
exception,
ma-
As to
second
register
required to
intent. Persons
language:
jority
statutory
quotes
present
a criminal
intention to commit
“ ‘any device, although
originally
“substantial
act would seem face
signed
weapon,
re-
for use
which is
as
trifling
‘real,’
merely
im-
signaling,
pyro-
use as
aginary,
incrimination.”
hazards
technic,
throwing,
safety,
line
or simi-
39,
States,
Marchetti v. United
390 U.S.
added).”
(Emphasis
And
lar device’.
705,
53,
697,
L.Ed.2d 889
88 S.Ct.
“Here, appellant’s
then comments:
own
signed or used or intended for
as a
comply
registration
provi-
with the
weapon”
added).
(emphasis
Title I of
language,
present
Under
sions.
the Gun Control Act of 1968 amended
possible
problems
self-incrimination
have
except
definition
device
by focusing
design
been avoided
on the
redesigned
which is neither
device,
no matter what
the actual
weapon.”
for use as a
Title II of
registrant might
intent of the
When
be.
Act,
Gun Control
with which we are here
a defendant now raises the affirmative
concerned,
exactly
language.
used
the same
unlawfully
defense that
the device he
Thus, Congress
specifically
deleted the
possessed or
transferred was not de-
* * *
exception for
a device “not
signed
for use
weapon.”
tended for use as a
government
only
need
dis-
prove
allegation
without
14. The
states:
to establish the
own
defendant’s
intended
“It
is evident
(Appellee’s
11-12).
use”
Brief at
deletion was to avoid self-incrimination
problems
Haynes
kind
government’s
view,
then, “appel-
[found]
In the
[Haynes
States,
85,
compliance
v. United
U.S.
lant’s
with the Act would
(1968)].
88 S.Ct.
9Q5 charged in appellant was In this case transferring Count II registering caps without 5812(a). transfer, required section blasting materials commercial These they subject the Act unless were intention made so were destroy property. they used register only if and required to Persons would they such intention have when ‘inherently “persons to constitute seem ” Haynes suspect activities.’ of criminal 390 U.S. v. United *13 722, 730, 19 L.Ed.2d S.Ct. scarcely Hence, said “it can prosecution confronted of criminal risks registrants ‘remote
by prospective are ordinary course
possibilities out of ” at 730. at of law.’ Id. S.Ct.
At minimum, *- [*] National Fire- apply appellant’s al- did arms
leged clarity required of conduct with penal statute. LABOR
NATIONAL RELATIONS BOARD, Petitioner, LINES,
INTERNATIONAL VAN Respondent.
No. 25698. Appeals,
United States Court of Ninth Circuit.
Sept.