United States v. Ardoin

from Rouge Department the Baton Police on * GRAAFEILAND, SMITH, Before VAN behalf of Department’s the Welsh Police WIENER, Judges. Circuit chief. SMITH, weapons Judge: purchased JERRY semi-automatic E. Circuit through Department the Welsh Police did appeals Wendell Ardoin his conviction of require filing of forms with ATF or possessing, manufacturing, failing register, tax, payment of transfer were not failing illegal on machine- weapons. automatic The Baton Rouge weap- guns. argues the statute under ons, however, automatic, were and Ardoin requiring registration he charged, was filed a Form 10 with ATF. Form 10 is used payment taxes, implicitly repealed was weapons particular to a law en- maehineguns declaring statute manufac- agency forcement to obtain a tax-exempt tured (“posL-1986 maehineguns”) after 1986 status on filing the transfer. After illegal. pro- He also claims statute forms, Ardoin maehineguns obtained the hibiting “making” of firearms is unconstitu- through Department. Police Welsh tionally Furthermore, vague. challenges he grant the district court’s partner, refusal a new Also Ardoin’s Michael Hebert, trial upon based new evidence and his sen- converted some semi-automatic * Circuit, Judge Circuit sitting by partnership reapplied of the Second for a Class III license in designation. 1989; August approved on October government 1. The that Ardoin contends allowed lapse his Class III license to June 1989. His fifty-seven forty-six imprison- use of months’ automatic for the weapons to departments. forty-six Be- police and sheriff’s ment. Ardoin was sentenced to local counts, converting weapons, Ardoin filed on each of the to run fore months twelve weapon. ATF for each concurrently. Form 10 with B. II. 6,1991, was indicted November Ardoin On presents This case a novel constitu conspiracy counts of to violate fourteen on 102(9) § in issue this circuit: whether tional (“NFA”), 26 Act the National Firearms the Firearms Owners’ Protection Act of of (l ) 7201, 5861(d), (e), §§ and and U.S.C. (“FOPA”), 922(o), § 18 which 1986 machineguns having filed making of without the Gun Control Act of 1968 amended making paying the written a machineguns illegal, of making possession 5861(f) 5871), (in §§ violation of and tax repealed portions implicitly of the NFA. We (in violation of evading payment the of taxes questions legal such de novo. review United 7201), engaging in as a dealer the business (5th 203, Guajardo, v. 950 F.2d 206 States having paid special occupational without — denied, -, Cir.1991), cert. 112 U.S. 5861(a) 5871), (in §§ of and tax violation 1773, 118 L.Ed.2d 432 for tax- making applications false entries on (in registrations and viola- exempt transfers §§ argues that Ardoin 26 U.S.C. 5861(¿) 5811), §§ tion of 5861(d), (e), (f), (l), 5871, 5845 are uncon- (in of unregistered violation of firearms they originally based stitutional because were 5861(d) trial, govern- §§ and 5871. At taxing upon Congress’s power.3 He reasons weapons ment contended the various may possess since individuals ma- Ardoin’s physical in the of were 19, 1986, chineguns manufactured after Bayou Armory, not the State partnership, accept applications ATF to to refuses Therefore, departments. Ardoin police local weapons, or to the tax on such a Form have filed a Form 1 instead of authority of the constitutional Ar- paid making have tax. 10 and should dealing registration NFA with the responded that Police De- doin the Welsh taxing post-1986 machineguns gone. him to receive the partment had authorized liability imposed un- Consequently, criminal weapons and he was a commissioned comply failure these the NFA for der acting behalf. department’s officer on repealed. has also been Furthermore, ATF out a circular had sent Island Ardoin cites United States v. Rock accept Form stating longer that it would no (C.D.Ill.1991), Armory, 773 117 tax-exempt, and that the since l’s were (10th States v. United agency. government were made for a Cir.1992), authority position. this copy of the was unable to obtain a portions court held Rock Island circular, agent ATF and ATF Paul Rash repealed implicitly to have been that no testified such circular existed. by the FOPA jury all twelve guilty A found Ardoin on declaring portions exist for trial after Two bases counts.2 He moved for a new pertaining post-1986 machine- obtaining copy ATF circular. The of the NFA First, implicitly repealed. The have been for new trial denied. sen- motion was findings longer ATF no collects taxes or tencing adopted factual the fact that court weapons investigation for such presentence accepts in the forms contained 5861(d) (“PSR”), impossible. range compliance §with report makes recommended prior U.S.C.] section 5811’ and 'the constitution [26 2. The 14-count indictment was amended by dismissing power two the counts. tax’ trial 'the al bedrock for the statute' is " (quot power.’ Id. than 'the commerce rather one case in this to consider 3. The circuit Ross, & ing F.2d Parker, the NFA is basis for United States (5th Cir.), denied, cert. U.S. 93 S.Ct. n. 3 (5th Cir.1992), we noted that F.2d 498 § aiding in which (1972)). 34 L.Ed.2d " 5861(d) part regulation 'is of the web provision tax enforcement the transfer Second, importantly more impossible Rock was and therefore that the statute view, Armory Island court’s implicitly refusal to repealed. was weapons tax these undercuts the constitu- Jones dealt taxing authority argu- registration, tional since basis ways. First, ment in two ATF has the au- originally upheld Congress’s pow- thority now-illegal to tax maehineguns. Al- to tax. The Tenth adopts Circuit er this though it chooses not payments to allow tax view Dalton. registration, it still authority has the to do Thus, so. authority basis for ATF’s government cites United States v. regulate taxing exists; it is —the —still Jones, Cir.1992), 976 F.2d 176 cert. de merely Second, not exercised. the court not- —nied, -, U.S. although ed that originally NFA was (1993), to argu L.Ed.2d 260 rebut these two upheld Congress’s taxing under power, no held in ments. The court Jones that in the seriously one could regula- contend that the showing absence of an affirmative of an in tion of maehineguns upheld could not also be statute, repeal a only permissi tention to Congress’s power regulate to inter- justification repeal by ble for implication is state commerce.5 when the earlier and later statutes are irrec adopt analysis We of the Fourth Cir- (quoting oncilable. Id. at 183 Morton v. cuit. The NFA can upheld be Mancari, pre- on the 535, 550, 2474, 417 U.S. 94 S.Ct. served, unused, power to tax or (1974)). on the 2482-83, 41 L.Ed.2d 290 regulate interstate commerce. 922(o), § prohibiting post- But 18 U.S.C. Since the of the NFA can be maehineguns, 1986 can be reconciled with reconciled with the doctrine § Citing Minor v. United 396 implicit repeal rejected. must be 87, 96-97, 284, 288-89, U.S. 90 S.Ct. 24 (1969), proposition L.Ed.2d 283 for the III. illegal can tax conduct such as the Ardoin challenges next the constitu narcotics, sale of the court concluded that the tionality of his “making” conviction for prohibition post-1986 maehineguns does firearm, Supreme as the recently Court has not mean cannot tax them. held that “making” the term ambiguous. Although illegal possess it is or manufac- legal We review this issue Guajar de novo. weapons, illegally ture these one doing so do, 950 F.2d at 206. required would be them with ATF taxes on them. ifAnd ATF refuses In United Thompson/Center States v. — taxes, Co., to allow payment U.S. -, 2102, Arms 112 S.Ct. 119 5861(d) § comply one can with (1992), not violat- L.Ed.2d 308 recently the Court con ing 922(o), i.e., § possessing not or manu- meaning sidered the of the term “make” as facturing post-1986 maehineguns. used in the NFA. In Thompson/Center, the Jones, Minor).4, (citing 976 F.2d at 183 defendant single manufactured a pistol. shot Thus, rejected court the Jones however, the Tenth gun, Included with the was a con compliance Circuit’s view that 5861 version kit purchaser that allowed the stated, recently 4. As we have "it posed by is true that a other [NFA]." Id. at may prosecuted possessing transferee unregistered (citation omitted). an 527 The same is true for firearm even he himself can possessing illegal post-1986 someone an ma- comply registration requirement." not chinegun: Ardoin should have refused the trans- Ridlehuber, 516, (5th United States v. 11 F.3d 526 accept fer. The fact that regis- ATF does not Cir.1993) (citing Bright, United States v. 471 F.2d weapons tration of such does not offend due 723, (5th Cir.), denied, 921, 726 cert. 412 U.S. process. (1973); 37 L.Ed.2d 148 United States (5th Sedigh, v. 658 F.2d Cir. Unit A course, noted, recently Of as we have Con 1981), denied, Oct. cert. gress's power regulate (1982)). firearms under the 71 L.Ed.2d 462 But this result Commerce Clause is not process, unlimited. See United does not offend due because "[t]he re quirement (5th Cir.1993), Lopez, peti 2 F.3d accept that a transferee must refuse to unregistered (U.S. filed, of an tion cert. firearm is rational U.S.L.W. Feb. ly designed 1994) (No. 93-1260). to aid in the collection of taxes im- rifle, Lopez-Escobar, 920 F.2d a States v. gun into a short-barreled convert Cir.1991). of such a review the denial paid We by ATF. The defendant regulated for abuse of discretion. United motion ATF for refund. tax but sued the “maker” (5th Cir.1985). States “maker” in 26 the term held that The Court Adi ambiguous as was §§ 5821 and 5845 fails to meet sever The ATF circular there was parts, as to unassembled applied First, test. components of the al being assembled only possibility of their pro but could not knew about its existence regulated firearm. into a subpoena no for the it at trial. He filed duce however, Thompson/Center, holding of document, dili indicating a certain lack of parts. The only to unassembled applicable court therefore deter gence. The district respect fully ambiguous with not statute is “newly dis was not mined that the evidence argues that machineguns. Ardoin assembled meaning of Fed. covered” within lenity” the “rule of proceeding in a criminal Second, if we hold that the R.CRIM.P. Thompson/Center apply. But complying with a statute does impossibility of “making” term only hold the Court would unconstitutional, the circular not render it applied to unas- unconstitutionally vague as to Ardoin and particularly useful manufactured machineguns. Ardoin sembled produce acquittal. an “probably” would machineguns and should fully assembled failing still could be convicted Ardoin was “mak- production that such have known registration and taxation comply with the take ad- statute. He cannot ing” under the complied requirements, as he could have respect to some ambiguity with vantage of an illegal weapons. Pro manufacturing the not fact situation. other trial disfa cedurally, a motion for new is vored; not discovery to be that of the circular does complaint main seems the Ardoin’s manufacturing weapons for law trial. these warrant a new he was agencies, and therefore he enforcement taxing exempt from the have been V. jury. a was tried before But that issue laws. im challenges his sentence Ardoin to this although Ardoin makes reference And because he was posed under the Guidelines appeals the specifically argument, he never departure for his granted a downward not verdict. We

jury’s finding or the factual record, service, employment lack community therefore, un- find, was not that the statute record, potential for victim of criminal ambiguous respect constitutionally findings fact under ization. We review fully post-1986 ma- making of assembled standard, legal “clearly erroneous” chineguns. de is reviewed application of the Guidelines Barbontin, F.2d v. novo. United States IV. Cir.1990). ATF circu argues Ardoin departure from the Guidelines Any lar, that ATF gun dealers which informed by adequate reasons l’s, supported represents must be longer accept Form no would policies justify departure “in terms of the trial. To ob requiring a new new evidence sentencing guidelines” and evidence, underlying the a upon new tain a new trial based (1) v. Buen United States must be reasonable. the evidence must show that defendant (5th Cir.1989), rostro, de cert. F.2d 135 newly and unknown to the discovered (2) nied, trial; failure time of the defendant specifi The Guidelines of L.Ed.2d was not result to detect the evidence (3) status as defendant; cally reject first-time offender diligence by the lack of due departure. First-time material, merely ground for downward not cumula is the evidence history cate (4) assigned criminal are will offenders impeaching; and the evidence tive or I, the level adequately reflects gory which acquittal. United probably produce an (5th Cir.1991). § 4A1.3. Sections Peña, recidivism. U.S.S.G. States reject com specifically satisfied, also 5H1.5 and 5H1.6 .the motion any one factor is not If employment record munity service trial should be denied. for new Moreover, departure. grounds any general power there exercise criminal not dele- authority departing in this circuit for gated Congress by no the Constitution.”4 potential upon for victimization. based Despite acquisition subsequent its of virtu- are argues these factors ally power unbounded post-New under the considered, but in case ordinarily his Clause, Congress Deal Commerce waited ought to be. following five adoption over decades its 1934 that the district We conclude court consid- banning posses- before citizens’ ered all factors and Ar- relevant sentenced guns altogether. sion of machine Section range. doin to the lowest sentence within 922(o) of the Firearm Owners’ Protection depart not in failure to downward was (FOPA) prohibits private Act5 citizen from error. possessing transferring or gun a machine AFFIRMED. registered that was not made and before 19,1986, posses- such transfer unless or WIENER, Judge, dissenting in Circuit sion is or govern- authorized federal state part, concurring part, dissenting departments agencies.6 ments their the result: Since enactment of the Bureau half-century ago, Over a Alcohol, (BATF) Tobacco and Firearms hearings held it to determine whether had approve any application “has refused to regulate manufacture, authority make, transfer, tax on $200 transfer, guns.1 May 19, made after 1986.”7 hearings predated As the vast these New Yet the BATF continues arrest and con- Congress’ enlargement Deal vict citizens like Ardoin under the NFA for Clause, Attorney then Commerce Gener- registering paying taxes on their Cummings correctly explained al Homer S. legally im- —even congressmen gathered Congress to the that possible for them to do so.8 I Because do simply guns ban could not machine because it not believe that a which statute was enacted police power had “no inherent to [make law legal a activity legitimately to tax can be concerning] Only through crime.”2 local into a mutated statute that criminalizes that tax, Congress’ power explained Cum- very activity, same I and because believe that mings, guns regulated.3 could machine be convicting citizens for laws with Thus the National Act was born Firearms of which possibly comply cannot is funda- (NFA), imposed a tax on the mentally unfair, respectfully I dissent. manufacture transfer of pursuant Congress’ add, however, I hasten to to raise reve- that I do concur Indeed, constitutionality important nue. in pronouncements when of some of the attacked, validity up- majority opinion. the NFA was its was Specifically, agree I Supreme “precisely “maker,” held Court be- the words “make” and in found NFA, cause the National Firearms Act a unconstitutionally reve- are not vague as only nue purport measure and did not applied converting to this case: a semi-auto- Hearings (inter- Act Armory, F.Supp. National Firearms 1934: 6. Rock Island at 119 Before Means, Ways FOPA). House Committee on 73rd preting the Cong., 2d Sess. 7. Id. 2. Id. at 8.

3. Id. majority 8. Neither the BATF nor the indicates why prosecute the BATF continues citizens Inc., Rock Island possession under for mere of machine (C.D.Ill.1991) added) (emphasis Congress 922(o ) when has enacted section (citing Sonzinsky v. United very purpose of FOPA for that and when the (1937), aff'g 81 L.Ed. 772 86 F.2 provisions relevant NFA were enacted not to ban (7th Cir.1936)). d486 guns, expressly to collect taxes from firearm-owning citizens. 5. Firearms Owners’ Protection Act of 922(o). Implied Repeal Sections the Na- weapon fully-automatic to a firearm matic Firearms Act tional “making” gun. a clearly constitutes trial court’s with the quarrel I Neither do majority correctly notes that an earli- right- Sentencing ruling may implicitly repealed through er statute Guidelines — ordinarily permit a ly wrongly or a statute when —and the enactment of later —do offender only in for first-time when —the two statutes are irreconcil- reduction sentence however, vantage point, service, history my From status, able.11 community or efforts of the Fourth Circuit United States socially-productive employment. gainful, majority today clearly v. Jones12 and of the concur, majority’s though, I cannot 5861(d), fail to reconcile sections pro- under Ardóin’s conviction affirmance of (f) 922(o) (e), of the NFA with section (1) those of the NFA when visions the FOPA. 922(o) totally eclipsed by section have been 922(o) of section Until the enactment (2) FOPA, complied cannot be make, legally a citizen could government to refusal of the due to the with transfer, gun, long possess a machine majori- compliance. regret permit complied the relevant as he join I believe to be ty today elects to what Simply put, of the NFA. and tax pre-existing cir- legally inferior side of a citi- since 1934 the NFA has said to such in so I fear that split cuit on this issue. zen, manufacture, transfer, may pos- “You circuit, majority rejects choosing for this only you reg- gun if—but sess a machine if— (including precedents one persuasive along two on it.” Then came ister and 922(o) history pur- fifty-two the relevant that sets forth of the FOPA —some section detail)9 citi- years later —and declared to same pose of the NFA in exhaustive manufacture, zen, may possess, or ‘You embracing precedent which a third favor of guns period.” transfer machine What essentially that because holds — make now? The BATF sense does the NFA the tax-based NFA as Com- could re-enact though Congress passed operates as has two pos- against mere ban merce Clause-based criminalizing the mere separate laws each guns, should behave as of machine we session guns, leaving did so.10 prosecute citi- BATF discretion to sepa- actuality, advances three (or either statute zens’ viability of rate, attacks on the both). alternative cannot be—the But that is not —and (l), 5845, 5861(d), (e), (f), and sections case. 1) were NFA: these sections and 5871 of the ever There is no evidence of impliedly repealed the enactment sec- of to the effect that the enactment adverted 922(o) 2) of tion of the 922(o) provi- have on related section would due case violates sections to Ardoin’s these undeniably But the enact- sions of the NFA. unfair) (i.e., fundamentally process because 922(o) did affect the NFA— ment of section (and compliance policy) BATF makes the law enormously. Because forbids 3) these sections —enacted impossible, and accept illegal register and taxes for BATF to 922(o)— Congress’ power to tax —have pursuant firearms,13 of section the enactment nugatory by government’s possession of basically rendered made the mere been which illegal— by private citizens guns them to raise machine refusal to administer or enforce registration tax rendered the extensive any revenue whatsoever. (10th 121 12. 976 F.2d 9. United States Cir.1992); at Island Rock (discussing legislative judicial histo- Act of The National Firearms 13. See NFA). ry of the register (applications to §§ transfer, making, possession shall of firearms Jones, F.2d 10. United transfer, possession making, or be denied if the Cir.1992). added); illegal) (emphasis 27 C.F.R. would be Mancari, 535, 549-51, § 179.105. 11. Morton v. 2474, 2482-83, 41 L.Ed.2d 290 provisions essentially meaning- of the NFA do under the FOPA can easily be done more Indeed, regulation (and less. the NFA’s of ma- majority’s blessing) under the by private gun-ownership chine citizens “new,” NFA, transmuted which has been ad instantly obsolete the advent made of the (and ministratively jurisprudentially) now any longer place is no FOPA. There shorn of the provi and taxation provisions present legislative in the those sions that once were its whole raison d’etre. regulation prospective of most scheme The obsolescence of the NFA gun-owners. vestigial machine Their exis- issue here exposed by is also the fact that— analogizes perfect- tence on the statute books although expressly enacted to raise revenues ly appendix: to the human no useful function private from citizens —those no whatsoever, potential but unlimited for insidi- longer any raise posses- revenue from the ous mischief. sion, transfer, making of guns machine 922(o) Moreover, section reflects Con by private suggestion citizens. The that a gress’ judgment concerning the correct stat tax measure can somehow have continued utory appropriate formulation and the level vitality longer when it no certainly punishment for mere of a ma imagination. tests one’s Although implied Thus, gun. uphold chine if we the continued repeals disfavored, are firmly believe that application of the NFA citizens who trans the sections of the NFA at issue here are so fer, make, possess machine —even utterly 922(o) irreconcilable with section longer any the NFA no serves reve the FOPA as a regulating private means of nue-raising purpose altering are —we ownership of were congressional judgment. Why then does the impliedly repealed by passage: FOPA’s prosecute BATF continue to citizens under respect regulation to the guns, solely NFA for the superseded the latter has supplanted guns, resorting 922(o), than rather to section former. Congress expressly designed for that purpose? Perhaps statutory because the maximum fines for the NFA are 2. Convicting Violating Applica- - greater provided than those ble Sections NFA Violates Due likely, agents FOPA.14 More BATF Process prosecutors get find easier to convictions 922(o), Since the enactment of section NFA, appears under the both because it BATF exceptions has —with few requirement,15 have an easier mens rea —refused accept or to tax laundry $200 on possible statutory because the list made after very long.16 1986.17 In

violations is so But discussing Ardoin’s clearly demand for a passage did not intend for its new trial based on his preexisting discovery FOPA to transform ultimate of a BATF into against a more circular which simple posses severe ban announced that the BATF guns, sion of longer machine for such a would no register accept mutation of or taxes on 922(o) the NFA guns,18 makes section majority FOPA machine implies the superfluous: what the BATF supposed is to Ardoin had the burden proving person violating 14. A who is convicted of 16. Section 5861 of the NFA alone lists twelve provision of the NFA is "fined not more than separate acts that constitute violations of the $10,000, imprisoned or be not more than ten § NFA. 26 U.S.C. years, contrast, § or both.” U.S.C. 5871. In person violating a 922(o) who is convicted of section Inc., United States v. Rock Island $5,000 impris- is fined not more than or (C.D.Ill.1991); accord United years, oned not more than 10 or both. 18 U.S.C. Cir. 924(a)(1)(D) (a)(2). § & 1992). may only 15. A citizen be knowingly convicted for 922(o). 924(a)(2). 18. At consistently § section trial the BATF denied the exis- contrast, may Subsequent citizen be convicted tence of under the this circular. events have "violating] failing] comply NFA for or to with revealed that the BATF’sdenial was incorrect if any provision.” § duplicitous. 26 U.S.C. not register gun, application to make and accepts taxes an registers or longer BATF no disagree. gun having paid without respectfully making a machine guns. I tax, transferring ma- making and of accept register to or BATF’s refusal The gun having filed an chine without solely guns is not evinced for machine taxes not weapon. But he could to transfer Ardoin was unable BATF circular that in the tax, paid because the have trial; is such refusal until after his to locate accept payment. And BATF would not such mandated law. Sections expressly form filing applications, even on the correct categorically that state 5822 of the NFA (form did 1 instead of form 10 which Ardoin register transfer or mak- applications use), futile, try would have been because trans- denied if the ing firearms shall be reject applica- required BATF those is fer, of the firearm making, or vio- being Ardoin is thus convicted of tions. transfer, posses- illegal.19 be As would lating with which he could not have laws by private sion, making performed prover- complied, even had he illegal adoption with citizens became his bial hollow act and—like Luther —tacked 922(o) A, of the FOP sections section makeshift form $200.00 clearly require the and 5822 of the the BATF’s front door. register the reject applications to BATF to guns.20 transfer or manufacture majority responses to Ar- The offers two expressly Additionally, 27 179.105 C.F.R. (1) Congress has the doin’s dilemma: author- guns to registration of machine restricts activity ity to tax an even to choose federal, state, or for use those authorized (2) activity illegal; could such Finally, other government entities.21 local complied application and tax have BATF refuses to have found that the courts “by pos- simply not guns. I register accept taxes for machine or any post-1986 ma- sessing manufacturing why not take no reason we should can see may, find chineguns.”23 Try as I I cannot judicial recognition.22 of this notice convincing. argument either indisputable that since I thus find majority’s Congress has assertion that not, not, 19, 1986, BATF has does correct, illegal, power to tax activities accept for machine may my opinion that assertion is also irrele- Ardoin, innocent, guns. presumed did question is not what Con- vant. The here part of his prove this assertion as have to done, it did. gress could have but what defense, it to the law. It for we know sound, that, may oxymoronie as it agree inescapable private to me that a citi- seems both a law that would could devise literally comply the terms of cannot zen illegal and at the same time tax make 5861(d), (e), (f), (l), 5821, 5845, sections manufacture, transfer, possession of ma- how sincere- and 5871 of the NFA no matter Congress simply did not do guns: but chine tries ly comply and how hard he he wants Instead, Congress adopted the that. of section comply, because the enactment forbidding the clearly has the effect of 922(o) legal impossibility. compliance made collecting registering and government from opposite illegal taxes on firearms —the exact violating the NFA. Ardoin was convicted of illegal activity.24 affirmatively taxing an alia —of Specifically, he was convicted —inter me, Congress having discussion of what making filed To machine without Dalton, See, 1934, e.g., 960 F.2d 26 U.S.C. 22. United 19. The National Firearms Act of (10th Cir.1992); Armory, added). Rock Island (emphasis §§ F.Supp. at 119. 20. Id. ante at 184. See 5812, 5822; (cit- Again, §§ 27 C.F.R. at 119 26 U.S.C. 21. Rock Island see 179.105). § ing 179.105. 27 C.F.R. might yet merely begs guns could have done or do government the refuses to ac- —when question. the cept registration applications tax-pay- and ments on such firearms —that strikes me as “just majority’s say response, no” The like process. due that of the Fourth before it —in Circuit effect telling Ardoin that he could have avoided I compelled reemphasize am to this simply “by violation of possess- juncture gravamen that the the vio- ing manufacturing any or ... machine- lations at possession issue here is not mere guns” even more troublesome to me. I —is unregistered of an gun; machine it is the keep asking myself “why is it that each time register failure to pay taxes on that majority’s response I revisit the I am re- gun.27 922(o) why machine That is section minded of Marie Antoinette’s advice to ‘let If enacted. the NFA could double as a casual, them eat cake’?” Such dismissive prohibition against naked simple possession responses just satisfactory are when it unregistered of an gun, section engaging activity, comes to in an such as 922(o) wholly would have been unnecessary. arms, keeping bearing arguably im- today Yet ignore we allow the BATF to plicates Rights.25 the Bill of NFA’s provisions, and taxation Congress’ I dispute authority do not to thereby transmuting second, the NFA into a prohibiting owning make a law citizens from perhaps easily enforced, a more criminal possessing guns.26 And that is ban on possession the mere guns. of machine precisely Congress what did it when enacted 922(o) do, however, section I the FOPA. I regret also that I singularly have been question continuing prose- the fairness of to convincing my unsuccessful in panel- fellow failing regis- cute citizens like Ardoin for ists Supreme rejected that the Court has pay ter taxes on their machine now very reasoning upon they rely.28 In government does not allow them to Haynes States, government Analogously, acknowledge do so. had arrested the defendant under an earlier adoption since of the Sixteenth Amendment version of possessing the NFA for unreg- an Congress authority has had the to estab- handgun.29 istered government adopted The lish —as it has —a federal income tax. But I position approbated majority to- process believe that it would violate due day; namely, that the defendant’s crime was government continue arrest citizens the mere unregistered of an fire- failing pay to file tax returns and their arm. Supreme rejected gov- Court federal income if were to postulate, ernment’s recognizing that pass prohibiting government a law from criminally proscribed act consisted of two accepting payments. tax returns and tax firearm, elements: of a and fail- words, government’s other it is not the ban register ure to that firearm.30 on The NFA’s gun possession that here violates rather, registration requirement,, process; Court, due government’s stated the is the prosecution “suggest[s] strongly of citizens like Ardoin for perimeter failure taxes on their machine ... offense is to be marked the terms criminalizing possession, Indeed, 25.Statutes trans- personally support I would well-con- fer, making merely are just ceived efforts to do that. prohibitum rape, malum murder, laws. In contrast to robbery, gun-related such activities Dalton, 27. United States v. bad; inherently only are not technically are (10th Cir.1992). Courts, however, artificially illegal. must de- legislates pursuant fer when it to its 28. See (referring 960 F.2d at 123 Thus, powers. enumerated had Ardoin been Haynes v. United indicted, properly prosecuted, and convicted un- (1968)). 19 L.Ed.2d 923 922(o ) der section I would not now dissenting. simply But I do not think that the 29. 390 U.S. at 88 S.Ct. at 726. everyone NFA—which concedes is a tax law^— legitimately per prohibition can double as a se against 95, guns. of machine 30. Id. at 88 S.Ct. at 729.

187 registers accepts payments pri- requirement imposed.”31 er tax registration of the words, vately-owned guns manufactured af- failing register a firearm In other 19, 1986, May of the ter at constitutive element is an essential possibly any proscribed by the NFA —it issue cannot raise revenues crime substantive (unless private from criminal fines reus defined the NFA. citizens part is of the actus revenues). are considered Such Court, then, According Supreme to the have to be valid therefore ceased manifesta- solely by violate the NFA citizens do not Congress’ power tions to tax.35 unregistered guns: possessing weapons. actually register constitutionality fail to those must Neither can the apparent least to me—that applied possess, And NFA as to citizens who —at make, the tax on a failure to or transfer machine be rescued prosecutable by incanting be a criminal act in firearm cannot did the Fourth Circuit —as accept government upheld refuses to when the Jones36 —that the Act “could” be un- regulate documents and tax appropriate Congress’ power der interstate regis- applicable payments even commerce. I am convinced that the Act payment provisions only tax remain upheld tration and could be under the Commerce (or authority I find nor expressly adopted “on the books.” if Act were neither Clause to crimi- readopted) by Congress mandate for us to rewrite the NFA now remains, guns. Yet though, nalize mere of machine fact clause. The undeniable judicial legislation, I Congress without such an act of not enact the NFA under did way no for us to sanction enforce- fit can see the Commerce Clause and has seen ownership applies of the NFA as it ment re-enact it under that clause all the dec- 19, origi- manufactured after ades that have ensued since the NFA’s Convicting Congress’ power Ardoin of statuto- 1986. nal enactment under to tax. comply Indeed, 1934, ry provisions Congress’ with which he cannot enactment of the offending power strikes me as fundamental fairness commerce would al- NFA under its process. simply certainly cannot and thus due “One most have been declared unconsti- criminally failing liable for to do an act Arguably, power tutional. because the incapable perform- depends ... scope act of on the [one] 32 too, reason, ing.” passed, power For this believe under which it is enumerated Congress’ aside. hypothetical Ardoin’s conviction be set NFA enacted under entirely power commerce would be an differ- ent act: an act that never voted Stripped Revenue-Raising Func- 3. its might passed. never have tion, on—an act that Nugatory The NFA is vein, noted, majority’s willing- already passed the NFA was this same As uphold NFA under the Com- pursuant Congress’ power to collect ness to 1934 however, separation powers legitimate, To a merce Clause misses taxes.33 remain classical constitutional the- measure enacted under the tax must concerns. Under part long- ory, legislature must state —as of its revenue.34 As the BATF no raise some 514, 554, 728; Dalton, 506, 93, 57 S.Ct. at see also 960 v. United 300 U.S. 31. Id. at 88 S.Ct. 556, (1937) (for (upholding 81 L.Ed. 772 the constitu F.2d at 123 a more detailed discussion of the "productive Haynes opinion). tionality of the NFA because it was Drexel, 20, revenue”); Bailey of some v. 259 U.S. 449, (1922) (holding 66 L.Ed. 817 Dalton, (quoting 1 W. LaFave 32. 960 F.2d at 124 unconstitutional because it Child Labor Tax Act Law, Scott, Jr., & A. Substantive Criminal tax); penalty, primarily not a United States 3.3(c) (1986)). at 291 (10th Cir.1992); Dalton, F.2d 124-25 Inc., Armory, United States v. Rock Island F.Supp. Island at 119-21 Rock (C.D.Ill.1991). Hearings (citing National Firearms Act: Before Means, Ways the House Comm. on 73rd 124-25; Rock Island Ar- Cong., 2d Sess. 6-19 Inc., mory, F.Supp. at 119. See, e.g., Kahriger, (4th Cir.1992). (1953); Sonzinsky L.Ed. 754 36. 976 F.2d power legislation particular that autho- —the question. Judges it the law America, rizes to enact UNITED STATES of re-writing in the business of Plaintiff-Appellee, by upholding laws on the basis legislation powers enumerated are different from BURIAN, John Clifford Defendant- by Congress. the ones invoked Appellant. today I aware that am of course the enu- No. 93-1123. merated-power of a federal test statute’s va- lidity might “the is whether rea- Appeals, United States Court of sonably find that the act relates to one of the Fifth Circuit. my opinion— But —in powers.”37 federal April only applies that maxim to acts that are authority. silent as to their sources of case, silence;

this is no such there we know Congress expressly passed

pursuant power to its to tax and has allowed grounded nearly sixty

it to remain thus

years. I have seen no evidence that Con-

gress augment now intends to

scope by imbuing act of that

authority of the modern Commerce Clause.

Moreover, it to me if seems clear that we transformation,

approve we this become a

party, by complicity, least to what legislation:

amounts to executive it is the

Department Treasury’s BATF —an

arm of the Executive branch —that advances interpretation;

this remains stripped of

mute.38 With the NFA its reve- function,

nue-raising I would void Ardoin’s ground

conviction on this as well. reasons, foregoing respect-

For all of the

fully earnestly DISSENT. Rotunda, 37. John E. Nowak & Ronald D. Consti- 19 L.Ed.2d 923 (West 1991). Publishing tutional Law 3.3 (1968) (holding that failure to a machine part of the substantive crime defined registration requirement 38. When the is severed NFA). currently The BATF is therefore en- from the NFA a new substantive crime is creat- forcing a NFA than the one that was different required originally ed—a law that actually passed by Congress. proscribes firearms is mutated into a law that possession Haynes of firearms. See v. United

Case Details

Case Name: United States v. Ardoin

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Apr 7, 1994

Citation: 19 F.3d 177

Docket Number: 93-04272

Court Abbreviation: 5th Cir.