UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SCOTT RAY BISHOP, Defendant - Appellant.
No. 18-4088
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
June 10, 2019
PUBLISH. Appeal from the United States District Court for the District of Utah (D.C. No. 2:16-CR-00662-DB-1). Elisabeth A. Shumaker, Clerk of Court.
Jessica Stengel, Assistant Federal Public Defender (Scott Keith Wilson, Interim Federal Public Defender, with her on the briefs), Office of the Federal Public Defender for the District of Utah, Salt Lake City, Utah, appearing for Appellant.
Ryan D. Tenney, Assistant United States Attorney (John W. Huber, United States Attorney, with him on the brief), Office of the United States Attorney for the District of Utah, Salt Lake City, Utah, appearing for Appellee.
Before BRISCOE, HOLMES, and McHUGH, Circuit Judges.
This is a direct criminal appeal from Defendant Scott Bishop’s convictions on one count of unlawfully manufacturing machineguns, in violation of
Defendant, who proceeded pro se at trial, took the stand in his own defense and testified that he did not intend the TCGTR to convert an AR-15 into a machinegun. The district court excluded portions of Defendant’s testimony after finding that it was expert testimony not properly disclosed to the government. Defendant, now represented by counsel on appeal, argues that the jury’s verdict should be set aside because the district court denied him his constitutional right to present a defense, erred when instructing the jury on the elements of a
I
In 2015, the Bureau of Alcohol, Tobacco, Firearms and Explosives recovered a “machine gun conversion device” while executing a search warrant in an unrelated case. App. Vol. III at 77. The device “had paperwork with it that explained how it worked and it had pictures on it that showed how [to] install th[e] device.”
A TCGTR1 is a small piece of metal that, when properly bent according to Defendant’s instructions, fits inside an AR-15.
[T]he “TCGTR” (trigger control group travel reducer) was a custom-made metal device, approximately 2.4 inches in length, and approximately 1/2 inch at its major width. As sold by [Defendant], the . . . device required one[ ]final bend for the device to become operational as a machinegun. The purchaser could . . . go back to [Defendant’s] website . . . and obtain the instructions on how to complete the device. The device is premarked at the bend location with a stencil. . . . [Defendant also] gave his customers very detailed written instructions, including photos, for making the final bend to their [TCGTRs]. [Defendant] also sold a “raw materials” variation of his kit, which was the same kit, but a flat piece of metal that required a total of four bends.
App. Vol. II at 18. As part of its investigation, ATF ordered multiple TCGTRs from Defendant and, after following Defendant’s instructions for bending and installing a TCGTR, tested the effect on an AR-15.
“The AR-15 is the civilian version of the military’s M-16 rifle, and is, unless modified, a semiautomatic weapon.” Staples v. United States, 511 U.S. 600, 603 (1994). A semiautomatic “weapon . . . fires only one shot with each pull of the trigger.” Id. at 602 n.1. Conversely, an “automatic” or “fully automatic” “weapon . . . fires repeatedly with a single pull of the trigger. That is, once its trigger is depressed, the weapon will automatically continue to fire until its trigger is released or the ammunition is exhausted. Such weapons are ‘machineguns’ within the meaning of the [National Firearms] Act[,
In December 2016, Defendant was indicted for violating
At trial, the government called ATF Special Agent Michael Powell to testify as an expert about why the TCGTR was a machinegun. He explained that an AR-15 contains a part called a disconnector that “prevent[s] the firearm from firing a second shot without [the operator] releasing the trigger and then pulling it a second time.”
When it was Defendant’s turn to present his case, he testified about his design for the TCGTR. Defendant acknowledged that he designed the TCGTR “for an increased rate of fire,” but maintained that he “wanted to do it legally.”
The government objected, arguing that the testimony “presents both technical and specialized knowledge and under Rule 702 it would be required to come in through a qualified expert witness.”
The jury returned a guilty verdict on both counts. Defendant was sentenced to 33 months’ imprisonment, followed by 36 months’ supervised release. Defendant timely appealed his convictions.2
II
Defendant argues that the district court erred when it sustained the government’s objection to his testimony about how he intended the TCGTR to interact with the AR-15 trigger mechanism. The district court excluded this testimony after finding that it was expert testimony subject to Federal Rule of Evidence 702, but that Defendant had not timely disclosed his expert testimony to the government, as required by Federal Rule of Criminal Procedure 16. Defendant further argues that the district court’s limitation on his testimony violated his Fifth and Sixth Amendment right to present a defense.
A defendant’s right to present a defense is cabined by the Federal Rules of Evidence and Criminal Procedure.
The Fifth and Sixth Amendments grant a defendant the “right to testify, present witnesses in his own defense, and cross-examine witnesses against him—often collectively referred to as the right to present a defense.” United States v. Markey, 393 F.3d 1132, 1135 (10th Cir. 2004). But this right is not absolute; a defendant must still “abide the rules of evidence and procedure.” United States v. Dowlin, 408 F.3d 647, 659 (10th Cir. 2005) . . . .
In light of the need to satisfy evidentiary requirements, [a defendant] bears a two-part burden on [his] constitutional claim. First, [he] must demonstrate that the district court abused its discretion in excluding the evidence. Dowlin, 408 F.3d at 659. Second, [he] must demonstrate that the excluded evidence “was of such an exculpatory nature that its exclusion affected the trial’s outcome.”
Id.
United States v. Tapaha, 891 F.3d 900, 905 (10th Cir. 2018) (brackets and some citations omitted).
When the government disclosed its expert witness prior to trial, it “request[ed] the disclosure of Defendant’s experts,” “pursuant to
United States v. Adams, 271 F.3d 1236, 1243 (10th Cir. 2001) (holding that exclusion of expert testimony because it was not disclosed to the government in a timely manner was an “evidentiary ruling . . . review[ed] for abuse of discretion” even though the defendant argued that it denied him the right to present a defense).
Defendant argues that Rule 702 does not apply because he would have offered “lay [testimony] as to the technical aspects and functionalities of [his] device.” Aplt. Br. at 20. “A person may testify as a lay witness only if his opinions or inferences do not require any specialized knowledge and could be reached by any ordinary person.” United States v. Yeley-Davis, 632 F.3d 673, 684 (10th Cir. 2011) (brackets omitted) (quoting LifeWise Master Funding v. Telebank, 374 F.3d 917, 929 (10th Cir. 2004)). Lay testimony is “not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.”
Defendant wanted to testify that he
designed the kit so that when a notched TCGTR is pushed down by a forward moving bolt carrier, it pushes down on the trigger bar causing the trigger to move back into its reset position. Because the operator is still trying to put pressure on the trigger, the operator will pull the trigger almost as soon as it is back in the reset position. The TCGTR in this configuration is called a forced reset trigger system, otherwise known as a positive reset trigger system. It requires a separate trigger pull to fire each round.
App. Vol. III at 570. Understanding Defendant’s testimony “require[d] . . . specialized knowledge” about how an AR-15 works and how its component parts can be manipulated to increase the gun’s rate of fire. Yeley-Davis, 632 F.3d at 684 (quoting LifeWise Master Funding, 374 F.3d at 929). Moreover, the jury would have needed to understand the significance of Defendant’s reference to a “forced reset trigger system” and a “positive reset trigger system,” as well as how such systems differ from the analogous system in a machinegun. App. Vol. III at 570. This is not knowledge “readily accessible to any ordinary person.” Yeley-Davis, 632 F.3d at 684. Therefore, the district court did not abuse its discretion when finding that this portion of Defendant’s testimony was expert testimony subject to Rule 702. Id. (holding that “testimony concerning how cell phone towers operate constituted expert testimony“).
The fact that Defendant invented the TCGTR does not alter our conclusion that he needed to comply with Rule 16’s disclosure requirement. None of the cases cited by Defendant hold that an inventor is exempt from Rule 702. Instead, they stand
Moreover, the district court’s limitation on Defendant’s testimony did not prevent him from “directly address[ing a] core issue[ in the case]—his intent.” Aplt. Br. at 24. After ruling on the scope of Defendant’s testimony, the district court allowed him to continue to present his case to the jury. Defendant concluded his testimony by telling the jury the following:
What would I like you as the jury to know about this kit? I guess, again, I would start that I am its creator and I am the manufacturer of it. My design for it was completely different than what the prosecution has alleged. My intent for it is completely different than what the prosecution has alleged. It was intended as an educational experience. I designed these kits to fire one round for each pull of the trigger, and I sent each one of these kits out in a form that they couldn’t do anything to an AR-15, maybe besides causing them to jam. I told people not to complete the kit, just use the information, the education. Some people chose to complete their kit in a way that I did not intend, and a choice that each of them had a right to make. Not my choice.
I will stand here and continue to tell you point-blank, as the designer and manufacturer of this kit, that it is my absolute 100-percent belief that I did not make a machine gun, and that because of that I am not guilty of the charges leveled against me by the government.
App. Vol. III at 586–87. Therefore, Defendant was able to testify that he did not intend to create a machinegun. The district court’s ruling only prevented him from testifying about how the interaction between a TCGTR and an AR-15’s trigger mechanism alters an AR-15’s rate of fire. Such testimony might have strengthened Defendant’s argument regarding intent, but that does not excuse Defendant from complying with Rule 16 before offering expert testimony. Tapaha, 891 F.3d at 905.
Finally, Defendant argues that he “cannot be foreclosed from” “elicit[ing] particularized and technical testimony from lay witnesses“—namely, himself—because “[t]he government made the strategic decision to adduce testimony from lay witnesses as to the technical aspects and functionalities of” the TCGTR. Aplt. Br. at 20–22. Even if it is true that the government improperly elicited expert testimony from lay witnesses, Defendant does not raise that alleged error as an issue on appeal. See
III
Defendant also raises three unpreserved issues, which we review for plain
To prevail under plain error review, Defendant must satisfy four requirements:
First, there must be an error that has not been intentionally relinquished or abandoned. Second, the error must be plain—that is to say, clear or obvious. Third, the error must have affected the defendant’s substantial rights, which in the ordinary case means he or she must show a reasonable probability that, but for the error, the outcome of the proceeding would have been different. Once these three conditions have been met, [we] should exercise [our] discretion to correct the forfeited error if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.
United States v. Giannukos, 908 F.3d 649, 654 (10th Cir. 2018) (quoting Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016)).
A
Defendant argues that the district court erred when instructing the jury on the elements of Count 1 of the Indictment, which alleged that Defendant violated
Instruction Number 13 set out the elements of Count 1:
- The defendant was engaged in business as a manufacturer of machineguns;
- The defendant engaged in such business without having paid the special (occupational) tax or having registered as required by federal law; and
- The defendant knew he was manufacturing machineguns.
Supp. App. at 15; see also App. Vol. III at 632. “The term ‘machinegun‘” was defined in Instruction Number 14. Supp. App. at 16.
Section 5861(a) does not include a mens rea provision. See Staples, 511 U.S. at 605 (explaining that
Defendant’s argument hinges on the third element of Instruction Number 13—“[t]he defendant knew he was manufacturing machineguns.” Supp. App. at 15. Defendant argues that this instruction “did not require the jury to find that [Defendant] kn[e]w the specific physical traits
Defendant is not entitled to relief because any error in the jury instructions was not clear or obvious. “An error is plain if it is clear or obvious under current, well-settled law. In general, for an error to be contrary to well-settled law, either the Supreme Court or this court must have addressed the issue.” United States v. Justice, 679 F.3d 1251, 1256 (10th Cir. 2012) (quoting United States v. Thornburgh, 645 F.3d 1197, 1208 (10th Cir. 2011)). Defendant has not “point[ed] to any authority from this court or the Supreme Court to support []his proposition.”8 Justice, 679 F.3d at 1257. To the contrary, we have held that a similarly worded instruction complies with Staples and adequately instructs a jury on the required mens rea for a
In Mains, a defendant was charged with violating
A plurality of the Supreme Court reached the same conclusion with respect to a similar instruction. In Rogers v. United States, a defendant was charged with violating
The plurality concluded that, “[s]ince the term ‘firearm’ had been ‘defined above’ to include a silencer, that instruction required the jury to determine that the defendant knew that the item he possessed was a silencer.” Id. at 257. The plurality “assume[d] that the trial judge would have been more explicit in explaining the mens rea element of the[] offense[] if Staples had been decided prior to submitting the case to the jury,” but was “satisfied that the instructions as given did inform the jurors that they must find that the defendant knew that the silencer was in fact a silencer.” Id. at 258. The dissenting Justices disagreed, arguing that “[t]he word ‘knowingly’ in the instruction modifies the word which follows it, viz., ‘possessed,’ rather than the instruction’s further reference to the statutory definition of ‘firearm.‘” Id. at 260 (Kennedy, J., dissenting). In closing, the Rogers plurality cautioned that “[i]t would be wise for trial courts to explain the Staples requirement more carefully than the instruction used in [Rogers] to foreclose any possibility that jurors might interpret the instruction as [the] . . . dissent [did].” Id. at 258 n.7 (plurality opinion).
Because of our holding in Mains, any error in Instruction Number 13 was not clear or obvious. That being said, we echo the Rogers plurality’s comments about the specificity with which a district court should instruct a jury regarding a defendant’s knowledge of “the features of his [firearm] that br[ing] it within the scope of the [NFA].” Staples, 511 U.S. at 619; see also Pattern Crim. Jury Instr. 10th Cir. § 2.91 (2011 ed. 2018) (setting out pattern jury instruction for a prosecution under
B.
Defendant argues that the district court erred in allowing the government to ask witnesses to “repeat[] out-of-court statements that ATF believed [Defendant’s] devices were illegal.” Aplt. Br. at 31. The government called as witnesses seven people who purchased a TCGTR from Defendant. ATF agents visited many of these customers during their investigation and told the customers that the TCGTR was illegal. The government elicited testimony from four of the customers about the ATF agents’ prior statements. Because the government does not dispute that these statements were inadmissible hearsay, we assume that the first two requirements of the plain error test are satisfied.
Instead, the government argues that Defendant cannot satisfy his
C.
Defendant argues that the district court erred by allowing Agent Powell, an expert witness for the government, to testify: The TCGTR “meets the statutory definition of a machinegun that is found in 26 United States Code Section 5845(b). That definition includes any part designed and intended solely and exclusively for use in converting a weapon into a machinegun. This part meets that definition.” Aplt. Br. at 34 (quoting App. Vol. III at 469). Defendant argues that this testimony was improper because “experts may not opine on ultimate issues of fact without unpacking the technical or specialized criteria upon which the opinion is based.”11
“An opinion is not objectionable just because it embraces an ultimate issue.”
Powell also testified about why he considered the TCGTR to be a machinegun when it was shipped to customers without any of the required bends. He explained that the unbent TCGTR was still a machinegun “[b]ecause of the relative ease that it took to do those bending operations.”
IV
We AFFIRM.