*1 VAN GRAAFEILAND, Circuit Judge,
concurring:
Although I am not convinced that the evi- dence of Amuso’s continued absence was er- ror, my colleagues’ treatment of it as harm-
less negates error the need for explana- an my
tion of thinking. Accordingly, I concur. *2 Axelrod,
Edna B. Daniel A. Greenstone (Argued), Chertoff, Michael Office of the U.S. Atty., Newark, NJ, for appellee. *3 Before: HUTCHINSON, COWEN and NYGAARD, Circuit Judges OPINION OF THE COURT NYGAARD, Judge. Circuit appeals James Palmieri from his conviction on one count of knowingly engaging in the of dealing business in firearms without being so, licensed to do in violation of 18 U.S.C. §§ 922(a), 924(a), and one count of knowingly possessing and transferring a gun, machine in violation of 18 §§ 922(o), 924(a)(2). He contends that the (1) district court erred by precluding a defense based on his license as a collector (2) relics, curios and responding jury to a question regarding li- censes selling (3) for firearms, charging jury on the gun machine element of the (4) count, second by admitting lay opinion hearsay testimony relating to this ele- ment, in charging on the requirement intent for the second count. We conclude these assertions of error are without merit and will affirm.
I.
The facts are essentially undisputed. Pal- mieri met Lyman, Ronald an FBI special agent, and John Debenedictus, paid infor- mant, Lyman and sold three nine-millimeter (a pistols semiautomatic Luger, German Belgian Browning MAB) and a French for $1,300. Although weapons these were manu- during factured II, World War each was functional. following The week, Palmieri, Lyman and again Debenedictus met and Pal- Lyman mieri sold an M-l carbine semiauto- matic rifle for $400. This weapon was a remanufactured World II vintage War fire- arm, it but was also functional and could be fully converted to be automatic. later, Two Palmieri, weeks Lyman and De- David E. (Argued), Schafer Office of Fed- again met, benedictus once and Palmieri sold eral Defender, Public Trenton, NJ, appel- Lyman a 7.92 millimeter type Chinese lant. gun $5,000.1 machine Although at the weapon 1. This copy is a or modification of a mistakenly was referred the indictment. Czechoslovakian model 26 machine firearms, which, applied a dealer as sale, that the machine stated Palmieri time automatic, fully defined fully operational gun was Murphy agent special Robert W. attention, FBI time, when person who devotes opera weapon, was regular later examined dealing in firearms labor designed was The machine tional. princi- of trade or business course' mode, was fully but it automatic fire objective profit pal livelihood and gov missing required breechblock. repetitive purchase resale through the firearms_ dispute whether ernment Lyman operational when machine 921(a)(21)(C). Id. however, did, weapon it. The purchased *4 explicitly re Although the definition defined as which is a frame or receiver have principal interests as the fers to economic hous provides which part of a firearm “[t]hat purpose,2 repetitiveness as the modus and hammer, or breechblock for bolt the specific operandi, not establish a it does mechanism_” § 179.11 27 C.F.R. firing frequency requirement. In de quantity or Lyman De- met with Palmieri termining engaged the one is whether occasions, but other several benedictus firearms, dealing of the finder of business firearms. no other sold them of actor and fact must examine the intent the trial, tape- government introduced At the surrounding acts al all circumstances the to sell other offers recorded engaging in leged to constitute business. goods obtain coun- weapons, store stolen inquiry not limited to the number of is response to passports. Palmieri’s terfeit timing the or the of sales. For weapons sold puffery were was that these offers evidence sales, of the the timé example, the location During the relevant misconstrued. or were occur, which the sales and conditions under a license from period, Palmieri held time before, during behavior the defendant’s Alcohol, and Firearms Bureau of Tobacco sales, charged for and price after the (“ATF”) of curios and relics. collector sold, and of firearms characteristics guilty count on one found Palmieri potentially relevant of the seller are all intent dealing of engaging in the business of “engaged in of one has indicators whether possessing count of firearms and one dealing. of business” gun. The district transferring a machine statutory exception A definition imprison- him to 27 months’ court sentenced “engaged of in the business” is set forth concurrent- on each count be served ment 921(a)(21)(C), provides § that it which ly. person occa-
shall not include a
who makes
(cid:127)
sales, exchanges,
purchases
or
of
sional
II.
personal
of
firearms for
enhancement
superseding indictment
one
Count
of
hobby,
or who sells all or
collection or
violating
charged
18 U.S.C.
Palmieri with
personal
part of his
collection of fire-
922(a),
provides
§
that:
_’
arms
(a) It shall be unlawful—
921(a)(21)(C);
§
Id.
see
id.
also.
person—
any
(objective
profit
of livelihood and
contrasted
(A)
importer,
li-
a licensed
except
personal
improving
liquidating
or
fire-
manufacturer,
dealer,
or licensed
censed
collection). Hence,
if Palmieri sold
arms'
importing,
of
engage
in the business
private
Lyman
from his
collec-
firearms
manufacturing,
dealing in fire-
921(a)(21)(C)
tion,
he had a defense under
...
arms.
“for
that these sales were
the enhancement
(West
922(a)(1)(A)
hobby,”
or for a
Supp.1993).
personal
of a
collection
18 U.S.C.A.
922(a)
sale of “all or
of his
is
constituted the
element of violation
The first
the,
again,
personal collection of firearms.” Once
“engaged in the business”
defendant
obtaining
objective
predominantly
liveli-
principal
is
one of
phrase
firearms
2. The
"with the
921(a)(22).
meaning
profit”
gain....Id.
pecuniary
defined as
livelihood
is
hood and
disposition
underlying
sale or
"the
intent
however,
bright-line
therefore,
your
is no
rule. The
irrelevant to
there
determination
charges
of the
in this case.
determine whether
fact-finder must
hobby-related sales or
transactions constitute
The instruction
collector’s license
dealing
in the business of
engagement
any
firearms,
did not authorize
sales of
al
in light
sales and
of their
the nature
though literally
potentially
correct is
mislead
circumstances.
ing. The collector’s license is immaterial
person
because
can make occasional
the first
element of
Whereas
from or
personal
sales
his
her
collection with
922(a)
the character of
violation addresses
922(a),
violating
out
18 U.S.C.
whether a
conduct,
element
the second
focuses on
Nonetheless,
licensed collector or not.
defendant, namely,
the status of the
whether
above, a
stated
collector’s license does not
he or
is a licensed dealer. A “dealer”
she
engage
authorize
holder
its
in the business
statutorily
person engaged
“any
defined as
dealing
Hence,
in firearms.
the instruc
selling
firearms at
the business
wholesale
license,
tion that Palmieri’s collector’s
in and
retail,”
921(a)(ll)(A),
id.
and a “collec
itself,
did not authorize him to
make
“any
acquires,
person
tor” is defined as
who
correct,
Lyman
sales
albeit
bit trun
holds, or disposes of firearms as curios or
*5
cated. Palmieri’s status as a licensed collec
922(a)
921(a)(13).3
relics....”
Id.
Section
dispositive,'
tor
not
legally
was
and he had no
inquiry
requires
into both the defendant’s
cognizable defense
on his
based
collector’s
and
conduct
status.
If the conduct constitut
jury
required
license alone. The
was still
to
engaging
dealing
the
of
in
ed
in
business
transactions,
determine
of
the character
the
firearms,
illegal
it is
the
then
unless
defen
either as
in
of
occasional sales
furtherance
hand,
On
dant is
licensed dealer.
the other
hobby
engagement
or as
in the
business
by a
sales
licensed or unlicensed collector
dealing in firearms See
United States
.
in
personal
from a
collection
furtherance of
Hooton,
628,
(9th Cir.1981)
662 F.2d
635
illegal.
hobby are not
the conduct is
Once
(distinguishing
engage
intent to
in business
equivalent
of dealing,
deemed
to the business
gun collection),
intent
from
to enhance
cert.
however, collector status will not shield a denied,
102
71
S.Ct.
922(a).
liability
defendant from
under
(1982).
L.Ed.2d 873
Although
precluded
Palmieri was
The district court included the statu
arguing
that the sales were authorized
business,”
tory exception
“engaged in
the
license,
by
jury charge
his collector’s
the
921(a)(21)(C),
see
the
definition of
statutory exception
included the
for sales
objective
principal
“with the
of livelihood or
personal
from or to
It
enhance
collection.
921(a)(22),
profit,”
eharge
see id.
in
its
distinguished
also
between the intent of ob
jury.
the
It further instructed that:
taining
profit
a livelihood and
from the intent
ease, you
testimony
In this
have heard
that
Thus,
liquidating
personal
collection.
during
period
the time
covered
the
jury
option
given
finding
the
the
that
indictment,
defendant,
Palmieri,
the
James
not
engaging
Palmieri’s actions did
constitute
was a
firearms
I in-
licensed
collector.
dealing, irrespective
in the business of
of his
you
law,
struct
as a matter of
that
the
collector’s license.
have
the
We
reviewed
possessed by
collector’s license
the defen-
jury charge
entire
that was
and conclude
it
any
dant did not authorize him
sell
present
sufficient to enable Palmieri to
the
firearms, even firearms that have been
defense that his
in
sales were
connection
—
I
McGuire,
classified as curios
relics.
further
hobby.
with his
See Estelle v.
you
-,
-,
instruct
that what the defendant be- U.S.
116
challenged
(considering
lieved
collector’s license authorized him
385
his
L.Ed.2d
case,
jury
is not an
“in
in-
do
issue
this
it is
instruction
the context
category
"[flirearms
3. “Curios and relics” are defined as
178.11
of curios and
special
which are of
interest
to collectors
"[flirearms
this case is
relics which is relevant in
quality
of some
than
reason
other
is associated
years prior
which were manufactured
least
”
sporting use
with firearms
or as
intended
Id.
to the current date....
weapons.”
offensive or defensive
27 C.F.R.
record”);
says,
but
and then
certain
trial
activities
a whole
structions
you
include
then
does not
[sic]
terms
McGill,
964 F.2d
United States
you
I
says.
that
So refer
can see what
charge,
(3d Cir.)
(determining “whether
page
to focus on
definition
light
in the
viewed
whole and
taken as a
engaged
what
the business.
evidence, fairly
adequately submits
Furthermore,
you
I
to the instruc-
refer
jury”) (quoting
case
the issues
page,
you
on the next
tion that
received
America,
North
Link v. Mercedes-Benz of
matter
you as a ...
which is I instructed
Cir.1986)),
(3d
cert.
Inc.,
F.2d
possessed
the collector’s license
of law that
—
denied,
-,
him to
by the
did not authorize
defendant
(1992).4
L.Ed.2d
firearms,
that whatever
sell
permitted
license
believed his collector’s
do,
an
do,
III.
him to
is not
him to
authorized
case,
you
and is
issue
this
deliberations,
During their
consider.
you need
following
“Do
question:
asked
Thirdly,
you to
I refer
instructions
the.
circum
under all
to sell firearms
license
page
[sic]
... on
which defines
The district court answered
stances?”
dealer,
forth
sets
what
[sic]
and which
telling
jury:
question
Treasury
discovered
through searching
of that
the records
jury, coun-
gentlemen of
Ladies
ques-
agency, namely,
period
in the
your question, and I have
seen
sel have
tion,
no
that the defendant
there is
record
them, and the best answer
it with
reviewed
currently held a
firearms dealer’s
federal
you
give
to this is that
that I can
So,
you
question, do
need a
license.
your
jury.
do not
concern as a
You
*6
under all circum-
license to sell firearms
under what
everything
need
know
about
to
that
don’t need to answer
stances? You
a
could or could not
person
circumstances
you
to
within
question.
need
answer
What
do',
you
to
and I’m
need
do this. What
is
you’ve
given,
been
the instructions that
you
to do
refocus-
going
try
help
to
to
guilt
guilt
question of
or not
on Count
the
you’ve
ing
that
you on the instructions.
of this indictment.
One and Count Two
you
just
to
in
is
need
bear
given,
been
how
with counsel
The district court discussed
you
the law
mind
we have told
about
what
jury’s question before
the
best
answer
this case. And that
applicable
which
is
object to
doing
did not
so. Defense counsel
you need to determine on Count
is that
objec
answer,
proposed
and Palmieri’s
this'question
directed
I
is
One and assume
have
now
the district court should
tion
that
individual,
One,
de-
whether
Count
language in the
specifically referred to the
fendant,
in
of
engaged
the business
was
defining
in
“engaged
the business”
statutes
license,
with-
dealing in firearms without
profit”
“objective
and
does
and
of livelihood
fire-
license—federal
out a federal dealer’s
plain
Fed.
error.
See
constitute
Now,
language
arm
license.
dealer’s
52(b);
Young, 470
v.
R.Crim.P.
United States
jury
to in the
phrase
1038, 1046,
of that
is referred
1
1, 15, 105
L.Ed.2d
84
(1985)
only
in
“engaged
plain
term
errors are
(explaining
instructions. The
that
fairness
which undermine fundamental
you
it refers to
those
is defined for
and
business”
untarily
appellate
mistake or accident.”
and not because of
sentence in his
Palmieri includes one
alone
have been insuffi-
This instruction
would
arguing
court held him
that the .district
brief
willfulness,
convey
requirement
of
cient
Although
"strictly
count.
he
liable”
the first
defining
"principal
light
charge
but in
of the
count,
charge
object
did
for this
the intent
objective
profit”
evi-
and the
of livelihood
government
prove that
we
must
note that
presented,
plain
constitute
error.
dence
it did not
"willfully” engaged in the business of
defendant
Kibbe,
97
v.
See Henderson
dealing
18 U.S.C.A.
firearms.
(assert-
(1977)
manual provides itself which that machine “shall function trigger. A, The term include shall also B also include” items items and items C. weapon, or receiver such language argument confutes Palmieri’s frame any part designed solely indeed, and, and intended categories includes three new exclusively, parts or combination of de- gun. within the definition machine Read- intended, converting signed use in for conjunctive statute would lead the, that, weapon gun, .any into a machine unlikely parts result both the parts combination of from which a machine parts into assembly conversion and the parts can are in be assembled machine as well as a frame or receiver possession or under the control of a required. person. Alternatively, statutory where thé lan *7 (West 1989) 5845(b) (emphasis U.S.C.A. 26 guage susceptible is to than more one inter added); see also 18 U.S.C.A. pretation, may “appropriately a court refer (West Supp.1993) (referring to 26 U.S.C. legislative history to a statute’s to resolve 5845(b)). charged court The district Shumate, statutory ambiguity.” Patterson v. jury emphasized portion with the of the stat- 2248, 119 - U.S. -, -, 2242, only, jury ute and the later asked the district (1992) (quoting Radloff, L.Ed.2d 519 Toibb v. “[pjlease complete to court the second sen- 2200, 111 501 U.S. S.Ct. 115 2197, tence, reads, which ‘The term shall also in- (1991)). case, In legis L.Ed.2d 145 this any clude the frame or receiver of such clearly history lative indicates an intent to ” weapon.’ The district court answered as expand of gun. the definition machine complete follows: “There is no need to that provides in Report Senate that: ease, for of this sentence because purposes 5845(b) §[of ] The second is new. sentence goes it—that sentence refers to provides categories It three new as includ things case, are to not relevant so (1) gun”: ed within the term “machine you may phrase consider the com- that be (2) gun, any of a frame or receiver machine plete in that second sentence.” statement parts designed of combination intend converting weapon Palmieri that for in a contends the second sentence ed use other 5845(b) interpreted gun gun; §of than a should creat- machine into a machine kits, three-pronged example, definition for term so-called conversion (3) words, gun.” parts machine of from which a “machine other combination (1) receiver, if includes a frame or in con- machine can be assembled (2) junction any part possession parts person. of a or combination of parts designed important This is an addition to the definí- and intended convert a
1272 replacement availability of a breechblock: “I gun” and is intended
tion of “machine
larger gun part
in the ad-
called one of the
stores
encountered
problems
overcome
country
get
if I
existing
and asked them
can
one and
and enforcement
ministration
they
they
people
told me that
knew of
few
that the three addition-
It is intended
law.
I
subject
provi-
get
I
to all the'
who had them and can
one
wanted.”
categories be
al
object,
again,
did not
but he
chapter applicable to servicea- Once
sions of the
hearsay.
now asserts that this was
On two
guns.
machine
ble
occasions,
object
opin
Palmieri did
other
1501,
Cong., 2d
45-46
S.Rep.
90th
Sess.
No.
testimony by government witnesses who
ion
1133).
Kelly,
F.Supp. at
548
(quoted
qualified
testify
experts
had not been
statutory language in
We
that
believe
questioning.
Federal Rule of
the area
5845(b)
history
legislative
mandate
and the
permits
lay
give an
Evidence 701
a witness to
that creates three new cat
an
“(a) rationally
opinion which is:
based on the
guns. is
egories machine
conclusion
(b)
and;
perception
helpful
the witness
from other circuits.
supported by case law
understanding
testimo
a clear
of witness’
See,
Arms
v. Unit
e.g., Thompson/Center
Co.
ny or
fact in issue.”
the determination
(Fed.Cir.1991)
1041,
States,
F.2d
1047
ed
924
Thus,
lay opinion
permissible
when
machine
(finding that 1968 amendments to
knowledge of the fac
witness has “firsthand
provided
categories),
three
new
definition
predicates
tual
that form the basis for the
— U.S. -,
2102, 119
112
'd,
S.Ct.
aff
opinion
help
...
[and] would
(1992); United States v. Brad
L.Ed.2d 308
disputed
Government Vir
resolve
fact.”
(7th Cir.)
634,
(asserting
ley,
635
892 F.2d
Knight,
619,
v.
gin Islands
989 F.2d
629-30
guns
may
without a
parts
be machine
—
(3d Cir.),
denied,
-,
114
cert.
U.S.
denied,
receiver),
909,
cert.
or
frame
(1993);
457
see also
S.Ct.
L.Ed.2d
(1990);
quirement, must scope we define the of that requirement. VI.
Finally, Ultimately, challenges we persuaded the dis are not by the trict jury argument court’s government instruction that the on the intent prove had to requirement for the second Palmieri knew count. 18 that the fifth weapon he sold requires Lyman government prove was machine or firearm knowing possession meaning within the transfer of a of 26 machine U.S.C. 5845. The gun. The knowledge requirement district court jury illegal possession instructed that: of a machine potential has two compo nents, knowledge that possession of Knowingly means, is, with knowledge, that weapon legally proscribed and knowl voluntarily intentionally and not be- edge weapon that the possessed the statuto cause of mistake or accident or other inno- rily physical defined characteristics of a ma cent reason. purpose adding gun. chine light of “the princi venerable
word knowingly is to insure that no one
ple
ignorance
generally
the law
is no
would be convicted for an act done because
defense to a criminal charge,”
of mistake or accident or other innocent
Ratzlaf
—
States,
United
U.S. -, -,
reason. The Government
required
is not
(1994) (citations
1274 (A) by, possession or to or transfer weapon knowledge that the required have of, authority the United the by or under Howev- statutory definition.7 the falls within agency or any department or lower States set a have circuits er, majority of the State, department, or a aor the thereof knowledge that only threshold, requiring thereof; political subdivision sense,8 agency, or general in the firearm weapon was- potentially it was knowledge that or mere pos- We lawful regulation.9 (B) transfer or subject to lawful dangerous approach of was lawful- machinegun that common-sense of a the session agree with person requires a date this subsec- before position ly possessed latter investigate to device takes effect. regulated tion possessing rather duties legal or her of his scope (West Supp.1993). 18 U.S.C.A. applica- of the ignorance blindly profess than 1986, 19, May effect on took provision that we find Accordingly, regulations. ble an effort history reflects legislative on intent instruction court’s the district lawfully regis- “possessers [sic] to allow did count the second requirement legal their guns to continue machine tered plain error. constitute to dis- person “a to enable possession,” ma- registered legally of an unwanted pose VII. buy to by permitting the chine H.R.Rep. person.” us, gun from such an a machine argument before During the oral (1986), 4 99-495, Cong., 2d Sess. count 99th the second No. as whether arose issue 1327, 1330. in 1986 U.S.C.C.A.N. reprinted ground that on facially insufficient was 922(o)(l) language of plain collector, on the a machine Based sold Palmieri, a licensed statutorily defined of two presence or relic” as a “curio classified gun that is against trans- 922(o).10 prohibition to the exceptions subject 18 U.S.C. thus in a machine ferring possessing that: provides Section ex- 922(o)(2), adopt a third decline we paragraph (o )(1) provided Except as ma- possession collector’s for a ception any person to (2), unlawful it shall be or relies. curios qualify as guns that chine machinegun. possess transfer - 18 U.S.C. argued that It apply with hot does This subsection 922(b)(4) ATF “Fire- 922(a)(4), and the §§ respect to— 609, Kindred, F.2d 612 773, 931 Williams, v. 9. See United States 872 F.2d States v. United 7. See prove Cir.1991) (“[G]ovemment that (9th must knowledge Cir.1989) that (6th (requiring 777 danger possessed a that he knew automatic); defendant v. States United weapon was alert Cir.1989) type would one (5th that 1248, device of a ous Anderson, 1251 885 F.2d Ross, v. regulation."); States United weapon likelihood knowledge fell within (requiring Cir.1990) ("Once 997, (7th firearm); 1001 F.2d 917 United statutory of a definition cf. device possesses the sort of (D.C.Cir.) he 246, person knows that Harris, 261 959 F.2d v. States regulated, ... extensively serves receipt weapon was knowledge that (requiring person the risk n proscribed),cert. cast statutory on denied, - U.S. -, scheme S.Ct. 113 law.”), cert. evaluating inaccuracy facts 362, 275 L.Ed.2d 121 1078, 1122, denied, 112 111 498 U.S. DeBartolo, (1991); States v. United 1183 L.Ed.2d 769, Mittleider, 835 F.2d v. United States 8. See Cir.1973) ("It enough 312, (1st 482 F.2d 316 knowledge pos Cir.1987) (10th (requiring 774 dealing with a he is knows that prove [defendant] meaning general of the of firearm session term), one would type as alert dangerous of such device 1279, denied, 108 S.Ct. 485 U.S. cert. regulation.”). likelihood Shilling, (1988); States United 99 L.Ed.2d (same), Cir.1987) (4th cert. F.2d that the machine contended Palmieri never denied, 98 L.Ed.2d exempt the restric- States, transferred he F.2d (1988); Morgan v. United 922(o ) status on based its present section Cir.1977) (same); (8th States tion United cf. or in district court Cir.1983) either (11th a curio or relic Gonzalez, F.2d Judge appeal. Hutchinson briefs filed prove ("[Gjovemment does not have *10 waived, though argument even believes weapon posses in his that knew defendant argument oral it at did discuss counsel meaning Palmieri's of the within was a 'firearm' sion required."), posed bench. questions from the response to statute, registration in Accordingly, was he knew or that or Judge does not reach Hutchinson denied, t. cer the issue. decide 79 L.Ed.2d arms Curios & Relics List” conflict with 44.” The directly text preceding this list of 922(o). 922(a)(4) § provides Section weapons that: states that: (a) The Bureau has It shall determined unlawful— that be the fol- lowing National Firearms weapons Act are (4) any person, other than a li- curios or relics as defined in 27 CFR censed importer, manufacturer, licensed 178.11 because of their dates of manufac- dealer, licensed collector, or licensed ture. These National Act weap- Firearms transport in interstate or foreign com- ons, relics, classified as curios or are still merce any device, destructive machine- subject to all the controls under the Na- (as gun defined in section tional Firearms However, Act. licensed Internal 1954), Revenue Code of short- collectors acquire hold dispose or shotgun, barreled or rifle, short-barreled them as curios or subject relics except as specifically by authorized provisions 18 U.S.C. Chapter [which kk public consistent with safety include 18 922(a)] § U.S.C. and 27 CFR and necessity.... Part 178. They still are “firearms”,as 922(a)(4)(West 1976). § 18 U.S.C.A. Section defined in the National Firearms Act and 922(b)(4) provides that: Chapter 44 of Title U.S.C. (b) It shall be any unlawful for licensed (Id.) added.) (emphasis weapon at issue importer, manufacturer, licensed licensed in case, type Chinese gun, machine dealer, or licensed collector to or sell deliv- appears on the section IV list. Although the er— introduction to the “Firearms Curios & Rel- ics List” any person that states weapons section IV destructive de- can
vice,
(as
be
machinegun
transferred
defined in
collectors once
section
registration requirements
5845 of
met,
have
Internal
been
Revenue Code
we
hold
1954),
that
prohibition
against
shotgun,
possessing
short-barreled
or short-
rifle,
transferring a
gun
barreled
machine
except as
in 18
specifically
U.S.C.
au-
922(o)
§
applies even
by
thorized
weapon
when the
Secretary consistent
issue is
classified
public
the ATF
safety
aas
curio or
and necessity....
relic. A transfer of a section IV machine
922(b)(4).
§Id.
922(a)(4)
We find
§
can
gun under the “Firearms Curios & Relics
§
harmonized with
because it envi-
List” is statutorily permitted in a limited
sions a licensed
ability
collector’s
to transport
context, see
922(o)(2)(A),
18 U.S.C.
and the
gun
machine
that he or
lawfully pos-
she
section TV list is potentially
useful
those
sessed
May 19,
before
1986. See id.
lawfully
who
possessed
a machine
before
922(o)(2)(B).
Similarly,
922(b)(4)
bars
May
1986. To the extent it contradicts
even licensed collectors from selling or deliv-
however,
U.S.C.
the statute
ering a
machine
specifically
unless-
au-
trumps the
publication.
ATF
thorized
Secretary.
Although these
statutes refer to the Secretary’s power to
VIII.
approve
transport,
delivery
sale and
sum,
we find that the district court’s
guns,
machine
we
imagine
cannot
jury instructions were sufficient to allow Pal-
Secretary would specifically authorize activi- mieri to raise the defense that his sales to
ty
prohibited
922(o).
that is
§in
We thus Lyman were in
personal
furtherance of his
§§
conclude
924(b)(4)
collection. The definition of
a machine
922(c).11
irreconcilable with
requirement
the intent
possession
Section IV of the “Firearms Curios & Rel-
transfer of a machine gun set forth in the
ics
List” issued
entitled,
the ATF jury
“Na-
charge similarly were not erroneous.
tional
Act Weapons
Firearms
Finally,
Classified As
the district court did not err in re-
Curios
Relics Under 18
Chapter
sponding
question
regarding licens-
Dalton,
United States v.
960 F.2d
weapon
possessed
922(o )’s
Cf.
after
effective
(10th Cir.1992) (holding
impliedly
date);
Kurt,
accord United States v.
988 F.2d
repealed
barring possession
statute
unregis
(9th Cir.1993); Staples,
1276 90-1577, Cong., 90th H.R.Rep. No. lay traffic.” admitting or in firearms selling es for 1968 (1968), in reprinted 7 2d Sess. admitting in error testimony, and its opinion prohibits Act 4410, 4412. The U.S.C.C.A.N. judg- The testimony was harmless. hearsay gun dealer without acting as a person affirmed. will be court the of district ment 922(a)(1), and, license, U.S.C. 18 a dealer’s and transfer- possessing bans as amended dissenting: Judge, COWEN, Circuit 922(o). Pal- machinegun,118 U.S.C. ring a interpretation the case are in this stake At a valid collec- that there mieri claims liberty inter- the statute and important of an Act, and under the Gun Control exception tor addi- Palmieri. James defendant of est He licensed collector. is such a that he adjudication for posed here tion, the issues of violat- be convicted he cannot argues that many gun collectors. to interest of keen position jury accepts his if the ing § interest compelling recognize the Although I and not fide collector bona he is a concerning owner- enforcing strictly laws argues that in He also firearms. in dealer firearms, respectfully I dealing violating in ship convicted cannot be majority as disagree with the or relic dissent, I is a machinegun at issue curio because charged en- of both with respect with to defined Con- Act. the Gun Control exception forcing Gun under collector amended, §§ 921-928 U.S.C. as trol A. charge 1992), (1988 Supp. IV & that even I believe court. also on the licens- district Act focuses Control The Gun to respect with See dealers. majority is correct of firearm controlling if the requires construction, F.Supp. process Reminga, 493 statutory due v. United States Act makes (W.D.Mich.1980). The be dismissed. against Palmieri Count “except a licensed any person unlawful manufacturer, or licensed importer, I. import- business engage in dealer to presents is Palmieri question central The firearms, or dealing manufacturing, or ing, refusing court erred the district whether ship, trans- business of such in the course the fire- present evidence him allow in interstate any firearm or receive port, jury, and exception to the collector arm 922(a)(1). 18 U.S.C. foreign commerce.” this jury on fully refusing instruct person “any “dealer” as defines The Act deter- Accordingly, the court must theory. selling firearms in the business engaged excep- gun collector is a whether there mine retail.” at wholesale ammunition evidence tion, was record there and whether defines 921(a)(ll). further The Act U.S.C. position. support of his by Palmieri offered business,” applied to when “engaged (3d Paolello, 951 F.2d meaning firearms, as dealer in Cir.1991). collec- put forth a If attention, time, devotes who person dis- defense, examine must then tor we regular as a dealing in firearms labor to assess a whole court’s instructions trict princi- or business of trade course adequately presented they whether profit livelihood objective of pal theory. Unit- Id. See also jury the defense and resale purchase repetitive through the (3d 57, 62 Turley, F.2d ed States not include firearms, term shall but Cir.1989). sales, ex- occasional who makes person firearms purchases changes, or II. or for collection personal of a enhancement of his all or sells hobby, or who in violent firearms escalating use of The of firearms. personal collection Con- the Gun Congress to enact led crimes 921(a)(21)(C). Id amended, U.S.C. Act of trol objective principal “with the “strengthen phrase (the Act), in order to §§ 921-928 mean profit” is defined livelihood firearms of interstate regulation Federal throughout 921(a)(23), do so I will also gun." Be- spelling "machine preferred 1. The dissent. "machinegun,” see Congress used cause *12 underlying the intent disposi- the sale or lawful anyone possess an antique fire- tion firearms predominantly of one of by arm2 exempting antique firearms from obtaining pecuniary gain, livelihood and as coverage the Gun Control see 18 opposed intents, to other improv- 921(a)(3). as U.S.C. effect, anyone can liquidating personal or collect, firearms col- possess and antique transfer fire- Provided, proof lection: profit arms, That even if such firearms fall within some required shall not be as person to a who definition,. other such as that for machine- engages regular in the repetitive pur- guns. disposition chase and for crimi- firearms Second, Congress established a collector purposes nal or terrorism. exception under the Act which allows col- 921(a)(22).
Id. lector to transact in certain firearms. The A reading provisions fair of these leads to Act defines “collector” “any as person who the conclusion that to fall within the defini- acquires, holds, or disposes of firearms as “dealer,” tion of the seller of firearms must relics, curios or as the Secretary by shall have dealt firearms quantity substantial regulation 921(a)(13). define.” 18 U.S.C. frequency, sum, in a manner which Nowhere else in the Congress Act did specif- fairly can be characterized as regular ically (as state what opposed collectors course of trade or business. licensed collectors who hold a federal collec- license) tor’s may may or However, not do.
B. it is Congress clear that intended to allow collectors buy and sell challenges curios his and relics3 conviction on through transactions, by intrastate long Count 1 so claiming that gun there is a as activity stops at exception the level of a collector hobby ban on dealing does not rise to that of license, regular without a dealer’s course of claims the trade. The Act exception explicitly benefit of the bans because interstate is such a transactions with exceptions certain collector. li- Accordingly, we must examine the censed dealers and collectors, status licensed collector under the but Gun Con does not ban trol intrastate Act. transactions. See 18 922. enacting When the Gun Control Act of 1968, Congress did not intend to ban legislative The history statutory and the collecting hobby. Congress as a announced support scheme conclusion collectors that “[g]un could collectors continue their can collect curios and relics within their hobby.” H.R.Rep. 90-1577, No. supra, at home Congress state. “[g]un declared that reprinted in 1968 U.S.C.C.A.N.’at 4415. To collectors could hobby.” continue their possible, make this Congress essentially H.R.Rep. 90-1577, supra, No. reprinted adopted three measures. The made it first U.S.C.C.A.N. at 4415. The Act crim- Antique 2. firearms are defined as (c)Any those-manufac- other firearms which derive a substan- 921(a)(16). tured or before 1898. 18 U.S.C. tial of their monetary value from fact novel, they rare, bizarre, are because Treasury has defined "curios their association with figure, some historical and relics” as: period, or qualification event. Proof of of a special Firearms which are of interest col- particular category may firearm under this be quality reason lectors of some other than is present established evidence of value and associated firearms sporting intended for evidence that like firearms not available use weapons. offensive or defensive To except items, as collector's or that the value of recognized relics, as curios or firearms like ordinary firearms available in commercial fall must within following catego- one of the channels substantially less. ries: 27 C.F.R. 178.11 specifically, More (a) Firearms which were manufactured at Alcohol, the Bureau of Tobacco and Firearms years date, prior least 50 current but not (ATF)publishes relics, thereof; list of including replicas (b) curios and nam- ing specific ATF, firearms as Firearms which curios relics. See are certified the curator State, municipal, (1972- of a Firearms Curios and Relics List Federal museum 1989), (1990 ed.), which exhibits firearms to be ATF App. curios or relics P. 5300.11 618-27. interest; museum dealers, import- collectors, licensed regular dealing in firearms
inalizes *13 manufacturers, cer- license, without ers, and licensed dealer’s a without of trade course in forth 18 U.S.C. set restrictions 18 U.S.C. tain banning all sales. than rather 922(b). sell or can also hobby excep- licensed collector § A out a 922(a). carves Act § The n person machineguns to a defini- curio of trade” deliver “regular course to the tion if the Secre- to en- through sales transactions occasional intrastate stating that tion 922(b)(4). § are collection Id. personal tary a so authorizes. liquidate hance or 18 U.S.C. trade. See of a course not such by the Secre- promulgated regulation The in- of several 921(a)(21)(C). is one § This the Gun Control tary, who administers accom- specifically Act which stances in of a li- privileges succinctly summarizes collectors. modates censed collector: is also buttressed interpretation shall, subject to the license collector’s] [A Alcohol, Bureau of of applicable and other of the Act provisions (ATF), is Firearms and Tobacco law, the licensee entitle provisions administering the Control Gun charged with receive, curios acquire and ship, transport, Secretary, see by the delegation through Act foreign or com- interstate in and relics au- in turn receives Pt. who 27 C.F.R. disposition of curios merce, to make and § 926. see 18 U.S.C. Congress, thority from foreign com- in interstate and relics explicitly ATF publication, In an official licensed under merce, any person other federally person need be “[a] states that period part, for provisions of this ATF, or relies.” collect curios licensed to the license. stated on (1972- List Relics Curios Firearms 178.41(c) (1993): § 27 C.F.R. (herein- (1990 ed.) at 2 1989), ATF P. 5300.11 regulations and statutory provisions, The List), at 620. App. after ATF clearly that history indicate legislative adopted Congress third measure The exceptions are collector licensed collector and licensing system for a was to establish Control pervade the Gun into written collec- “licensed collectors, to authorize relics are They curios and apply when Act. transfers engage interstate tors” transaction, long as the so subject of the “li- defined Congress first relies. curios and a level that not rise to activities do collector’s any “licensed collector censed collector” licensing the Act. under requires further Gun Control [the provisions under the 921(a)(13). Any person § U.S.C. Act].” 18 C. may apply collector a desiring to be licensed prohibition exception to the The collector license, which a Secretary for such to the a without a dealer against acting as in curios transactions only applies to license 922(a)(1) under 18 U.S.C. proper license 923(b). 18 U.S.C. and relics. engaged in a has If a collector not absolute. may en- presumably collector A licensed in curios transactions quantity of substantial non-licensed gage in activities dealer, who relics, may deemed a addition, li- may conduct. collector license. a dealer’s must obtain engage in interstate may censed collector whole, the three measures aas Considered under and relics in curios transactions unquestionably lead discussed above 922(a)(2) transporting (shipping or a non-licensed collector conclusion foreign com- interstate into firearms transac- and conduct and relics collect curios 922(a)(3) from (receiving merce), firearms curios and are listed as 922(a)(4) tions firearms de- out-of-state), (transporting from person awith by relics machineguns into inter- structive devices state, running home without the collector’s commerce), and foreign state or 922(a)(1), if trans- such afoul of U.S.C. out- person from to a (transferring firearms regular course not amount actions do of-state). prohibited transactions These permitted to do A trade. licensed collector collector’s riot have a who for a does collector can a non-licensed collector transactions, everything that licensed intrastate license. For addition, engage interstate and, with other may also trade collectors relies, long fore, transactions curios and so acquisitions the- dispositions regular do not amount transactions to a curios and relics bring collector course of If the trade. finds that an collector within the definition of a manu- merely collector, individual is facturer, or a licensed- importer, dealer[,] he shall collector, person may be convicted qualify as such. acting as a dealer without license. 178.41(d) (1993). 27 C.F.R. change Although statutory provisions neither the status a collector to a dealer is one of *14 regulations nor specifically the that address quantity degree. and Having a collector’s explicitly the status of a collector state the license necessarily does not preclude one number of transactions a collector or li-a being from deemed deáler without a deal- may engage censed collector in without er’s license. crossing gun the line from collector to Accordingly, theory of a firearm collec- dealer, it inappropriate would to contend tor or licensed collector exception to 18 dealing in completely curios relics is 922(a)(1) legally sound. This is exempt prohibition against from the though so even a collector is necessarily not dealing without a license. The Act does not completely 922(a)(1). exempt There explicit contain an complete exemption may be where a may situations properly for curios complete and relics like the exemp- conclude that a person with a collector’s li- antique tion for Congress firearms. intend- actually cense is a dealer without dealer’s permit gun ed to collecting hobby as a rather license. large growth Indeed, than a industry. explicit statutory exception regular to the D. permits course of trade definition only occa- sional sales for the liqui- enhancement or Palmieri was convicted on Count for personal dation of collections. 18 U.S.C. possessing transferring machinegun. 921(a)(21)(C). words, collector, In other machinegun question by was listed engaging transactions, in numerous can ATF its publication own official as a curio cross the line and become a dealer. The or relic. This conviction cannot stand if the Secretary’s regulation makes this clear: collector or exception licensed collector ap- A collector’s license does not authorize the plies prohibition against possessing engage collector to required a business transferring machineguns under 18 Act_
to be
922(o).4
under the
There- U.S.C.
This section states:
Judge
join
goes
Hutchinson declines to
Part
sufficiency
VII of
to the
of the indictment. There
Judge Nygaard’s opinion.
Judge
Part VII of
question.
is no waiver as
such a
See Menna v.
Nygaard's opinion
York,
61,
is therefore
that of his own
New
62 & n.
alone,
Hutchinson,
not that of the
Judge
court.
(1975)
curiam).
242 & n.
(per
Section of an scheme to the extent that the law sweeping tation more than then the construction place machineguns allowed to be set collected as forth above. This broad curios and relies. prohibition would hold that is absolute even a thus collector or collector fact, reading broad necessitates prohibited would possessing implied repeal an only general of not transferring machinegun although such a scheme, collecting but also two subsections- firearm is classified as a curio or relic specifically dealing machineguns, Secretary, the collector cannot claim (b)(4). 922(a)(4), general With the specific exceptions contained qualification they only can conduct *16 922(o)(2)(A) (B). § specific statutory The relics, 923(b), § transactions in curios and see 922(o) exceptions §in apply contained do not licensed specifically are collectors authorized to a normal collector or collector. licensed transport to machineguns in interstate and Fairly read, exception in section commerce, foreign' 922(a)(4), § buy and to 922(o)(2)(A)applies only to the United States machineguns and sell within a state political the states and their subdivisions authorizes, 922(b)(4). Secretary § so ATF agents. and authority” The “under the lan many has machineguns classified as curios guage appear does not to include the licens and relies which acquire collectors ing system. Warner, See United States v. dispose appropriate an transaction. (10th 1378, Cir.1993) F.3d List, 29, supra, See ATF App. at 626. (§ 922(o)(2)(A) permits only possession of machineguns by agents federal or state act Judge Nygaard attempts to harmonize his — denied, capacity), an official cert. 922(o) reading 922(a)(4), (b)(4) § § with -, U.S. 922(a)(4) L.Ed.2d 405 stating “[§ li- ] envisions a 922(o)(2)(B) Section only relates to ability transport censed collector’s to a ma- Therefore, of initial possession.6 time lawfully chine possessed that he or she runs, argument there is no collector May before 1986 [the effective date of 922(o) exception expressly licensed collector ],” 1274-75, § Maj.Op. written “we 922(o). or fairly §in inferred imagine This is the cannot spe- that the would pursuant relics,” 5. authority ATF, to its ATF has removed not “curios as defined see antique certain coverage firearms App. though exemption at 625. Even accord- both the National Firearms Act Gun antique ed an curio, is broader than that a accorded Control and listed those items Section machinegun the fact that the at issue in IIIA of the ATF list. The fact that the machine- antique category this case not fall within does gun at issue in this case does not fall within the machinegun does not its affect curio status. The weapons category of removed from the National (Section IV) part is within another of the curios Act Firearms does not affect Palmieri’s claim. and relics list. First, requires primar- the National Firearms Act ily register that owners their firearms and a pay " appears only tax on exception apply them. It is 6. This different from the Gun Con- to those to Furthermore, trol Act. those possessed removed lawfully machinegun firearms who a before from tion National Firearms Act constitute Sec- apply effective date. It does not seem to to IIIA, only which is of the ATF curios any .machineguns collectors who did not own specifically, and relics list. More this section day. of that antiques, technically a list contains which Inc., Council, Resources prohibited activity that is cifically authorize Defense (1984)). 81 L.Ed.2d attempt fails. 922(o),” id. §in § also reading of Judge Nygaard’s 922(a)(4), Ny- Judge §to respect With 922(b), §of paragraph with the last conflicts private citizen whether not ask gaard does federal “trading between I term which shall (or machinegun trans- possess) can receive 922(b) first provision.” Section licensees possessed it who by an him owner ported to on federal licen- places certain restrictions Ny- Judge Under May 1986. before they with non-licensees. deal sees when posses- private reading of gaard’s (b)(2) (com- 922(b)(1) limit), (minimum age machineguns are cate- transfer sion and law), (b)(3) (no sale local pliance state with did not possession if the gorically banned (b)(4) authori- (specific persons), out-of-state After this May place before take The last Secretary required). zation of the may buy or receive day, private person no 922(b) re- that these states paragraph possessed who owner machinegun from an be- apply not transactions strictions “shall may sell although the latter day before manufac- importers, licensed licensed tween be able would therefore it. An owner dealers, turers, licensed collec- (which pos- machineguns transport (b)(4) apply Paragraph shall [ ] tors. com- day) into interstate sessed before organization delivery any research sale or transferring it to purpose of merce for 922(b). Secretary.” designated latter citizen because private another licensees “trading between Obviously, this Perhaps it. to receive not be able would to trade licensees allows federal provision” machinegun that a Nygaard envisions Judge themselves and machineguns between curio stays in commerce placed in the stream organizations. designated research forever, line transportation the interstate Accordingly, 922(o)(2)(A)permits reaching a destination. without it is true While interplay reading of the machinegun Judge Nygaard’s transfer a an owner to 922(a)(4) reaches instrumentality, between or state federal unacceptable. totally transporting machine- result cannot be limited *17 922(a)(4) per- entity. Section gun to such an 922(b)(4), Secretary § respect to With pur- transporting machineguns for mits machinegun at specifically authorized has lan- The engaging in commerce. pose of posses- available ease to be issue in this may licensees guage federal states it in his official by placing transfer sion and machinegun] interstate “transport [a list, curios and relics the ATF publication, 922(a)(4). lan- Such foreign § commerce.” transferred, so can by stating that it be it any attempt to read restric- guage defies complies with collector long the licensed as equate might try if to tively even one because intra- requirements, “either registration “transport interstate commerce” the term licensed collectors to state or interstate instru- or state “transport to federal with List, 3; App. supra, at ATF ATF 4.” Form “transport say mentality,” no one would “imagina- was not authorization at 621. This “transport foreign also means commerce” intimates, tion,” but was Judge Nygaard as instrumentality.” “For- or state to a federal pur- specific published express for the foreign commerce. eign commerce” means gun collec- private giving guidance to pose of 922(b)(4) § limited to sales be Neither can individual- though is not an this tors. Even governmental instrumentalities because authorization, specific authoriza- it is a ized Secretary specifically transfers authorized col- of citizens —the tion for class ATF collectors.” made other “licensed be construed Obviously, Secretary lectors. 3; List, Nor can supra, App. at 621. at him to do authorizing Act the Gun Control provision” licensees “trading federal between what the Nygaard contends Judge so. permits trades provision so limited. 922(o). §by Secretary prohibited did licensees, or oth- private between all federal However, statutory provisions because the erwise. ambiguous, confusing and espoused interpretation broad at deference. See entitled infra with Nygaard also conflict U.S.A., Judge Chevron, Natural Inc. v. (discussing (5th 46.06, 1992) (citations statutory exemption antique § firearms from at 119-20 ed. omitted). (a)(16). 921(a)(3), § the Act. exempts antique The Gun Control Act fire- If a holistic statutory consideration of the coverage by making arms from its an context Congress’ does not reveal intent to explicit separate exemption, by exempt- but ban, provide an absolute and total we need
ing them from the
of “firearm” in
definition
922(o).
reading
not accord such a
Con-
921(a)(3).
antique
But
firearms axe not
gress
indicate,
did not
in statutory
either
specifically exempted from the definition of
language
legislative history,
an intent to
“machinegun.”
that,
repeal
may argue
modify
Thus one
if
provisions
other
of the Gun
922(o). Rather,
antique
adding
Control Act when
machinegun,
an
is also a
under the
only
it
broad,
aimed to curb the use of
machineguns
absolutist
drug
“racketeers and
traffickers for in-
legally possess
antique
one cannot
ma-
timidation,
protection
drugs
murder and
chinegun,
legally
if
possessed
he had not
proceeds
H.R.Rep.
and the
of crime.”
No.
922(o)
effect,
before
went
into
because
supra,
reprinted
in 1986
922(o)
99—
specific exemp-
does not contain a
U.S.C.C.A.N. at 1330.
antique
tion for
an
firearm.
Second,
subject,
“[statutes
for the same
922(o)
Reading §
prohibition
as a broad
conflict,
although
apparent
are construed
applicable to
collectors
licensed collec
harmony
reasonably possible.”
to be in
if
2B
dealing
tors
machineguns
curio and relic
51.02,
Singer, supra, §
at 122. One cardinal
significantly
provisions
conflicts
with other
statutory
rule of
“repeals
construction is that
choice,
the Gun Control Act. Faced with a
by implication are not favored.”
Morton
reading
we should choose a
that Mancari,
535, 549-50,
417 U.S.
94 S.Ct.
permits a collector or licensed collector ex
(1974) (internal
2482, 41
quota-
L.Ed.2d 290
ception. Several factors militate in favor of
omitted).
tion marks and
An
citations
im-
First,
interpretation.
an
plied repeal
permitted
construction
only
amendment
the Gun Control Act must be
seemingly conflicting
when the
statutes are
construed with the Act as a whole rather
absolutely
irreconcilable. Id. at
than in
“Statutory
isolation.
construction is
at 2482. See also Ruckelshaus v. Monsanto
and,
minimum,
a holistic endeavor ...
at a
Co.,
986, 1018,104
text,
must account for a statute’s full
lan
jury lawfully that a collector cannot make jury, the district court instructed that the sales, any is, with or without a license. This jury everything “need not about under know incorrect, clearly again, since even without a what a person circumstances could or could gun permitted collector’s license a collector is do.” Id. The jury was never told that to make certain transactions. intrastate an individual does not need a dealer’s license jury of the completely pre- instruction to sell firearms under all circumstances. If jury considering the cluded whether jury properly instructed, was it would fell within excep- collector gun equipped have been judgment to make a guns tion when sold the issue this whether Palmieri was merely dealer dealer, case. collector. As a he would have been required dealer, to be licensed as a while as a response The of the court to district collector, he did not need dealer’s license jury’s question last before the verdict was for intrastate If properly sales. it had been returned was an even more serious misstate- instructed, jury may well have concluded law, ment of the and a substantial source for limited transactions Palmieri made jury you confusion. The “Do asked: need a bring were sufficient to him within the license to sell firearms under all circum- dealer, of a particularly definition firearm App. question stances?” at 539. The indi- since record reflects activities of an jury puzzled by cates that the was the differ- infrequent seller who five curio sold firearms quantity ence in between the number of period in three transactions eight over a engage transactions that a collector can May months between October 1991 and the number of transactions which would only buyer and with one involved. Because one a dealer in make firearms. The term jury charge gun did not reflect the collec- question “license” in jury from the clear- tor defense to Count we should reverse the ly refers to the firearms dealer’s license. conviction on Count and remand for a new trial. proper jury question answer to the respect charge With to the in Count “no,” because, resounding should have been a alleging jury a violation of § in- license, without a dealer’s a collector any gun struction never mentioned collector without a permit- federal collector’s license is exception charge. App. to such a at 524r- sales; ted to make certain intrastate a collec- essentially 25. The district court instructed may, tor with a federal collector’s license jury that in order to convict Palmieri it addition, make certain interstate sales. The beyond must find merely doubt reasonable court, however, responded: district “the possessed defendant and trans- give you best answer I [T]he can to this is machinegun,” ferred id. at and that your is not concern as a jury. knowingly,” “the defendant acted id. The everything You do not need to know charge about improper to the since it under what person circumstances a could to set failed forth directions or instruc- or could not you do this.... I refer exception tions on the collector you instruction that 922(o). received ... which is I Ordinarily, require this would you instructed as a matter of law that However, remand for a new trial. because possessed collector’s license exception defen- collector does *22 1288 transactions, convicting citizen for by exercis- the number of depend not on State — clearly had privilege which the State only clear that the record is and since the 426, to him.” Id. at 79 is, fact, told him was available a curio
machinegun at issue
later,
years
the Su-
S.Ct. at 1260. Several
2
relic,
prove
cannot
Count
government
may
preme
again held that defendants
Thus,
Court
we should direct
law.
as a matter of
demonstrating near a
convicted for
be
2 rather
to dismiss Count
the district court
pres-
police chief in the
courthouse when the
a new trial.
than remand for
Mayor
and the
told them
ence of the Sheriff
permissible to do so. Cox v. Louisi-
it was
V.
568-72,
ana,
482-
S.Ct.
interprets
as an
Judge Nygaard
13 L.Ed.2d
possession and transfer
absolute ban on
cases demonstrate that when
de-
These
machinegun
is a
any machinegun, even
by assurances of an official
fendant is misled
relic,
exceptions
limited
with the
curio or
law that
the conduct in
interpreter of the
explicit
language
by the
provided
he cannot be subse-
dispute
permissible,
(B)
922(o)(2)(A)
are not rele
quently
for that
conduct.
prosecuted
same
It
becomes nec
ease.
therefore
vant
Otherwise, the law would sanction indefensi-
process
due
essary
address the serious
by
government.
entrapment
This
ble
by
ATF offi
in this case
problem posed
greater importance
rule takes on
when
maehineguns which are
position that
cial
complex
at issue is as
as the Gun Control
law
may
pos
as curios or relies
classified
Act.
hand,
On the one
sessed and transferred.
administrator, and therefore
clearly
protection
within the
Palmieri is
expositor
Raley
published
of the Gun Control
ATF has
a list of
an official
rule.
they
buy
embodying
collectors
can
specifically advises
its official inter-
curios and relics
maehineguns
they
if
“machine-
pretation
and sell certain
of the interface between
relics,”
specifically
of curios and relics. On the
gun”
the official list
and “curios and
can,
hand,
Attorney
machinegun
the United States
curios can be
other
stated that these
did,
anyone
List,
3, 29;
prosecute
for
supra,
and in this case
ATF
at
transferred. See
any machinegun,
dispute
even if it' is on
possessing
App. at
There is no
626.
ATF list of curios and relies.
machinegun
the official
at issue
this case is con-
Palmieri,
others,
questions
serious
of affairs raises
like all
state
tained
that list.
by
Secretary’s
publi-
fairness. Even we have
of notice and
was advised
official
than
power
possess
broader
Con
to read
cation that he can
transfer the
does,
intended,
Judge Nygaard
we
gress
machinegun
at issue in this case. His convic-
convic
possessing
Palmieri’s
must nevertheless reverse-
tion on Count’
and transfer-
machinegun
ring
tion on Count
must be set aside.
Finally,
Judge Nygaard made
generally not
before
Although a mistake of law is
charge,
holding,
known his
it was
no means clear
a criminal
the law rec-
an excuse to
reading
(per-
prosecute
that Palmieri’s
of the statute
ognizes
government should not
possess and to
mitting
an official inter-
him to
transfer
is misled
citizen who
Ohio,
machinegun that is a curio or relic on the
preter
Raley
360 U.S.
of the law.
list)
(1959),
interpretation of
the ATF
was a mistaken
Judge Nygaard attempts
remedy
Maj.Op.
before
1986.”
at 1275. I
problem by asserting
pointed
Judge Nygaard’s
constitutional
that the
have
out that
read-
922(o)
machinegun
that the
private
did
state
would ban a
citizen
Judge
at issue is transferrable. The reason
receiving machinegun
May
from
after
Nygaard gives
ATF
is that
indicated that the
Thus,
supra at
1986. See
1281.
under
maehineguns
only
in the list can
be trans-
Judge Nygaard’s reading of
Sec-
subject
ferred
absolute ban
ATF
tion IV of the
list could not be
machinegun possession
and transfer save
private
use at all so far as
transfers are
machinegun
possessed
when a
before
legal
concerned. No
could take
transaction
May
entirely unpersuasive.
1986. This is
though
place because even
one side of the
transfer a ma-
transaction —the seller —could
Quoting paragraph
ATF curios
buyer
chinegun,
other side—the
list, Judge Nygaard
and relies
states that
—could
possess
private
it. But
trans-
only
receive
permitted
licensed collectors are
to “ac-
exactly
ATF
what the
authorized.
quire[,]
dispose
weapons
of them
fers
[the
hold
List,
3;
supra,
App. at
listed in
as curios or relies sub-
ATF
IV]
Section
See
a statute would raise serious
curios
struction of
IV of the
only use
Section
indicates,
problems,
con-
list,
the Court will
Judge Nygaard
is
constitutional
and relics
problems
the statute to avoid
to be made to
strue
permits a transfer
that it
plainly'contrary
instrumentality
unless such construction
under
governmental
Congress”). Judge Nygaard
922(o)(2)(A).
(citing to the intent of
Maj.Op. at 1275
Instead,
922(o)(2)(A)).
Assuming
Judge
does not heed this admonition.
correct,
as an
ban and thus
reads
absolute
list
Nygaard is
*24
922(o)(2)(A)
useless,
implicitly
that
concludes
because under
still
(that
authority in
through ATF has exceeded its
or relic
machinegun need not be a curio
list)
machineguns
Judge
listing the
as curios.
is,
of the
to be
being listed in Section IV
“to
agen- Nygaard thus states that
the extent
governmental
to a
eligible for transfer
ATF curios and relics
(antique,
list]
IV the
Any machinegun
[Section
curio
cy.
922(o), however,
new)
contradicts 18 U.S.C.
may
transferred to the federal
be
brand
922(o)(2)(A).
Maj.
publication.”
trumps
the ATF
statute
government under
or state
probably Op.
ATF
at 1275.
expert agency such as the
An
promulgated a list that does
not have
would
correct,
Judge Nygaard
law
Even if
is
case
nothing.
analyzed
mandates that we dismiss
above
(the machinegun charge)
2
since Pal-
unambiguous pronouncement, Count
By
and
clear
by
espoused by
misled ATF. Under the hold
rejected
position
mieri was
ATF has
Ohio,
423,
ing Raley
v.
360 U.S.
79
Nygaard.
specifically
ATF
stated
S.Ct.
Judge
(1959),
1257,
v. Louisi
registration requirements
machineguns hobby as a or for historical and VII. purposes, educational They at risk. most likely position will not inbe to claim the reasons, foregoing For the I dissent. I explicit exceptions to the absolute machine- would reverse the conviction on both counts 922(o)(2A)(A) provided ban as and remand the case for new trial on Count (B). In order to avoid any further mislead- 1 and direct that the district court dismiss collectors, those who are the court 2. Count explicitly nullify part should of Section IV of the ATF curios relics list which SUR PETITION FOR REHEARING machineguns, contains and thwart the ATF from placing public the list in May circulation. SLOVITER, Present: Judge, Chief BECKER, STAPLETON, MANSMANN, VI. GREENBERG, HUTCHINSON, SCIRICA, support conviction, To Palmieri’s gov- COWEN, NYGAARD, LEWIS, ROTH and argues that ernment also violated Judges. Circuit C.F.R. 178.94 and registration require- ments the National Firearms Act. petition rehearing What by appel- filed bearing any violation Palmieri of 27 in the having lant above-entitled case been C.F.R. 178.94 or the National judges Firearms submitted to participated who Act has on charges that Palmieri was the decision of this and to all court the other explained by convicted is not govern- judges circuit regu- available of the circuit in ment. Nor attempted could explanation service, active judge lar and no who con- since charged solely made Palmieri was having curred the decision asked for re- (o). violating § hearing, He was majority judges and a of the circuit pointed I supra Judge As out in Accordingly, note Hutch- the court's affirmance of Palmieri’s join Judge Ny- inson does not gaard's opinion, by-product in Part VII of conviction is the of two different the- judgment but would judges comprising affirm majority. ories two theory. Judge of the district court on a requires apply waiver This fact alone that we the rule of Nygaard theory. does not lenity concur in this waiver in favor of Palmieri. regular active service the circuit rehearing by the court in having voted for
bane, rehearing is denied. petition for Nancy YONADI and
Vincent Yonadi, Appellants, INTERNAL COMMISSIONER OF SERVICE, REVENUE YONADI, E. Mollie *26 INTERNAL OF COMMISSIONER SERVICE, REVENUE Appellant, Nancy Yonadi Vincent Yonadi 93-7353), (Appellants in No. Revenue Commissioner of Internal (Appellant in No. 93- Service 7354). Nos. 93-7353 & 93-7354. Appeals, United States Court Third Circuit. Argued 1994. Jan. April Decided