UNITED STATES OF AMERICA, Plаintiff-Appellee, v. THOMAS F. KUZMA, Defendant-Appellant.
No. 18-10042
United States Court of Appeals for the Ninth Circuit
August 3, 2020
D.C. No. 4:17-cr-00855-RM-JR-2. Appeal from the United States District Court for the District of Arizona, Rosemary Márquez, District Judge, Presiding. Argued and Submitted October 4, 2019, San Francisco, California. Before: Richard A. Paez and Daniel P. Collins, Circuit Judges, and Jennifer Choe-Groves,* Judge.
FOR PUBLICATION
OPINION
Opinion by Judge Collins
* The Honorable Jennifer Choe-Groves, Judge for the United States Court of International Trade, sitting by designation.
SUMMARY**
Criminal Law
The panel affirmed in part the district court‘s judgment in a case in which the defendant was convicted of possession of a machinegun (
The panel rejected the defendant‘s contention that the statutory definition of “machinegun” underlying both counts is unconstitutionally vague. Considering the proper construction of the challenged statutory phrase, the panel concluded that a weapon is “designed to shoot . . . automatically” as required in
Finding no plain error, the panel rejected the defendant‘s challenge to the particular definition of “machinegun” that was used in the jury instructions in this case, and concluded that the defendant had fair notice that a particular exhibit qualified as such a device based on its configuration of objective features. The panel therefore rejected the defendant‘s as-applied vagueness challenge, as well as his contention that the evidence was insufficient to sustain his convictions.
As to the defendant‘s challenges that apply only to his conviction for possession of an unregistered firearm under
Because the
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
COUNSEL
Davina T. Chen (argued), Glendale, California, for Defendant-Appellant.
Angela W. Woolridge (argued), Assistant United States Attorney; Robert L. Miskell, Appellate Chief; United States Attorney‘s Office, Tucson, Arizona; for Plaintiff-Appellee.
COLLINS, Circuit Judge:
Dеfendant-Appellant Thomas Kuzma appeals his convictions for possession of a machinegun in violation of
I
A
Thomas Kuzma was the manager of D&D Sales and Manufacturing (“D&D“), a supplier of gun parts in Tucson, Arizona. D&D operated out of a residence owned by its co-founder, Donald Tatom, and at all relevant times, Kuzma lived alone in that residence. After an investigation suggested that D&D might be involved with unlawful machineguns, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF“) obtained a sеarch warrant for D&D‘s premises in early 2017. The search warrant was executed on March 21, 2017, and during the search, ATF agents found an “Uzi-type” receiver on a shelf in the garage, which functioned as D&D‘s workshop.1 The receiver was later marked as Government‘s Exhibit 12 at trial, and we therefore will refer to it as “Exhibit 12.” As shown in a photograph attached to the report of the Government‘s firearms expert (William Swift), Exhibit 12 looked like this at the time ATF seized it:
In the condition in which it was found, Exhibit 12 could not shoot at all, much less shoot automatically.2 The device was missing certain components needed to make it operable, including the bolt, some springs,
Exhibit 12 lacked a “blocking bar,” which is a piece of metal that is welded into the receiver of a semi-automatic firearm to prevеnt an unmodified machinegun bolt from
being used. A blocking bar, however, is not a foolproof method for preventing automatic operation. As Swift testified at trial, there are machinegun bolts that “have a slot machined into them,” which allows them to fit in a gun with a blocking bar. Nonetheless, ATF has generally taken the position that a receiver with a blocking bar will not be deemed to be a machinegun. The following photograph from Swift‘s report shows where the holes were on Exhibit 12 for installing a blocking bar:
About a month after Exhibit 12 was seized, Swift tested it at an ATF facility. Using parts from that facility, Swift added the missing features needed to make Exhibit 12 an operable weapon. He installed an automatic bolt, as well as a machinegun
Swift tested the fully assembled weapon, and it fired automatically. As shown in the photograph accompanying Swift‘s report, Exhibit 12 looked like this when it was fully assembled (the arrow identifies the position of the device‘s selector switch, which was set for automatic operation):
During and after the search, Kuzma made several statements to ATF investigators. To facilitate the execution of the search warrant at D&D, Agent Alexander Tisch used a ruse to get Kuzma to meet him about a quarter-mile away from the property. When Kuzma arrived, Tisch asked him to sit in Tisch‘s vehicle so that he could explain what was going to happen. Tisch stated that the ATF agents would be looking for machineguns, and Kuzma replied that they would find one on
The next day, Tisch again spoke with Kuzma, this time by phone. Kuzma again stated that Exhibit 12 was a machinegun, and he added that it had not had a blocking bar for “[a]bout a month.” Tisch spoke again with Kuzma in person on March 29, and Kuzma admitted that, although Donald Tatom had asked him to get the sort of license that would cover certain special types of firearms (such as machineguns), Kuzma had “just forgot[ten]” to do that.
B
Kuzma was indicted on two counts based on his possession of Exhibit 12 at D&D. Specifically, Kuzma was charged with possession of a “machinegun” in violation of
In attempting to demonstrate at trial that Exhibit 12 was a “machinegun” for purposes of
Kuzma testified in his own defense at trial. He stated that he knew that ATF considered Exhibit 12 to be a machinegun due to the lack of a blocking bar, but he claimed that in the initial interview with Agent Tisch, he had said that Exhibit 12 was not a machinegun. On cross-examination, however, Kuzma acknowledged that he “[a]pparently . . . did” tell Tisch that Exhibit 12 was a machinegun, but he stated that he “didn‘t recall that until [he] read the transcript” of that interview.
Kuzma further claimed that a September 23, 2005 letter from ATF to Donald Tatom “exempt[ed] us from that“—i.e., ATF‘s view that Uzi-type receivers without blocking bars were machineguns—“until we sell these to the public.” That letter explained that a particular “Uzi-type receiver stamping”3 submitted by D&D to
equivalent to the stamping discussed in the September 2005 letter and therefore, under his reading of that letter, such a device is “not a machine gun until it was sold to the public.”
Kuzma acknowledged that D&D was never licensed to manufacture NFA firearms, a category that includes machineguns. He and other witnesses at trial referred to the necessary license as an “SOT,” after the Special Occupational Tax that accompanies such licensing. He claimed that he did not think that he needed such a license for the “testing” that he was doing, which in his view did not involve “manufacturing.”4 In this regard, Kuzma insisted that, when he told Timothy Sink, a D&D employee, to remove the blocking bar from Exhibit 12, he did so only to enable D&D to test bolts. Kuzma insisted that Exhibit 12 “was never intended for anything but shop testing.” Kuzma testified that he told Sink to put the blocking bar back into the receiver after the testing was completed, but Sink failed to do so.
As to whether Exhibit 12 had been registered in the NFRTR, Kuzma testified that he “didn‘t register it because it wasn‘t a machine gun.”
Relying on the September 2005 letter, Kuzma requested a jury instruction on the affirmative defense of entrapment by estoppel. In a written pre-trial order, however, the district court had concluded that there was insufficient evidence to permit such a defense because the device discussed in that
letter was not the same as Exhibit 12. After the close of the evidence at trial, the district court again reached the same conclusion, and the court therefore denied the requested instruction.5
After less than two hours of deliberation, the jury returned a verdict of guilty on both counts. Both before and after the verdict, Kuzma moved for a judgment of acquittal on the ground that, inter alia, there was insufficient evidence that Exhibit 12 was a machinegun, but the district court denied these motions.
At sentencing, Kuzma argued that he could only be sentenced on one of the two counts because the
Kuzma timely appealed, and we have jurisdiction under
II
Kuzma‘s primary contention on appeal is that one aspect of the statutory definition of “machinegun” is unconstitutionally vague аnd that, because both counts rest on that same definition, his convictions must be reversed.6
Alternatively, Kuzma
A
The Due Process Clause prohibits the Government from “taking away someone‘s life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.” Johnson v. United States, 576 U.S. 591, 135 S. Ct. 2551, 2556 (2015). In assessing whether a statute is impermissibly vague, “the touchstone is whether the statute, either standing alone or as construed, made it reasonably clear at the relevant time that the defendant‘s conduct was criminal.” United States v. Lanier, 520 U.S. 259, 267 (1997) (emphasis added). Because analysis of the statutory text in light of the applicable canons of construction may negate or eliminate the claimed vagueness, we begin by considering the proper construction of the challenged provision. See McDonnell v. United States, 136 S. Ct. 2355, 2375 (2016) (statutory construction of relevant terms may “avoid[] the vagueness concerns raised” by a defendant).
1
For purposes of
Section 5845(b), in turn, provides as follows:
The term “machinegun” means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combinatiоn of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.
Kuzma argues only that the second category—i.e., a weapon that “is designed to shoot” automatically—is unconstitutionally vague, and so that is the key phrase whose meaning we must consider. Because “designed to shoot” is not further defined by the statute, we give that phrase its ordinary meaning. Johnson v. United States, 559 U.S. 133, 138 (2010). In addressing a vagueness challenge to a local
ordinance that regulated any item “designed . . . for use with illegal cannabis or drugs,” the Supreme Court noted that a “principal meaning of ‘design’ is ‘[t]o fashion according to a plan.‘” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 491, 501 (1982) (quoting WEBSTER‘S NEW INTERNATIONAL DICTIONARY 707 (2d ed. 1957)) (emphasis added). Given that primary meaning of “designed,” the Court explained that “[i]t is therefore plain that the standard encompasses at least an item that is principally used with illegal drugs by virtue of its objective features, i.e., features designed by the manufacturer.” Id. at 501 (emphasis added); see also id. (“the phrase refers to structural characteristics of an item“) (emphasis added). An item‘s “design” thus focuses on its objective “pattern or configuration of elements.” See Design, BLACK‘S LAW DICTIONARY (11th ed. 2019).
We therefore reject Kuzma‘s contrary contention that, to the extent “designed to shoot” has a discernible meaning, it refers to the subjective “intent or purpose of the designer or manufacturer” and therefore does not apply to a device that the maker did not subjectively intend to be used to shoot. Indeed, a different portion of the same “machinegun” definition expressly covers “parts designed and intended[] for use in converting a weapon into a machinegun.”
Although (as Kuzma notes) Hoffman Estates described the term “designed” as referring “to the design of the manufacturer,” 455 U.S. at 501 (emphasis added), the Court made clear that the subjective intent of the manufacturer is relevant only insofar as it is reflected in the “objective features” of the product, id. Quoting from the brief of the ordinance‘s challengers, the Court noted that they had essentially concedеd as much: “if any intentional conduct is implicated by the phrase, it is the intent of the ‘designer’ (i.e. patent holder or manufacturer) whose intent for an item or ‘design’ is absorbed into the physical attributes, or structural ‘design’ of the finished product.” Id. at 501 n.19 (emphasis added). Likewise, in United States v. Reed, 726 F.2d 570 (9th Cir. 1984), we addressed whether a device was “designed . . . for use as a weapon“—and thus might qualify as a “destructive device” under
We note, however, that because the design of an item turns on its apparent purpose as reflected in its particular configuration of structural features, see Reed, 726 F.2d at 576, a device remains “designed” for a particular use even though, due to a readily fixable defect, the device cannot at the moment be put to that use: a car with a dead battery is still “designed” to be driven. See United States v. McCauley, 601 F.2d 336, 338, 341 (8th Cir. 1979) (construing “designed to shoot . . . automatically” as including defendant‘s “type-96 machinegun” even though it “lacked the magazine necessary for automatic firing,” given that the trial evidence showed that such magazines could be obtained). This construction of the phrase “weapon which . . . is designed to shoot” also avoids rendering it wholly redundant with the phrase “weapon which shoots.” See Ratzlaf v. United States, 510 U.S. 135, 140–41 (1994). However, for such a non-operational device to be “designed to shoot . . . automatically,” it must be apparent from the device‘s specific arrangement of objective design features that the device would ordinarily shoot automatically but for some minor flaw that temporarily impedes that function. By contrast, we agree with the Eighth Circuit in McCauley that if the deficiency that impedes automatic operation is significant and not readily repaired, then it cannot fairly be said that the device is one that is “designed to shoot . . . automatically.” See 601 F.2d at 341 (explaining that “designed to shoot . . . automatically” does not include “devices lacking ‘irreplaceable’ parts necessary to shoot automatically” or “a device thаt no reasonable effort could render capable of automatic fire“).
We therefore conclude that a weapon is “designed to shoot” automatically if it has a specific configuration of objective structural
2
Having thus considered the proper construction of the challenged statutory phrase, we have little difficulty rejecting Kuzma‘s contention that the phrase is unconstitutionally vague on its face.9 By focusing on whether a device has a specific configuration of objective features that, absent a minor defect, would give it the capacity to shoot automatically, the phrase a “weapon which . . . is designed to shoot . . . automatically” provides both sufficient notice as to what is prohibited and sufficient guidance to prevent against arbitrary enforcement. In Hoffman Estates, the Supreme Court rejected a facial vagueness challenge to a comparable phrase (“designed . . . for use“) precisely on the ground that the phrase‘s focus on the “objective features” and “structural characteristics” of an item was sufficient to provide fair warning for purposes of a facial challenge. 455 U.S. at 501–02. The Court concluded that, while that objective standard could give rise to “ambiguities” as applied in some specific contexts, any such residual issues were “of no concern in this facial challenge.” Id. at 502. Applying similar reasoning here, we conclude that the challenged phrase is not unconstitutionally vague on its face. If anything, it is Kuzma‘s reading of the statute that
would raise serious vagueness concerns: by focusing on the manufacturer‘s subjective intention in making a device, Kuzma‘s construction would make it difficult, if not impossible, for subsequent possessors of the device to determine whether it had been “designed to shoot” automatically in that subjective sense. Cf. Flipside, Hoffman Estates, Inc. v. Village of Hoffman Estates, 639 F.2d 373, 381 & n.18 (7th Cir. 1981) (addressing the subjective reading of “designed . . . for use” that the Supreme Court later rejected and observing that, “[i]f this were a criminal ordinance, subjecting retailers and customers to prosecution based solely on the design intent of a third party, the manufacturer, there would be little question as to the law‘s invalidity“).
Kuzma relies on the Supreme Court‘s recent decisions facially invalidating several statutory provisions that relied on impermissibly vague descriptions of predicate offenses, but none of this caselaw warrants a different conclusion from the one suggested by Hoffman Estates. In Johnson, for example, the Court addressed the so-called “residual clause” of the
Kuzma nonetheless argues that, as illustrated in the testimony of thе ATF expert at trial, ATF has taken a series of internally contradictory and arbitrary positions concerning which devices do and do not count as “designed to shoot” automatically. This contention is ultimately irrelevant to Kuzma‘s facial challenge. Although inconsistency in ATF‘s position on the classification of a particular device could perhaps be an indicator of an as-applied vagueness problem, it has no bearing on the statute‘s underlying meaning or whether that meaning is impermissibly vague on its face. This is not a situation in which an agency has been delegated authority to promulgate underlying regulatory prohibitions, which are then enforced by a criminal statute prohibiting willful violations of those regulations. See, e.g.,
Lastly, we reject Kuzma‘s contention that the challenged phrase (“designed to shoot . . . automatically“) is impermissibly vague when combined with § 5845(b)‘s inclusion of “receiver[s]” in the definition of “machinegun.” As explained earlier, the definition of “machinegun” includes, not just a “weapon which shoots, [or] is designed to shoot . . . automatically,” but also the “frame or receiver of any such weapon.”
* * *
We therefore reject Kuzma‘s argument that the phrase “weapon which . . . is designed to shoot . . . automatically” in § 5845(b) is unconstitutionally vague on its face.
B
Kuzma also raises a variety of challenges concerning the application of § 5845(b) in his particular case, but we conclude that all of them are meritless.
1
As an initial matter, Kuzma challenges the particular definition of “machinegun” that was used in the jury instructions in this case—even though his own counsel was the one who suggested adding the very language that Kuzma now attacks as legally erroneous. Citing United States v. Guthrie, 931 F.2d 564, 567 (9th Cir. 1991), the Government argues that, as a result, review of this issue is barred by the invited-error doctrine. But in United States v. Perez, 116 F.3d 840 (9th Cir. 1997) (en banc), this court distinguished Guthrie and held that an error “induсed or caused” by the defendant remains subject to plain error review unless, in inviting the error, “the defendant intentionally relinquished or abandoned a known right.” Id. at 845. The parties dispute whether the record reflects such a relinquishment here, but we need not resolve this issue. Even applying plain error review, we find no basis for reversal on account of this instruction.
The jury instructions in this case defined “machinegun” by repeating verbatim the entire text of the definition contained in § 5845(b). The instructions, however, also contained some additional language, including the following portion that Kuzma belatedly challenges on appeal:
The “designed” definition includes weapons which have not previously functioned as machineguns but possess specific machinegun design features which facilitate automatic fire by simple alteration or elimination of existing component parts.
Kuzma contends that this definition was erroneous because, in his view, the statute requires a focus on the manufacturer‘s subjeсtive intention in creating the device. We have already rejected that contention, and so there was no plain error in the instruction‘s objective focus on “specific machinegun design features which facilitate automatic fire.” We likewise find no plain error here in the instruction‘s reference to features that facilitate automatic fire “by simple alteration or elimination of existing component parts.” On the one hand, this phrase arguably could be read to go beyond the statute‘s reach by literally including devices that can acquire an automatic capacity, not already reflected in their existing design, “by simple alteration or elimination of existing component parts.” On the other hand, the latter phrase could perhaps be
2
Applying the correct definition of “machinegun,” we conclude that Kuzma had fair notice that Exhibit 12 qualified as such a device based on its configuration of objective features. We therefore reject his as-applied vagueness challenge, as well as his contention that the evidence was insufficient to sustain his convictions.
a
Because it is not a complete weapon that, by itself, was designed to shoot, Exhibit 12 qualifies as a “machinegun” only if it is the “frame or receiver” of a weapon that “shoots, [or] is designed to shoot . . . automatically.”11
Kuzma does not contest that Exhibit 12 had enough of the core features of a firearm to qualify as a “frame or receiver.” And because Exhibit 12 had its blocking bar removed, its objective design features facilitated automatic firing, as shown by the fact that, when Swift added the few remaining features needed to complete an operatiоnal firearm (namely, a bolt and top cover), Exhibit 12 fired automatically. See supra at 6-8. This conclusion is not altered by the fact that, in adding the remaining features, Swift swapped out the existing barrel for a different one that matched one of the bolts he had available. A barrel is not itself part of a receiver, and so the swap cannot have altered the design of the receiver. In any event, such an even swap of features does not materially alter the functionality of the resulting operable firearm and has no bearing on whether it does or does not qualify as a machinegun. Moreover, Kuzma himself admitted in his statements to Tisch that he knew that the features of Exhibit 12 were such that, when the remaining missing pieces to create an operable firearm were installed on Exhibit 12, the device would shoot automatically.
b
Kuzma nonetheless contends that the statute is vague as applied to him, because ATF issued contradictory guidance concerning receivers just like Exhibit 12, thereby confirming that the statute‘s coverage of such devices was fatally unclear even to ATF. The trial evidence showed that ATF had indeed sent two inconsistent letters to D&D concerning whether a certain receiver stamping qualified as a “machinegun,” but nothing in this evidence concerning the classification of that qualitatively different device bespeaks ambiguity as to the statute‘s coverage of Exhibit 12.
Only the second letter was received into evidence at trial, and it stated that ATF‘s prior letter to D&D had contained “an erroneous determination rеgarding the classification of your previously submitted UZI-type receiver stamping.” Specifically, the letter stated that “[o]ur original classification of this item as a machinegun was not accurate.” As the letter explained, the item ATF examined consisted of the folded metal receiver stamping, which had “various holes and slots, but no additional parts installed.” The letter concluded that this receiver stamping, “as examined, does not possess the design features of an UZI-type machinegun receiver that facilitate automatic fire by simple modification of existing parts.” However, the letter warned that, if this receiver stamping is “assembled into a complete UZI receiver by the installation of a back plate, barrel trunnion, and other receiver components, [it] must have a bolt blocking bar installed” and, “[i]f not, it will be considered a machinegun
Kuzma argues that the statute is still vague as applied here because in his view ATF improperly attaches talismanic significance to the presence or absence of a blocking bar. But in assessing Kuzma‘s as-applied vagueness challenge, we need not address whether Swift correctly answered all of Kuzma‘s counsel‘s various hypotheticals as to which other devices with which other components would or would not count as machinegun receivers. In an as-applied challenge, the only quеstion is whether the statute “‘is impermissibly vague in the circumstances of this case.‘” United States v. Purdy, 264 F.3d 809, 811 (9th Cir. 2001) (citation omitted). Even if Kuzma is correct in contending that design features other than blocking bars may sufficiently impede automatic operation so as to prevent a receiver from being classified as a machinegun receiver, that would not create any basis for finding § 5845(b) vague as applied here. As Swift explained, Exhibit 12 did not have any such alternative design features “that could have prevented it from functioning as a machine gun.” Indeed, had Exhibit 12 possessed such features, it would not have fired automatically when Swift tested the fully assembled weapon.
“Because the controlling standard of conduct is reasonably clear and [Kuzma] clearly violated that standard, we hold that [§ 5845(b)] is not unconstitutionally vague as applied to [Kuzma].” United States v. Agront, 773 F.3d 192, 199 (9th Cir. 2014).
III
Kuzma also raises several challenges that apply only to his conviction for possession of an unregistered firearm under
Prior to trial, Kuzma repeatedly sought to obtain information from the Government concerning the reliability of the recordkeeping in the NFRTR, but the district court declined to order such discovery. Kuzma renewed his objection to those prior rulings at trial when the Government sought to introduce a “Record Search Certificate” from ATF employee Jon Coleman stating that, “after [a] diligent search” of the NFRTR, Coleman “found no evidence” that a firearm bearing Exhibit 12‘s serial number was registered to Kuzma. Moreover, in doing so, Kuzma‘s
Evеn if the district court erred in either or both of these respects, any error would be harmless. Kuzma expressly admitted at trial that he had not registered Exhibit 12, and he made the same admission in his earlier statements to Tisch. Whether the Government‘s registration records were adequate to show the absence of this concededly non-existent registration would thus not have altered the outcome. United States v. Larson, 495 F.3d 1094, 1107-08 (9th Cir. 2007) (en banc) (holding that Confrontation Clause error was harmless beyond a reasonable doubt in light of other testimony in the record).
Kuzma further argues, however, that § 5861(d) required the Government to prove that both Kuzma and D&D failed to register Exhibit 12. This contention appears doubtful, given that the plain text of the statute requires a registration that extends to each person who receives or possesses such a firearm: “It shall be unlawful for any person . . . to receive or possess a firearm which is not registered to him in the [NFRTR].”
IV
Finally, Kuzma contends that, even if his § 922(o) and § 5861(d) convictions are free from reversible error when considered separately, the two convictions are multiplicitous and cannot coexist simultaneously. We agree.
Accordingly, we remand the case to the district court with instructions to vacate one, and only one, of Kuzma‘s two convictions. We otherwise affirm the convictions and judgment in all other respects.
AFFIRMED IN PART AND REMANDED.