U.S. v. Adams, 11 F.Supp. 216 (S.D.Fla. 1935)
This is the first reported case I have found interpreting the NFA. Adams got caught with an unregistered Thompson SMG right after the law was enacted. The court finds that, based on the cases interpreting the Harrison Narcotics Act, the NFA is constitutional as an exercise of the taxing power. The court decides that the tax power can be used as a substitute for the general police power Congress allegedly doesn't have under the Constitution; Congress can tax things it dislikes out of existence. The court also directly addresses the second amendment issue, and decides that the amendment only protects the rights of states to have national guards, and cites a whole host of cases, carefully avoiding both Supreme court, and other state court cases directly to the contrary. Too bad Adams wasn't appealed, instead of Miller. It would have at least disposed of the "short shotgun is not a military weapon" issue that Miller hangs on.
U.S. v. Adams, 438 F.2d 644 (8th Cir 1971)
This very short case really only has one point of law; can you be in "possession" of a sawed off shotgun such as to constitute a violation of the NFA if the only evidence is that the police saw you throw down a sawed off shotgun? Yup.
United States v. Adams, No. 96-4970 (11th Cir. 2/36/98)
In this case the court decides that in order for a person to be convicted of possessing a firearm as a felon, the government need not show whether the firearm was operable, nor whether the defendant knew whether it was operable. If the gun was described as a Winchester shotgun, and the characterization as a firearm was not rebutted by the defendant in his case, then the jury could conclude that the item fell within the statute, whether it in fact worked or not, and regardless of whether the defendant knew it worked or didn't work.
U.S. v. Aiken, 787 F.Supp. 106 (D.Md. 1992)
U.S. v. Alborola-Rodriguez, 153 F.3d 1269 (11th Cir. 1998)
In this case the court decides that for purposes of the sentencing enhancement for using a sawed off shotgun in a crime, the determination as to whether a sawed off shotgun was in fact used is for the court to make, not the jury, as part of sentencing. The court thus disagrees with several other circuits, setting up a situation where the Supreme Court may agree to decide the issue.
U.S v. Allah, 130 F.3d 33 (2nd Cir. 1997)
U.S. v. Alston, 112 F.3d 32 (1st Cir. 1997)
In this case a convicted felon got a mandatory 15 year sentence for possessing a rusted shut Colt model 1908 .25 caliber pistol. ATF was able to get the gun to work after the use of WD-40 and a mallet, according to the opinion. Because the defendant had three felony convictions, all over 20 years old, he is subject to a mandatory 15 year prison term. The main point of interest in this (to me, anyway) is the court's approval of the thinking that a pistol that is incapable of firing a shot when seized is still a firearm as defined by the the GCA, because it was "designed" to fire a shot, even though it wasn't able to do so when seized.
U.S. v. Alverson, 666 F.2d 341 (9th Cir. 1982)
U.S. v. Amparo, 68 F.3d 1222 (9th Cir. 1995)
In this case the 9th circuit decides that possessing two guns, a sawed off shotgun and a pistol permits the defendant to be convicted of both possessing a sawed off shotgun, and possessing a firearm while committing a crime of violence, under the setencing enhancement at issue in Harris, Bailey and Smith. The court decides, without much basis, that mere possession of an unregistered NFA weapon is a "crime of violence." Possesing a pistol at the same time, therefore, kicks in the sentencing enhancement, assuming the jury finds he possessed a second gun besides the sawed-off.
U.S. v. Anderson, Transcript of decision, No. 15951, (D.Colo. May 6, 1959)
U.S. v. Anderson, 885 F.2d 1248 (5th Cir. 1989)
Anderson is a precursor to the Staples supreme court case, where the 5th circuit (the whole circuit, rehearing the case en banc, and voting 8-7) reversed its own precedent and decided that in order to get a conviction under the NFA the government must prove the defendant knew the gun was the sort subject to the NFA, not that it was a gun in the general sense of the term. A lot of this decision was adopted by the Supreme court, both the majority opinion, and the dissent took a lot from this case.
U.S. v. Anderson, 987 F.2d 251 (5th Cir. 1993)
United States v. Andrade - F.3d - (1st Cir. 1998)
U.S. v. Arce, - F.3d - (5th Cir. 1997)
In this case the court upholds the conviction of the defendant for possessing machine guns and unregistered silencers. The court decides that the NFA is not a taxing statute, but can also be justified on the power to regulate interstate commerce, thus the fact that the NFA both precludes registration of existing NFA guns, and punishes non-registration, is just fine, citing their Ardoin case. The court also upholds upward sentencing departures for having made NFA weapons, and for having made a video describing how to make silencers out of junk and crap from the hardware store, and for claiming on the tape that the defendant was a licensed NFA manufacturer.
U.S. v. Ardoin, 19 F.3d 177 (5th Cir. 1994)
Ardoin is a silly case. The main point of it is that the 5th circuit decided that the 10th was wrong, in Dalton, and that the making ban (922(o)) does not preclude a prosecution under the NFA for possessing a post-may mg. In this case Ardoin was a class 3 who made several post May mg's for a local PD, on Form 10. He apparently had possession of the guns although they were registered to the PD, as he was a deputy or officer or like thing. ATF prosecuted him, claiming the guns could have and should have been made on a form 1; for possessing untaxed mg's. This despite the fact that ATF had sent out a memo that no longer would mg's be registered on form 1, after the making ban, they wanted them on form 10's. ATF agents lied on the stand and claimed the memo didn't exist, Ardoin couldn't scrounge up a copy till after the trial. A real travesty. Anyway the main thrust of the case was that these guns were for a PD, not Ardoin, and that he let his class 3 lapse (for like two months, I suspect ATF screwed up his renewal, intentionally or otherwise) and thus was an individual in possession of post-May guns, not taxed and not registered to him. The court claimed that he could pay the tax and register the guns, even though 922(o) precludes ATF from accepting them from him. The court just claimed that wasn't true, that interpretation of the law was wrong. The upshot is that between the lies and total retardation as to the law on the part of the court, Ardoin is in the can. I urge class 3 dealers to reconsider possessing post-May mg's. If your SOT lapses for any reason at all, apparently, you can and will be prosecuted. Cheap shooters maybe, but clearly a problem in the current environment. It seemed Ardoin wanted cheap shooters, and he got the chief of police to agree to his making the guns and keeping them, as cheap shooters, while they were nominally registered to the department. The supreme court refused to review this case, despite the lies,and despite the conflict with the 10th circuit Dalton case.
U.S. v. Bailes, 10 F.Supp.2d 607 (S.D.W.Va. 1998)
In this case the judge throws out a charge of possessing a firearm while subject to a domestic violence restraining order, since the judge finds that the order was revoked by operation of West Virginia law when the judge that made the order modified the divorce orders. The judge also refuses to permit the government to base its case on a second restraining order, since that order was not listed in the indictment, and because the constitution only permits trials on indictments from grand juries, and the government may not alter them halfway through trial after finding they cannot support the charge they got from the grand jury.
U.S. v. Bailey, 123 F.3d 1381 (11th Cir. 1997)
In this case the 11th circuit affirms convictions of a gun dealer for mail fraud, and dealing without an FFL, and possessing unregistered NFA weapons. The dealer had his license on premises which he didn't actually use for his business, and instead did his business from his home, which was not his licensed premises. He also cheated two customers on the sales of machine guns. He also made orders to H&K for police guns, which he intended to sell to private persons, even though they were ordered as government sales, and thus were FET exempt. Lastly, when his house and storage locker were searched unregistered machine guns and grenades were found. The court rejects arguments that ATF agents perjured themselves while testifying, although one clearly testified falsely, and rejected arguments that the government failed to reveal government witnesses were informants, and failed to turn over evidence in their possession.
U.S. v. Baker, 197 F.3d 211 (4th Cir. 1999)
U.S. v. Balanga, - F.3d - (8th Cir. 1997)
In this case the court of appeals upholds the defendant's conviction for possessing firearms and ammunition as a felon, where the guns and ammo were found in a locked basement room of the defendant's house. He contended he didn't have access to the room, and thus wasn't in "possession" of the items. While the court agreed that if he really didn't have access to the guns he wasn't in possession, the court and jury apparently didn't believe he really didn't have access to the basement room - perhaps because it had the washer and dryer in it, including his laundry.
U.S. v. Barno, 340 F.Supp. 1326 (D.D.C. 1972)
U.S. v. Barr, 32 F.3d 1320 (8th Cir. 1994)
In this case the 8th circuit looks at the mens rea required for a conviction for possessing an unregistered NFA weapon (sawed off shotgun) in the post-Staples era. The court however severely limits Staples, saying the jury need only find the defendant had seen the weapon, and knew its characteristics, in a situation where the weapon is does not appear to be a traditional sporting weapon, and is a "quasi suspect" weapon. They claim that applies, based on Staples, and that the state need not prove the defendant knew of the characteristics of the weapon which brought it under the NFA (in this case the short barrel and overall length). This severely limits Staples, almost to its facts, to cases where the gun appears ordinary (like an AR?). This is what happens when lower courts think the Supremes made a mistake, they try and undermine the decision as much as possible, knowing the court in unlikely to review their interpretation.
U.S. v. Bascue, 5 F.Supp.2d 1139 (D.Or. 1998)
In this case the trial court refuses to set aside the defendants convictions for possessing unregistered machine guns, and transferring unregistered machine guns. The defendants apparently made MAC style gun frame flats into guns. They claim here that the flats were required to be registered by the seller, and not by them, as well as that their lawyers did a crummy job. The court says the testimony shows the flats did not need to be registered, and that the lawyers did an acceptable job.
U.S. v. Bayles, Case No. 2:00CR424K (D.Utah December 5, 2000)
U.S. v. Beal, 810 F.2d 574 (6th Cir. 1987)
This case applies the szymkowiak rationale to some "pen guns" seized during a search for other items. Again, as the contrbanad nature was not obvious, the court ruled the warrantless seizure was not permitted under the "palin view" exception to the 4th amendment, and the pen guns were not admissible in court, killing the whole case. The sole suspicion about the pens was their weight, far heavier than ordinary pens.
U.S. v. Beason, 690 F.2d 439 (5th Cir. 1982)
In this case the 5th circuit upholds a conviction for possessing unregistered, homemade, hand grenades. The court decides that the government does not have to prove the grenades are not designed as weapons, or that they are not likely to be used as a weapon, as an element of the offense, the defendant may raise those exceptions to the definition as affirmative defenses. The court also upheld the use of authenticated reports from the custodian of the NFA Registry as proof of non-registration of the grenades.
U.S. v. Beavers, 206 F.3d 706 (6th Cir. 2000)
U.S. v. Benner, 289 F.Supp. 860 (D.Or 1968)
In this case the trial court decides that there is not a self incrimination problem with a prosecution under the pre-68 NFA for possessing a firearm made in violation of the NFA, even if the defendant is the one that made the firearm. This decision was reversed and remanded by the 9th circuit (see below.)
U.S. v. Benner, 417 F.2d 421 (9th Cir. 1969)
U.S. v. Bess, 593 F.2d 749 (6th Cir. 1978)
In this case the court reverses a conviction for retaining scrap metal belonging to the government after being informed it was stolen. While the court finds that the facts could justify such a finding - the defendant scavenged at a military base open to the public, and didn't return all of the scavenged metal after being asked by the FBI to do so. However, as the US Attorney made improper statements to the jury aobut his personal beliefs that the defendant was guilty, the court reversed the conviction for a new trial.
U.S. v. Beuckelaere, 91 F.3d 781 (6th Cir. 1996)
Motion from 5/31/90 in U.S. v. Billistics, Inc., No. N.90.25(EBB)
Resulted in an 6/5/90 order.
U.S. v. Billistics, Inc., No. N.90.25(EBB) (D.Conn. June 5, 1990)
First very brief order resulting from 5/21/90 motion directing the ATF to return a number of guns seized in a raid of Billistics in 1989, to the registered owners; I guess the guns were at Billistics for repair or something, and were seized as not registered to them. Anyway the court directs their return.
Motion from 6/18/90 in U.S. v. Billistics, Inc., No. N.90.25(EBB)
Resulted in 6/19/90 order.
U.S. v. Billistics, Inc., No. N.90.25(EBB) (D.Conn. June 19, 1990)
Resulting from 6/18/90 motion.
Motion from 12/19/91 in U.S. v. Billistics, Inc., No. N.90.25(EBB)
Resulted in 12/23/91 order.
U.S. v. Billistics, Inc., No. N.90.25(EBB) (D.Conn. December 23, 1991)
Resulting from 12/19/91 motion.
U.S. v. Birmley, 529 F.2d 103 (6th Cir. 1976)
This case is most notable for the 6th circuit saying that Congress need not have done the NFA, they could have, consistent with the 2nd amendment, and the enumerated powers of the Constitution, banned the transfer of NFA weapons altogether. This case is from 1976. Such a thought is relevant to whether 922(o) is an appropriate exercise of Congressional power, as in the Bownds case.
U.S. v. Black, 431 F.2d 524 (6th Cir. 1970)
In this case the court rejects the argument that a prosecution for possessing an unregistered NFA firearm under the post-1968 NFA violates the defendants right against self incrimination. The court notes that the offense does not call for registration, and in fact the defendant cannot register the firearm whether he wants to or not. He does not have a choice between registering the gun and incriminating himself for possessing it, or possessing it and being prosecuted for failing to register it, as defendants did under the pre-68 NFA. See also Kilcrease v. US
U.S. v. Bosse, 1989 WL 95451 (9th Cir. 1989)
In this unpublished 9th circuit court of appeals decision, the court affirms a trial court decision throwing out a sawed off shotgun seized from the defendant, because the ATF agent that obtained the search warrant lied to the magistrate to get the warrant issued. The appeals court finds that the ATF agent lied about the contents of a conversation with an undercover agent, and further finds that the agent deliberately omitted facts from the search warrant affidavit that would have suggested that the defendant did not commit the claimed violation, facts which were known to the agent when he made the application.
U.S. v. Bostic, 168 F.3d 718 (4th Cir. 1999)
In this case the 4th circuit court of appeals upholds the conviction of a man for possessing firearms while subject to a domestic violence restraining order. The court decides that law is constitutional.
U.S. v. Bownds, 860 F. Supp 336 (S.D. Miss. 1994)
This case comes from the lowest federal court, the District court. It can therefore be appealed to the 5th Circuit court of Appeals, should the government want. And is being so appealed. And from there is could go to the US Supreme Court. Charles Bownds purchased two STEN machine guns and parts at a gun show in New Jersey in 1991 ($300, must have been parts kits or something...), and sold them in Miss. in the same year, at a profit. He argued that as Congress made no finding of any interstate commerce nexus in just banning post 1986 machine guns in 18 U.S.C. 922(o) the clause was void, under the Tenth amendment, as beyond the power of Congress. The court agreed, relying heavily on the 5th Circuit opinion in U.S. v. Lopez where that court voided the Gun Free School Zones Act, an opinion which is now under appeal to the Supreme court. If Bownds made a 2nd amendment argument, the court did not address it.
The opinion notes that the 5th Circuit has not followed the 10th Circuit (in US v. Dalton) in finding that 922(o) impliedly repealed the NFA registration and tax requirements. This was also the holding in the Rock Island case, which the government elected not to appeal. Thus, unless the ruling was stayed during appeal, persons in the area comprising the Southern District of Mississippi may lawfully make machine guns for private ownership, while complying with the requirements of the NFA.
The opinion also notes that both the 8th Circuit and 9th Circuit have upheld the constitutionality of 922(o). This opinion flies directly in the face of those, and assuming the 5th circuit upholds this, it is very likely the Supreme Court would hear the case. Otherwise, if the 5th Circuit upheld it, one could make legal machine guns in Miss., La. and Texas, and not in the rest of the US...
This is a very exciting case, in my opinion, if it holds up, the 1986 ban will be voided, and there will be a court decision that such a ban is beyond the power of Congress under the Constitution.
As a footnote, I believe this case will come out in favor of the constitutionality of 922(o), as the 5th circuit has already ruled that way, after this case was decided, in US v. Kirk.
U.S. v. Bownds, docket listing for 5th circuit appeal
U.S. v. Boyd, 211 F.3d 1279 (table) (10th Cir. 2000)
U.S. v. Bradley, 892 F.2d 634 (7th Cir. 1990)
In this case the court decides that the defendant was properly convicted of transferring a set of parts to convert a gun into a machine gun. He transferred a pre-11/81 drop-in AR auto-sear, a M16 selector, disconnector, trigger and hammer. A few weeks later he sold the same person a M16 bolt carrier, allegedly as part of the same transaction. The court decided that all 6 parts were a machine gun under the statute, and he didn't escape the purview of the NFA by breaking up the transaction that way. He argued the set of parts was exempt because the auto-sear was from before 11/81, when ATF ruled the sear in itself was a conversion part. The court said that just because the sear in itself wasn't covered didn't mean the sear with all the other parts wasn't covered, it was.
U.S. v. Brady, 710 F.Supp. 290 (D.Colo. 1989)
In this case Brady is charged with possessing an unregistered AOW weapon, a coyote getter. The coyote getter is sort of like the "Game Getter" guns of the pre-1934 era, except that it is very lightly constructed, as it only uses a primed .38 special case to fire a cyanide capsule into the mouth of the animal tugging at the bait. The old game getter type guns fired a real bullet, to kill the animal.
As even the ATF expert was too cautious to fire the gun with a real round of ammo, the court decides the thing is not an AOW, as while it is strictly speaking capable of discharging a shot (a primed .38 case with a bullet, the bullet went a few feet), it is not capable of using regular ammo. The court points out that in a number of old Revenue Rulings ATF ruled based on whether the device in question could use conventional ammo. Without requiring that the thing be able to do so, without suffering structural failure, would bring a whole host of items under the definition, says the court, like a hammer and nail. Things no sane person would use to fire a shot should not be considered capable of doing so, even if they theoretically can, says the court.
The court also acquitted the defendant of being a felon in possession of a firearm, as the defendant was told at his sentencing on the prior felony that he could possess a gun as part of his trapping and hunting livelihood. The court says that while he legally could not, the government was estopped from charging him because of his justifiable reliance on legal advice from the sentencing judge.
U.S. v. Branch, 91 F.3d 699 (5th Cir 1996)
This is an appeal from the criminal prosecution of some of the surviving Branch Dividians, from the shootout with ATF that started the seige there, and for making machine guns and grenades before hand. The court upholds nearly all aspects of the defendants convictions.
U.S. v. Brantley, 68 F.3d 1283 (11th Cir. 1995)
In this case several people who were induced by an ATF informant to rip off an ATF run "crack house" were convicted of various gun and drug charges. The court reversed a charge of possessing a machine gun, since it was a converted (open bolt most likely) M-10 pistol, and there was no evidence the guy knew it would fire full auto. But it upheld the sentencing enhancement (30 years max, potentially) for carrying such a gun in a crime of violence, saying that as a sentencing enhancement to another crime the principles of Staples did not apply, and strict liability was acceptable for one who had already committed a crime.
U.S. v. Breeland 53 F.3d 100 (5th Cir. 1995)
This case concerns a guy busted for having a short barreled shotgun that wasn't registered to him. This case addresses an issue that has come up before, as the court notes, how the definition of a short barreled shotgun, an NFA weapon, and shotgun interact. A shotgun is a shoulder fired weapon, the defendant contended that the weapon in question wasn't a short barreled shotgun because it wasn't a shotgun, because it now had a pistol grip as well as short barrels, even if it used to be a shotgun. Basically the question is what does the language about guns made from shotguns mean in this context? The court decides, as common sense might dictate, that a short barreled shotgun, by the plain language of the definition, can either be a shoulder fired smooth bore with barrel(s) less than 18", or an overall length less than 26", or a weapon made from a shotgun (ie no longer shoulder fired, or at least meant to be) falling into the same length parameters. This is why you cannot make an AOW out of something that used to be a shoulder fired type smooth bore gun; because the definition was drafted to avoid what Breeland was asserting also meant a smooth bore pistol, an AOW, cannot have ever been a shoulder fired gun, or it is then a weapon made out of a shotgun, and thus a short barreled shotgun.
U.S. v. Bright, 471 F.2d 723 (5th Cir. 1973)
U.S. v. Brimage, 115 F.3d 73 (1st Cir. 1997)
U.S. v. Britton, 306 F.Supp. 94 (S.D.Tx. 1969)
In this case the district court rejects a suggestion that a charge of possessing a sawed off shotgun w/o a serial number violates the right against self incrimination, since the law says that ATF has to assign the gun a new serial number.
U.S. v. Brooks, 611 F.2d 614 (5th Cir. 1980)
U.S. v. Broom, 742 F.Supp. 574 (D.Colo. 1990)
In this case the court upholds the seizure of non-contrband books and guns, during a search with a warrant for some contraband guns (machine guns). The court decides that the agent was objectively reasonable in thinking the guns, which were supposedly in plain view, might be contrband, and should be seized for further evaluation.
U.S. v. Broussard, 80 F.3d 1025 (5th Cir. 1996)
In this case, among other issues, the court decides that the sentencing enhancement for possession of an otherwise legal firearm with drugs does not chill any right to bear arms. The court decdied that the 2nd amendment would not apply to private possession of firearms, and further that there was no right to own guns in the 9th amendment reservation of rights.
U.S. v. Brown, 438 F. Supp. 1002 (D.Conn 1977)
U.S. v. Brown, 548 F.2d 204 (7th Cir. 1977)
In this case a Chicago shop owner is convicted of possessing an unregistered short shotgun, apparently based on a tip from the street gang he got the shotgun to protect himself from. The court in unsympathetic. ATF, of course, assists the gang in continuing to run amok. The court decides that the fact that the transferee cannot register the gun is not a defense, and that somehow the NFA has an unwritten duty imposed on transferee's to insure that the transfer of possession is legal. Additionally the court holds that a requested jury instruction on jury nullification was properly denied, as a suggestion to the jury to disregard the judge's discussion of the law and the jury's duty to follow same is improper. The court suggests that if the street gang theory is true (the trial judge refused to let it be discussed, or to force ATF to identify the informant who reported the defendant's possession of the gun) it is not a defense to the charge. He should have gotten a firearm not subject to the NFA, or gotten a registered example, they say.
U.S. v. Bryan, 122 F.3d 90 (2d Cir. 1997)
Hey, the defendant's nickname is "Uzi"...
U.S. v. Bumphus, 508 F.2d 1405 (10th Cir. 1975)
In this case decided under a now repealed felon in possession statute 18 USC 1202, the court decides that the defendant need not have obtained the firearms he is accused of possessing in interstate commerce, as long as the firearms traveled in intersstate commerce at some point in the past, even before he possessed them. His possession can be totally within one state and still violate the statute.
U.S. v. Burgard, 551 F.2d 190 (8th Cir. 1977)
U.S. v. Butler, 793 F.2d 951 (8th Cir. 1986)
U.S. v. Caldwell, 49 F.3d 251 (6th Cir. 1995)
This is a case from the 6th circuit as to whether dealing off premises when one has an FFL is illegal. The court says no, at least it cannot be "dealing w/o a license". If a person has an FFL, they have an FFL, and can never be unlicensed regardless of where they are dealing from. Theoretically dealing from premises other than those on the license is a violation of other parts of the GCA though.
U.S. v. Campbell, 427 F.2d 892 (5th Cir. 1970)
U.S. v. Canestri, 518 F.2d 269 (2nd Cir. 1975)
United States v. Cardoza, 129 F.3d 6 (1st Cir. 1997)
In this case the 1st circuit upholds the ban on trasferring handguns to juveniles, following the 9th circuit (see US v. Michael R). The court claims that there is a substantial effect on interstate commerce by juveniles possessing handguns, and congress can ban intrastate transfers to control those interstate effects, whatever they are. The challenge was of course based on the orphaned US v. Lopez supreme court decision. The court also upholds a 20 year prison sentence for that offense and for possessing a single round of 9mm ammunition by a felon, based on the defendant's prior record.
U.S. v. Carney, 356 F.Supp. 855 (M.D.Tenn. 1973)
U.S. v. Caron, 77 F.3d 1 (1st Cir. 1996)
In this case the 1st circuit decides that for a felon to be considered to have had his civil rights restored under state law after a state felony conviction, and thus be able to own a gun, an automatic restoration of his civil rights by state law will suffice.
United States v. Cash, 149 F.3d 706 (7th Cir. 1998)
In this case the court upholds the defendants' conviction for transferring unregistered drop in sears. The court rejects the defendants arguments that the sears could have been made before the sears were classified as machine guns, i.e. "pre-81 sears", saying that it is still illegal to transfer even pre-81 sears. The court also decided that the odds that these sears were pre-81 was very remote, given the low price they sold them for, and the clandestine manner in which they sold them.
U.S. v. Casson, 288 F.Supp. 86 (D.Del. 1968)
In this case the disctrict court decides that a charge under the pre-68 NFA of possessing a short shotgun made in violation of the Act does not require one to incriminate oneself, so that the logic of the Haynes case does not apply. The court does note that if one was already suspected of criminal activity requiring one to register one's guns, even before they were "made" might be self incrimination, but the court said that danger was remote and not very realistic. The court also notes in a few sentences that the second amendment was no protection from the prosecution.
U.S. v. Castillo, 179 F.3d 321 (5th Cir. 1999), cert. granted - U.S. -, (2000)
U.S. v. Catanzaro, 368 F.Supp. 450 (D.Conn. 1973)
U.S. v. Cecil, 457 F.2d 1178 (8th Cir. 1972)
In this case an underage member of the Black Panthers was guarding the door to their house in Omaha, NE, with a sawed off shotgun. When the cops came by he was caught and arrested. Apparently the cops used him as a human shield while clearing the rest of the house... Anyway, the main point of interest in this case is whether the mere sight of a sawed-off shotgun provides probable cause of a crime such that you can be arrested, or whether the police have to also think the gun is unregistered in order to arrest you. After all, registered possession is not a crime. The court holds that the gun itself provides all the probable cause, and the police need do no investigation as to the registration status before they may arrest one in possession of such a gun. This of course is bad news for owners of legal guns, who may not have their paperwork on them when they have the gun. The dissent makes just that point, and says that checking the registration status is not such a burden as to waive such a requirement. The dissent sort of dilutes its point by suggesting the police could be made aware of who owns legal NFA weapons in their jurisdiction, to solve the problem. Such a scheme was done away with in the 1968 revisions of the NFA, because making the tax records open to the public created 5th amendment self incrimination problems with the registration plan. The dissent also notes, without citing any authority, and I thought ATF didn't have this sort of info until after 1980, that approximately 15000 short shotguns are registered, "most of which are registered to governmental agencies for training purposes, or to residents of Western states." Interesting. Those darn Westerners.
U.S. v. Cerri, 753 F.2d 61 (7th Cir. 1985)
In this case the 7th circuit upholds the validity of an administrative search of the home of a gun dealer under the Gun Control Act. While the home was not the licensed premises, the home was where the dealer was in fact dealing from. As it was the premises in fact, the court decided the ATF could conduct an administrative search of the entire home.
U.S. v. Chamberlain, 159 F.3d 656 (1st Cir. 1998)
In this case the 1st circuit court of appeals decides that a 5 day involuntary commitment to a mental institution without due process under Maine law suffices to disqualify one from oever owning a firearm, under the firearms disability for persons adjudicated mentally defective or committed to a mental institution.
U.S. v. Clements, 471 F.2d 1253 (9th Cir. 1972)
U.S. v. Coleman, 441 F.2d 1132 (5th Cir. 1971)
U.S. v. Combs, 762 F.2d 1343 (9th Cir. 1985)
This case is the prosecution of a guy for putting a SMG length barrel on his Uzi semi auto. He gets acquitted of making the gun in violation of the NFA because the judge at trial messed up. But he got convicted of possessing the unregistered NFA weapon. He had been "rapid-fire" shooting with some buds and someone called the cops.
U.S. v. Cooper, 409 F.Supp. 364 (M.D.Fla. 1976)
In this case the court decides that the warrantless seizure of the defendant's FFL acquisition and disposition logbook was a proper exercise of the ATF authority to conduct warrantless "administrative" inspections of FFL dealers records and firearms.
U.S. v. Copus, 93 F.3d 269 (7th Cir. 1996)
In this case a fight the defendant got into with his wife turned out to be a bummer. He called the cops; they discovered part of his homemade machine gun/silencer/grenade collection. He was convicted, and the appeals court let the convictions stand. The court decides that, following their case of US v. Kenney, that 922(o) is a valid exercise of Congressional power; that the convictions under the NFA are not affected by 922(o); he did not show legal making of silencers or DD's was absolutely prohibited, such that ATF will not accept the tax on such items. He didn't show that because it isn't true. The court also upheld the determination that his "detonators" were DD's, in that they were complete, and could be used as a weapon. The court rejected cases looking at the defendant's intent in possessing a fully assembled item to see if it was a weapon. They would apply such a standard to a DD "parts kit"; ie unassembled, but complete, but not to a completed device.
U.S. v. Corso, 20 F.3d 521 (2nd Cir. 1994)
U.S. v. Cosey, 244 F.Supp. 100 (E.D.La. 1965)
This case is a counterpart to US v. Thompson, which found that a sawed off shotgun that was not in shootable condition due to the lack of a firing pin was not an NFA weapon. In this case the court finds that a sawed-off shotgun that lacks a firing pin is an NFA weapon, since the firing pin can be substituted for by a nail. Although it was left to the jury, a similar conclusion was reached under the Colorado state law in People v. Vigil. The court distinguishes Thompson by saying in that case no one tried to use the gun with a nail, if they had the result might have been different. Theoretically both this case and Thompson were rendered obsolete by 1968 revisions to the NFA adding the "readily restored" language to the definition of short shotgun and short rifle.
U.S. v. Coston, 469 F.2d 1153 (4th Cir. 1972)
U.S. v. Coward - F.Supp.2d - (E.D.Pa. 2001)
U.S. v. Cowley, 452 F.2d 243 (10th Cir. 1971)
In this case the defendant's conviction for possessing an unregistered short shotgun (which the indictment mistakenly called a shotgun with a barrel less than 16 inches, not 18, as it is in the law, although the mistake meant nothing to the defendant) is upheld by the appeals court. The defendant argued that because the law wouldn't let him register the gun, it violated the due process and equal protection clauses of the US constitution. The court, without much discussion disagreed; although this was the essence of the argument the same circuit (the 10th) accepted as to post 1986 machine guns in US v. Dalton - the government couldn't prosecute someone for failing to register or pay tax on a gun the government could not accept tax or registration on. The defendant also objected to the indictment calling the gun a 12 gauge, when the gun was in fact a 20 gauge shotgun. The court rejected that objection, saying it didn't interfere with either the attachment of jeapordy as to a second charge based on that gun, nor prevent the defendant from knowing what gun he was being charged with possessing. As a side note, this case was prosecuted by the feds, in all likelihood, because New Mexico had no state law prohibiting possession of short shotguns (or any NFA weapon) at this time. As the case notes, there was a city ordinance against short shotguns for which the defendant was first arrested, but in all likelihood the penalties for violating that law are fairly light.
U.S. v. Cowper, 503 F.2d 130 (6th Cir. 1974)
In this case the court upholds the conviction of a Cleveland police officer who made an unregistered M2 carbine. The court decides that the government did not have to prove that he knew the gun would fire automatically, in order to convict him. This holding was overruled a number of years later, in US v. Staples, although not as to this particular case.
U.S. v. Cox, 696 F.2d 1294 (11th. Cir. 1983)
This case concerns Roger Cox the guy who wrote one of the Thompson MG books out there. He was convicted of making false statements on an import permit for DP type machine guns he brought in from Guatemala. He said the guns were made in Guatemala, the gov't thought they were made in Russia, and further thought he knew that. I think the reason to lie would have been that ComBloc guns were basically blocked from import at the time. The case is from 1983, but it says he first went to look at the guns in 1971, and doesn't say when the importation, or prosecution happened. In any case it is an interesting story of what happens when the gov't appears to have a grudge. Dr. W told me he understands that Cox later was pardoned, or otherwise got his conviction nullified, and is now a lawyer. Some people never learn, I guess. Oh I believe the Ed Faust of Sacramento, CA, mentioned as helping to bankroll this importation is the guy who runs ARMEX International.
U.S. v. Craven, 478 F.2d 1329 (6th Cir. 1973)
U.S. v. Cruz, 156 F.3d 22 (1st Cir. 1998)
In this case the court upholds a conviction for possessign an unregistered sawed off shotgun, based on testimony from someone who helped the defendant saw it off, and based on the fact that it was shown to have originally been a regular shoulder stocked shotgun, and that it was not registered to the defendant, a drug dealer.
U.S. v. Cumbee, 84 F.Supp. 390 (D.Minn. 1949)
U.S. v. Cunningham, 161 F.3d 1343 (11th Cir. 1998)
In this case the 11th circuit court of appeals uphold the ban on persons subject to a domestic violence restraining order possessing firearms, against a claim that it is outside Congress' interstate commerce power.
U.S. v. Currier, 621 F.2d 7 (1st Cir. 1980)
U.S. v. Dalpiaz, 527 F.2d 548 (6th Cir. 1975)
In this case the defendant was caught with a military artillery simulator device as he tried to get on a plane. Hard to say what he thought he was doing. The case addresses whether the device is a "destructive device", and concludes it is not. The court agrees it has over .5 ounce of explosive or incinciary powder in it, and thus could be a DD. But the court decides that the thing was neither designed nor redesigned as a weapon, but was made as a training device for the military, and had not been modified in any way from that configuration. The court says they think that while the government need not prove the thing was intended as a weapon, that the defendant's intent as to the device is not important. Only the device itself will indicate whether it is a weapon or not.
U.S. v. Dalton, 960 F.2d 121 (10th Cir. 1992)
This is the case where the 10th circuit decided that the ban on owning post May 1986 mg's meant that a person could not be prosecuted for violating the NFA for possessing such a gun. An NFA violation is a failure to pay the tax, or comply with the registration procedures. As ATF won't and can't accept the tax or registration from an individual on a post-May gun, they cannot prosecute folks for not paying the tax. 922(o) impliedly repealed the NFA, at least as applied to post May guns. Incidentally, for those who care about the facts, Dalton was a Colorado attorney who accepted a converted "P.W.A. Commando 5.56 millimeter machine gun, serial number 6671", from a client as a retainer, the gun never having been registered, and having been made after 5/19/86.
U.S. v. Dalton, 990 F.2d 1166 (10th Cir. 1993)
In this case the 10th circuit decided Dalton could be re-charged with violating 922(o) by possessing a post-May mg, after the charges under the NFA were thrown out by Dalton 1. After someone asked, I checked and after two trials on the 922(o) charge, one ending in a hung jury, the other ending in a conviction that was reversed on appeal, the US attorney let Dalton plead guilty to a misdemeanor violation, 18 USC sec. 922(n).
U.S. v. Dalton, 795 F.Supp 353 (D.Colo. 1992)
This is the district court decision that was reversed in Dalton2. I include it because I think the judge was right, Dalton should not have been re-prosecuted, and because it includes facts on the case not in the other opinions.
U.S. v. Daniels, 527 F.2d 1147 (6th Cir. 1975)
U.S. v. David, 83 F.3d 638 (4th Cir. 1996)
U.S. v. Davis, 346 F.Supp. 405 (W.D. Penn. 1972)
In this case the defendant is acquitted of possessing an unregistered sawed off shotgun. It was in a car he had borrowed, and was pulled over in. The judge decides that while the law requires no knowledge the gun is unregistered, there must be some evidence linking the defendant to the gun to support a conviction for possession. In this case the fact that he was in the car with it, sitting on the seat it was under, was not enough, given the circumstances tending to show he didn't know about it.
U.S. v. Davis, Cr. No. 8:93-106, Report of Magistrate, (S.C.Dist.Ct. June 21, 1993)
U.S. v. DeBartolo, 482 F.2d 312 (1st Cir. 1973)
This is the case that started the idea, only refuted in Staples, that the government need not prove the firearm at issue in an NFA prosecution was known to the defendant to be the type covered, but only was a "gun" in the general sense. As might be expected their logic is not too convincing, and seems to be partly the product of an era that was hoping guns would soon be outlawed altogether. The court decides, like the misdemeanor penalties for shipping unlabeled acid, the 10 year sentence for possessing a sawed off shotgun was justificable without proof the defendnat knew the gun was sawed off, because shotguns, like acid, are dangerous instruments, and a reasonable person would know they were regulated by the all powerful, and all reaching, state. Really. The court chooses an interpretation of dicta in the acid case, rather than the language to exactly the opposite rule, in Freed, because it disliked that interpretation of the NFA law. And this logic was followed by nearly every court of appeals for 20 years, resulting in hundreds of persons with no criminal intent being sent to jail. This court believes that by choosing to handle a gun, they led to that result, and prudent people would know they could go to jail for 10 years if the barrel of the shotgun they helped to sell was less than 18 inches.
U.S. v. Decker, 292 F.2d 89 (6th Cir 1961)
This case concerns whether a tear gas "pen" is an Any Other Weapon, under the NFA. The court decides that it is, as it could also fire a .410 gauge shot shell. Part of that test, says the court, is whether it can survive such a test, as well as whether it is capable of doing it once.
The court also decides that the government need not prove the defendants knew the gun was capable of shooting real ammo, as well as tear gas, which made it subject to the NFA. Another holding overruled by Staples.
This court also incorrectly cites Sonzinsky for the proposition that the Supreme court has passed judgment on the constitutionality of the non SOT provisions, and particularly, that requiring the defendant satisfactorily explain his possession of an NFA weapon, or have mere possession be sufficient for a jury to convict, is not too vague a standard. This clause was removed when the Act was revised in 1968; no explanation is solicited any more, although a defendant can still testify on his own behalf.
U.S. v. Decker, 335 F.Supp. 1168 (W.D.Mo. 1970)
In this case the court upholds the conviction of the defendant for selling firearms to out of state residents, and for selling handguns without requiring a permit required by state law for handgun purchases. ATF went to the defendant and got him to sell them handguns and so on pretending to be out of state residents, when in fact they were state residents.
U.S v. Decker, 446 F.2d 164 (8th Cir. 1971)
In this case the appeals court affirms a conviction of a firearms dealer for selling firearms to out of state residents, who also didn't have a permit required by state law to acquire a handgun.
U.S. v. Della Rocca, 388 F.2d 525, judgment vacated 88 S.Ct. 1443 (1968)
In this case the court upholds the defendants conviction for selling an undercover agent a machine gun. The court decides that the registration provisions of the pre-68 NFA at issue do not violate the self incrimination clause of the constitution, even though NY law prohibited private posssession of machine guns. The case was reversed by the Supreme Court based on its decision in the Haynes case.
U.S. v. DePugh, 266 F.Supp. 417 (W.D.Mo. 1967)
U.S. v. DePugh, 266 F.Supp. 435 (W.D.Mo. 1967)
U.S. v. DePugh, 266 F.Supp. 453 (W.D.Mo. 1967)
U.S. v. Dewalt, 92 F.3d 1209 (D.C.Cir. 1996)
This is another case that sort of addresses the issue raised in a host of post-Staples cases - whether the defendant needs to know the barrel of a sawed-off shotgun is less than 18 inches. In this case the government stipulated that that was an element, agreeing with Edwards, Starkes, and Mains, and rejecting the Barr case. However the court notes that it does not necessarily agree with that reading of Staples, and the dissent attacks that logic. As the defendant was not told, the government needed to prove he knew the barrel was under 18 inches, (it was 16 1/4 inches; a 16 gauge J.C. Higgins bolt action shotgun, perhaps cut by someone misinformed about the differing lengths for shotguns and rifles) the guilty plea of the defendant was reversed, and the case can go to trial, or doi another guilty plea. The fact that the defendant appealed suggests he no longer wants to plead guilty. The dissent tries to pretend Starkes wasn't remanded by the Supremes for the issue of whether the defendant knew the barrel was under 18 inches, but whether the gun in that case was a sawed off shotgun. What the difference is isn't clear. Starkes is important because the remand suggests the court thinks that Staples requires the prosecution to show the defendant knew the actual characteristics of the gun that brought it under the Act. The dissenting judge would just have the prosecution show the defendant saw the barrels were short; what the legal limit is doesn't count. It could have been set at 20 inches, she says in a footnote; anything under 26 inches she suggests has no legitimate use. She is also seriously misinformed about how short shotugns work, pattrn wise, and apparently took judicial notice about the destructive power cause by a short barrel (as opposed to a short overall length, which she suggests is less evil; the gun in this case was 29+ inches, but that it was so long, over the overall length parameter does not sway her) without any basis in reality. She claims the evil was the tremendous power of a sawed off shotgun, and the spread to the shot, not a concealable firearm made from a long gun, flouting the laws of the states that repressed handguns at the time.
U.S. v. Dillon, 150 F.3d 754 (7th Cir. 1998)
In this case the court upholds a conviction for lying on a 4473 form, on a firearm purchase from a licensed dealer.
U.S. v. Djelaj, 842 F.Supp. 278 (E.D.Mich. 1994)
In this case a federal trial court rejects the application of the Dalton doctrine (it is unconstitutional to convict a defendant of possessing an unregistered weapon, when the feds would never, by law, accept a registration application for the gun) to molotov cocktails possessed by Michigan residents. While the feds would have refused to register the weapons, because Michigan forbids possession of such items (and the feds would have rejected the application if the cocktails were already made - a distinction the court seems unaware of, and presumes existing weapons are registerable, under federal law) the defendants were not in an impossible situation, since they could have avoided the law by not possessing the molotov cocktails. However, it seems to me the situation in this case is identical to Dalton. It is also identical if the defendant possesses an existing gun, which is also unregisterable. If the feds are forbidden, by any law, not just 922(o), from accepting a registration on an NFA weapon, how can it be fair to prosecute them for failing to register a gun the feds would not let them register? Either Dalton is right, or it is wrong. However, even the 10th circuit, the court that originated Dalton, rejected its application to an existing short shotgun, in a second case, claiming that the requirement that the person take possession, or make the gun, in compliance with the NFA is acceptable, and the inability to register after the fact was too bad. This is the same argument as this case, which rejects Dalton.
Brief 1 in U.S. v. One DLO A/C 30.06 Machine Gun
Brief 2 in U.S. v. One DLO A/C 30.06 Machine Gun
Brief 3 in U.S. v. One DLO A/C 30.06 Machine Gun
Brief 4 in U.S. v. One DLO A/C 30.06 Machine Gun
Brief 5 in U.S. v. One DLO A/C 30.06 Machine Gun
Brief 6 in U.S. v. One DLO A/C 30.06 Machine Gun
U.S. v. One DLO A/C 30.06 Machine Gun, 904 F.Supp. 622 (N.D. Ohio 1995)
U.S. v. Dodge, 846 F.Supp. 181 (D.Conn. 1994)
In this decision the trial court denies Dodge pre-trial release on bail, finding that the charges of conspiracy to possess a silencer and possession of an unregistered destructive device are crimes of violence, and that, as well as other factors means the defendant poses a danger to the public if released before trial.
Claim of Louis Katona, III to BATF.
See US v. One DLO machine gun
Motion in civil forfeiture of firearms case
See US v. One DLO machine gun
U.S. v. Dollar, 25 F.Supp.2d 1320 (N.D.Ala. 1998)
U.S. v. Doucet, 994 F.2d 169 (5th Cir 1993)
In this case a guy was set up by his brother to take a fall for possessing an unregistered machine gun. By the end of the case the government thought they had a poor case and tried to refocus their arguments to possessing a unregistered machine gun conversion part (an AR auto sear, ATF got Doucet to install it in an AR by having his brother beg him to do so, for the brother's use). The court throws the conviction out, saying that while both may be a "machine gun" under the NFA, the indictment must indicate what definition(s) they are proceeding under, and may not switch from it being an assembled machine gun, to a conversion part, midway through the case. This has to do with the constitutional right to be informed of the charges against you, by a grand jury indictment. The court was also disgusted by ATF's use of the brother to set up Doucet, although that was not the basis of their decision.
U.S. v. Douglas, 974 F.2d 1046 (9th Cir. 1992)
In this case the 9th circuit throws out a conviction for being a felon in possession of firearms, as the defendant had a valid FFL, and was disposing of his inventory and or personal firearms. The GCA provides a specific exception for that activity, and therefore the defendant was not a felon in possession at the time claimed. ATF claimed the exception didn't apply because he was dealing in violation of his license, by selling at an out of state gun show. The court said that whether he was violating gun show sales rules or not, he had a FFL, and that was all that mattered. ATF claimed he was violating the gun show sales regs because he was selling through a local dealer, and delivering the firearms in person to the out of state dealer, at the gun show. The court noted in a footnote that there was no law or regulation that said that was prohibited, and that dealing outside of the rules, as long as one had an FFL, did not make it as if one did not have an FFL. See US v. Caldwell for a similar holding, and US v. Bailey for the rejection of this idea, agreeing that dealing off of licensed premises was the same as dealing w/o an FFL.
U.S. v. Drasen, 665 F.Supp. 598 (N.D.Ill. 1987)
This is the trial court's decision that was overturned in part by the 7th Circuit court of appeals. That dealt with the issue of what constitutes a short barreled rifle, and that holding was upheld by the Supreme Court in the Thompson/Center case, although I would tend to agree with the judge in this case. Interestingly, the 1950's Revenue Ruling that both this case and the appeal hinge on was declared obsolete and no longer valid by ATF in 1972. Neither court picked up on that, although it is noted in the T/C supreme court case. Pretty unethical to be arguing law on behalf of the government that the government repudiated....
However this opinion also deals with counts against the defendant related to machine guns and machine gun parts, which were not appealed to the 7th circuit. Specifically the issue of whether a mini-gun "housing" was a receiver, whether a set of receive parts, cut up, could be a machine gun receiver within the statute, and whether the GE mini-gun is a machine gun or not. The court decides that the sheet metal housing to a mini-gun is the receiver, and that the gut up parts of one, even if they need welding, can be a receiver within the statute, at least so as to preclude summary judgment on that issue. The court also goes over the 1954 ruling as to when an electric Gatling gun is not an mg, and apparently ATF was sticking to that, in 1987. ATF said they would prove the housing was for a gas operated Gatling gun, and not an electric one...so the court did not grant summary judgment. It is conceivable that ATF considers the GE mini-gun to be an mg not because it is an mg, but because the receiver and some other parts can be used to make a fully auto, gas operated mg. In other words, the GE mini-gun might be considered a semi-auto on an mg receiver. I am not familiar with any rulings as to the mini-gun in particular, but that seems to be the position they take in this case. The court also decides that selling a conversion kit to one person, is still covered, even if the parts are doled out over several days, if the intent is there to sell a conversion kit, and not just part of a conversion kit.
U.S. v. Drasen, 845 F.2d 731 (7th Cir. 1988)
This case concerns whether an unassembled set of parts to make a rifle out of can be a short barreled rifle under the NFA, if the parts have never been assembled into a rifle. Basically the issue is whether the definition covers it. Although the law doesn't say that, the court decides it does. ATF has long argued, and been bolstered by cases such as this, that an NFA weapon, that is not otherwise defined as parts of such a weapon, is still one if someone possesses all the parts to assemble it. They apply the same logic to semi-auto "assault" weapons, and large capacity magazines. This holding was not altered by the supreme court case in Thompson/Center, which was similar to this. In that case the court agreed with this case, but distinguished the situation with T/C in that the parts had dual use, either for a legal gun(s), or for a SBR. In this case the folks were selling the AR kits with short barrels and a flash hider you were supposed to silver solder onto the end, or otherwise permanently attach. Either that or register the thing as a SBR before you put it together. Since the flash hider wasn't permenetly attached they didn't count it toward the overall length of the barrel, and the kit could only turn into a SBR, unless you bought parts of your own into the equation.
U.S. v. Dupaquier, 74 F.3d 615 (5th Cir 1996)
U.S. v. Edwards, 90 F.3d 199 (7th Cir. 1996)
In this case the court addresses the distortion of the Supreme court decision in Staples by other courts, in particular the Imes and Barr cases. The question is whether Staples applies to a sawed off shotgun; ie does the government need to prove the defendant knew the characteristics of the weapon that put it within the purview of the NFA? Staples says yes. Imes and Barr say no, because the thing that makes the gun subject to the Act is not something hidden, but if the defendant has ever seen the gun he has seen the characteristics that make it subject to the Act, its length. The Imes case in particular wants to believe that Staples didn't overrule the 9th circuits precedent on this issue, the Herbert case. However the Supreme court did, and whether the characteristic that brings the gun under the Act is hidden or not, makes no difference. In Staples the defendant was supposedly on notice because one of the external selector stops on his AR had been ground off, leaving bright metal. Made no difference. As this court points out, if the alteration is obvious, that makes it that much easier for the government to prove the defendant knew the gun was withing the NFA. If it is close, as in Imes, I believe it was less than 1 inch under legal, the government should have to prove it. When the Supremes render a decision some circuit court judges disagree with they will undermine it as best they can - knowing in part the court is unlikely to revisit an issue they just decided. This court correctly, in my opinion, decides that Staples applies to short shotguns, and in fact they say, to all items that might appear to be conventional firearms, that someone might reasonably think are OK, given the heritage of legal firearms ownership in the USA, as the Staples court pointed out. There is a nice split in circuits on this issue, and while the Supremes should grant cert. in one of these cases, it is unlikely they will.
Transcript, U.S. v. One FAL Rifle, Case No. 71-2747-HP, and U.S. v. One Browning Automatic Rifle, Case No. 72-642-HP (C.D.Cal 1972)
U.S. v. One Lot of Eighteen Firearms, 325 F.Supp. 1326 (D.N.H. 1971)
In this case the trial court decides that the pardon of the defendant for his felony conviction, for which the government was trying to forfeit his firearms operates to stop the forfeiture of his firearms, even though the pardon was granted after the firearms were seized, but before they were ordered forfeited.
U.S. v. Eighteen Various Firearms, 148 F.R.D. 530 (E.D.Pa 1993)
In this case the court dismisses the case over the objections of the gun owner, after ATF agreed to let him register the guns that were the subject of the forfeiture. The gun owner contended that if the case continued on he could get attorney fees, and a judgment letting him register other guns, that weren't the subject of the forfeiture.
1993 ATF Memo on US v 18 firearms case
U.S. v. Elliott, 128 F.3d 671 (8th Cir. 1997)
U.S. v. Ellison, 793 F.2d 942 (8th Cir. 1986)
U.S. v. Emerson, 46 F.Supp.2d 598 (N.D.Texas 1999)
In this decision a US district court decides that the ban on posssessing firearms while subject to a domestic violence restraining order violates the 2nd and 5th amendments to the US Constitution. In his decision he decides that the 2nd amendment does pertain to a personal individual right to own firearms, and that the restraining order ban violates that right.
Brief of Gun Owners Foundation in appeal of U.S. v. Emerson
U.S. v. Endicott, 803 F.2d 506 (9th Cir. 1986)
This case deals with a lot of issues, the main interesting one being whether a silencer kit was a silencer, before the 1986 change in the law defining silencers to explicitly include parts. In this case, as in Luce and Poulos, the "kit" was apparently really ALL the parts, in unassembled form. The issue of the kits, and the lack of an Amnesty to register them, has yet to be settled, but I don't doubt there are a lot of them still out there. In any case, as part of a line of such cases, the court holds that the silencer definition includes complete weapons in disassembled form, and the ATF takes the position that anytime a law bans a certain firearm it also bans the gun in unassembled form, even if the language doesn't say so.
U.S. v. Evans, 712 F.Supp. 1435 (D.Mont. 1989)
United States v. Evans, 928 F.2d 858 (9th Cir. 1991)
Evans was peddling STEN receiver blanks with a template for doing them up. He was working with a buddy who sold complete STEN parts kits. The feds charged him with conspiring and aiding and abetting in the illegal making of machine guns, based on the idea that his motive in selling the things, and assisting folks in getting all the parts was to have his customers make illegal machine guns. They never said that the receiver blanks were machine guns, or that the blanks and parts kit together were a machine gun (although ATF apparently considers that a "set of parts from which an mg may be readily assembled"). Just the conspiracy, and aiding and abetting, based on what his customers did with the stuff, and what ATF contended he intended his customers do with the stuff. There is no reason why this logic couldn't be extended to anyone who sells receiver blanks, or parts. Apparently ATF has a policy that selling one or the other is fine, selling them both, or selling them together is not. This is major twilight zone stuff. Anyway the 9th circuit, the most reversed circuit by the US Supreme Court, approves of this. This case is one, with Hale, that approves of the constitutionality of 922(o), as an exercise of the commerce clause power of Congress. This is the view Bownds rejects. The court does not give it much thought, and basically says Congress may do as it wishes without interference from the courts.
U.S. v. Farrell, 69 F.3d 891 (8th Cir. 1995)
In this case a guy who brought two AK's home from the Gulf war was arrested when he had a friend try and sell them. The court has to decide whether the "knowing" requirement for a violation of 922(o) means specific intent, the guy knew he was violating the law, or more general intent, he knew he had machine guns, but didn't know they were prohibited. The general intent requirement is all that is needed for an NFA violation; even that wasn't needed before the Supreme court decision in Staples. However this is not an NFA violation case, it is under 18 USC 922(o). The court decides that the government only need show he knew they were machine guns. The court also decides that the guns, as "select fire" were "inherently suspect" and the government need not show he knew they could fire full auto, but only that he had seen them, and they bore external reflectons of being full auto (3 position selectors, apparently, in this case). This follows the 8th circuit decision in Barr, which also works to undermine Staples, and somehow waive the requirement that the government prove the defendant knew the nature of the weapons that made them subject to the statute. The logic of this case, and Barr, makes Staples a nullity.
U.S. v. Ferguson, 788 F.Supp. 580 (D.D.C. 1992)
In this case a guy was charged with stealing machine guns from the US State Dept. mailroom. The fed dist. ct for D.C. approved of the logic of the Rock Island and Dalton cases but said they did not apply here, because the guns he stole were pre-86 guns, and thus were not covered by 922(o). The court said that the government intended to prove the guns were also registered under the NFA, something that guns possessed by the US government need not be.
U.S. v. Fisher, 353 F.2d 396 (5th Cir. 1965)
This is a case from 1965, on whether a smooth bore pistol was really an AOW. Before 1968 the AOW definition was not what there is now, but basically said, any concealable gun that isn't a pistol or revolver is an AOW. ATF, then and now, administratively defined a pistol and revolver as only guns with rifled bores. Before 1968, for example, a Mossberg 500 shotgun with a 18" barrel and a pistol grip would have been considered an AOW. The AOW definition was re-written in 1968. Anyway the court approves of the ATF administrative definition of pistol, and rejects the testimony of experts who say the definition is wrong, and the gun in question, a pre-34 Stevens single shot .410 pistol is a pistol, and not an AOW, despite its smooth bore.
U.S. v. Fleish, 90 F.Supp. 273 (E.D. Mich. 1949)
In one of his many challenges to his conviction and sentence, Fleish's argument that his NFA convictions violate double jeapordy, and that his sentence is cruel and unusual are rejected.
U.S. v. Fleish, 227 F.Supp. 967 (E.D.Mich. 1964)
After serving 20 years for being caught with 8 unregistered machine guns, and after numerous unsuccessful legal challenges, in this case Fleish gets out of prison after the court strikes down all but one of the crimes he was sentenced for, based on the Russell case. The court finds that the failure to register firearms charges he was convicted of, in 1939, were unconstitutional in that they compelled Fleish to incriminate himself in violation of the 5th amendment.
U.S. v. Fleming, 19 F.3d 1325 (10th Cir. 1994)
Bill Fleming arranged two separate transactions, one where machine guns and DD's were transferred from a Texas seller to the Seminole, OK police department, as well as a second where he transferred guns and silencers through the Creek County DA's office in Oklahoma, and then from those agencies to the true purchasers. While these transactions are within the law, and they do not require a transfer tax, the court decided they were really "sham" transactions, and were illegal. They interpret the government agency exception to the tax to apply only when the agency is acquiring the weapon for its use (or possibly another legitimate reason). The agency may not acquire the weapons for the purpose of re-transferring them to someone else and thus avoid the transfer tax to individuals in the process. The court decided that when Fleming made out the Form 5's indicating the weapons were going to the law agencies for their use he was making a false statement, because the weapons weren't going to the agencies they were going to private buyers. In the case of the guns transferred to the DA's office they were apparently never even delivered to the agency; Fleming kept them while the paper to the final purchaser was completed.
In my opinion, from reading the case, Fleming got screwed. What he did was within the law; there is no statutory limitation on the reasons why a governmental agency may transfer weapons into and out from itself. The court made up this "sham" exception; the law impliedly relies on governmental agencies not using their tax exemption to facilitate avoidance of the tax, but if they do abuse it in that manner, nothing in the law prohibits that. The prosecutor in the Fleming case is the same one who lost big time in the Staples v. US case, when that was appealed to the US Supreme Court. Fleming was the expert witness for the defense in the Staples case. Not that anyone was holding a grudge or anything.
U.S. v. Fogarty, 344 F.2d 475 (6th Cir. 1965)
In this case the court upholds a finding by the trial court that a gun made out of a .22 rifle with barrel less than 16", and equipeed with a device that muffled the report was a firearm under the NFA, even though the device was made to break into telephone coin boxes, and not use as a weapon.
Motion to dismiss the indictment in U.S. v. Forgett, No. 23652
Brief in support of dismissal of indictment in U.S. v. Forgett, No. 23652
Reply brief in support of dismissal of indictment in U.S. v. Forgett, No. 23652
Government answer to reply brief in U.S. v. Forgett, No. 23652
U.S. v. Forget, No. 23652 (N.D. Ohio December 20, 1963)
U.S. v. Forgett, 349 F.2d 601 (6th Cir. 1965), reversed and remanded w/o opinion, 390 U.S. 203 (1968), indictment dismissed, (April 10, 1970, N.D.Ohio)
In this case the 6th circuit upholds a conviction under the pre-68 NFA for transporting interstate unregistered NFA weapons. The defendant was a dealer (whose family runs Navy Arms today) who bought a bunch of machine guns from a dealer in Wisconsin, and whose trucking company got stopped by the police, and the unregistered guns were discovered. The court states that it doesn't think the statute violated his right against self incrimination, since the offense wasn't failing to register, but transporting unregistered guns interstate.
U.S. v. Foster, 133 F.3d 704 (9th Cir. 1997)
In this case, the en banc 9th circuit decides that in order for someone to "carry" a firearm within the prohibition on carrying a firearm while committing a drug crime, they must not be just transporting the gun. In this case the gun was in the bed of a pickup, covered by a snap on tarp. The judges decided that was not carrying the gun within the statute, that there had to be more contact with the gun than just transporting it from one place to another.
U.S. v. Fourteen Various Firearms, 889 F.Supp. 875 (E.D.Va. 1995)
In this decision the court throws out an attempt to forfeit firearms seized from a gun shop, whose owner was later convicted of making a false statement to the government. The court decides that the forfeiture action was started too late, after 120 days from the date of seizure, as required by the Gun Control Act. The court rejects the argument that as long as the government started an administrative proceeding, it can start the judicial forfeiture whenever it feels like it, saying the statute requires that any and all proceedings begin within 120 days of seizure. This view was rejected by the courts in the US v. Twelve Misc. Firearms case, as well as in the U.S. v. Twelve Firearms decision.
United States v. Franklyn, 157 F.3d 90 (2d Cir. 1998)
In this case the 2nd circuit joins all other circuits that have considered the issue, and upholds the constitutionality of the ban on new manufacture of machine guns, 18 USC 922(o).
U.S. v. Fredman, 833 F.2d 837 (9th Cir. 1987)
United States v. Funches - F.3d - (11th Cir. 1998)
In this case the court decides that erroneous advice from state prison officials that the defendant could possess firearms when released from jail is not the sort of promissory estoppel that prevents the federal government from prosecuting him for being a felon in possession of firearms. The court also takes the opportunity to rail against jurors being able to render a decision based on their conscience, rather than the law as instructed by the judge, so called jury nullification.
U.S. v. Gambill, 912 F.Supp. 298 (S.D. Ohio 1996)
In this case the district court judge decides to follow the US v. Dalton line of cases, rather than the US v. Ardoin line, and decides that the NFA, as applied to machine guns (only) has been repealed by 18 USC 922(o), and thus Gambill cannot be convicted of violating the NFA as to a SKS rifle he converted to full auto. However his convictions for making destructive devices (pipe bombs he claimed were for killing groundhogs) and an unregistered silencer were upheld.
U.S. v. Garcia, 77 F.3d 274 (9th Cir. 1996)
U.S. v. Gardner, 448 F.2d 617 (7th Cir. 1971)
In this 1971 case the 7th circuit holds that the Freed case means that the government need not prove the defendant knew his gun, a pre-1934 smooth bore pistol, was in fact a smooth bore pistol. As with Ranney, this case was overturned by Staples. It is interesting to read about how immediately after the GCA was enacted, the investigation in this case was in 1969, the ATF immediately goes to work trying to entrap folks into dealing without an FFL. The smooth bore pistol was a gift they found during their search; the defendant was acquitted of the unlicensed dealing charge.
U.S. v. Garnett, - F.3d - (4th Cir. 2001)
U.S. v. Garrett, 583 F.2d 1381 (5th Cir. 1978)
U.S. v. Gates, 491 F.2d 720 (7th Cir. 1974)
In this case the court overturns the defendants conviction for possessing an unregistered NFA gun (they don't mention what sort of gun, I bet it was a sawed off shotgun). The defendant was a passenger in a car in which the gun was found; under his seat. The court said that was not enough - there was no other evidence linking him to the gun. They said there could be an inference of possession to the driver, he was acquitted separately. There were no fingerprints on the gun. The government needed more facts linking the defendant to the gun than sitting on top of it in the car, to show possession.
U.S. v. Gergen - F.3d - (9th Cir. 1999)
U.S. v. Giannini, 455 F.2d 147 (9th Cir. 1972)
In this case the 9th circuit rejects a challenge to multiple NFA convictions on the basis that the NFA is not a proper exercise of the commerce power, noting that it is an exercise of the taxing power and not the commerce power. The court also noted that there is no requirement that the defendants know they are violating the NFA, just a requirement that they have done the acts that constitute the violation intentionally.
Administrative inspection warrant application, and affidavit for same, dated May 30, 1986, and the warrant
U.S. v. Goff, affidavit for 6/4/86 search warrant of ARDCO
U.S. v. Goff, affidavit for 6/6/86 search warrant
U.S. v. Goff, search warrant affidavit for warrant of July 21, 1986
U.S. v. Goff, No 86-CR-168, Indictment of November 20, 1986
U.S. v. Goff, Motion for Protective Order of April 15, 1987
U.S. v. Goff, July, 1987 Government Trial Brief
United States v. Goff, 677 F. Supp. 1526 (D. Utah 1987)
A federal district court opinion denying a motion by the Goffs to suppress evidence seized both with and without a search warrant. The Goffs ran the Utah company that made American 180 machine guns, and apparently papered several thousand guns they hadn't made yet, in the few days before 5/19/86, the day the making ban took effect. NFA Branch asked the local ATF to look at the guns, to make sure they existed. A world of hurt followed. The case has a good summary of the rather bogus state of the law in terms of warrantless "administrative" searches of FFL holders. I don't know what ultimately happened to the Goffs in terms of criminal convictions.
And note the judge's brilliant logic that a warrant that authorized the seizure of "firearms" included unmachined aluminum blocks, because the law defines a SILENCER as any part designed and intended for use in a silencer. From this he decides that also any part designed and intended for use in a machine gun is also a "firearm" and subject to seizure. That should have been appealed; that is clearly wrong, and a scary leap of logic, all machine gun parts are machine guns also. BULL. Where does he get off using the definition of silencer to define what a "firearm" (in the NFA sense) is, or what a machine gun is. Damn that's stupid. But the value of getting the blocks thrown out as evidence (having been seized w/o a valid warrant) was probably pretty minimal. Not worth appealing. I also like the comment about how a machine gun receiver is the part that lets it fire fully automatic.
U.S. v. Goff, Transcript of Sentencing Hearing, July, 1990
U.S. v. Gomez, 81 F.3d 846 (9th Cir. 1996)
In this case the court reverses a conviction for possessing a firearm by a felon. The felon was not permitted to put on his defense, which was that he had an immediate need to protect himself, which the court said is generally a defense to a charge under sec. 922(g). In this case the reason the felon needed protection was because the government, after getting his help in convicting a fellow inmate in a murder for hire scheme, told the other guy who the informant was, and refused to help protect him after he began getting very serious threats to his life. On top of refusing to help protect him, they (the same prosecutors as on the first case where he was an informant) then prosecuted him for possessing a shotgun he had to protect himself. One interesting feature of this case is footnote 7, where the judge states uneqivacally that the second amendment protects the rights of persons to own guns, and that if there was no exception to sec. 922(g) for felons to possess guns to protect themselves from immediate threats, the law might well be unconstitutional, under the second amendment. The other judges on this panel wrote separate concurrences to distance themselves from the footnote. One even notes that it directly contradicts a decision from another 9th circuit panel from almost the same time, as to the second amendment (referring to the Hickman v. Block case). Compare this case to the US v. Bernard Brown case, where the court upheld the exclusion of this sort of defense to a charge of possessing an sawed off shotgun. In part, the Brown court says, because Brown could have resorted to a non-NFA firearm for defense from the street gang. No such issue in this case.
U.S. v. Gonzales, 121 F.3d 928 (5th Cir. 1997)
In this case the 5th circuit upholds a conviction for violating 922(o), as well as some drug trafficking counts. The court fiollows US v. Just, and decides that the fact that a machine gun is registered and thus exempt from 922(o) is an affirmative defense, and not something the government needs to prove. The court also decided that the 30 year sentencing enhancement for possessing or using a machine gun in a drug trafficking crime is not so harsh as to violate the 8th amendment by any disproportionality between the crime and the sentence. Lastly the court rejected the claim that the government failed to prove the defendant knew the gun was a machine gun. The court just said they found it inconceivable the owner of a converted semi-auto rifle wouldn't know it fired as a machine gun, and noted a witness claimed the defendant claimed to have a machine gun.
U.S. v. Goodman, 639 F.Supp. 802 (M.D.Pa. 1986)
In this case a FFL dealer, who also was an attorney, is convicted to conspiring to import unimportable firearms, specifically Walther TPH pistols. Goodman operated under the name American Armaments. He got a local PD to order 24 Walthers, where he would pay for them, and keep 22 of them. ATF found out, and persecuted. Goodman argued the literal words of the law allowed a PD to use its purchase order to import otherwise unimportable guns for commercial resale, and the purchase need not be for its use. The court agreed the words said that, but claimed it would subvert Congress' will not to read the law to prohibit the plan at issue. This case also features a classic quote from current class 2 manufacturer, Doug Oefinger, testifying he told the defendant he "was ******* nuts" when the scheme was described to him. Maybe not nuts, but he definitely underestimated ATF.
U.S. v. Goodson, 439 F.2d 1056 (5th Cir. 1971)
In this prosecution under the pre-68 NFA, the 5th circuit reverses a conviction for possessing a short shotgun made in violation of the NFA. The court decides that since the shotgun was made in Canada originally, the government needs to prove the short shotgun was made in the USA, as it is not a crime to make one outside the USA, and possession of such a gun is not covered by the section of the NFA the government prosecuted under. As the government admitted it could not prove the short shotgun was made in the USA, the court reverses the conviction. While it is still true that NFA weapons outside the USA are not regulated, the statute has been revised to sort of eliminate this issue.
U.S. v. Gravenmeir, 121 F.3d 526 (9th Cir. 1997)
In this case the 9th circuit agrees with the 8th circuit case US v. Just, and decides that whether a machine gun is registered is an affirmative defense to a charge under 18 USC 922(o), and the government does not have to prove non-registration as an element of the offense. The court also agrees that the Staples decision applies to 922(o), as well as to the NFA; in other words the government has to prove the defendant knew the gun was a machine gun, in order to win a conviction. In this case the court said that was demonstrated by the defendant showing the converted Uzi to another person and saying it was full-auto, the defendant possessing machine gun conversion books, his subscription to the magazine Machine Gun News, and the three position selector on the pistol grip of the gun.
U.S. v. Gray, 484 F.2d 352 (6th Cir. 1973)
In this case the court upholds a finding that stolen rifles were seized during a search for illegal liquor without a warrant or probable cause, and thus as the rifles were seized in violation of the 4th amendment they cannot be used as evidence against the defendant.
U.S. v. Green, 515 F.Supp. 517 (D.Md. 1981)
U.S. v. Griley, 814 F.2d 967 (4th Cir. 1987)
In this case the court upholds a conviction for possessing an unregistered machinegun, and for transporting an unregistered machine gun across state lines. The defendant was alleged to have obtained a M16 stolen from Ft. Meade, in Maryland, and to have taken it to his mothers house in North Carolina. Among points of interest, the court decides that it was proper to have the jury hear testimony that the parts found at his mother house were a machine gun, even though it was incomplete, and may have consisted only of a receiver. The court also upholds the prosecutor represnting that a witness would not get favorable treatment on pending charges he was facing, then actually giving favorable treatment when the witness was later sentenced.
U.S. v. Gross, 313 F.Supp. 1330 (S.D. Ind. 1970)
In this case the trial court upholds the defendants conviction for dealing in firearms without a license. The court says that the Gun Control Act does not violate the constitution, in that it is a regulation of interstate commerce, and that it is also an exercise of Congress' taxking power, and further that it does not offend the second amendment to the Constitution. Also see the Appeals court decision, which tackles different issues, for the most part.
U.S. v. Gross, 451 F.2d 1355 (7th Cir. 1971)
In this case the court upholds the conviction for dealing in firearms without an FFL of the gun department manager of a K-Mart store. He was buying and selling guns with the store customers on the side, as well as dealing guns to other folks on the side. One turned out to be an undercover police officer. The court rejected arguments that the definition of being a dealer was too vague to be sure whether it applied to his conduct, as well as his argument that part of the question and answer section in the gun law guidebook published by the predecessor to ATF said that you didn't need a license to occasionally buy and sell guns, and therefore the government was estopped from claiming otherwise.
U.S. v. Hale, 978 F.2d 1016 (8th Cir. 1992)
This is a case which upheld the constitutionality of 922(o) under both the second amendment and the commerce power. In the case of the commerce power, this is the logic that the Bownds case disagreed with. Bownds apparently did not raise a 2nd amendment claim. The court rather blithely disposes of the constitutional question claiming the 2nd amendment does not mean anyone has a right to own a gun, only that the feds may not interfere with militias. And as to the commerce power claim, they use the findings made when the 1968 GCA was enacted, not the 1986 ban, to say there was enough of a nexus with commerce for the feds to ban machine guns. A "we're not going to listen, see our hands are over our ears" type case. Depressing.
U.S. v. Hall, 972 F.2d 67 (4th Cir. 1992)
U.S. v. Hancock, - F.3d - (9th Cir. 2000)
U.S. v. Hardgrave, 214 F.2d 673 (7th Cir. 1954)
U.S. v. Hardy, 120 F.3d 76 (7th Cir. 1997)
U.S. v. Harflinger, 436 F.2d 928 (8th Cir. 1970)
In this case the appeals court upholds a conviction for possessing a bomb that was not registered. In part, the court decides that the provisions of the post-68 NFA regarding possessing unregistered NFA weapons do not violate the 5th amendment the way the pre-68 NFA provisions were held to do.
U.S. v. Harrelson, 442 F.2d 290 (8th Cir. 1971)
In this case the court rejects the contention that the defendant's conviction for possessing a sawed off shotgun made in violation of the pre-68 NFA should be thrown out. The defendant argued that the requirements to file an applicaiton to make the shotgun would violate his right against self incrimination. The court, without discussion, citing its decision in Reed v. US, as well as other courts reaching the same conclusion, rejects the argument.
U.S. v. Harris, 959 F.2d 246 (D.C. Cir. 1992)
This case has defendants named "knot", "drago", "cheese" and "richmo".....drug dealers from Wash. DC. Of interest in this long case is the DC Circuit court agreeing with other cases, before Staples, that conviction under the NFA requres a showing by the government that the person knew the gun was a machine gun in order to convict (the gun was a MAC-10, "a favorite of drug dealers"). The court also says that such a requirement comes from the language of the law, or the lack of a waiver of requiring such proof, and Congress could constitutionally dispense with mens rea for possession of a firearm if it wished.
The court also says that using a gun in a drug transaction can be just trading it for drugs, a conclusion also reached by the Supreme court in the Smith case.
U.S. v. Harvey, 397 F.2d 526 (7th Cir. 1968)
In this case the court throws out a conviction for possessing an unregistered sawed off shotgun based on an illegal search. The court also notes that it is not ruling on the defendant's self incrimination claims because of the alternate basis for reversal.
U.S. v. Hedgcorth, 873 F.2d 1307 (9th Cir. 1989)
In this case the 9th circuit upholds a conviction for using a firearm in a crime of violence, as well as possessing an unregistered destructive device. The court decides that the homemade gallon jugs of napalm, used to set cars on fire as part of a contract intimidation, were destructive devices, in that they were used and meant to be used as weapons, even though they were homemade, and even though they could not be thrown, but had to be placed and lit by hand.
U.S. v. Henson, (4th Cir 1996)
U.S. v. Henson, 55 F.Supp.2d 528 (S.D.W.Va. 1999)
U.S. v. Herbert, 698 F.2d 981 (9th Cir 1983)
U.S. v. Hern, 926 F.2d 764 (8th Cir. 1991)
In this case the court upholds the defendant's conviction for conspiring to violate the Gun Control Act, and for willfully making flase entries in records required by the GCA. Hern worked with another, out of state dealer for that dealer to be able to sell guns at gun shows in Hern's state. The dealer would log the gun to Hern when someone wanted it, and the buyer would do paperwork with Hern to acquire the gun. The court claimed that was conspiring to violate the GCA; that residents could not buy from out of state dealers through an in state dealer. Compare to US v. Caldwell, and US v. Douglas. The court also upheld the false record convictions, for allegedly selling guns off paper - not recording their true acquisition or disposition.
U.S. v. Hicks, 992 F.Supp. 1244 (D.Kan. 1997)
In this case the trial court upholds the ban on gun possession by persons convicted of a domestic violence misdemeanor, against a claim that the law violates the ex post facto clause when a conviction from before the law was enacted is used to trigger the penalty of the law.
U.S. v. Hitt, 981 F.2d 422 (9th Cir. 1992)
In this case the 9th circuit reverses a conviction for possessing an unregistered machine gun because the prosecution introduced a photograph of weapons that included the gun at issue, but which also included unrelated guns, including some bad looking "assault" guns. The court decides that this photo was unfairly prejudicial to the defendant, and orders a new trial.
U.S. v. Holt, 427 F.2d 1114 (8th Cir. 1970)
This case is about a guy who was convicted of making and possessing a sawed off shotgun. He and some friends went with the gun to Missouri, from Ill., where they wrecked the car because they were drunk, and the gun was discovered. He claimed the evidence was insufficent to prove he ever possessed the gun, and that a second person should have been charged as an accessory also. The court said that possession could be constructive, or joint, although they thought the facts showed he made and held the gun. They also said that the woman who drove, and wrecked the car, need not necessarily be an accessory, if the evidence as to her knowledge about the gun was inconclusive.
U.S. v. Holt, - F.3d - (7th Cir. 1999)
U.S. v. Homa, 441 F.Supp. 330 (D.Colo. 1977)
U.S. v. Homa, 608 F.2d 407 (10th Cir. 1979)
In this case the 10th circuit upholds the trial court's finding that some white phosphorus grenades are "weapons" to put them within the definition of a desctructive device. The defendant argued they were smoke grenades, not meant for use as a weapons, but for generating smoke. ATF put on contrary evidence, and the judge credited that evidence. Incidentally, unlike the Dalpiaz case, the court here refused to review a trial court finding that part of the government's burden of proof was that the items were weapons, as opposed to the idea that the government need only prove the items meet the definition, and it is up to the defendant to raise the idea that the thing is not a weapon, and thus outside the definition, as an affirmative defense.
U.S. v. Hommer, No. 96-1681, (8th Cir. 1996)
U.S. v. Hudson, No. 97-4282 (4th Cir. 1997)
U.S. v. Hunter, 843 F.Supp. 235 (E.D.Mich 1994)
U.S. v. Hunter, 863 F.Supp. 462 (E.D.Mich 1994)
U.S. v. Hunter, 101 F.3d 82 (9th Cir. 1996)
In this case the 9th circuit decides that a "assault weapon" need not be operational in order for it to be the basis for the 10 year sentencing enhancement for using one in a crime. In this case the defendant robbed a credit union with a broken SWD M12 .380 pistol. The court decided that the fact that the gun was broken did not make the sentencing enhancement inapplicable.
U.S. v. Hurd, 642 F.2d 1179 (9th Cir. 1981)
U.S. v Hutzell, - F.3d - (8th Cir. 2000)
U.S. v. Imes, 80 F.3d 1309 (9th Cir. 1996)
U.S. v. Indelicato, 97 F.3d 627 (1st. Cir. 1996); cert. denied, 117 S.Ct. 1013 (1997).
In this case the 1st circuit court of appeals considers whether a person convicted of a crime punishable by more than one year has had his right to bear arms restored, and is thus not subject to the federal firearms disability, when the state in question (Mass.) never strips persons of the right to own guns for the offense in question. The court agrees with other circuits on the question, and decides that if a state does not strip a person of the right to posess firearms after conviction for the offense, even if it is punishable by imprisonment for more than one year, they are not subject to the federal firearms disability either. In this case Mass. has misdemeanors which did not result in losing the right to own firearms, but were punishable by up to 2 years in jail. This issue is a result of 1986 amendments to the Gun Control Act, where Congress decided that the issue of whether a state law conviction imposed a firearms disability would be decided by state law. If the right was automatically restored, then the federal disability went away also. If the person was pardoned, or otherwise petitioned the state for the rights restoration, then the federal disability went away. And if there never was any disability, there was no federal disability either. On the other hand, a federal conviction will require a presidential pardon, or the restoration of the right by ATF, under the procedure set out in the law. As Congress has refused to fund ATF action on petitions for restoration of the right to own firearms by felons, the issue of what a federally convicted felon is supposed to do is before the Supreme Court, in the Oct. 1996 term. The 3rd circuit decided the felon could go straight to the courts, the 5th circuit decided there was no relief for a federal felon, except for a presidential pardon.
U.S. v. Indelicato, 964 F.Supp. 555 (D.Mass 1997)
In this case, the court construes the "grandfather" clause of the assault weapon ban, 18 USC 922(v). The court believes that the weapons are only grandfathered to the owner as of the date of enactment of the ban, 9/13/94, and that no other person may lawfully possess them, ever. No weapon grandfathered as of that date may be transferred and possessed as other weapons may be. Therefore the judge decides that the brother of the defendant, whose guns were not subject to seizure, may not get a semi-auto Uzi model A back from the government, as the brother may not legally possess it, as he did not have it on the grandfather date, the defendant did.
U.S. v. Jackson, - F.3d - (4th Cir. 1997)
U.S. v. Jacques, partial trial transcript, Crim. No. 51375 (W.D.Wa September 11, 1968)
U.S. v. Jacques, actual, unedited transcript of Court decision, No. 51375 (W.D.Wa. September 27, 1968)
U.S. v. Jacques, Transcript of decision as edited by Court, Crim. No. 51375 (W.D.Wa. September 27, 1968)
U.S. v. James, 528 F.2d 999 (5th Cir. 1976)
In this lengthy opinion the Court deals briefly with NFA issues. One of the defendants was charged with firing a fully automatic AR180 at the FBI and local police, however the gun woudl not function as a machien gun after it was first test fired by the feds. The court said that the fact that it would not function as a machine gun for defense testing did not mean the defendant could not be convicted of possessing the machine gun (and a conspiracy count related to its possession), as there was testimony it fired as a machine gun during the firefight, and that it did fire fully automatic for some of the testing, during which it was apparently damaged or borken.
U.S. v. Jamieson, 202 F.3d 1293 (11th Cir. 2000)
U.S. v. Jarvouhey, 117 F.3d 440 (9th Cir. 1997)
In this case the 9th circuit decides that, in the case of a FFL dealer who sold handguns under the counter, without keeping any records at all, that the proper penalty is a felony conviction. When the GCA was amended in 1986, by the Firearm Owners Protection Act, the NRA wanted the penalty for a dealer keeping crummy records reduced to a misdemeanor, from the felony it had been, and that was done. The law was changed so that a dealer that knowlingly kept poor records could not be punished by more than a year in jail. This reduced the prior ATF incentive to "felonize" gun dealers, and keep them from being able to own guns, by finding poor recordkeeping on the part of dealers. However, if anyone "wilfully" violates the GCA, they are subject to a penalty of five years in prison (and more for violating a few select sections). Wilfully means you do it knowing you are doing it, and knowing it is prohibited by law. Knowlingly, in general, just means you do it knowing you are doing it, without any knowledge that the intentional action is illegal. These are different levels of "intent", or as the lawyers call it, mens rea (state of mind). In this case, because the violations were "wilful" and not just "knowing" the court agrees that the 5 year penalty, not the one year penalty, applies. The court also rejects precedent from the 4th circuit, that any recordkeeping violation by a dealer is only subject to the 1 year provision, since it overrides the generally applicable 5 year provision. This case certainly highlights one feature of "wilful" crimes, nearly all the time the knowledge of the law is proved by the defendant's statements to the police. Keeping one's mouth shut can go a long way to avoiding these problems. Aside from not engaging in the conduct that was the problem initially.
U.S. v. Jester, 139 F.3d 1168 (7th Cir. 1998)
In this case the appeals court rejects constitutional challenges to the ban on felons possessing firearms. The defendant argued the law had an impermissible classification between types of felons, in that it excludes some felonies from the prohibition, and also that it was cruel and unusual punishment. The court said that the differentiation between types of felonies was OK, and the law was fine as to punishment.
U.S. v. Jimenez, 864 F.2d 686 (10th Cir. 1988)
In this case the 10th circuit upholds the warrantless seizure of a short shotgun, after the defendant was involved in a traffic accident that peeled open his trunk. The shotgun was in the trunk, and the police saw it while checking the car for leaking gasoline, batteries, and other hazards from the accident. The court upheld the seizure under the plain view exception to the 4th amendment. The court decided that the shotgun, which had a short barrel, was obviously contraband, justifying the seizure.
U.S. v. Johnson, 441 F.2d 1134 (5th Cir 1971)
In this case the defendant appeals his conviction for possessing a sawed-off shotgun claiming the law violates his right against self incrimination, and the 2nd amendment. The court decides that, based on the recently decided Freed case, it is not a violation of any 5th amendment right, and also that the second amendment doesn't protect the right to own a gun, quoting the Miller language about the absence of evidence linking a sawed off shotgun to a well regulated militia. It doesn't really make any sense, but the whole case is pretty short.
U.S. v. Johnson, 978 F.Supp. 1305 (D.Neb 1997)
U.S. v. Jokel, 969 F.2d 132 (5th Cir 1992)
In this case the 5th circuit decides that a short shotgun under the NFA, includes one without a traditional trigger, but can also be one that is fired by cocking the hammer and letting go. The defendant thought he had avoided the statute by not putting a trigger on his homemade gun, sort of like the "sputtergun" referenced in the York case. The court says that a trigger, since it is not defined in the statute, has the ordinary meaning, in this case anything that makes the gun fire.
The court also decides that some homemade pipe bomb devices, lacking any explosives, are still covered by the NFA, since the smokeless powder and lead shot the defendant also had could be used to complete the devices. The defendant's explanation that they were to become signalling devices for paintball war games did not persuade the jury.
United States v. Jones, 976 F.2d 176 (4th Cir. 1992)
Jones was convicted of making unregistered machine guns in violation of the NFA. He made full auto trigger packs for the Remington 1100 shotgun. Wonder how long that gun will stand up to full auto fire.... Anyway the main point of interest from this case is the 4th circuit's refusal to follow the 10th circuit (in Dalton) and agree that 922(o) impliedly repeals the NFA, as applied to post May machine guns. They decide it does not, in a manner similar to the 5th circuit in Ardoin, which cited this earlier case. They say that it is not a problem because one can just not make post-May guns, and then one doesn't need to worry about violating 922(o) or the NFA. If that were the standard all criminal laws would be just fine. The sad part about this case is that at least there was a reasoned dissent in Ardoin. All these judges went along with this, that it is OK to prosecute someone for not paying a tax the government won't let them pay. They cite the Supreme court case Minor, Which is totally irrelevant because there the government would accept your tax payment for your otherwise illegal drug transaction. The issue is not can the man tax illegal acts, but can the man prosecute you for not paying a tax you literally cannot pay, the government may not legally accept the tax payment? Like Ardoin the Supreme court refused to review this case, and settle the conflict between the circuits on this issue.
U.S. v. Julian, 974 F.Supp. 809 (M.D. Pa. 1997)
In this case the court refuses to dismiss a case charging the defendant with possessing firearms and ammo while a felon. After his arrest he got the state felony conviction expunged and sealed, and then argued he was no longer a felon, and thus was not guilty. He also argued that since his record had been sealed, it could not be used as evidence. The court rejected both arguments, saying even if one has a conviction which could be voided, one has to do that before possessing guns or ammo, citing the Supreme Court case Lewis v. US. The court also rejected the argument that the record was now inadmissible, saying his felony status at the time of possession could be proved by other means than the record, if it was unavailable.
U.S. v. Just, 74 F.3d 902 (8th Cir 1996)
In this case the 8th circuit construes 18 USC sec. 922(o). Just was caught selling an apparently unregistered Jap Type 99 machine gun to an undercover police officer. One argumetn he made was that the government needed to prove the gun was unregistered. The court said that while the government had apparently proved that, they disagreed that that was a requirement of the statute. All a crime under 922(o) required was possessing a machine gun. That it was registered was an affirmative defense, and up to the defendant to demonstrate.
U.S. v. Justice, 835 F.2d 1310 (10th Cir. 1987)
In this case the 10th circuit upholds the warrantless seizure of a machine gun, the possession of which the defendant was convicted of, based on the plain sight doctrine. In this case the police were called to the defendant's home which was in a state of disrepair, such that a kicked in door had not been fixed. Someone was in the front yard shooting at snakes. The police entered the home to look if anyone had been shot, and to see if the house had been burglarized. They found a quantity of industrial high explosives, haphazardly and dangerously stored. While scouting around they found the gun under a bed - the butt was allegedly protruding out. The court failed to come up with a plausible suggestion of how the gun was obviously contraband, which is the most important step of the plain sight seizure analysis, as pointed out by the dissent. Compare to US v. Gray.
U.S. v. Kelly, 548 F.Supp. 1130 (E.D.Pa. 1982)
In this case the trial court upholds a jury verdict convicting the defendant of making an unregistered machine gun. Kelly put an ad in Shotgun News offering to convert the triger housing and bolt for an Uzi rifle into those suitably for a machine gun. An ATF agent took him up on the offer, and got back a trigger housing and bolt that when put in a semi-auto rifle, allowed it to fire full auto. Kelly agreed that that was the purpose of the alteration - however his main argument was the items were not a machine gun unless and until installed on a receiver, that a conversion set isn't a machine gun, based upon the language of the statute, and the 7 Misc. Firearms case. The court rejected the literal language of the statute, and the case, saying the law meant what Congress said in the legislative history for it to mean, not what it might or might not say. The court suggested that "and" and "or" can be used interchangably, to further Congress' "intent", as divined from their reports, not from their laws. Alice in Wonderland time, although that sort of hogwash goes on a lot in court.
U.S. v. Kenney, 91 F.3d 884 (7th Cir 1996)
U.S. v. Khatib, 706 F.2d 213 (7th Cir. 1983)
U.S. v. Kindred, 931 F.2d 609 (9th Cir 1993)
U.S. v. Kirk, 70 F.3d 791 (5th Cir. 1995)
In this case the 5th circuit agrees with the 10th circuit in Wilks, that 922(o) is a proper exercise of the commerce clause power by congress. There is a dissent that argues that a flat out ban on a gun with no relation to commerce is not acceptable under Lopez, but the majority disagreed.
U.S. v. Kirk, 105 F.3d 997 (5th Cir. 1997)
In this case, and en banc rehearing of the panel opinion, an even split of the entire circuit results in upholding the panel decision, and upholding 18 USC 922(o) against a challenge that it is outside the power of Congress to enact.
U.S. v. Kirvan, 86 F.3d 309 (2nd Cir. 1996)
U.S. v. Knutson, 113 F.3d 27 (5th Cir. 1997)
In this case the 5th circuit affirms the constitutionality of 18 USC 922(o), despite the fact that it has no connection to interstate commerce, per the Lopez case. The court disagrees, and notes that this was an open issue in the 5th Circuit, given that the Kirk case was only affirmed because the en banc rehearing ended up affirming the panel decision because the en banc court was evenly split on whether 922(o) was a constitutional regulation of commerce. This panel claims to settle the issue.
U.S. v. Kokin, 365 F.2d 595 (3d Cir. 1966)
In this case the court very briefly decides whether the sale of an M-1 carbine together with all the parts to convert it into an M-2 carbine (a machine gun) is selling a machine gun. The court decides that it is; as this case was decided under the pre-68 NFA, the M-2 parts in themselves were not a machine gun (a conversion kit).
U.S. v. Kocourek, No. 96-1963 (8th Cir. 1997)
U.S. v. Kozerski, 518 F.Supp. 1082 (D.N.H. 1981)
U.S. v. Kurt, 988 F.2d 73 (9th Cir. 1993)
This is a sort of lame case. the 9th circuit decides that 922(o) does not impliedly repeal the NFA (26 U.S.C. 5861(d) in this case) when the gun in question was converted or possessed whatever before 5/19/86. The court decides that the defendant needs to assert that, and if that results in the case being tossed out he cannot be re-tried. One case they cite for that concept was the Dalton case; except of course the district court opinion to that effect; that an erroneous prosecution under the NFA for a post-86 mg bars under Double Jeopardy a re-trial under 922(o) was REVERSED by the 10th circuit. In short, their contention about the double jeopardy clause is not recognized by other courts.
U.S. v. LaCedra, No. 97-1286 (1st Cir. 1997)
U.S. v. LaGue, 472 F.2d 151 (9th Cir. 1973)
This case concerns a guy who had a colleciton of unregistered silencers and machine guns. The feds prosecuted him for possesing unregistered guns, and he beat the silencer charge, but not the mg charges. The evidence concerning possession was that others had seen him with "similar" guns, and they were found in the warehouse of the family carpet business. The court thought that was sufficient evidence of possession to support a conviction.
U.S. v. Lamplugh, Case No. 3:CR-95-0169 (M.D.Pa., August 6, 1998)
In this decision from a firearms prosecution, the trial judge refuses to suppress evidence seized during a search of the Lamplugh's home, based on alleged abuses commited by federal agents during the search, including stomping a kitten to death.
U.S. v. Lauchli, 371 F.2d 303 (7th Cir. 1966)
Richard Lauchli was apparently a (1950's-60's) dealer in IL in gun parts, or so called demilled Thompson machine guns, in particular. Unfortunately he was also a felon (got a fine for possessing an unregistered NFA weapon, and in a second case, got a suspended sentence and a $500 fine for stealing bazookas from the military. Those were the days...) In this case he got tricked into making some of his "demil" Thompsons live for sale to an ATT agent. He thought by selling them w/o the barrels installed he was outside the definition of machine gun. The court disagreed. In any case he also sold a Bren gun, and at least one Browning machine gun; anyone know if its really true a Bren won't work on full auto w/o a bipod??
Lauchli v. United States, 402 F.2d 455 (8th Cir. 1968)
In this one Lauchli gets off of a violation for transferring a M2 .50 cal., based on the Haynes v. US decision. This is the 8th circuit, a different prosecution than the ones in the 7th circuit. Essentially the 7th circuit rejects this case in Lauchli4.
Lauchli v. United States, 432 F.2d 1207 (7th Cir. 1970)
This is the 7th circuit sending the case down to the district court for re-consideration in light of Haynes, and indirectly, Lauchli3. Later the lower court decides Haynes doesn't apply....
Lauchli v. U.S., 481 F.2d 408 (7th Cir. 1973)
This is an appeal of one of his cases, I haven't straightened out how many times, and for what, Lauchli got prosecuted, he clearly liked to live close to the edge - here the court has to decide if he can use the recent Haynes decision as a defense to a prosecution for not paying the SOT when he was doing things the SOT is required for. The court decides no, the SOT parts of the NFA do not require self-incrimination, and that they do not apply to a class that is primarily suspected of criminal activity, as the requirement for possessors of unregistered guns to register them, while penalizing unregistered possession did, in Haynes. The court has some interesting alleged statistics and info on the SOT situation in 1964, the year the feds apparently claimed Lauchli needed to pay the SOT for. If you believe Lauchli's witnesses, not much has changed with regard to ATF going after folks in the industry, and not criminals. The court didn't believe them.
U.S. v. Lauchli, 427 F.2d 258 (7th Cir 1970)
I mostly included this for completeness; this is Lauchli's probation being revoked for selling alleged silencers and machine guns one month after being released from prison on the prior convictions.
U.S. v. Lawrence, 680 F.2d 1126 (6th Cir. 1982)
In this case the court upholds a conviction for providing false information to a dealer, in the conduct of a "straw" purchase. In this case the court rejected the argument that the straw buyers were really the actual buyers of the gun, and thus didn't lie on the 4473 form, in that the money to buy the guns came from the ineligible buyer, they got paid to buy the guns, and they turned them over to the ineligible person immediately.
U.S. v. Le, Case no. 97CR84 (N.D. OK), docket listing
U.S. v. Le, - F.3d - (10th Cir. 1999)
U.S. v. Leasure, Transcript of Hearing May 21, 1996 4:95CR54 (E.D.Va. 1996)
U.S. v. Leasure, No. 96-4481, No. 96-4516 (4th Cir. March 27, 1997)
In this case the 4th circuit upholds the conviction of the owner of Silent Options (SIOPTS, formerly Precision Arms International), a class 2 silencer making company, for possessing 19 unserialized silencers. They were units he had made, and didn't meet his spec, and so he didn't register them, and cannibalized them for parts when needed. ATF found them during a compliance inspection, and he was prosecuted. He was also convicted of possessing unregistered machine guns, but those charges were thrown out by the trial court after Leasure's lawyer put on evidence of perjury by ATF people in making certifications as to the registration or non-registration of guns. The transcript of that hearing is also on this web page. You can read the Busey transcript here as well, which was the basis for the motion. The government chose not to appeal that dismissal, probably because they didn't want to risk making any adverse case law. The bottom line on this case is that while ATF tolerates class 2 SOT's having unregistered silencer parts, they do not tolerate unregistered silencers, in an assembled state. Even if they don't work as they should, these worked well enough.
U.S. v. Leasure, No 95CR54, transcript of 4/14/98 sentencing hearing
U.S. v. Leasure - 12/98 response to petition for relief from conviction
U.S. v. Leasure, December 20, 1999
U.S. v. Leasure, February 23, 2000
U.S. v. Leavell, 386 F.2d 776 (4th Cir. 1967)
In this case the court decides that the pre-1968 NFA covers the untaxed sale of complete machine gun parts kits, coupled with the intent that they be assembled. In those days the definition of machine gun was only a gun that fired more than one round with a single pull of the trigger. No receivers, no parts kits, no conversion devices. Despite that limitation of the langauge, a number of courts jumped the guns, and decided that selling parts kits could be covered also. See also Kokin, and Lauchli, cited in this case.
U.S. v. LeBron, 729 F.2d 533 (8th Cir. 1984)
U.S. v. Lemmon, 804 F.Supp. 102 (D.Ore. 1992)
In this brief decision the court upholds the defendant's conviction for possessing unregistered silencers and a sawed off shotgun. The defendant contended that the use of an AR15 auto sear found at his house was prejudicial error, entitling him to a new trial. The court decides that the use of the sear was fine to rebut his claim that he did not realize he was doing anything wrong when he made the silencers, and in any case he didn't have any defense to the shotgun charge, and thus the admission of the sear did not make any difference on that charge.
U.S. v. Lemmon, 1993 WL 337472 (9th Cir. 1993)
In this case the court upholds the defendants conviction for possessing an unregistered short shotgun and silencer. The court finds that the jury properly rejected the defense that the defendant did not know making silencers was illegal. The court also affirms the use of AR-15 auto sears found at the defendant's house to rebut his claim that he did not think he was doing anything wrong, in that the sears were for making illegal guns, the court concludes. The court holds that the jury was entitled to disbelieve his story that the sears were for changing tires.
U.S. v. Lewitzke, - F.3d - (7th Cir. 1999)
U.S. v. Limatoc, 807 F.2d 792 (9th Cir. 1987)
In this case the 9th circuit affirms the suppression of an AR-15 rifle converted to a machine gun as evidence in a prosecution for possessing the unregistered gun. The court agrees with the trial court that the rifle was not seized in compliance with the 4th amendment. While the ATF agents, at the completion of a search pursuant to a search warrant, claimed to be now starting an administrative inspection of the defendant, and then discovered the rifle, the administrative search was not during the defendant's business hours, and was thus not legal on that basis. Since the agents had no lawful basis to be on the defendant's premises after completing their search warrant, during which the AR-15 was not discovered to be fully automatic, they could not claim to have found it in plain view either.
U.S. v. Lopez, 2 F.3d 1342 (5th Cir 1993)
This is the 5th circuit opinion in the case that was upheld by the Supreme court, holding that the Gun Free School Zones Act was unconstitutional, as beyond the power of Congress. I think the 5th circuit opinion in this case should be critical to how the Bownds case comes out. Also check out footnote 46.
U.S. v. Lussier, 128 F.3d 1312 (9th Cir. 1997)
In this case the 9th circuit upholds the defendant's conviction for being a felon in possession of a firearm, a destructive device. The court finds that the CO2 cartridge gadgets were bombs, even though they were homemade. The court also decided that even though the things were homemade, the government did not have to prove the defendant intended them to be weapons, if they could prove that they were in fact weapons.
U.S. v. Luce, 726 F.2d 47 (1st Cir 1984)
In this case, the 1st circuit interprets the definition of silencer before it was changed to include parts, to see if an unassembled silencer is regulated. The court decides yes, and doesn't really decide about parts kits (in the pre 5/19/86 time, they are definitely not regulated) that are not complete enough to assemble a working unit.
U.S. v. One U.S. (TRW) 7.62mm M-14 National Match Rifle, Serial No. 143711, 1980 WL 95647 (S.D.Ohio, May 20, 1980)
In this case the trial court turns down an ATF attempt to forfeit a TRW M-14 rifle, built by TRW as a National Match rifle. The court decides that ATF failed to prove the gun was a machine gun, as ATF argued - the gun was not registered as anything. ATF claimed the gun was readily restorable to a machine gun, and tried to prove that by welding the selector lockout to the lug on a regular M-14, then restoring that gun to take a selector. However, the court found that they did not weld the lockout in the manner that was done on the NM guns, nor did they refute the evidence that the NM guns never were machine guns, but were made as semi-autos at TRW.
U.S. v. Mack, 164 F.3d 467 (9th Cir. 1999)
In this case the 9th Circuit decides that a gun dealer given unregistered NFA weapons by local police departments to destroy on their behalf can be convicted of possessing those unregistered NFA weapons, and that only police department employees can possess these guns to destroy them without violating the NFA.
U.S. v. Mains, 33 F.3d 1222 (10th Cir. 1994)
U.S. v. Malone, 546 F.2d 1182 (5th Cir. 1977)
In this case the 5th circuit decides that a set of parts for making a destructive device must include all the parts, and that an absence of explosives (a can of Play-Doh in this case, who knows what he was thinking) means that a collection of parts cannot, per se, be a desctructive device. The court also decides, as ATF concedes, that the collection of parts could not have been registered, as ATF will not take a registration on an alleged bomb that lacks explosives, and thus it could not have been registered. This also negated the charge of possessing a DD without a serial number.
U.S. v. One 6.5mm Mannlicher-Carcano Military rifle, 250 F.Supp. 410, (N.D.Tx. 1966)
U.S. v. One 6.5mm Mannlicher-Carcano Military Rifle, 406 F.2 d 1170 (5th Cir. 1969)
U.S. v. Mares, 208 F.Supp. 550 (D.Colo. 1962)
This is the decision of the district court upholding a conviction under the pre-68 NFA. The defendants were charged with possessing an NFA firearm made in violation of the law. The court decides that that charge is not void for compelling self-incrimination, as it does not require registration, mere possession is what constitutes the offense. The court also decides that the certificate of the custodian of the Registry is sufficient and admissible to prove that no application to make the guns was ever filed, and thus they were made in violation of the statute.
U.S. v. Mares, 319 F.2d 71 (10th Cir. 1963)
This is different but related to, the other us v mares case.
U.S. v. Mastro, 570 F.Supp. 1388 (E.D.Pa. 1983)
U.S. v. Matthews, 438 F.2d 715 (5th Cir. 1971)
In this case the court upholds the conviction of a former soldier who brought back a war trophy machine gun from Vietnam. For unexplained reasons he failed to register it during the Amnesty, and as a result the court upheld his conviction for possessing an unregistered machine gun.
U.S. v. Maxim, 55 F.3d 394 (8th Cir. 1995)
U.S. v. Mayo, 705 F.2d 62 (2nd Cir. 1983)
U.S. v. McArthur, 108 F.3d 1350 (11th Cir. 1997)
In this case construing 18 USC 930, the ban on firearms in federal buildings, the court decides that the requirement that the building be posted that firearms are prohibited, which the law states is an absolute bar to conviction if missing, is a defense to be proved by the accused, and that the government does not have to prove the building was posted in order to secure a conviction.
U.S. v. McCabe, 792 F.Supp. 616 (C.D.Ill. 1992)
In this case, mostly overruled by the 7th circuit in U.S. v. Vollmer, the trial court upholds the conviction of FJ Vollmer Co. for defrauding the US by buying Steyr AUG-SA rifles from a Illinois National Guardsman who procured the guns from the importer with government use certificates of dubious truthfulness. The Guardsman was found out, and promptly agreed to help ATF entrap Vollmer. Who says ATF doesn't keep the world safe from gun dealers?
U.S. v. McCauley, 601 F.2d 336 (8th Cir. 1979)
In this case McCauley contended a Jap 96 machine gun he was trying to sell was not within the definition of a machine gun because it could not fire more than one shot with a single pull of the trigger because it lacked a magazine, and magazines could not be procured. While the court acknowledged there could be a case where essential parts were missing, and not able to be fabricated, and thus remove a gun from being a machine gun, in this case both the mags, and converted MG13 mags were available, and thus the argument failed as a factual matter. The fact that the gun was missing the mag, in itself, did not remove the gun from the scope of the Act.
U.S. v. McCollom, 12 F.3d 968 (10th Cir. 1993)
In this case the 10th circuit holds that Dalton does not apply to any guns except post-86 mg's, as other NFA weapons (short shotguns for instance) can still be registered, the government is not precluded from accepting the registration. The fact that if one is a felon it is essentially impossible is too bad. The court also analyzes the case knowing that their Staples case was about to be reversed by the Supremes, and decides that the feds need not prove he knew it was illegal to have a unregistered SBR or mg, but did show he knew the guns were under the legal lengths, and could fire more than one shot with a pull of the trigger...and thus even under Staples the conviction stands.
U.S. v. McCutcheon, 446 F.2d 133 (7th Cir. 1971)
This case concerns a guy caught with a sawed-off single shot shotgun. The court affirms his conviction, saying that it does not violate the 5th amendment right against self-incrimination, according to the Freed case, nor the 4th amendment right against unreasonable searches, for the same reason it does not violate the 5th amendment, it compels no registration or providing of information from illegal possessors of NFA weapons. The court also cites the Miller case, without much more, for rejecting an argument based on the 2nd Amendment.
U.S. v. McGill, 74 F.3d 64 (5th Cir. 1996)
In this case McGill wanted to have ATF release his firearms disability (he couldn't own guns because he had been convicted of felony tax evasion). ATF advised him it could not act on his request, as Congress had forbidden it to spend money on releasing firearms disabilities from individuals (they can still do it for corporations). He took his case to court, as the third circuit decision in Rice v. BATF suggested. The 5th circuit rejected Rice, and decided that Congress had repealed the section of the GCA providing for relief from disability, by the approprations bills that forbade spending money on that activity. McGill has appealed to the Supreme Court.
U.S. v. McKie, 112 F.3d 626 (3d Cir. 1997)
In this case under Virgin Islands law, the court reverses the conviction of the defendants for possessing 3 handguns without having registered them as required by law. As the statute in effect when the defendants possessed the firearms gave possessors 24 hours to register them, and as the government failed to contradict the defendants evidence that they bought the guns less than 24 hours before they were arrested, they could not be convicted. The defendants also argued that the government had to prove they had possessed the firearms for more than 24 hours - in other words that the clause of the law an exception to the offense, and not an affirmative defense. The court disagreed, but since the defendants had put on evidence as to the issue, and treated like an affirmative defense, and the government had failed to negate it, they were not guilty. The court also notes that one of the handguns, a TEC-9, is a machine gun under Virgin Islands law, as is any semi-automatic firearms that shoots more than 12 rounds w/o being reloaded.
U.S. v. Meade, 986 F.Supp. 66 (D.Mass. 1997)
In this decision a federal trial court upholds the ban on persons convicted of domestic violence misdemeanors from possessing weapons. The court, without discussion decides that the law does not violate the ex post facto clause of the constitution, since it is not punishment to deny people the right to own a firearm, and since the law only applies to conduct that occurred after it was enacted. The court also decides that the doestic violence crime need not have as an element of the offense that it was committed against a family member, only that it was in fact committed against a family member.
U.S. v. Meade, 175 F.3d 215 (1st Cir. 1999)
U.S. v. Meadows, 91 F.3d 851 (7th Cir. 1996)
U.S. v. Melancon, 462 F.2d 82 (5th Cir. 1972)
This case is about a gun dealer who was caught by ATF with a number of items ATF apprently thought were NFA weapons. Most of the charges, including possessing a semi-auto Colt AR, and various artillery practice rounds and simulators, were thrown out. He was convicted of possessing an unregistered PPsh-41 SMG, and a Japanese Knee Mortar. He argued the PPsh wasn't an mg since it had no mag, and ATF never even tried to get it to fire more than one shot with one pull of the trigger (tough to do when the gun has no magazine). The court said that wasn't a problem, if nothing else it was a machine gun receiver. He also argued the Knee Mortar wasn't a DD, since there was no ammo, explosive or not, that could be used in it. The court decided that didn't matter, it was a weapon, it had a bore over 1/2", and the lack of any ammo didn't matter. Compare that to the 1980 7 Misc. Firearms case, where the judge decided, in part, that a lack of ammo for a Gyrojet pistol meant it couldn't be a DD.
U.S. v. Melville, 309 F.Supp. 774 (S.D.N.Y. 1970)
In this case the court rejects a challenge to the post-68 NFA, on self incrimination grounds. The defendants were charged with possessing unregistered bombs. The court decides that the law no longer requires self incrimination as a condition of complying with the law, and that the only way for the defendants to comply with the law was to not take possession of the bombs, that was the only crime, not failing to register.
U.S. v. Metzger, 778 F.2d 1195 (6th Cir. 1985)
Metzger was a bad actor; he killed his wife with a bomb (a DD). He was already a murderer, and a rapist. And some interesting stuff comes out of this case. For instance regular dynamite, with a blasting cap, is a DD. Don't ask me how you are supposed to use the stuff, w/o paying a $200 tax each time you put the two together, or being a type 10 FFL. That is a rather silly holding, and seems a little expedient, to uphold a government case that may have been poorly prepared. But the issue of when an explosive, or an explosive device changes from legitimate use, to the evil DD is very unclear. Assembling a charge, and not using it immediately, safety aside, may well be a violation of the NFA. It seems a lot of it has to do not with the item, but what you plan to do with it; do you plan to use it as a weapon? Items not meant as weapons are not NFA weapons, even if they otherwise fit the bill. Secondly, the government may not prove you failed to pay the making tax by merely showing the NFA weapon was not registered to you, as the tax is paid before registration. They have to show more than that a search of the NFA Registry failed to show the item in question was registered to you. That is sufficient to make the case you possessed an unregistered item however. Then the defendant may offer evidence as to the unreliability of the Registry.
U.S. v. Michael R., 90 F.3d 340 (9th Cir. 1996)
Compilation of U.S. v. Miller documents by Patrick L. Aultice
U.S. v. Miller, 26 F.Supp. 1002 (W.D. Ark. 1939)
This is the less than one page decision of the federal district court that voided the NFA on 2nd amendment grounds, that was itself overruled by the Supreme Court just a few months later.
U.S. v. Miller, 105 F.3d 552 (9th Cir. 1997)
In this case the 9th circuit decides that a person charged with being a felon in possession of firearms and ammunition can only be convicted of possesing the firearm, since Oregon law, where he was convicted of the felony, does not bar him from possessing ammunition. However since he was caught with a handgun, and Oregon does bar him from possessing handguns (and machine guns) as a felon, he can be convicted on that charge.
U.S. v. Mitchell, 462 F.2d 583 (9th Cir. 1972)
In this brief case the 9th circuit decides that in a prosecution for conspiracy to steal government property, two M-14 rifles, a stipulation by the defendants that the rifles cost the government more than $100 was conclusive evidence as to their value, and thus made their attempted theft a felony, rather than a misdemeanor.
United States v. Mitchell, 209 F.3d 319 (4th Cir. 2000)
U.S. v. 16,179 Molso Italian .22 Caliber Winlee Derringer Convertible Starter Guns, 443 F.2d 463 (2nd Cir 1971)
This case concerns the meaning of the "readily converted to expel a projectile" stuff in the definition of a firearm in the GCA, but could certainly apply to the readily converted concept in the NFA also. In this case the guy imported a bunch of starter pistols from Italy, and ATF found they could drill out the barrel and get it fire .22 shells within 15 minutes, at the outside. The court agreed this time limit was readily convertible. The guns were seized and forfeited, as the importer was not an FFL, and had not applied for permission to import the guns.
U.S. v. Moore, 84 F.3d 1567 (9th Cir. 1996)
This is the panel decision, reversed in the en banc decision below.
U.S. v. Moore, 97 F.3d 561 (D.C.Cir. 1996)
U.S. v. Moore, 109 F.3d 1456 (9th Cir. 1997)
In this case the 9th circuit, sitting en banc, rehearing the 9th circuit moore case from 1996, decides that a woman whose underage son bought a pistol with her permission, but with a family friend as the buyer, can be convicted of conspiracy tro violate the GCA, for facilitating a straw sale. The son later used the gun to murder an Idaho police officer. The court, reversing the panel decision (also on the web page), decides that while maybe it is OK for a parent to buy a handgun for their child, even though they are not the actual buyer, and even though they are buying for someone ineligible to buy a handgun (ie the classic straw man transaction) they cannot authorize someone else to do this on their behalf, and further, the court declines to even address any potential exception for a parent to buy the gun themself.
In short, the fact that the 4473 forces all straw buyers to lie on the form, even though ATF claims some straw transactions are OK as far as they are concerned, means that if the child later uses the gun to commit a crime the parent can be successfully prosecuted later, if the feds decide to do so. At least in the 9th circuit, other, less authoritarian circuits would likely decide this case differently.
U.S. v. Moschetta, 673 F.2d 96 (5th Cir. 1982)
U.S. v. Munoz, 150 F.3d 401 (5th Cir. 1998)
In this case the court upholds a conviction for possesssing an unregistered short barreled shotgun, as the shotgun was found in the defendant's home, and he said it was his. This in spite of the fact that the government misidentified the gauge of the shotgun, and seized it without a warrant. The court says that the warrantless seizure was legal under the plain view theory, since the defendant was a felon, and he could not have any firearm, therefore the firearm was per se contraband in his possession, and was evidence of a crime in itself.
U.S. v. Muntean, 870 F.Supp. 261 (N.D.Ind. 1994)
In this case Muntean was charged with submitting a NFA transfer form with false information on it; specifically he was accused of submitting a form 4 to a CLEO, with a phony home address on it. Presumably his local chief wouldn't sign, and he was trying his luck elsewhere. Somehow the ATF found out; perhaps from the chief he was trying, he sent that guy a letter asking him to drop any work on the form 4's. In any case the court decides that in order for their to be an offense the forms either need to be submitted to ATF, or submitted to someone who will then submit them. In this case, as a practical matter, neither happened. ATF claimed that somehow the Chief of Police owuld send them to ATF; as Muntean did not get a chance to rebut that, the court did not dismiss the case, but allowed Muntean to withdraw his guilty plea (what was he thinking) and proceed to trial. Hopefully he got the case dismissed, as anyone with half a brain knows, including ATF, the dealer, or transferor submits the form, except in the cases where the transferor fills his stuff out completely, and then the transferee sends the form to ATF. In no case does the CLEO send it to ATF. What is most remarkable is that ATF brought this case at all. Pretty low.
U.S. v. Murphy, 53 F.3d 93 (5th Cir. 1995)
This case is one from the 5th circuit after the Supreme court decision in Lopez, which addresses whether they Lopez decision meant, as it seems, that no nexus to interstate commerce would be sufficient to revive the Gun Free School Zones Act. In this case the prosecutor tried to amend the indictment to reflect that the gun in question was shipped interstate. The court said that didn't help, the Supremes had decided no connection between interstate commerce and gun possession in school could bring that issue under the jurisdiction of the Congress. Some may recall that for a time the Klinton Justice Dept., commanded by Klinton to "find a way" around Lopez, suggested limiting the law to guns that had moved in interstate commerce. They have apparently dropped this idea for an amendment, and are now suggesting Congress deny federal school money to states that don't ban gun possession at schools.
U.S. v. Myers, 1999 WL 475571 (8th Cir. 1999)
U.S. v. Nevius, 792 F.Supp. 609 (C.D.Ill. 1992)
This decision is from the criminal prosecution ATF brought against FJ Vollmer's, and others, for trying to circumvent the sales restrictions ATF forced Gun South to put on the AUG-SA rifles trapped in Customs when ATF redefined sporting, in the gun context. In this case, the court rejects a motion to dismiss, before trial, on various grounds. See the US v. Vollmer case for the final outcome of this prosecution.
U.S. v. Newman, - F.3d - (10th Cir. 1997)
U.S. v. Nguyen, 88 F.3d 812 (9th Cir 1996)
U.S. v. Oakes, 564 F.2d 384 (10th Cir 1977)
This is another case holding that the 2nd amendment means states can have a militia not that individuals can own any firearm. In this case Oakes had an unregistered machine gun, that had been confiscated from him, because of a domestic dispute by the Kansas City, Kansas PD, and welded up and returned. He re- activated it at some point, and sold it to an undercover ATF agent. He claimed, in part, that the gun was not a machine gun because it used two triggers; you pulled the front one and it shot semi-auto, you pulled it all the way back and it engaged a second stub, the court also called that a trigger, and fired full auto in that position. The court said it was a machine gun, as you needed to only pull the front trigger to make it fire full auto. The court indicated it was a German SMG, anyone know what it was, based on that description? He also claimed because he was part of the unorganized Kansas militia, by law, and because he belonged to the Posse Comitatus (probably why he was being set up by ATF) a militia group, his possession of the gun was protected by the 2nd amendment. The court said that would lead to the result where possession was OK, and that was absurd, and refused to agree the 2nd amendment means anything more than the states can have a militia. Oakes also claimed the gun was OK because the cops had had it, and then returned it, so it must not be an MG. The court ducked that one, claiming that because the cops gave it back to him welded up, and he removed the welds, was enough to negate any claim the gun had been determined not to be an mg; even though if it was an mg live, it should have been an mg welded up too.
U.S. v. Oba, 448 F.2d 892 (9th Cir. 1971)
In this case the 9th circuit decides that a dynamite charge that the defendant intended to be used to blow up Eugene, OR, was a destructive device, based on his intended use of the charge, even though the exact same charge was used in lawful pursuits all day long. The dissent makes a good case that such a construction of the law makes it violate the 5th amendment right against self incrimination (the device is only subject to registration if you plan to use it criminally, thus only criminals need to register their devices, the law abiding do not) and that the construction of the statute employed by the majority is wrong. However, this theory is the prevailing one in a majority of courts of appeals.
U.S. v. O'Mara, 963 F.2d 1288 (9th Cir. 1992)
This is a case of a guy caught with a STEN gun after he shot it during a visit to the Joshua Tree National Monument in Calif... In any case, in this pre-Staples case the court decides that the government need not prove that he knew the gun could fire full auto, as the gun had an external selector switch, and thus if one had it at all they could/should know it was a full auto. The 9th circuit did require the government prove the defendant knew the NFA nature of the weapon, before Staples, if the gun appeared to be ordinary from the outside, and only internal modification made it an NFA weapon.
U.S. v. O'Mara, 827 F.Supp. 1468 (C.D.Cal. 1993)
In this case a federal district court in California decides to ignore Kurt, above and holds that 922(o) does not repeal the NFA as applied to post-86 mg's, and that the court above it was wrong when it decided otherwise. This is an odd case, it sure should have been appealed, I don't know if it was.
U.S. v. One Colt Machine Gun, Model MG-52-2, 625 F. Supp. 1539 (S.D. Fla 1986)
This was an attempt by ATF to forfeit a gun they claimed was transported or imported w/o a 5320.20, or an import permit. A guy in Fl owned a legal .50 cal Colt mg. He brought it out on his boat, and was showing it off, and fishing. When he came back to port, Customs and the police went to talk to him, found out he had been out to sea, and had the mg, and seized it, and attempted to take it, by this case. The judge told the US no. He said that a gun has not moved in interstate commerce if you take it out of one state, and w/o going to another state bring it back to where you left from. Likewise the gun could not be imported in violation of the NFA if it never went to a foreign nation, and then came back, to be sold here. Since there was no intent to sell, and the gun never went to another country, it was not imported, it never left. Plus the guy in the boat never went outside the 12 mile limit the US exercises jurisdiction in. Bottom line; you should be OK if you take your guns out on a boat, and don't land or go to another state, or country. If you do want to do that, you need a 5320.20. BUT, ATF will apparently hassle you anyway, even if you just went out to sea.
U.S. v. One Minneapolis Palm Protector Pistol, etc., Case No. 18450-PH (S.D.Cal., March 31, 1956)
Reprinted in Federal Firearms Act: Hearings before the Subcommittee to Investigate Juvenile Delinquency, Senate Judiciary Committee, 89th Cong., 1st Sess., at 835-37 (1965)
Brief of US in US v. One Remington 12 Gauge Shotgun, Serial number 322336V, (11th Cir. 1982)
U.S. v. One Remington 12 Gauge Shotgun, 709 F.2d 1468 (11th Cir. 1983)
U.S. v. Ordner, 554 F.2d 24 (2d. Cir 1977)
In this case the second circuit upholds a conviction for possessing and transferring unregistered pen guns, despite the defendant having been otherwise law abiding and not suspected of criminal activity before ATF targeted him with a sting where agents and informants pretended to be an organized crime family a la the Godfather movies. The court says that while the defendant made out a case for entrapment, the jury was entitled to believe the government's rebuttal of that defense.
U.S. v Osuna, - F.3d - (10th Cir. 1999)
U.S. v. Otto, 64 F.3d 367 (8th Cir. 1995)
U.S. v. Owens, 103 F.3d 953 (11th Cir. 1997)
In this case a gun store clerk is convicted of possessing an unregistered short barreled rifle - a mini-Uzi rifle he offered to sell an undercover ATF agent, with an accessory short barrel. He contended since the barrel wasn't on the gun the Thompson/Center case meant it wasn't a short rifle. The agent claimed, and the jury found, he had put the barrel on the gun, apparently to show the customer the barrel fit the gun. Accordingly the court found that Thompson/Center didn't apply to an assembled short rifle.
U.S. v. Padilla, 819 F.2d 956 (10th Cir. 1987)
U.S. v. Palmer, 435 F.2d 653 (1st Cir. 1970)
U.S. v. Palmieri, 21 F.3d 1265 (3d Cir 1994)
In this case the defendant's conviction for dealing in firearms w/o a dealer FFL, and for transferring a C&R machine gun in violation of 922(o) are upheld. While Palmieri had a C&R FFL, and only sold three C&R pistols to an ATF stooge, the court decided the jury could decide that was dealing w/o an FFL, in spite of jury instructions that told the jury it was flat out illegal for anyone to sell any firearm at all w/o a dealer FFL. Additionally, since the GCA, of which 922(o) is a part, says it is expressly legal for C&R FFL holders to transfer C&R machine guns, as does the C&R list put out by ATF, the defendant argued a C&R transaction by a C&R licensee is not prohibited by 922(o) (Palmieri didn't comply with the NFA either, but wasn't charged with that). One judge disagreed, claiming 922(o) only allows those who had a machine gun on 5/19/86 to keep it, and flat out forbade any further transactions, including sales by lawful owners, except to the government. A novel thought, considering the thousands of transfers to individuals ATF has approved since then, all apparently in violation of 922(o), according to this court, since ATF may not approve a transfer that will put the transferee in violation of law, under the NFA. A second judge otherwise with the majority, thought the issue was waived, since he claimed it was not raised with the trial court. And the third member of the panel dissented, and thought that a C&R machine gun transaction by a C&R licensee was not prohibited by 922(o), whether it was done in violation of the NFA or not. The conviction was reversed without comment by the Supreme Court, citing their new Staples decision (the majority also rejected the argument that the defendant didn't know the gun was a machine gun, since it lacked a bolt, and he apparently didn't know whether it would fire automatically or not). The reversal didn't answer the question about the meaning of 922(o) - this court apparently rejected the Farmer case, although they didn't say so, and also the interplay between 922(o) and the C&R FFL provisions of the GCA.
United States v. Palozie, 166 F.3d 502 (2nd Cir. 1999)
In this case the 2nd circuit court of appeals decides that the Supreme Court's Scarborough v. US decision also applies to 18 USC 922(g), even though the language of that law is a little different than that in the statute (18 USC 1202) being construed by the Supreme Court. The court decides that all that must be shown as to interstate commerce with a firearm a felon is accused of possessing is that it moved in interstate commerce at some point in its life, not that the felon's possession of it bore any relation to interstate commerce.
U.S. v. Parker, 566 F.2d 1304 (5th Cir. 1978)
In this case the court rejects the argument that momentary possession of an unregistered sawed off shotgun for purposes of self-defense is a valid reason for violating the NFA. While the court did not rule out such an argument entirely, they said that in this case, since he continued to possess the shotgun after the alleged danger passed, he couldn't claim he only possessed the shotgun for self defense.
U.S. v. Parker, 960 F.2d 498 (5th Cir. 1992)
This case doesn't have a whole lot to do with NFA guns; Parker was a felon caught with guns, including a sawed off shotgun. The main point here is the 5th circuit re-stating that the basis of the NFA is in the taxing power, not the commerce power. Contrast that to Metzger, noted below, where the 6th circuit says that the NFA is based in Congress' taxing or commerce power, whichever can conveniently sustain it at the moment. What Constitutional power the NFA is rooted in is important; if it is amended to no longer collect a tax it is void. This is the basis of the Rock Island and Dalton cases. On the other hand if the NFA is considered (Constitutionally) under the Congressional Commerce power, then a failure to raise revenue is not fatal. The 5th circuit thinks it has to raise revenue; which helps explain their bizarre reasoning in the Ardoin case; pretending you can pay the tax on a post-86 machine gun when you cannot. On the other hand some other circuits don't care, and will uphold the NFA on the basis of some sort of commerce power, despite the legislative history, and the NFA's location with the other internal revenue laws (26 U.S.C.), to the contrary.
U.S. v. Partington, 21 F.3d 714 (6th Cir. 1994)
In this case the court of appeals upholds an enhancement of the defendant's sentence for dealing in firearms without an FFL, for possessing an unregistered short barreled rifle. The gun was a bolt action .22 JC Higgins, without a bolt. The evidence was that he had it for parts, and not for sale as part of his illegal firearms dealing business. Despite that, the court said that it was an illegal gun, which he had while committing other gun crimes, and even though he was not prosecuted for having it, his sentence on the dealing charge could be enhanced by his possession of it, to a greater sentence (but still within the maximum possible sentence for unlicensed dealing) than he would have otherwise received.
U.S. v. Pearson, 8 F.3d 631 (8th Cir. 1993)
In this case the 8th circuit reaffirms their decision in US v. Hale, that 18 USC 922(o), the ban on owning machine guns made after 5/19/86, is a lawful exercise of the police power, citing to at least one case, US v. Evans, that was overruled (in its analysis) by the Supreme Court in US v. Lopez.
U.S. v. Petrucci, 486 F.2d 329 (9th Cir. 1973)
In this case the court of appeals upholds a warrantless seizure of firearms from a gun dealer, as valid under the administrative search provisions of the GCA. The court also rejected any requirement that the firearms have moved in interstate commerce in order to be a valid exercise of the interstate commerce power, and also refused to consider a claim that the record keeping requirements of the GCA violated the right against self incrimination, since the defendant had not raised that argument in the trial court.
U.S. v. Pierson, 139 F.3d 501 (5th Cir. 1998)
U.S. v. Polk, 118 F.3d 286 (5th Cir. 1997)
In this case the 5th circuit upholds a conviction for violating 922(o), contrained by the precedent of Knutson, in holding that the law is a valid exercise of commerce clause power. More interestingly, the court impliedly rejects the 9th circuit en banc decision in US v. Moore, and decides that the defendant cannot be convicted of a straw purchase where the true purchaser, acting through the strawman, could have legally purchased the gun himself, as the defendant who orchestrated the alleged straw purchase at hand, could have. The court said there can only be a straw purchase where the true buyer, acting through the strawman, was legally unable to buy the gun himself, and not just because he used a strawman.
U.S. v. Porter, 335 F.2d 602 (9th Cir. 1964)
Porter was caught with, and convicted of, possessing a sawed-off shotgun, as part of what appears to be one of the very few legitimate investigations and prosecutions under the NFA. The main item of interest is his contention that absent evidence the sawed-off is unregistered, the police do not have probable cause to seize it when they find it during an otherwise legal search. The court disagrees, and says given the facts of the case, his giving the police a phony name when arrested, his being wanted for bank robbery, there is no basis for the police to believe the gun is registered, and thus legal. Under different circumstances the balance might weigh otherwise, although the court says the a sawed-off shotgun in private hands in inherently suspicious.
U.S. v. Porter, - F.3d - (10th Cir. 1997)
In this unpublished case, the 10th circuit decides that a short barreled shotgun in plain view may be seized without a warrant, as it is contraband on its face. Contrast this with the 6th circuit cases in Gray, Beal and Szymkowiak where guns that did not appear to be contraband could not be seized without a warrant. On the other hand, presumably a short shotgun by virtue of its short barrel, appears to be an illegal gun and thus may be siezed when found in plain view.
U.S. v. Posnjak, 457 F.2d 1110 (2nd Cir. 1972)
In this case the 2nd circuit rejects the reasoning of US v. Oba, and follows the district court decision in US v. Schofer, that the intent of a person to use something as a weapon does not make it into a destructive device, but rather the properties of the item in quesiton determine whether it is a DD or not. In this case the defendants were charged with unregistered DD crimes for selling a large quantity of dynamite, safety fuse and blasting caps to an undercover federal agent who told them he needed it for terrorist activities. The court decided that dynamite and other commercial blasting supplies were not covered by the law, in themselves. Whether intended for legal or illegal uses, commercial explosives were not among the listed items. Using the dynamite to make a bomb, could bring the dynamite, along with the rest of the bomb, under the law. But not the explosive material by itself.
U.S. v. Poulos, 895 F.2d 1113 (6th Cir. 1990)
This case concerns a guy who wanted to open an S&L bank, and I guess sort of shows why a lot of them were looted, and went belly up, if others were run by guys like this one... In any case while the IRS was trying to entrap him into money laundering they discovered he had connections to get unregistered silencers. The IRS undercover guy got him to assist in supplying one, although most of the supplying was done by others, and he was convicted of that. Poulos also had pre-86 silencer kits he had gotten in 1984, and which were discovered when the IRS was searching his house for financial records. He was prosecuted for having unregistered silencers, and his defense was that they were legal when he got them, and he never got a chance to register them, and thus the law was unfair, from a due process point of view. The court didn't ever address the continuing problem of the lack of an amnesty to register silencer parts - they decided, based on the evidence that the kits were really complete silencers, just in a slightly disassembled state. Apparently the guy had both the internals and tube for a two stage MAC type silencer.
U.S. v. Price, 877 F.2d 334 (5th Cir. 1989)
In this case the court upholds the conviction of a Texas FFL dealer for possessing unassembled hand grenades. He was also charged, after a sting operation with selling unregistered machine guns, and possessing an unregistered silencer, but was acquitted of those charges. He argued that as the individual component parts were not regulated, the set was not either, unless assembled. The court disagreed, deciding that the set which could be readily assembled into a complete grenade was a regulated item.
U.S. v. Pruess, 94CR00019, (W.D.N.C. 1994), docket listing
U.S. v. Pruess, 97CR00300 (W.D.N.C. 1997), docket listing as of 4/99
U.S. v. Qualls, - F.3d - (9th Cir. 1998)
In this en banc 9th circuit case, the court decides that the extent of the federal felon in possession of a firearm statute is governed by state law, where the felony in question is a state conviction. This is because the definition of whether someone is convicted of a felony is to be determined under the law of the state of conviction (when it is a state conviction that is at issue). In this case, at the time the defendant was convicted under California law he was only prohibited from possessing handguns and other concealable firearms, and not rifles and shotguns. The court decides that under the federal law he can only be proseucted for possessing firearms he cannot possess under state law either, and thus the conviction is reversed.
U.S. v. Rambo, 74 F.3d 948 (9th Cir. 1996)
Yup, the guy's name in Rambo. He was caught in Montana with a machine gun and silencer, after they were recovered from some guy who stole them from him. He made several arguments. Among them that the making ban, 922(o), was outside Congress' power under the Commerce clause, and thus void. The court disagrees and follows the 5th and 10th circuits, in Wilks and Kurt, in upholding it, in spite of the Lopez Supreme court decision. The court also rejects the idea that it was not proven that he knew the nature of the weapons that put them under the Act, relying on the testimony of an ATF "expert" who claimed you could tell the automatic nature of the machine gun, and the silencing nature of the silencer w/o ever using them. The court decided that, together with the possession, justified the jury in inferring that Rambo knew the nature of the guns. The court also rejects a complaint that the local law enforcement prejudiced his case by extensively firing the machine gun and silencer after they were told not to by ATF. The court disagrees, Rambo wanted to be able to show he never handled the guns, and thus hand't seen them, by having them checked for fingerprints. The court saw no prejudice, given that he admitted privately to the county sheriff, after his arrest, in what he thought was a private conversation between friends, that the gun and silencer were his, and illegal.
U.S. v. Ramirez, 103 F.3d 1501 (9th Cir. 1997)
In this case the 9th circuit decides that in order for the sentencing enhancement for using a mahcine gun in a crime to apply, the government needs to prove the defendant knew the weapon in question was a machine gun. In this case ATF, apparently without discussing it with the suspects (they only spoke Spanish, and the agents only spoke English) decided to make the guns they were trading for methamphetamine be machine guns, perhaps to get the 30 year sentence enhancement for the use of the machine guns, instead of the 5 year enhancement for regular firearms, rather than regular title 1 type guns. The court reversed and remanded for a trial on whether the defendants knew they were getting machine guns for the drugs, and not regular (or some other) guns.
U.S. v. Ramsey, 429 F.2d 565 (5th Cir. 1970)
In this case the court upholds a conviction for possessing a sawed off shotgun that was made in violation of the NFA. The defendant used it to shoot another man over a card game. The court decides that the newly revised NFA does not require any self incrimination, and that the defendant was not obligated by the law to incriminate himself.
U.S. v. Ranney, 524 F.2d 830 (7th Cir. 1975)
In this case the 7th circuit says that the government need not prove the defendant knew the nature of the gun he is charged with possessing, part of a long line of cases overruled by Staples. The court also says that the requirement that a NFA gun have a serial number does not apply to permit someone a period of time to serial number a gun, and thus avoid prosecution for having an unserial numbered NFA weapon. This is something Don Walsh found out the hard way also.
U.S. v. Reddick, - F.3d - (10th Cir. 2000)
U.S. v. Redmond, No. 97-3071 (10th Cir. December 16, 1997)
U.S. v. Reed, 726 F.2d 570 (9th Cir. 1984)
U.S. v. Reed, 114 F.3d 1053 (10th Cir. 1997)
In this case the 10th circuit upholds a conviction under 922(g) (felon in possession of a firearm) based on the defendant possessing a broken pump shotgun, which planned (based on uncontradicted evidence) to make into a lamp as part of a adult ed welding class. The court decides that he need not think the item was or was not in fact operationsal, or otherwise fitting into the definition of a firearm under 18 USC 921, as long as he was aware it at least used to be a firearm, and as long as in fact it still fit the definition. The dissent points to Staples, and suggests that the defendant needs to have been aware of whatever characteristic the thing had that made it fit in the definition of a firearm, not that he knew it used to be a firearm.
U.S. v. Ridlehuber, 11 F.3d 516 (5th Cir 1993)
In this case a guy is prosecuted for possessing a half-broken and lame sawed-off shotgun in what the feds thought, but couldn't prove, was an illegal drug lab. Although the case talks about other stuff, the main point is what the court says in regard to the application of Dalton to a sawed-off shotgun. Ridlehuber said that becuase the feds wouldn't let him register an existing sawed-off shotgun, the logic of Dalton applied. How could they prosecute him for not having registered a gun they would not let him register? The court rejects the argument. As I said in regard to the Tepper case, it seems to me that Dalton ought to apply here, if it has any basis in reality. But it does not apply here.
U.S. v. Rith, 164 F.3d 1323 (10th Cir. 1999)
In this case the 10th circuit upholds a conviction for possessing an unregistered short barreled shotgun. In relevant part the court decides that the admission by the defendant that he knew the gun was illegally short, as well as proof of his observation and handling of the gun shows he knew it had the characteristics which subjected it to the NFA, as required by the Staples decision. The court also decided that the NFA Registry was sufficiently reliable so as to be used to prove the non-registration of the gun, in spite of the Roll Call training by Tom Busey, and related items, which the defense attorney received from the government.
U.S. v. Rivera, 58 F.3d 600 (11th Cir 1995)
In this case the court holds that the Dalton case does not apply to a gun that still can be registered, as opposed to a machine gun (a silencer in this case). Dalton voided the NFA as applied to post-86 machine guns, as sec. 922(o) forbids the feds from accepting the tax, or a registration application. The court also notes that 3 circuits have rejected Dalton, the 7th, 4th and 5th. The 7th circuit case, US v. Ross, probably overrules the Rock Island Armory case, as it is by a higher court covering the same geographic area. This court (11th cir.) also suggests it would reject Dalton if the issue came before it. I think the Supremes will be forced to take cert. on the issue of the relationship between the NFA and sec. 922(o) at some point, the current situation is pretty ridiculous, where something is illegal in some places is different (still illegal though) in others.
U.S. v. Rock Island Armory 773 F. Supp. 117 (1991)
In this case the feds prosecuted RIA for making NFA weapons after the making ban, and transferring them to civilians. They prosecuted them under the NFA, where the specific crime is failing to register or pay the taxes on the guns. This is a companion case to Dalton, where the court decides that 922(o), the making ban, precludes registration or paying the tax, and the Feds may not prosecute someone for failing to pay a tax they won't and cannot accept. I don't know the facts of this case, I think it had to do with the M-60 machine guns they made using serial numbers from Stemple 76/45 tube guns... To the best of my knowledge the feds did not re-prosecute this case under 922(o), as they did in the Dalton case. Theoretically they could have.
U.S. v. Rodriguez, 132 F.3d 208 (5th Cir. 1997)
In this case the 5th circuti upholds a conviction for selling firearms to an out of state resident, where neither party has a FFL. The key issue is whether the government showed the defendant "willfully" violated that statute. The 5th circuit rejects the 2nd circuit decision in US v Bryan, and decides that willfully must mean the jury could decide the defendant knew the conduct was illegal, and not just that the defendant did it, knowing what he was doing. In this case the government showed the defendant was familiar with the gun business, and that the defendant was worried about the police stumbling onto the transaction, which was a ATF sting operation. The court said the jury could infer from these two facts that the defendant knew the transaction was illegal, that is it was prohibited by law.
U.S. v. Rogers, 94 F.3d 1519 (11th Cir. 1996)
In this case some guy who couldn't keep his mouth shut was caught with an unregistered "MAC-11" machine gun and silencer. The court decides that the Staples decision does apply to a prosecution under 18 USC 922(o), in that the government has to prove the defendant knew the gun was a machine gun, although Staples was only in the context of the NFA. Since the gun in this case was a converted open bolt pistol, and the government didn't prove he knew it was a machine gun, the court reversed the conviction for the machine gun. For the silencer, the court also agreed Rogers was entitled to have the government prove he knew it was a silencer, for a prosecution under the NFA. However, since Rogers testified at trial he knew it was a silencer, and told that to ATF agents in a post-arrest interrogation as well, the court decided the error as to the silencer jury instruction was harmless, as Rogers volunteered he knew it was a silencer. It always pays not to shoot your mouth off...
U.S. v. Rojas, 47 F.3d 1078 (11th Cir. 1995)
U.S. v. Rose, 695 F.2d 1356 (10th Cir. 1982)
In this case the defendant thought the Uzi carbines he bought looked lame with the 16" barrels they came with, and cut them down to a length more like the Uzi machine guns have. He got found out, and was prosecuted for possessing and making short rifles. His main defense was that the Uzi wasn't a "rifle" in that it wasn't designed and intended to be fored from the shoulder, it was meant to be fired from the hip. The government contended it was suitable for shoulder firing, and sort of had to be, to be importable as sporting. The court agreed, deciding that the gun needs to be suitable for shoulder firing, even if it is also suitable for hip firing. The court also decided that given that he did not contend he had registered the guns, he was not entitled to a visit to the National Firearms Registry in Washington DC. The court said that if someone made a stronger showing of impeaching the accuracy of the Registry they might be entitled to such a thing.
U.S. v. Ross, 458 F.2d 1144 (5th Cir. 1972)
U.S. v. Ross, 917 F.2d 997 (7th Cir. 1990)
In this case the 7th circuit upholds a gun collector's conviction for possessing an unregistered Chauchat DEWAT. What a gun to go down for... The court thinks it is irrational for the government to have to prove the guy knew the gun was a machine gun, comparing the 10 years you get under the NFA to the crime of keeping an unclean warehouse. I kid you not. In any case the main logic of this case was voided in Staples, and the guy got his conviction reversed based on Staples, but only after he finished his entire sentence, 3 years or so. Very, very, harsh.
U.S. v. Ross, 9 F.3d 1182 (7th Cir.1993)
Although the result in this case was reversed by the Supremes without an opinion, citing Staples, the ruling in this case that the 7th circuit disagrees with Dalton, is still probably good law. In so deciding they overrule the Rock Island Armory case, which is out of a federal district court in Ill., which is in the 7th circuit. The court adopts the logic (?) of the 4th circuit opinion in Jones. So Dalton remains as the only circuit court ruling that 922(o) impliedly repeals the NFA as applied to post-86 machine guns. Until the 10th circuit reverses itself, or the Supremes deign to resolve the issue. The D.C. district court also approved of Dalton, in Ferguson, although one could argue it is dicta. Interestingly the court also seems to think that before the FOPA amendments to the federal gun laws, that DEWAT guns were not subject to registration. Not in 1968, but 1986. Interesting....
U.S. v. Ruggles, 70 F.3d 262 (2nd Cir, 1995)
In this case the second circuit upholds the conviction of a felon for possessing a sawed off H&R single shot shotgun. The court notes, that sawed off shotguns have no legitimate use, and therefore possessors should be squashed like bugs.
U.S. v. Ruiz, 73 F.3d 949 (9th Cir. 1996)
Ruiz worked for an Arizona company that legally made stun grenades, and apparently diverted some inventory for sale to an ATF informant. He was charged with possessing unregistered destructive devices. He defends himself on the basis, like the Dalpiaz case, that the things fit the definition but are not designed or redesigned as weapons. The court agrees with the Dalpiaz case (although they do not cite it) that the intent of the defendant is not relevant, unless it is for a prosecution for possessing parts for a DD, in which case showing they were meant for a DD is relevant. He claims the items are not meant as weapons. The court disagrees, based on testimony from ATF "experts" who say they are weapons, and that ATF has classified stun grenades as DD's since 1980. Ruiz cleverly calls an ATF agent who testified at the Branch Dividian trial that the stun grenades employed there were not "weapons". I guess it depends on where you are sitting, but the 9th circuit doesn't find a problem with them not being weapons in one place, and are in another. As long as the ATF agent they put on for the government says they are weapons, it doesn't matter what other ATF agents say at other trials, or say at this one when called by the defense (the ATF was not stupid enough to call the agent who testified at the Branch Dividian trial themselves, the defense called him). In short, the court decides the stun grenade is meant for use as a weapon, and is thus a DD.
U.S. v. Russell, 468 F.Supp. 322 (S.D.Tex. 1979)
U.S. v. Rybar, 103 F.3d 273 (3d Cir. 1996)
In this case the 3d circuit rejects a challenge to the machine gun making ban, 18 USC 922(o) based upon US v. Lopez (that it is beyond Congress' Commerce Power to ban mere possesion of machine guns) and based upon the second amendment.
Brief in US v. Rybar
Brief(2) in US v. Rybar
Brief(3) in appeal of US v. Rybar
Brief(4) in appeal of US v. Rybar
Brief(5) in appeal of US v. Rybar
Brief(6) in appeal of US v. Rybar
Petition to US Supreme Court for certiorari in US v. Rybar
U.S. v. Sanchez, 85 F.3d 549 (11th Cir. 1996)
U.S. v. Sanders, 462 F.2d 122 (6th Cir. 1972)
This short case upholds, without discussion the constitutionality of the NFA, citing Freed and two 6th circuit cases. It also upholds a rather questionable, in my opinion, search of the defendant that uncovered the sawed off shotgun in his pocket.
U.S. v. Scherer, 523 F.2d 371 (7th Cir 1975)
This is a 1975 case, where ATF hounded an FFL dealer, until they could catch him selling guns w/o doing the 4473 and bound book paperwork. He claimed the guns were his personal collection, he sold them from a different place, and stock, than his business. He claimed the GCA didn't require him to keep records on his personal collection. The court disagreed. This case is why the FOPA changed the personal collection record-keeping requirements, and has a statement in the law that a dealer may have a personal collection. Although some of these changes were nullified by the perverse administrative rules made after the FOPA, see the NRA v. Brady case for that. This case is also mentioned in the J Curtis Earl portion of the July 1979 Senate hearings; Earl tells about how the agents sent to hassle and intimidate him boasted about the other FFL dealers they had sent to prison, one being Scherer. Charming bunch of guys, good to see they were going after the criminals. Similar ATF behavior was seen in the Gardner case.
U.S. v. Schofer, 310 F.Supp. 1292 (E.D.N.Y. 1969)
In this case the trial court contradicting the logic of US v Oba, decides that dynamite and blasting caps and safety fuse are not a destructive device, and cannot be "made" into one by the intent of the possessor to use them for bad purposes or as a weapon. The court also decides that despite its 1968 amendments, the NFA is still aimed at criminals, and criminal weapons, and thus self incrimination is still a good defense to non-compliance with the registration provisions. This reasoning was rejected later by the Supreme Court, in 1971, and is not good law.
U.S. v. Schrum, 346 F.Supp 537 (E.D.Va. 1972)
U.S. v. Shuler, - F.3d - (10th Cir. 1999)
U.S. v. Schutzler, 309 F.Supp. 681 (S.D.Ohio 1969)
In this case the trial court rejects the argument that there is a self incrimination problem under the post-68 NFA which would bar a conviction for possessing a firearm made by him in violation of the NFA. The court notes that the newly revised law prohibits the sharing of information on any application with anyone, so complying with the law will not compel him to reveal a violation of state law. Further, since the applicaiton cannot be approved if it would place him in violation of law, the defendant would not have been allowed to violate any law with his application, as it would have been rejected.
U.S. v. Scrivner, - F.3d - (9th Cir. 1999)
In this now withdrawn opinion, the 9th circuit decides that the defendants 5th amendment right against self incrimination was violated when an affidavit he filed in a civil forfeiture proceeding, claiming an ownership interest in a quantity of goods which included an unregistered silencer and machien gun, was introduced as evidence at his trial for possessing the unregistered silencer and machine gun. The court said that it was not constitutional to make him choose between claiming his proeprty, which included lots of items lawful to own, and his right to not incriminate himself. The court ordered a new trial, without his affidavit from the forfetiure proceeding being admitted as evidence.
U.S. v. Sedigh, 658 F.2d 1010 (5th Cir. 1981)
U.S. v. Sepulveda, 102 F.3d 1313 (1st Cir. 1996)
In this case the defendant is convicted of possessing a sawed off rifle that was not registered. The court decided that finding the rifle in the ceiling, within arms reach, at the defendants' crack house, was sufficient for a conviction.
U.S. v. Seslar, Case No. 95CR30002 (W.D.Ark.) docket listing
U.S. v. Seven Misc. Firearms, 503 F. Supp. 565 (D.C. 1980)
This is a bizarre 1980 case. Dan Shea likes to mention it in his MGN Forms column, I have seen it mentioned there more than once. In 1978 ATF raided the NRA museum in DC and seized 7 guns that they claimed were unregistered NFA weapons. They took this court action to have them forfeited to the government, that is why the case is only against the guns, and not the NRA. Anyone claiming the property sought to be forfeited can defend the case, and the NRA did. This case made a series of fascinating holdings about what is an NFA weapon, that seem to have been totally ignored by subsequent courts. This is only a district court decision. The court holds that a) a cutaway Lee Enfield trainer model, with a shoulder stock and short barrel is not a NFA weapon. It is not a weapon at all, it is a training aid, not even a title 1 firearm. The weapon was apparently registered as a unserviceable SBR anyway, and ATF couldn't find a record of the paperwork. As some of you may know ATF to this day takes the position that a cut-a-way type trainer gun is a NFA gun, if the real gun would be an NFA weapon (like the cut-a-way M-16A2 that Birmingham Pistol Wholesale has had for sale for an eon). b) a gun with a bore over 1/2" (two Gyrojet weapons) is not a DD if there is no ammo available for it, at all, and if the guns are not capable of being fired (missing critical parts, but with barrels over 1/2" and intact receivers). At least as to availability of ammo ATF doesn't care, eg a Japanese knee mortar device. And as to missing parts they don't seem to care about that either, a M-79 receiver and barrel, and nothing else will likely bring a prosecution unless it is registered. c) 4 DEWATted machine guns, all made as display pieces (a G-3 donated by HK, a Colt AR-15 machine gun, a T-44, and a T-48) and all donated to the NRA by the military or the maker are not machine guns, even though they have intact receivers. All were missing parts, and had welded up barrels. They should have been registered at the Amnesty, and were not. The court decides they were never designed to shoot more than one shot with a pull of the trigger, they were designed and made, or re-made as display pieces, not weapons, for the NRA museum. The court decides, reading the definition of mg, that a naked receiver isn't a mg. Only an mg receiver together with parts to have it fire as one is an mg. This view of the definition of mg is totally rejected by ATF, and ignored by other courts looking at it. Their G-3 doesn't even have a serial number... To a large extent the result in this case is due to the rather outrageous ATF conduct; raiding a museum for illegal guns, where they have sat to educate the public, and are obviously not weapons nor any threat to the public. However if this case were brought today, I think it wouldn't come out this way. The court talks about the socially neutral conduct at issue here, collecting guns that sit there. No court today would agree with that, guns are inherently evil, whether sitting in a museum or in a collector's safe, or hanging out the window of some gang- mobile. Interesting case, worth arguing as a lawyer. But pretty irrelevant anymore. By the court's mg receiver logic virtually any DEWAT machine gun, unless possessed with parts to make it live would not be an NFA weapon. Look also for a mention of Tim Bixler, now of SCRC, formerly of AWC, as someone who tried, during the Amnesty to register a Gyrojet pistol of the sort at issue here. ATF apparently told him it wasn't subject to registration, although they also apparently changed their mind.
U.S. v. Shafer, 445 F.2d 579 (7th Cir. 1971)
In this case the 7th circuit upholds Shafer's conviction for possessing and transferring unregistered hand grenades, which were of course really just cases, fuses and gun powder, not real grenades. The court decides that they need never have been assembled, the component parts, even for lame grenades, is enough. See the Ballew case for similar logic. The court also upholds the conviction even though the government destroyed all the "grenades", some before he was indicted, some after. The court finds this problematic, but enough to overturn the conviction. Shafer was also convicted of selling a gun to someone who supposedly was a felon, and a non-resident of his state (IL). The court upholds this even though there was no evidence of the guy being a felon put on by the government, only the guy's testimony. Since the crime is selling to a felon, and to a non-resident, not selling to someone who claims to be those things, that was sort of odd, but typical of the 7th circuit. Note also that the case was brought soon after the revised GCA was enacted; apparently ATF had a list of folks they wanted to get, and began the entrapment operations soon after the law was enacted.
U.S. v. Shephard, 439 F.2d 1392 (1st Cir. 1971)
In this case the court upholds the defendant's conviction for possessing a sawed off shotgun that wasn't registered. The court decides that the fact that the gun was found in his car by the repair guy he asked to fix it after it broke down, and that there were shells for the gun in the console was sufficient to let the jury decide that the gun was his, and had not been left in the car by someone else. The court also rejects his suggestion that if the gun was being held for someone else by him then he did not "possess it", citing to US v. Palmer.
U.S. v. Shepardson, - F.3d - (2nd Cir. 1999)
U.S. v. Simmons, 83 F.3d 686 (4th Cir. 1996)
U.S. v. Smith, 341 F.Supp. 687 (N.D.Ga. 1972)
In this case the Court decides that the NFA was validly enacted by Congress pursuant to its Constitutional taxing power, and therefore whether it is a valid exercise of the power to regulate interstate commerce is not an issue the Court will reach.
U.S. v. Smith, 477 F.2d 399 (8th Cir. 1973)
No relation to the other smith cases... In this case a guy is charged with possessing an unregistered DEWAT Thompson SMG. According to the case the gun was registered at one time, and was probably removed from the scope of the NFA by being a DEWAT, only to be put back in after 1968, and this gun was not re-registered, by its current owner, at that time. In any case the court has to decide whether the gun is able to be "readily restored" to shoot. Even though the ATF rent-a-expert says it would take 8 hours in a machine shop, the court decides that is enough for "readily restorable".
U.S. v. Smith, 957 F.2d 835 (11th Cir. 1992)
This is the court of appeals decision the Supremes upheld in Smith v. US. A guy traded his converted MAC-10 full auto for dope, or tried and was arrested. Is a trade for dope a "use" of a firearm in a drug related crime? The court says yes.
U.S. v. Smith, 101 F.3d 202 (1st Cir. 1996)
In this case the 1st circuit upholds a conviction for possessing ammunition as a convicted felon, and the court discusses the proof offered at trial to show that, and to show possession of a firearm as well, even though the trial court dismissed that count after forcing the government to pick between possession of a ammunition and possession of a firearm.
U.S. v. Smith, 964 F.Supp. 286 (N.D.Iowa 1997)
In this case the trial court interprets the ban on possession of guns by those convicted of a misdemeanor crime of domestic violence to mean that the underlying crime need not have had an element that the crime be directed against a domestic type person, only that that have in fact been the case. Likewise, the court declined to require that the domestic violence conviction have had as an element the use or threatened use of force, just that the offense have in fact had that. The court noted that Congress was trying to graft a gun ownership ban for a crime that most states do not have (domestic violence). Thus, the court said that the ban applies when someone is convicted of any crime, which in fact was a use of force or attempted force, against one of the domestic type persons listed, even though the crime itself might have been a generic assault, or other generic crime.
U.S. v. Smith, 97-4335 (4th Cir. 1997)
United States v. Smith, 171 F.3d 617 (8th Cir. 1999)
U.S. v. Soskin, 100 F.3d 1377 (7th Cir. 1996)
In this case the court decides that the defendant, the manager of a gun store, was properly convicted of possessing a stolen firearm, and of possessing a firearm with a defaced serial number. The defendant took in a pistol, and asked a police officer friend to see if it was stolen. While the officer told him it was stolen, the defendant kept it, rented it out, and somehow the serial number was changed from when the officer saw it, to when ATF agents came in and rented it as part of the investigation. The defendant claimed he had reported the gun to law enforcement, and thus was free to keep it until they came for it. The court disagreed that reporting the gun was a defense, and was a little skeptical that he had "reported" it either, by just asking his police officer friend to check on the gun. The court also quotes from a regulation requiring owners of NFA guns to report the theft to law enforcement, which the defendant cited as his defense, without ever noting that the regulation only applies to NFA guns, which this gun was not. It speaks of "firearms", but being part of 27 CFR section 179, firearm there only means NFA guns. I guess asking the defendant, the defense counsel, or the court, to read the regulations they are applying, is asking too much.
U.S. v. Spinner, 152 F.3d 950 (D.C.Cir. 1998)
In this case, among other things, the DC Court of Appeals holds that the government failed to prove that a rifle had a pistol grip protruding beneath the action, and was thus a semiautomatic assault weapon, and reversed the conviction for possessing one. The court also holds that the government has to prove the defendant knew that the firearm was a semiautoamtic assault weapon, or possessed the features, in order to get a conviction for violating 18 USC 922(v).
U.S. v. Spruill, 61 F.Supp.2d 587 (W.D.Tx. 1999)
U.S. v. Staples, 971 F.2d 608 (10th Cir. 1992)
U.S. v. Starkes, 32 F.3d 100 (4th Cir. 1994)
U.S. v. Starr, 945 F.Supp. 257 (M.D.Ga. 1996)
In this first reported decision involving a prosecution under the ban on semiautomatic assault weapons I know of, the court decides that the law is not unconstitutionally vague as applied to a rifle which is not identified, but sure sounds like a Maadi semi-auto clone of the AK, where the bridge connecting the pistol grip to the stock at the bottom of the pistol grip was removed, and welded on nut covering the muzzle threads was removed, in that the court decided anyone could tell the gun had a pistol grip protruding conspicuously below the gun, and that it had a threaded muzzle. The court rejects the argument that the gun came with a threaded muzzle, saying the welded n nut was sufficient to make the threads not able to accomodate a flash suppressor, as they could once the nut was removed.
U.S. v. Stella, 448 F.2d 522 (9th Cir. 1971)
In this case the 9th circuit rejects an argument that the registration provisions of the NFA compel persons to admit they are violating the Gun Control Act, by admitting to being a dealer without being licensed. The court also rejects the argument that a charge for possessing an unregistered weapon requires the government show the weapon was transferred to the possessor. The court notes that possessing a weapon trasnferred in violation of the Act is a separate count, and 5861(d), the crime of mere possessing does not distinguish how the defendant came to have the firearm.
U.S. v. Stevens, 286 F.Supp. 532 (D.Minn. 1968)
In this case the court decides that under the pre-68 NFA the charge of possessing a firearm made in violation of the NFA (section 5821) is void under the Haynes rationale, since the maker of the firearm, whoever that is, is required to incriminate himself in order to avoid prosecution in the same way the possessor of a firearm is required to incriminate himself under section 5841. Thus the offense of possessing a firearm made in violation of the NFA is also void, since it refers to a violation, making a firearm in violation of the NFA, which is itself void. The court rejects the decision in U.S. v. Taylor as being wrong.
U.S. v. Story, 463 F.2d 326 (8th Cir. 1972)
Story was caught with a sawed off shotgun on his front seat after being pulled over for having expired license plates on his car. The court upholds the seizure of the shotgun, saying that such things are per-se contraband, and should a check prove it is registered it can be returned after its owner has been arrested and his shotgun dragged down the street from the back of a police car. After all, the things have no lawful purpose in civilian hands anyway. What a happy state to live in.
U.S. v. Stout, 667 F.2d 1347 (11th Cir. 1982)
This is a case from 1980, where two guys made a bunch of unmarked and unregistered silencers and machine guns for two undercover ATF persons, and got caught. The main interesting thing from this case is the similar ruling as US v. Metzger; the feds cannot prove non-payment of the making or transfer taxes by proving the defendant has not registered the gun, by a search of the Registry. Also the defendants went to Atlanta and bought parts to convert a semi-auto "MAC-10" to full auto; I suspect this case was an impetus for the re-classification of the open bolt MACs.
U.S. v. Streich, 759 F.2d 579 (7th Cir. 1985)
In this case the court upholds the defendant's conviction for threatening IRS agents who came to seize his property for a tax lien, and for possessing the full auto AR-15 he used to drive the IRS agents off. The court finds that the evidence was sufficient that the gun was full auto, even though it was an AR-15 assembled with some M16 parts, but no auto sear, and also that the evidence was sufficient to show he knew the gun was a full auto - because he belonged to a gun club and said he knew about converting AR's to full auto.
U.S. v. Stump, No. 96-4279 (4th Cir. January 21, 1997)
In this unpublished 4th circuit case, the court decides that the trial court may not depart downward from the recommended sentence range for possessing unregistered silencers because the silencers were possessed only for lawful purposes (target shooting). The court says that doesn't matter. The court also says that the trial court may not depart downward for possession for a short period of time - that length of time of possession does not matter. As the court decided this case was not to be published, its value as precedent is basically limited to matters having to do with this specific case (ie with Stump himself), however that does not lessen the value of the general statement of the law, this position on the law and sentencing guidelines is likely to be the same as that taken by other courts.
U.S. v. Sullivan, 919 F.2d 1403 (10th Cir. 1991)
In this case the defendants are charged with a multitude of drug crimes, all of which apparently stem from an entrapment scheme of Oklahoma law enforcement. The court reverses some of the convictions, and briefly discusses a charge of possessing a machine gun, an AR-15 rifle with a drop-in auto sear. The court notes that the government contended the rifle would fire full auto with or without the sear, and therefore the firearm was undoubtedly a machine gun.
U.S. v. Synnes, 438 F.2d 764 (8th Cir. 1971)
A case on, among other things, how the 2nd amendment does not mean the government may not ban felons from possessing guns. The holding of this case, as to the meaning of sec. 1202(a), was overturned in US v. Bass, by the Supreme court.
U.S. v. Syverson, 90 F.3d 227 (7th Cir. 1996)
U.S. v. Szymkowiak, 727 F.2d 95 (6th Cir 1984)
In this case the 6th circuit decides that an NFA firearm seized without a warrant must be suppressed because the contraband nature of the weapon was not apparent to the officers when seized (the police claimed it was seized under the "plain view" exception to the 4th amendment). The weapon in question was a Colt AR-15 rifle, and the court said that the rifle was not suspcicious or contraband in itself, and only a later internal inspection of the rifle revealed the modification to full auto.
U.S. v. Taylor, 286 F.Supp. 683 (E.D.Wis. 1968)
In this brief case the court agrees with several others in deciding that a charge of possessing an NFA weapon made in violation of the NFA is not subject to the same self incrimination problems as a charge of failing to register an NFA weapon (under the pre-68 NFA) because it does not impose any requirements, it just is a flat out prohibition.
U.S. v. Taylor, 154 F.3d 675 (7th Cir. 1998)
In this case the court decides that the evidence of firearms and ammunition in the house where the defendant stayed is sufficient to show that he possessed them, which as a felon he could not legally do.
U.S. v. Ten Miscellaneous Firearms, 622 F.Supp. 759 (D.Neb.1985)
This is a forfeiture action, for the US to get some unregistered NFA weapons. Apparently the criminal prosecution was tossed out for the use of unlawful evidence collection techniques. The court decides that the failure of the criminal prosecution does not bar a forfeiture action. It also decides that unregistered NFA firearms are per-se contraband, and there is no scenario under which the Government will lose an action to forfeit unregistered NFA weapons, as their possession is not legal. It is not like forfeiture actions against objects which are legal, like cars, where it is the things connection to a crime which must be shown by the Government in order to prevail.
U.S. v. Tepper, 793 F.Supp 270 (D.Colo. 1992)
In this case the 10th circuit says that Dalton does not apply to a case of possessing an unregistered sawed off shotgun, as those are still theoretically registerable, even if this one wasn't. That they cannot be registered because they already exist was not persuasive (that is the feds won't accept registration of an existing gun). This same thing is why the court in Jones, and in Omara2 say that 922(o) does not repeal the NFA. The law is against possession, not untaxed or unregistered guns, they say, and compliance is achieved by not possessing the guns. Whether the man will take registration or tax doesn't matter - whether it is because it is an existing unregistered gun, or because registration is barred by a second law. The practical effect is the same. I sort of have to agree; if registration and tax is literally impossible, whether because of 922(o) or because of the NFA itself, how can you be prosecuted for not paying or registering it? The problem with Omara2 and Jones is that the crime is NOT possession, it is possessing an UNREGISTERED or UNTAXED gun, not mere possession. A prosecution under 922(o) itself is naked possession, and Dalton says that is OK. But I think this case should have come out the opposite way. Dalton requires that if the man refuses to let you become legal, then the law loses its constitutional basis (collection of tax) and is void. The practical effect of this debate would be whether the man can punish folks for possessing unregistered guns if they won't let you register them; in the case of existing unregistered guns, like the Maxim can in grandma's attic. Being able to make such items legal would be very nice. Would have been worth an appeal to the 10th circuit.
U.S. v. Thirteen Machine Guns, 689 F.2d 861 (9th Cir. 1982)
In this case the 9th circuit decides that a 21 month delay by ATF between seizing some firearms they claimed were used in a crime, and ATF moving to forfeit them violated due process, and the court directed the guns be returned. As noted in the follow up case to this one, in 1984 the 9th circuit reversed this case, based on a supreme court case which called for considering more factors than just the delay and who was responsible, in deciding if such a delay violated the constitution. As to guns forfeited under the Gun Control Act, Congress made this discussion moot by, in 1986, passing a law with deadlines for ATF to act on a forfeiture, after a seizure. ATF contends, and at least one court (in the US v. One DLO Machine Gun) agrees, that these deadlines do not apply to forfeitures under the NFA provisions only. So the test followed in the second Thirteen machine guns case would still apply to forfeitures under the NFA.
U.S. v. Thirteen Machine Guns, 726 F.2d 535 (9th Cir. 1984)
U.S. v. Thomas, 531 F.2d 419 (9th Cir. 1976)
U.S. v. Thomas, 12 F.3d 1350 (5th Cir 1994)
This case is primarily concerned with some guys running a drug ring in Texas, where everyone had a number, like in the Prisoner. I dunno who number 1 was, but numbers 6 and 7 were defendants.... Anyway, one was given the sentencing enhancement for having a machine gun. He argued it wasn't a machine gun, it apparently was an AR the feds induced to double tap. The court says that if the testimony was credible, and indicated it was a machine gun, then that was sufficient. His lawyer admitting it was a machine gun, according to the footnote, probably didn't help things either.
U.S. v. Thomas, 15 F.3d 381 (5th Cir. 1994)
U.S. v. Thomas, 111 F.3d 426 (6th Cir. 1997)
In this case the court upholds an enhancement of a sentence based on the defendnat's possession of a destructive device at the time he committed the other crimes he was convicted of. The destructive device was characterized as a bomb. It was a 12 gauge shotgun shell, into which was loaded a dart shaped projectile which had an explosive mixture inside it, and a primer at the tip. An ATF expert testified it would explode if shot at something, or dropped on the ground, or thrown at a hard surface. Apparently without regard to the amount of explosive material (because it wasn't called a missile, apparently) it was called a DD. The defendants claim that they were for blowing up tree stumps was not considered credible.
U.S. v. Thompson, 202 F.Supp 503 (N.D.Cal. 1962)
U.S. v. Thompson, 420 F.2d 536 (3rd Cir. 1970)
This case concerns a guy caught with, what else, a sawed off shotgun. The court follows a number of other courts and holds that the proviison of the pre-68 NFA forbidding possession of a NFA weapon that was made illegally does not have the same 5th amendment self incrimination problem the Supremes found in the section dealing with registration. It also decides that the use of a report from the custodian of the NFA Registry, as opposed to live testimony, does not violate the 6th amendment right to confront the witnesses against oneself. The court also upholds the search of the defendant's car, and the seizure of the gun, without a warrant.
U.S. v. Thompson, 82 F.3d 849 (9th Cir. 1996)
U.S. v. Thoresen, 428 F.2d 654 (9th Cir. 1970)
This case concerns a prosecution under the now repealed Federal Firearms Act, replaced in 1968 by the GCA. However it does have one interesting discussion in it on the standard of constitutional review to be applied to the FFA's restriction on interstate transport of firearms by convicted felons. The court decides that this type of regulation does not affect an important right, like the right of retarded persons to reproduce, and thus any rational basis for the law will make it constitutional. At least as reviewed under the 5th Amendment. Compare this to the Gilbert Equipment Co. case, where the magistrate holds that there is no second amendment right to import firearms.
U.S. v. Tomlinson, 67 F.3d 508 (4th Cir 1995)
In this case ATF has successfully argued that a pistol gripped 12 gauge shotgun (a Mossberg Cruiser model, I believe) is a "weapon of mass death and destruction" under North Carolina law. As such it cannot be possessed by a felon, while a felon can possess ordinary shotguns and rifles under NC law. Interestingly, for purposes of a shotgun, a weapon of mass death and destruction is the same as a "destructive device" under federal law, which raises the question of why all pistol gripped shotguns have not been reclassified by ATF as destructive devices, as they did with one semi-auto shotgun, and two revolving cylinder shotguns. In any case, the court decides that the Staples case requires that the government prove the defendant knew the shotgun had the characteristics that made it a weapon of mass death and destruction, and thus made it illegal for him to possess it.
U.S. v. Toner, 728 F.2d 115 (2nd Cir. 1984)
U.S. v. Tot, 131 F.2d 261 (3rd Cir 1942)
This is a case among many deciding among other things that the second amendment means that states can have a militia, not that anyone can possess a firearm. It is cited quite often to that effect; the main holding of the case was overturned by the Supreme Court, that in a prosecution under the old Federal Firearms Act the jury can presume the gun traveled in interstate commerce to get to the felon who possessed it, without any evidence to that end. The court said yes, the Supremes disagreed.
U.S. v. Tous, 461 F.2d 656 (9th Cir. 1972)
In this brief case the 9th circuit rejects a challenge to a conviction for possessing an unregistered machine gun. The court notes that the NFA is an assertion of Congress' taxing power, not its commerce power, so the gun need not have been shown to have traveled in commerce, and further the fact that the defendant missed the 1968 Amnesty is not a defense.
U.S. v. Truitt, 521 F.2d 1174 (6th Cir. 1975)
U.S. v. One Assortment of 12 Rifles and 21 Handguns, 313 F.Supp. 641 (N.D.Fla. 1970)
In this case the court decides that even though the defendant was acquitted of dealing in firearms w/o a FFL, his firearms can still be forfeited to the government, as they were involved in sales of firearms w/o an FFL, by the defendant's own testimony at trial. As to the defendants argument that hhe was not in the business of selling firearms, but was disposing of his collection, the court rejects that contention, deciding instead that any sale for profit or to liquidate a firearm requires a FFL. This sort of case was why the NRA and others pressured ATF to define "engaged in the business" as ATF made many prosecutions based on people selling their admittedly large personal collections. In the end, since ATF refused to define the term, as they enjoyed the liberty it gave them in making prosecutions on the one hand, and also in refusing to issue FFLs on the other (you don't want to be in the business if you don't plan to sell a lot of guns...) Congress defined it as part of the 1986 Firearm Owners Protection Act, and ended a lot of abuses such as shown by this case.
U.S. v. Twelve Misc. Firearms, 816 F.Supp. 1316 (C.D.Ill 1993)
In this case the court refuses to throw out the government's suit to forfeit the AUG-SA firearms at issue in US v. Nevius and US v. Vollmer, based on the argument that the suit was filed to late.
U.S. v. Twelve Firearms, 16 F.Supp.2d 738 (S.D.Tex. 1998)
In this case the court upholds the forfeiture of some firearms which a dealer did not have in his bound book records. The owner of the firearms argued the action was brought too late, more than 120 days after seizure, however the court said that just starting an administrative proceeding within that time was sufficient, the government did not need to start a judicial forfeiture in that tiem as well. And the court also said that the government proved a wilful violation of the recordkeeping requirement of the GCA to justify forfeiture. It appeared the owner of the firearms was handicapped by doing the case himself, and not having a lawyer help him....
U.S. v. Valdez, 146 F.3d 547 (8th Cir. 1998)
In this case the court of appeals upholds the trial court decision (see US v. Johnson) that, among other things, a pistol gripped short shotgun made from a shoulder fired shotgun is a short barreled shotgun, and not a pistol, even though it was meant to be fired from the hand as re-made. Since it was originally designed to be shoulder fired, it is a short barreled shotgun
U.S. v. Valentich, 737 F.2d 880 (10th Cir. 1984)
In this case the 10th circuit agrees with the trial judge that acquitted the defendant on charges of possessing a silencer, after the jury convicted him, because the government did not put on enough evidence of possession. The court decides that the fact that he was in the same room as the silencer, and probably held it, was not enough to show that he had the power to exercise control over the silencer, and further the government failed to show the seized silencer was even the same one the defendant had touched.
U.S. v. Valentin, No. 97-1772 (1st Cir. December 12, 1997)
U.S. v. Vasquez, 82 F.3d 574 (2nd Cir. 1996)
U.S. v. Verna, 113 F.3d 499 (4th Cir. 1997)
In this case the 4th circuit court of appeals upholds the conviction of the defendant for being a felon in possession of a firearm, and for possessing an unregistered NFA firearm. The firearm in both cases was a bomb he put in his ex-wife's car, which failed to go off. The court decided that as to the felon in possession charge, the government proved that enough of the components of the bomb were made outside his state as to justify a decision that the bomb was acquired in interstate commerce. The explosive, some of the shrapnel, and at least one of the igniters were all from out of state. The court also decided that even though the bomb had a design flaw that prevented it from going off, it could still be a destructive device, and thus subject to the NFA.
U.S. v. Virciglio, 441 F.2d 1295 (5th Cir. 1971)
This case concerns a guy who was solicited by ATF to sell them guns, and a machien gun, right after the changes to the GCA in 1968. They take advantage of the lack of a definition of engaged in the business to snag him for selling to them, and others, a few guns. They also dup him into selling them an unregistered Thompson SMG. The court rejects an entrapment defense, saying he responded positively to their solicitation. They also decide that even though he never touched the SMG he can still be prosecuted and convicted for possession, on a "constructive" possession theory, basically for arranging the sale.
U.S. v. Visnich, 65 F.Supp.2d 689 (N.D.Ohio 1999)
U.S. v. Voegele, 346 F.Supp. 7 (E.D.Mich 1972)
In this case a gun dealer discovers that law enforcement is not your friend, but that when they ask questions, they are trying to get enough evidence to get you incarcerated. He blabbed about helping a guy make a sawed off shotgun, when asked, and as a result found himself being prosecuted. The trial judge, in this opinion, rejects his arguments as to the invalidity of the search of his premises, and the non-admissibility of his confession to making the sawed off shotgun for another man, who got caught with it, and fingered Voegele.
U.S. v. Vollmer, 1 F.3d 1511 (7th Cir. 1993)
This is the opinion of the 7th circuit court of appeals in the government's case against Vollmer for supposedly conspiring with an IL National Guardsman to buy Steyr AUG-SA's from GSI, under the LEO only sales deal, for re-sale to Vollmer. Notice how they try and get the Guardsman to entrap Vollmer after they bust him. Nice, huh? Someone told me once they didn't think there was a single big NFA dealer ATF hadn't at least tried to get busted on NFA violations. And compare this to the Lauchli(4) case, (the case went up and down through the courts several times) where the court decides being a SOT under the NFA is not being part of primarily a criminally suspect class, and thus bringing into play certain 5th amendment protections. I would disagree, viewing all the NFA prosecutions overall. For the most part they go after otherwise law abiding persons. But enough of that. In this opinion Vollmer (the company, Robert Vollmer was also indicted as an individual, but was acquitted by the jury) gets some of the charges knocked out, but the court upholds, generally, the BS scheme ATF imposed on GSI as to the AUG's. However because the judge didn't poll the jury (ask each one individually if the verdict as read was their decision) after Vollmer's lawyers asked, the court throws out the guilty verdicts, and orders a retrial. I don't know if Vollmer was actually retried, or if the US Attorney decided to get a life and go after some criminals. It seems to me Vollmer hired very effective lawyers in this one.
U.S. v. Von Eichelberger, 252 F.2d 184 (9th Cir. 1958)
In this case Von Eichelberger, was convicted of transferring unregistered NFA guns, as well as possessing same, all under the pre-68 NFA, although the result would be the same under the current law. He gave them to his co-defendant, to sell. His main argument was that a "conditional sales contract" was not within the definitions of transfer under the law. The court thought that was clever, but thought that any transfer of physical possession was what the statute meant to cover by transfer. Whether legal title passed didn't count. The court also decided that while possession might have started more than 6 years before the indictment, that did not mean that the statute of limitations on prosecution had lapsed, as long as he possessed the guns he was in violation of the NFA, it was a continuing offense.
Plaintiffs brief in US v Walsh
Government brief in US v Walsh
Reply Brief in US v. Walsh case
U.S. v. Walsh, 791 F.2d 811 (10th Cir. 1986)
This is a odd one, Don Walsh was a class 2 who made suppressors, Al Paulson, the suppressor guru for MGN, really likes his stuff. He was the Interrand Corp., out of Washington DC. Funny place for a gun company. Anyway he was bringing some cans to the SOF show (I guess, a show in Las Vegas) and the cans and a gun were lost in the luggage and showed up in a different city. As he had not put his name on the outside of the case the airline opened it, saw the gun and cans and called ATF. Unfortunately Walsh had neglected to mark the cans with a serial number, and had filed post dated form 2's on them. He apparently planned to mark them in LV, and brought an engraving tool. He was convicted of a felony, making unserialized NFA weapons. The court here upheld that, saying the things needed to be marked when they were made, there was no grace period. Bummer.
U.S. v. Warin, CR 74-90 (N.D.Ohio January 24, 1975)
U.S. v. Warin, CR 74-90, transcript of sentencing (N.D.Ohio March 28, 1975)
U.S. v. Warin, 530 F.2d 103 (6th Cir. 1976)
This is a fairly notorious case, as these go. This is the main, recent case where a federal appeals court held that the Miller case was a freak aberration, and could not possibly stand for the idea that there is any individual right to own any gun, let alone the machine gun at issue in the case. Never mind that if their rationale was correct the Supreme Court opinion in Miller would have said just that, rather than what it did say. By even entertaining the idea that ownership of a sawed off shotgun (in Miller) was protected by the 2nd amendment the court agreed it was an individual right. The argument advanced by this court just makes no sense.
My favorite part of this case is where the court says in one paragraph that in any case the NFA doesn't violate the Second Amendment because it doesn't regulate the "keeping or bearing" of firearms, the only things mentioned in the Constitution. Then in the very next paragraph, they say Warin may not challenge the portions of the NFA that regulate "making", as he was only charged with a violation of the Act that regulated possession. HELLO, isn't possession a fairly good synonym for "keeping"? The judges who wrote this should have been ashamed of themselves. In the year of the 200th anniversary of the Declaration of Independence to boot.
In any case, when the gun-grabbers talk about the idea that the Second Amendment only protects the rights of states to have arms without federal governmental interference, there are cases that say just that, Warin is a leading example.
U.S. v. Warner, 5 F.3d 1378 (10th Cir. 1993)
In this case the court upholds a conviction for possessing a machine gun in violation of 922(o). Warner claimed that because Utah law permitted him to own a machine gun, he was within the "authorized by a state government" exception to 922(o). The court rejected that idea, and said you had to be a government employee, on official business, to be able to be included in the clause. The court also reversed the downward sentencing departure by the trial judge, indicating that even if the trial court thought his possession of the machine gun was for hobby or sport purposes, that could not be the basis for a dowanward departure for possessing a machine gun, only for regular rifles, shotguns and handguns. The court also disagreed with the trial court's thinking that the possession was for non-offensive reasons, indicating he was caught with it in his car, after a fight at the roadside over bad driving, and during which he had threatened to shoot the other driver he was fighting with.
U.S. v. Was, 684 F. Supp. 350 (D. Conn. 1988)
This is the opinion by a district court denying a motion to dismiss charges of violating the NFA by transferring some AR-15 drop in auto sears. Pretty standard stuff, but it pointed something out to me I hadn't remembered, and explains a lot of the Staples case. The AR auto sears were declared to be conversion devices, even though they also needed all M-16 parts in the gun, because the ATF claimed to have identified SOME AR's that were assembled with M-16 parts. Presumably if all AR's had Colt SP1 type parts then the sear would not have been a conversion device. Read the ATF Ruling. But wait, you say to yourself, if the AR has all M-16 parts doesn't ATF consider it to be an mg anyway, even w/o the drop-in sear? How can the drop-in sear convert something that is already an MG? Ah ha, this is where we get an explanation of why, in the Staples case (read the briefs for the best description of this BS) ATF REFUSES to issue a ruling that an AR with M-16 internals is an MG. They just warn that SOME may fire more than one shot, due to hammer follow down. They refuse to issue such a decision, even though they obviously act on the belief that all AR's with M-16 internals are mg's, because doing so would totally undercut the rationale for finding AR drop-in auto sears are mg's, because they claim they can convert SEMI-AUTO AR's that already (from the maker) have M-16 parts installed. This isn't in the case, it just brought the issue to my attention.
U.S. v. Was, 869 F.2d 34 (2nd Cir. 1989)
In this extremely brief opinion, the court of appeals affirms the conviction of the Was brothers for transferring drop in auto sears, adopting the district court decision as to whether the sears were in fact machine guns under the NFA.
U.S. v. Webb, 533 F.2d 391 (8th Cir. 1976)
In this case the court upholds Webb's conviction for possessing an unregistered short shotgun, found in a search of the car he was in, after he shot up a jukebox, and the car was double parked on the street. The case is mostly included for the footnote in which the court notes that unservicable NFA firearms are not subject to the registration or tax provisions of the Act, in the context of deciding that the government did not have to prove the gun worked to get a conviction, if he wished to prove it didn't work, he could do so, but it wasn't an element of the offense.
U.S. v. Webb, 98 F.3d 585 (10th Cir. 1996)
This case is mostly notable for the footnote describing the silencers this guy was convicted of possessing. The court declines to review the conviction, as Webb did not do a direct appeal, but it does note the silencers were two toilet paper rolls, filled with the stuffing from a toy animal. One was attached to the muzzle of a .22 rifle the defendant had, when he was arrested. Really.
U.S. v. Webb, 975 F.Supp. 1280 (D.Kansas 1997)
In this case the trial court reverses Webb's conviction for possessing two unregistered and unserialized silencers (toilet paper tubes filled with stuffing from stuffed animals) as the jury instructions did not require the jury to find he knew they were silencers, as subsequently required by the Supreme Court's decision in Staples. One wonders why this case was prosecuted at all, let alone appealed to the 10th circuit twice (one of which is on this page). Nonetheless, the Court set a date for a new trial on those counts, to give the government a chance to show the defendant knew the paper tubes were silencers, and thus were required to be registered, and marked with serial numbers.
U.S. v. Whalen, 337 F. Supp. 1012 (S.D.N.Y. 1972)
This is a sad one. It happened soon after the 1968 Amnesty, (1970) and after the change to require DEWAT's be registered. Whalen was a cop from Westchester County, NY who had a bunch of mg's (9) acquired while he was a cop. Even though they were live while he was a cop they were apparently not registered. When he left the force he had them welded up, and only one was ever registered as a DEWAT. Then he put an ad in the paper to sell his war memorabilia collection, including the mg's. Needless to say, the folks who showed up with cash were ATF agents. He got busted for 8 counts of unregistered mg's, and 9 counts of transfer w/o the tax (ATF didn't like the welding job), or an application. The issue here was, were DEWAT's now subject to registration, and the NFA? The court said yes. I don't know what happened to Whalen, he had some defenses to raise at trial as well (like the sufficiency of the DEWATting (as to the tax), and whether he had actually tried to transfer the guns, ATF may have arrested him too early in the negotiations...) The court goes over the ATT Rulings that created the DEWAT program, and the legal distinction between a DEWAT and an unserviceable gun, which was erased by the 1968 changes to the NFA. The case also notes ATF retained all the initial registrations of guns that were re-made as DEWATs and removed from the need to have a transfer application after that. A gun was supposed to be registered, then if it was steel welded in front of an ATT inspector, the gun need not be transferred in compliance with the NFA (ie sold by mail w/o a transfer, or tax). According to the 1980 Senate hearings into the ATF, the DEWAT records were destroyed, without any legal justification, at some point before 1975. This case cites the three Revenue Rulings that created the DEWAT program, and which are on the server as well.
U.S. v. White, 368 F.Supp 470 (N.D.Ind. 1973)
U.S. v. Wickstrom, 893 F.2d 30 (3d Cir. 1989)
In this case the court decides that a silencer is a "firearm" under the Sentencing Guidelines, sufficient to enhance a setence for using a firearm, even though the Guidelines define a firearm as something that expels a bullet. The court magically sucks in the definition of firearm from the Gun Control Act (which does include a silencer as a firearm) into the Guidelines.
U.S. v. Wiggins, 50 F.Supp.2d 512 (E.D.Va. 1999)
U.S. v. Wilbur, 545 F.2d 764 (1st Cir. 1976)
In this case the court upholds the seizure of the defendants FFL records during an administrative search, and upholds their use against him in a prosecution for selling guns in violation of the GCA. The ATF used the warrantless administrative search to gather evidence after the defendant was indicted, but the court decided they didn't have to get a warrant, and could use the warrantless inspection granted by the GCA to gather evidence against a dealer suspected of criminal activity.
U.S. v. Wilks, 58 F.3d 1518 (10th Cir. 1995)
In this case the 10th circuit reviews the constitutionality of 922(o), the mg making ban, after the Supremes ruling in Lopez, and upholds it, under the same sort of attack that it was voided under by the district court in Bownds. In this case the court decides that unlike in Lopez the Congress is regulating commerce with sec. 922(o), as it regulates an article of commerce, and intrastate regulation of such an article, in order to control its interstate movement, is acceptable. The court does not find a flat out ban on guns to be a radical departure in federal gun control, and claims it is just an extension of the ideas and methods of the Gun Control Act of 1968. A very very sad and disappointing case, in my opinion. However note the court's sort of hopeful footnote as to the 2nd amendment. Someday, maybe... The court approves of the 4th circuit case also finding 922(o) is an acceptable exercise of the commerce power, and notes in a footnote that the 9th circuit case that also reached that conclusion is based on reasoning rejected in the Lopez case, and in their opinion is not good law anymore.
U.S. v. Williams, 427 F.2d 1031 (9th Cir. 1970)
U.S. v. Williams, 872 F.2d 773 (6th Cir. 1989)
This is a 1986 companion case to US v. Anderson, as a predecessor case to US v. Staples. Williams was a FFL who sold a bunch of Clayco imported Chinese semi-auto AK's to friends, still in the wrap. Someone came to him looking for one, after he was sold out. He asked one of his customers, who had bought a bunch, if he wanted to sell one. It turned out, after that gun was sold by the buyer to an ATF informant, that the gun was really an mg. Williams had never removed the plastic wrap, or grease. The court had to decide if he could be charged with an NFA transfer violation if he didn't know the gun was a machine gun, and decided no. He really thought it was a semi-auto, and definitely had reason to think so. The case is unclear if the gun was sold by Clayco as an mg (ie it came in as one), or if it was converted at some point, and Williams just basically brokered the sale of an illegal conversion. The case notes it was not detectable from the outside as an mg; I would think a real Chinese AK mistakenly imported as a semi would be so detectable from the outside. Anyone know the story of these Clayco guns at issue?
U.S. v. Williams, 986 F.Supp. 1445 (D.Kan. 1997)
In this brief decision the trial judge rejects a claim that a case against the defendant for receiving a firearm while under indictment for a crime punishable by imprisonment for more than one year should be thrown out because the defendant was not indicted, but was charged by information. An indictment is done by a grand jury, while an information is done by the district attorney himself, without a grand jury. While there is a constitutional right to grand jury indictment for felonies in federal court, the same is not true in most states, including, apparently, Kansas. The court said that it was just semantics, and that they were the same for purposes of the law, even if one was listed and one was not listed in the law.
U.S. v. Wilson, 440 F.2d 1068 (6th Cir 1971)
This very brief case concerns a guy who was caught selling a sawed off shotgun. In it the court, in about as many words, says that the NFA has more than sufficient relation to raising revenue and to interstate commerce so that it is constitutional as a congressional exercise of those powers.
U.S. v. Wilson, 159 F.3d 280 (7th Cir. 1998)
In this decision the court of appeals upholds the law banning persons subject to a domestic violence restraining order against a challenge that it violates the right to due process, and is beyond the power of Congress under the commerce clause. The dissent makes a good argument that the law will trap many many unwary persons unless the courts require the government show the person possessed the guns knowing the restraining order made it illegal for him to do so.
U.S. v. Wojcik, 1986 WL 10622 (N.D.Ill. 1986)
In this case the court upholds the admissibility of evidence seized in a search of the defendant's home, but which was not listed on the warrant. The warrant listed some silencer parts and MAC parts the defendant had ordered from SWD, but the agents found a conversion kit for a mini-14, and two converted AR-15 type rifles. The court decides that the kit and rifles, for which the defendant was being prosecuted, were validly seized as contraband in plain sight. In so ruling the court implicitly rejects several published decisions (unlike this one) which held that a firearm is not per se contraband, and if inspection or test firing is needed to show its illegal nature, then it isn't in plain sight and isn't subject to this exception.
U.S. v. Wolfe, 32 F.Supp. 945 (E.D.Mich. 1999)
In this case the court decides that there is no conflict between obeying the NFA, which requires registration of machine guns, and 18 USC 922(o), which prohibits the registration of machine guns. Like many other cases, the court decides that one had to not possess machine guns. The court also decides that a search warrant for NFA registration paperwork is not a search for tax returns, and that the prohibition on the use of NFA paperwork as evidence found at 26 USC 5848 does not preclude the use of registration information or forms for getting an indictment.
U.S. v. Woodbridge, 1995 WL 218498 (9th Cir. 1995)
In this unpublished decision, the 9th circuit court of appeals upholds the conviction of a Washington state licensed manufacturer of NFA weapons for possessing unregistered machine gun receivers and machine guns.
U.S. v. Woodlan, 527 F.2d 608 (6th Cir. 1976)
U.S. v. Woods, 560 F.2d 660 (5th Cir. 1977)
U.S. v. Wost, 148 F.Supp. 202 (N.D.Oh. 1957)
In this case an old, totally law abiding citizen is caught with a sawed off shotgun he made. No threat to the community, he is prosecuted anyway. His defense is that he didn't know it was illegal to saw off his shotgun, and he is convicted. Although the case doesn't say, it is unlikely he did any jail time; they were a bit more lenient back then.
U.S. v. Wright, 991 F.2d 1182 (4th Cir. 1993)
In this case the court decides, in part, that a short barreled Mossberg rifle need not be operational to be subject to the National Firearms Act, but that if it was restorable by purchasing $20 worth of parts, or with the use of a ubiquitous paperclip (can't all guns be fixed with one?) then it was subject to the law.
U.S. v. Wright, 117 F.3d 1265 (11th Cir. 1997)
In this case the 11th circuit rejects a 2nd amendment challenge to 922(o), the ban on making new machine guns. The court also upholds 922(o), as a new matter in the 11th circuit, the constitutionality of 922(o) as an exercise of Congress' power under the commerce clause.
U.S. v. Wright, No. 00-25-01-JD (D.N.H. 2000)
U.S. v. Young, 875 F.Supp. 350 (W.D.Va. 1995)
In this case the court decides that where the Gun Control Act uses "willfully" in describing a crime, the government must show that the defendant knew the law prohibited what they did, and they did it anyway. The court distinguishes it from "knowingly" which it says means the defendant need only have consciously done the act, without any evidence that the defendant also knew that it was also prohibited or regulated by law.
U.S. v. Zeidman, 444 F.2d 1051 (7th Cir. 1971)
This case whether a Browning High Power and shoulder stock is a short barreled rifle, even if they are not assembled when discovered. The court says yes. Later ATF exempted some original High Power and shoulder stock combos from the Act, as collector's items. The court also decides that the cops need not discover whether the item is registered, and thus legal, it is presumptive that they are illegal, at least in the case of High Power and shoulder stock. Also the court finds that selling six guns is enough for dealing, in the era before the GCA defined "engaged in the business."
Varitimos v. U.S., 404 F.2d 1030 (1st Cir. 1968)
In this case the 1st circuit court of appeals decides that under the pre-68 NFA there is no self incrimination involved in a conviction for possessign a firearm transferred in the past in violation of the NFA. The court elects to eliminate a due process problem with the law to decide that the section barring possession of a firearm transferred illegally in the past only applies to persons who did not comply with the NFA to acquire the firearm, and not to people who complied with the NFA, but at some time in the past the firearm had been illegally transferred. The court also notes in a footnote, without explanation that Congress could have banned the transfer of firearm completely, and therefore requiring the prospective buyer do an order form and submit it to the government is not a problem. The court seems to be thinking the NFA is a police power regulation, and not a tax regulation.
Vollmer v. Higgins, 1992 U.S. Dist. LEXIS 9450 (D.D.C. 1992)
This is the unpublished decision of the trial court, which was reversed by the court of appeals in Vollmer v. Higgins. The trial court decided that Vollmer could not transfer HK94 rifles which had modified into machine gun configuration, nor could they transfer such rifles that had been re-modified back into semi-auto configuration. The court of appeals agreed with the first conclusion, but rejected the second. Also see the Vollmer v. Magaw case.
Vollmer v. Higgins, 23 F.3d 448 (D.C. Cir. 1994)
This is a pretty cool case, after the making ban in 1986 Vollmer got permission from ATF to make up sear gun HK's that had the block on the mag well removed, and thus the receiver part could use swing down lowers, that is machine gun lowers, although Vollmer always put registered sears in them. ATF finally decided that constituted making machine guns, as the receiver was identical to an MP-5 receiver when he was done modifying the HK-94's in this way. So Vollmer then asked to be able to return them to the semi- auto configuration, and ATF told him he could do whatever he wanted but they considered the HK-94's he had modified to be post-86 machine guns, even if returned to semi-auto configuration. This is their "once an mg always" mantra. As Vollmer now had 250 NIB HK-94's reduced in value quite a bit, he sued. The lower court upheld the ATF, but the circuit court reversed the lower one and disagreed with ATF. They agreed the altered receivers were mg's, but didn't find any basis for ATF calling the modified guns mg's. They said that once they were returned to a state identical to a semi-auto they were a semi-auto, if ATF claimed that gun was an mg, then all HK-94's were mg's something even ATF didn't claim was true. The court said Vollmer could return the receivers back to take the clip on lower and sell them as semi-autos. Vollmer then turned them into sear guns, of course, with a clip on lower.
Vollmer v. Magaw, 102 F.3d 591 (D.C.Cir. 1996)
In this case, a follow-up to the case of Vollmer v. Higgins, the court of appeals reverses the trial court, and decides that ATF's position on whether a gun that was converted into a machine gun can never be converted back was not reasonable, and therefore the plaintiff is entitled to legal fees under federal law. ATF claimed that while they lost the case, their position was a reasonable one under then existing law. The district court (which had ruled against Vollmer, and been reversed) agreed, and the court of appeals reversed them again, deciding nothing in the statute or legislative history supported the "once a machine gun always" policy of ATF. However the court did decline to award all the fees claimed, because the court did rule for ATF on whether the conversion of the HK94 receiver into a machine gun configuration, with a registered sear installed, was still a transferrable machine gun.
Warin v. Director, Dep't of Treasury, No. C 80-210, (N.D. Ohio October 14, 1983)
In this unpublished case the Court, accepting ATF's argument, decides that a device which is a combination of parts to convert a gun into a machine gun is not a firearm under the Gun Control Act. Compare this to U.S. v. Hunter, in which the government took the position, which the Court there accepted, that such conversion parts are also firearms within the purview of the GCA. Hunter was dropped by the government before a conviction, so there was no appeal from that decision.
Warren v. U.S., 447 F.2d 259 (9th Cir. 1971)
In this case the court rejects the argument that the court rule allowing proof of non registration of a sawed off shotgun by a certificate from the custodian of records is not unconstitutional in that it violates the right of a defendant to confront the witnesses against him. The court decides that government efficiency outweighs the constitutional right, and that the certificate is reliable because the government is bound by law to maintain the records. The court also decides that a prosecution for possessing an unregistered NFA gun does not violate the right against self incrimination, since no statement is called for from the defendant either as part of the offense, or to avoid the offense.
Wasylow v. Glock, Inc., 975 F.Supp. 370 (D.Mass. 1996)
In this case a trial court gives Glock summary judgment in a suit brought by a jail guard trainee who shot himself in the stomach with his Glock 21, doing considerable damage. He was trying to put the gun away in the factory storage box, but didn't clear the chamber before pulling the trigger to do so. The court decided that the gun was not defectively designed, that the lack of a magazine safety and manual external safety were features not defects, and that the warnings that Glock gave regarding the gun were adequate, and in the court's opinion, went beyond what is required.
Waters v. U.S., 328 F.2d 739 (10th Cir. 1964)
In this case the 10th circuit decides that Waters' conviction for violating the NFA is barred by the 3 year statute of limitations for tax offenses, and reverses his conviction. The court rejects the government argument that the offense was "wilfull" and thus a 6 year statute of limitations applies, noting that the statute in question 26 USC 5851 (under the pre-68 NFA) has no such element. The court does reject the argument that a previous dismissal of charges for failing to register the same gun that was the subject of this prosecution (for illegally making the gun, this time) bars this trial, on double jeapordy grounds, since the elements of the two crimes are not the same.
Weidner v. Kennedy, 309 F.Supp. 1018 (C.D Cal. 1970)
In this case the court decides that the plaintiff, appealing from the denial of a FFL based on his supposedly having wilfully violated the GCA, is entitled to a new trial on contested issues, and that the proceeding is not just a review of the administrative record, as the government argued.
Wellborn v. Cobray Firearms Inc., 1998 WL 80236 (10th Cir. 1998)
In this case a man who hurt himself with a Cobray made 37mm flare launcher sues the company after his homemade flare, from Cobray's load-it-yourself kit blows up the gun, and his hand and arm. The 10th circuit upholds the dismissal of Sylvia Daniel as a defendant, but reverses the dismissal of Wayne Daniel, the owner of the manufacturer of the launcher. The court also upholds the dismissal of claims against two companies which had gone out of business.
Wellborn v. Cobray Firearms Inc., No. 98-8106 (10th Cir. 11/04/1999)
Wenos v. Secretary of the Treasury, No. 88-5334 (S.D.Ill. March 19, 1990)
Westfall v. Miller, Case No. 4:93CV273 (E.D.Tx. March 28, 1995)
Westfall v. Miller, 77 F.3d 868 (5th Cir. 1996)
Westfall is a guy who lives in Plano, TX, and wanted to buy a machine gun made by AWC Systems Technology. He went to his police chief, the Collin county sheriff and DA, all of whom said no. He submitted the Form 4 anyway, and Wayne Miller, the defendant, bounced it back with a letter telling him to try harder to get the certification, and refusing to process it without it. He refused, and sued.
The court of appeals decided, following the Steele v. NFA Branch case, that he did not have standing to challenge the law enforcement certification requirement until he had exhausted the persons suggested by ATF, and still failed to get a signoff. ATF suggested the head of the Texas Dep't of Public Safety, as well as local judges. The court, in a footnote, lists all the officials who have done signoffs in Texas, in the time period in question. Interesting reading, the list was compiled by ATF for the case.
The court notes that exhausting the list is a pain, but says there is no other way to tell if the injury (no machine gun) is caused by laziness, or by a BS requirement of ATF.
Weyer v. U.S., 429 F.2d 74 (5th Cir. 1970)
In this case the 5th circuit overturns a conviction for possessing an unregistered machine gun based upon the Haynes case. The court decides that as Texas (then) prohibited private possession of working machine guns, the defendant would have had to incriminate himself if he would have complied with the registration requirement. Therefore he did not have to. The court noted that then he had to obtain a law enforcement certification to register the gun.
Whaley v. U.S., 394 F.2d 399 (10th Cir. 1968)
Wheaton v. Caldera, No. 99-1398 (D.D.C. 1999)
Wheaton v. Caldera, No. 99-1398 (D.D.C. 1999) docket listing
Whitfield v. Heckler & Koch, Inc., - Cal.App.4th - (2nd Dist. 2000)
Wright v. U.S., 243 F.2d 546 (6th Cir. 1957)
Yanovitch v. U.S., 985 F.Supp. 17 (D.Mass. 1997)
In this case the court rejects an argument that the defendant was not really convicted of a prior felony so as to constittue a predicate offense for later possessing a firearm as a felon. The court notes that he stipulated at trial to the felony, and so shouldn't be allowed to change his mind now, since that agreement as to that fact precluded the prosecution from proving his prior felony. Also the court decides that his prior conviction for possessing a firearm w/o a firearm owners identificaiton card under Mass. law is a felony, in that it is punishable by up to 2.5 years in prison, and precludes him from being able to vote under Mass. law. The court notes that the fact that Mass. continues to let him have a firearm owners id card now does not change his firearms prohibition under federal law.
York v. Secretary of Treasury, Plaintiff's brief
York v. Secretary of Treasury, Defendant's brief
York v. Secretary of Treasury, 774 F.2d 417 (10th. Cir. 1985)
This one answers something I had always wondered ever since I first got a copy of the ATF Red Book. What in the heck is a YAC STEN MK II? See page 75, ATF Ruling 83-5 reprinted there. It is a York Arms Co. semi-auto only, open bolt STEN gun. ATF ruled it was a machine gun and York appealed that. The court really ducks the central issue, which was the ATF decision that guns that could "easily" be converted to full auto were also machine guns, when prior to 1982 they had not held that. It looked to me that York did a poor job of presenting the issue also, Or rather his lawyers did. In any case the court upholds the classification. And by implication they uphold the new interpretation of what a machine gun is, one even they note is newly expanded.