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To: Dr. Robert Schmoe Case: United States v. John Doe
From: JPratt06, Esq.
Date: October 30, 2006
Subject: Whether our client violated the National Firearms Act § 5841 (b), § 5861 (f), and § 5811 (a)
Assignment
You have asked me to research whether or not the State may use constructive intent to argue that our client is guilty of tax evasion and making an unregistered firearm. You have also requested that I research the meaning of “make” in the applicable legislation.
Issue Statement
Is a man guilty of tax evasion and making an unregistered firearm if he possesses simultaneously, in unassembled configuration, a short rifle barrel and a rifle receiver not registered with the BATFE as a short-barreled rifle?
Facts of the Case
On October 2, 2006, Mr. John Doe placed an order at Dan’s Gun Shop for an AR15 lower receiver registered as a pistol. Mr. Doe was told that the item would arrive within two weeks. Mr. Doe then ordered, by mail, an AR15 upper receiver which contained an 11.5 inch barrel. The upper receiver arrived at the Doe residence on October 16.
At approximately 10 o’clock p.m. on October 18, 2006, the Alachua County Sheriff’s Department received a call from Mr. Doe’s neighbor complaining about what seemed to be a boisterous argument between Mr. and Mrs. Doe. Two police officers were dispatched. They approached the Doe residence and heard a woman screaming, and, fearing that someone was in grave danger, they entered through the unlocked front door. The officers saw Mr. Doe and his wife in the living room, caught in a heated verbal argument. Mrs. Doe did not appear to have sustained any physical injury, and one of the officers explained why he and his partner had been dispatched. The other policeman noticed an AR15 rifle (complete with a 20 inch barrel) on the living room floor, along with various gun cleaning equipment. Next to the rifle was an open postage box containing an AR15 upper receiver, the barrel of which measured 11.5 inches in length. The officer asked Mr. Doe if he had the BATFE approval papers and $200 tax stamp necessary to register a short barreled rifle, and Mr. Doe responded that he did not. The officer arrested Mr. Doe, who was then charged with tax evasion and making an unregistered firearm.
The pistol lower receiver that John Doe had ordered arrived at Dan’s Gun Shop on October 19, the day after Mr. Doe’s arrest.
Analysis
Mr. Doe has been charged under the following, all of which are from 26 U.S.C.A. (National Firearms Act or “NFA”):
§5845(a)(3)
For the purposes of this chapter, the term “firearm” means a
rifle having a barrel or barrels of less than 16 inches in
length.
§5845(c)
The term “rifle” means a weapon designed or redesigned, made or
remade, and intended to be fired from the shoulder and designed
or redesigned and made or remade to use the energy of the
explosive in a fixed cartridge to fire only a single projectile
through a rifled bore for each single pull of the trigger, and
shall include any such weapon which may be readily restored to
fire a fixed cartridge.
§5841(b)
Each manufacturer, importer, and maker shall register each
firearm he manufactures, imports, or makes. Each firearm
transferred shall be registered to the transferee by the
transferor.
§5811(a) and (c)
There shall be levied, collected, and paid on firearms
transferred a tax at the rate of $200 for each firearm
transferred, except, the transfer tax on any firearm classified
as any other weapon under section 5845(e) shall be at the rate of
$5 for each such firearm transferred.
The tax imposed by subsection (a) of this section shall be
payable by the appropriate stamps prescribed for payment by the
Secretary.
§5861(c) and (f)
It shall be unlawful for any person to receive or possess a
firearm made in violation of the provisions of this chapter.
It shall be unlawful for any person to make a firearm in
violation of the provisions of this chapter.
In order for John Doe to be convicted, the State must prove that:
1) The defendant made an unregistered short barreled rifle (or “sbr”)
a) The weapon is a rifle whose barrel is less than 16 inches
b) The weapon was not registered with the BATFE as a sbr
2) The defendant did not pay the $200 tax necessary to register a sbr
The main issue in this case will be whether or not the combination of unassembled parts the defendant had in his possession constitutes a short barreled rifle under the NFA, and whether or not the defendant’s order for a pistol receiver shows intent to install the short barrel on that receiver (and thus creating a pistol, not a short barreled rifle). The State must prove that the defendant made or intended to make an unregistered short barreled rifle. If this can be established, the State would then easily be able to demonstrate that the defendant evaded the tax necessary to make and register such a weapon (since the defendant paid no such tax).
Possession or Manufacture of an Unregistered Short Barreled Rifle
The defendant concedes that at the time of his arrest, he possessed both an 11.5” barrel and a registered rifle receiver. This barrel is compatible with the rifle in his possession and is shorter than the legal minimum (for rifles) of 16 inches. The defendant also admits that he had not registered his rifle as a short barreled rifle under the National Firearms Act.
The law defines a short barreled rifle as “a rifle having a barrel or barrels of less than 16 inches in length.” The regulations outlined in the National Firearms Act of 1934 offer no clarifications as to whether or not this definition applies to complete firearms only or to a collection of parts as well. More specifically, if one owns an AR15 lower receiver registered as a rifle and an AR15 upper receiver containing a barrel of less than 16 inches in length, does he own a short barreled rifle, even if the items are unassembled?
In U.S. v. Wright, 991 F. 2d 1182, the court found the defendant to be guilty of possessing an unregistered short barreled rifle because the police had discovered in his residence both a rifle and a combination of parts that could be “readily restored” to make a short barreled rifle. The defendant claimed that since the weapon was neither assembled nor operational at the time of seizure, his firearm was not subject to the NFA. The court rejected this assertion, stating that:
In section 5845, the statutory definition of firearm, defines an unserviceable firearm as "a firearm which is incapable of discharging a shot by means of an explosive and incapable of being readily restored to a firing condition." Therefore, it seems to follow that a firearm that can be readily restored is a "firearm" for purposes of section 5861(d). The evidence in the instant case indicates that for less than twenty dollars the rifle could be made operational. Moreover, a Government witness testified that the insertion of an ordinary paper clip in the firing mechanism also would make the rifle operational.
This case bears striking similarity to that of Mr. Doe’s in the sense that, at the time of his arrest, Mr. Doe had in his possession all the parts necessary to assemble a short barreled rifle. Furthermore, such an assembly would have only required Mr. Doe to remove two pins, place the upper receiver (containing the 11.5 inch barrel) onto the lower receiver (registered as a rifle), and replace the two pins. The officers that arrested Mr. Doe contend that the assembly would have taken no more than 30 seconds, using no tools and only the parts discovered at the scene.
What distinguishes U.S. v. Wright from our case, however, is the fact that Mr. Doe had already placed an order for a registered pistol receiver at the time that he took possession of the short barreled upper receiver. The same installation steps outlined above would have been required to affix the upper receiver and pistol receiver, thus creating a pistol, which is not subject to the provisions of the NFA. At the time of the arrest, however, Mr. Doe had not yet taken physical possession of the pistol receiver, which arrived at his gun dealer the day after he was arrested.
The question that is then raised is whether or not the government may use constructive intent to obtain a conviction (as it did in U.S. v. Wright). Black’s Law Dictionary defines constructive intent as “a legal principle that actual intent will be presumed when an act leading to the result could have been reasonably expected to cause that result.” In other words, if a series of actions has only one logical result, it is then assumed that the accused intended to bring about the result. In our case, the defendant had in his possession all of the parts necessary to assemble a short barreled rifle. At first glance, it would appear that since the parts discovered in his home could be used only to make a short barreled rifle, the rule of constructive intent would apply. But because the defendant had ordered a pistol receiver at the time he took possession of the short barreled upper receiver, the issue of intent is not so clearly in the government’s favor.
In Thompson/Center Arms Company v. U.S., 112 S.Ct. 2102, the United States Supreme Court ruled in favor of the gun manufacturer, who had been ordered by the Bureau of Alcohol Tobacco Firearms and Explosives to pay a $200 tax on each “Contender Carbine kit” it manufactured. The kit contained a 21 inch rifle barrel and a buttstock, and was made to be used in conjunction with the company’s “Contender Pistol,” which contained a 10 inch barrel. The kit was intended to provide hunters with a versatile sporting firearm, which could be readily and easily converted from a pistol to a rifle and vise versa. The BATFE learned that Thompson/Center had distributed kits which contained both the pistol and the conversion parts and advised the company that the sale of both the Contender pistol and the carbine conversion kit could constitute the manufacture of a short barreled rifle. The BATFE pointed out that assembling the pistol’s receiver and 10 inch pistol barrel and the conversion kit’s buttstock would be a violation of the National Firearms Act. Thompson/Center stopped its production of the kit, paid a single $200 tax, and then filed a refund claim with the BATFE. Over 6 months elapsed without any action taken by the BATFE, and Thompson/Center invoked the Tucker Act, suing for a refund in the Claims Court. Thompson/Center Arms Co. argued that since its pistol and kit were not assembled into a short barreled rifle at the time of sale, the items had not been “made” into a firearm as defined by the NFA, and thus the $200 tax did not apply. Thompson/Center pointed out that, at the suggestion of the BATFE, the kit had been distributed with warning labels advising consumers of the illegality of assembling the buttstock, receiver, and pistol barrel. The government argued that if a consumer only possessed 1 receiver but both the 10 inch and 21 inch barrels, the firearm was subject to the NFA. The BATFE stated that, in its opinion, two receivers needed to be possessed, one for the pistol and the other for the rifle.
The case was appealed to the Supreme Court. The Court noted that the National firearms act defined both “machine guns” and “destructive devices” as either assembled weapons or unassembled parts, but failed to define “short barreled rifles” in the same way. Thompson/Center argued that since the possession of unassembled parts was explicitly criminalized in the sections of the NFA concerning machineguns and destructive devices, but not in the section concerning short barreled rifles, Congress must have intended that the definition of a short barreled rifle not apply to the possession of unassembled parts. The Supreme Court conceded that the statute was ambiguous, and chose under the rule of lenity to decide the case in Thompson/Center’s favor as follows:
Accordingly, we conclude that the Contender pistol and carbine kit when packaged together by Thompson/Center have not been "made" into a short-barreled rifle for purposes of the NFA. [n. 10] The judgment of the Court of Appeals is therefore
Affirmed.
In our case, the defendant finds himself in a predicament very similar to that of Thompson/Center Arms Company. Mr. Doe is charged with the illegal manufacture of a short barreled rifle, but the parts he had in his possession when combined with the pistol receiver he ordered would constitute a pistol, which is not subject to the registration or taxation requirements of the NFA. The short barreled upper receiver Mr. Doe obtained could be readily installed on either a rifle receiver (which would violate the statutes with which he has been charged) or the pistol receiver that he ordered at Dan’s Gun Shop.
The prosecution will argue that since the defendant had not taken physical possession of the pistol receiver at the time of his arrest, Mr. Doe had no right to possess a short barreled upper receiver. The State will claim that Mr. Doe’s actions could have been reasonably foreseen to accomplish only one result: the illegal manufacture of a short barreled rifle.
The prosecution’s argument will likely not stand in court as it misinterprets the pivotal issue in this case: intent. Constructive intent, although the State will argue otherwise, does not apply to Mr. Doe’s actions. Because Mr. Doe ordered and paid for a receiver registered as a pistol (we have the receipts which contain the words “Paid in full”) before he paid for the short barreled upper receiver, his actions do not have only one possible, foreseeable, criminal result. Recall that constructive intent only applies when a series of actions leads to one logical conclusion. In Mr. Doe’s situation, his decision to purchase separately an AR15 pistol lower receiver (which is not a complete firearm) and a short barreled AR15 upper receiver (which would, when combined with the pistol receiver, yield a completed AR15 pistol) suggests his intent to make a pistol, an action that would not violate the statutes with which he is charged. If he had disassembled the 20 inch barreled rifle found at his residence, taken the lower receiver of that rifle, and installed the short barreled upper receiver he obtained through the mail, Mr. Doe would have then been in violation of the National Firearms Act. According to the police report on file, Mr. Doe had done no such thing. He merely possessed, in unassembled configuration, an AR15 lower receiver registered as a rifle (which was legally attached to a 20 inch barreled upper receiver) and a short barreled AR15 upper receiver. This alone would constitute the constructive intent to manufacture a short barreled rifle (owning a rifle receiver and parts that can readily convert the rifle into a short barreled rifle is a short barreled rifle according to U.S. v. Wright), but the fact that Mr. Doe paid for a pistol receiver negates the prosecution’s ability to argue its case based upon the principle of constructive intent. One cannot argue that Mr. Doe intended to commit an illegal act as the items he owned could be assembled in either a legal manner or an illegal manner. With the parts he owned (including the pistol receiver), Mr. Doe retained the ability to make either a pistol or a short barreled rifle (just as in the Thompson/Center case). Therefore his actions did not have one possible outcome, but rather one possible legal result and one possible illegal result. Criminal intent may not be presumed in this case as the rule of constructive intent does not apply.
We will argue, submitting the receipts as evidence, that Mr. Doe owned a pistol lower receiver at the time that he placed his order for the 11.5 inch barrel and upper receiver assembly. Although the pistol receiver had not yet been transferred to Mr. Doe, he had already purchased the item at the time that he took possession of the short barreled upper receiver. Mr. Doe maintains that he intended to install the short barrel assembly onto the pistol receiver he had ordered, and that he ordered the parts separately because there is a federal excise tax of 11% on all complete firearms. From speaking with the owner at Dan’s Gun Shop, I have learned that ordering firearms in two or more parts, especially in the case of AR15 pistols and rifles (due to their easy assembly without the use of tools), is a very common practice for those wishing to avoid the excise tax. This practice is both fully legal and fiscally responsible. We will argue that in light of his purchase of an AR15 pistol lower receiver, Mr. Doe had the legal right to purchase and possess a short barreled AR15 upper receiver.
Tax Evasion
Mr. Doe would be found guilty of tax evasion only in the event that he is convicted of manufacturing an unregistered short barreled rifle. If this were the case, Mr. Doe would then be guilty of evading federal taxes because federal law mandates that “There shall be levied, collected, and paid on firearms transferred a tax at the rate of $200 for each firearm transferred.” Mr. Doe and the police report on file both indicate that he had not paid the $200 tax outlined in the NFA.
Whether or not Mr. Doe is guilty of tax evasion hinges solely upon whether or not he made an unregistered short barreled rifle. My research suggests that he did not make an unregistered firearm as defined by the NFA, and therefore he is not guilty of tax evasion. Keep in mind that the State, using constructive intent, will argue otherwise.
Conclusion
Based on the facts of the case and the decision of the Supreme Court in Thompson/Center v. U.S., I believe that our client has the stronger argument. Because our client did not have actual possession of the pistol receiver at the time of his arrest, however, it is possible that a court might return a guilty verdict. In that case, an appeal would be easily obtained. I believe that ultimately, our argument will prevail.
Recommendations
I suggest that further research be done on the Supreme Court decision in the Thompson/Center case, making note of the dissenting opinion filed by Justice White, Justice Blackmun, Justice Stevens, and Justice Kennedy. I feel quite confident in the strength of our argument, but I suggest our client prepare for the possibility of a guilty verdict (and appeal) due to the technical nature of the case. It seems that Mr. Doe came as close to breaking the law as possible without actually committing a crime, a fact which might not be looked upon favorably by a judge. We are relying upon the fact that Mr. Doe purchased a pistol receiver to argue our case, and I suggest that all the receipts and other transaction records applicable in this situation be submitted to the court as evidence as soon as time permits.