UNITED STATES of America, Plaintiff-Appellee, v. Dennis Charles MACK, Defendant-Appellant

164 F.3d 467, 99 Daily Journal DAR 390, 1999 U.S. App. LEXIS 298, 1999 WL 8006

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 12, 1999
• Docket: 97-50364
• Status: Published

Opinions

OPINION

TROTT, Circuit Judge:

OVERVIEW

This case is about contraband firearms outlawed by Congress and targeted for confiscation and destruction, and who can and cannot possess them once seized by a law enforcement agency.

Dennis Charles Mack, a private citizen, challenges his convictions for unlawful possession of sawed-off shotguns and rifles in violation of 26 U.S.C. § 5861(d), and possession of handguns with obliterated serial numbers in violation of 18 U.S.C. § 922(k). He argues that because he intended to destroy the weapons as an agent of the local law enforcement agencies from which he obtained them, he is exempt from punishment under the statutes. Mack also challenges the constitutionality of the statutes under which he was convicted. He argues that the statutes: (1) exceed Congress’s power to legislate under the Commerce Clause; (2) violate the Second Amendment; and (3) interfere with the sovereignty of the states. Mack also claims that he received ineffective assistance of counsel. Finally, Mack argues that the district court erred by refusing to instruct the jury on the defenses of entrapment by estoppel and reliance on public authority. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

FACTS

From 1982 to 1996, Defendant-Appellant Dennis Charles Mack was a federally licensed private firearms dealer who owned several gun shops in the Los Angeles area. As early as 1992, Mack contacted local police departments and offered to dispose of illegal weapons the police had seized in exchange for the ability to keep and sell the legal weapons they had confiscated. In 1994, Mack told William Thompson, the property control officer for the Kern County Sheriffs Department, that his federal license authorized him to possess and to destroy illegal National Firearms Act registry weapons (NFA weapons).¹ When the prosecutor asked Thompson, ‘What did Mr. Mack tell you [in 1994] about his federal firearms license?,” Thompson’s answer was, “He indicated that he could take our guns, that it was no problem for him to take the guns, both the salable guns and guns that we had for destruction also.”² As a result of Mack’s solicitations, various local law enforcement agencies entrusted him with numerous illegal weapons with the expectation that the weapons would be destroyed.³

On September 21,' 1994, Inspector Ramiro Wong of the Federal Bureau of Alcohol, Tobacco, and Firearms (ATF) inspected Mack’s premises and found ten illegal NFA weapons. Wong conducted this inspection on information from an apprehensive gun dealer hired by a bankruptcy trustee appointed to inventory the guns in the defendant’s shop. Upon discovering the weapons, Wong told Mack that he was not authorized to possess NFA weapons. Mack replied that he was allowed to possess the contraband because he was an agent of the police departments from which he had obtained them so that they could be destroyed. Wong informed Mack that he was mistaken. Wong explained to Mack that he was simply a private person and that he was not allowed to possess NFA weapons. Wong himself could not confiscate the weapons because he was not authorized to do so.

Wong returned to Mack’s shop for another inspection in January 1995, and discovered that Mack had not heeded his warning. Mack was still in possession of the NFA weapons. Wong informed Mack for a second time that he was not allowed to possess NFA weapons. As he had before, Mack replied that he could possess the weapons because he was an agent of the police and that he still intended to destroy the weapons on then-behalf.

On February 7, 1995, Wong returned to Mack’s shop and issued Mack a Report of Violations for possessing NFA firearms. The . report ordered Mack to refrain from taking possession of NFA firearms and to abandon all NFA firearms currently in his possession to the ATF or to the local police departments from which he had received them. Mack signed the report.

Despite Wong’s oral and written warnings, Mack continued to receive more NFA firearms from local law enforcement agencies, including the Kern County Sheriffs Department and the Huntington Police Department. In July 1995, an ATF special agent went to Mack’s shop and confiscated ten sawed-off shotguns. The special agent again informed Mack that he could not legally possess NFA weapons.

After Mack’s Federal Firearm’s License was revoked at the recommendation of Inspector Wong, Mack called ATF Deputy General Counsel Daniel Cronin to discuss his agency theory. Cronin also told Mack that he could not possess the weapons.

In November 1995, Mack sought renewal of his federal firearm’s license, but he sent in the renewal form three days late. The ATF has authority under 18 U.S.C. § 923(g) to conduct compliance inspections on federally licensed gun shops without consent. However, the ATF must ask for consent to inspect gun shops when an applicant is applying for a new license. After Inspector Wong reviewed Mack’s late request for renewal, Wong contacted Cronin to discuss how the consent issue should be handled on a late renewal request. Cronin and Wong agreed that Wong must get Mack’s consent to inspect because the renewal was late.

On November 21, 1995, Wong went to Mack’s shop to discuss the firearm’s license renewal. With Mack’s acquiescence, Wong inspected Mack’s gun shop and discovered more than 60 NFA firearms. After the inspection, Wong and Cronin again discussed the inspection, and Wong informed Cronin that he had asked for and received Mack’s consent to inspect the premises. Wong returned seven days later to inventory the firearms.

On December 14, 1995, ATF agents searched Mack’s gun shop pursuant to a search warrant based on Wong’s November inspection information. The government seized the 63 NFA firearms that form the basis of the indictment in this case. The firearms appeared to be randomly stored at various unsecured locations in his shop.

After the seizure, Mack again called William Thompson. Thompson had previously released over 200 guns from the Kern County Sheriffs Department to Mack for off-site destruction based on Mack’s misleading representation about the scope of his federal license. Mack asked Thompson to send him a letter stating that Mack was an agent of Kern County. Thompson told Mack that his department did not have agents and that he did not have the authority to write such a letter.

Subsequently, Mack was indicted on charges of possession of unregistered firearms in violation of 26 U.S.C. §§ 5861(d) and 5872, and possession of firearms with obliterated serial numbers in violation of 18 U.S.C. § 922(k). Mack moved to suppress the seized guns based on his allegation that Wong did not ask for consent to inspect in November.

At the suppression hearing, Mack testified that Wong told him that Wóng was there to do a compliance inspection. Mack testified that he believed that under those circumstances he had no choice but to allow Wong to inspect his gun shop. Wong testified that he was conducting an application inspection and that he had asked for Mack’s consent before inspecting the gun shop. The district court concluded that the issue of consent turned on credibility. Finding that Mack had consented to the search, the court found Wong’s testimony to be more credible than Mack’s. The court denied the motion to suppress.

In a pretrial ruling on a motion in limine, the district court ordered excluded all evidence designed to establish that Mack was a duly authorized agent of any state or local law enforcement agency that entrusted him with the contraband weapons. The court accepted the prosecutor’s argument on behalf of the government, that only federal law enforcement agencies could authorize such possession. Accordingly, the court told Mack’s counsel, “you can introduce evidence of what Mr. Mack was told by the federal officers, but as far as the state officers are concerned, no.” The district court also said, correctly we believe, that “it doesn’t matter whether the local police appointed [Mack] as an agent.”

Consistent with these rulings, the district court refused Mack’s request to instruct the jury that if it found that Mack possessed the weapons on behalf of and with the authorization of a local police agency for the purpose of destroying the firearms, he was not guilty of the offense charged.

The jury found Mack guilty on all charges. On June 27, 1997, he was sentenced to 15 months in prison, three years supervised release, and a fine of $12,500.00. Mack challenges his convictions on appeal.

STANDARD OF REVIEW

We review the district court’s interpretation of a statute de novo. Tierney v. Kupers, 128 F.3d 1310, 1311 (9th Cir.1997). A claim of insufficient evidence is reviewed in the light most favorable to the government to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Randolph, 93 F.3d 656, 660 (9th Cir.1996). A claim for ineffective assistance of counsel is reviewed de novo. United States v. Benlian, 63 F.3d 824, 826 (9th Cir.1995). We review the constitutionality of a statute de novo. United States v. Hicks, 103 F.3d 837, 847 (9th Cir.1996). A district court’s refusal to give a jury instruction requested by the defense that is based on a question of law is reviewed de novo. United States v. Eshkol, 108 F.3d 1025, 1028 (9th Cir.1997).

DISCUSSION

A. Applicability of the Statutes

Mack contends based on an agency theory that the terms “receive” and “possess” in 26 U.S.C. § 5861(d) and 18 U.S.C. § 922(k) do not include the acts of private citizens receiving or possessing weapons from local law enforcement agencies in order to destroy them. He argues that the application of the statutes to this type of conduct would undermine and contradict long-established federal gun control policy that fosters and supports state-based gun control laws. Thus, Mack does not contest that he knowingly possessed or received the weapons at issue. Instead, he contends that the conditions under which he obtained and then exercised dominion and control over them exempts him from punishment under the statutes. We conclude, however, that Mack’s conduct is not exempt from the prohibitions of 26 U.S.C. § 5861(d) and 18 U.S.C. § 922(k).

The plain language of the statutes indicate that they apply to any person. Title 26 U.S.C. § 5861(d) states:

It shall be unlawful for any person ... to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.

26 U.S.C. § 5861(d) (emphasis added). Similarly, 18 U.S.C. § 922(k) provides in relevant part:

It shall be unlawful for any person ... to possess or receive any firearm which has had the ... serial number removed, obliterated, or altered and has, at any time, been shipped or transported in interstate or foreign commerce.

18 U.S.C. § 922(k) (emphasis added).

There is a “strong presumption that the plain language of [a] statute expresses congressional intent.” Ardestani v. INS, 502 U.S. 129, 135, 112 S.Ct. 515, 116 L.Ed.2d 496 (1991) (quotation and citation omitted). The presumption “is rebutted only in rare and exceptional circumstances, when a contrary legislative intent is clearly expressed.” Id. at 135-36, 112 S.Ct. 515 (quotation and citations omitted). We can find no indication that Congress clearly expressed a contrary intent other than that found in the plain language of the statute. Therefore, “we are bound to take Congress at its word.” Oubre v. Entergy Operations, Inc., 522 U.S. 422, 118 S.Ct. 838, 841, 139 L.Ed.2d 849 (1998).

In response to this construction of these statutes, Mack claims that such a literal approach will cause havoc to rain down upon the normal operations of local police agencies. He foresees

mischievous and absurd consequences: local police may still be able to confiscate illegal firearms, but they will no longer be able to store them in property rooms run by civilian custodians.

He also argues that law enforcement agencies, prosecutors, and defense counsel will be precluded from having firearms examined by independent laboratories; and that the Alpine County California Sheriffs Department .will be unable “to ship such a firearm via UPS to the state forensic laboratory in California for examination.”

Even if some of Mack’s parade of imponderables were to come to pass, however, such consequences of a sweeping law against deadly weapons used primarily by robbers and other violent criminals are best addressed by the legislative branch of government, not by us. It is common knowledge that the primary purpose of shortening a shotgun or a rifle under the permitted length is to make it concealable and thus effective in the commission of serious crimes such as bank robbery, murder, drug trafficking, and gang violence. The same purpose attaches also to the obliteration of serial numbers on handguns: The act of obliteration makes them harder to trace. Congress surely is within its power when it acts decisively to protect the nation from such weapons, and to ensure that once they are seized, they do not immediately leak again into commerce or the private sector.

More to the point, however, the law has long recognized that the reach of a strictly-constructed statute stops short of nonsensical consequences. The Supreme Court has recognized that a statute shall be construed to exempt the government if application of the statute to the government would create an absurdity. See Nardone v. United States, 302 U.S. 379, 383-84, 58 S.Ct. 275, 82 L.Ed. 314 (1937). The statutes at issue here would create an absurd situation if any duly authorized employee of a state or local law enforcement agency could be punished for possessing confiscated weapons in the scope and course of the employee’s duty. Neither statute expressly includes the government within their prohibitions. Thus, we conclude that local law enforcement agencies and their employees are able, without running afoul of the statutes, to possess the prohibited weapons in order generally to enforce the law, to prosecute defendants, and to destroy the weapons.⁴

Mack’s conduct does not fit within Nar-done ’s governmental exception. Mack was expressly and accurately warned by federal authorities on more than one occasion that he was not allowed to possess the contraband weapons. His federal license did not confer upon him the power to do so. Moreover, he was unable to show that any local law enforcement agency considered him to be its employee for one simple reason: he wasn’t. When the evidence is viewed even in the light most favorable to him, at best he was a self-appointed private interloper who steadfastly created a false impression as to the scope of his authority in connection with his federal license. He came into possession of the weapons by misleading the police.

The facts of this case sharply illustrate the wisdom of Congress’ purpose strictly to control the handling of dangerous weapons identified as contraband and to cause them to be confiscated and destroyed. To allow state or local law enforcement agencies to deliver unsupervised possession of such weapons into the hands of non-agency persons is tantamount to permitting the seized weapons to be released once more into the private world from which they were taken. To permit the release from government control of contraband once seized-be it cocaine, heroin, child pornography, knock-off “Rolex” watches, or anthrax-would be a senseless act. Practically speaking, once these weapons were under Mack’s dominion and control, he had the raw power to do with these weapons whatever suited his fancy. The special attributes of government agencies that justify their regulated possession of contraband are nowhere to be found in this set of disquieting facts, either in Mack’s perishable license or his sometimes bankrupt business. In fact, according to his own testimony, his previous store was invaded at least twice by burglars and robbers in 1992 resulting in the loss to the invaders of “a lot of merchandise.” One doubts that robbers and burglars would destroy the NFA weapons as required by law. Moreover, Mack’s claim that his guiding purpose was to destroy the weapons is undercut by his desuetude in so doing. Under these circumstances, our dissenting colleague’s anguished cries of “federal prosecutorial power run amok” strike a false note.

The jury had substantial evidence on which to convict him under both statutes of exercising dominion and control over the prohibited firearms.

B. Ineffective Assistance of Counsel

Mack contends that he received ineffective assistance of counsel, claiming that his attorney failed adequately to impugn the credibility of ATF Inspector Wong. At trial, however, Mack’s counsel made the arguments that Mack now alleges were essential to his case. Additionally, his counsel thoroughly cross-examined Wong regarding the issue of consent. Thus, we conclude that the performance of Mack’s counsel’s was adequate under Strickland v. Washington, 466 U.S. 668, 687-90, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

C. Constitutionality of the Statutes

Mack contends that 26 U.S.C. § 5861(d) and 18 U.S.C. § 922(k) are unconstitutional because: (1) the statutes interfere with the sovereignty of the states in light of Printz v. United States, 521 U.S. 98, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997); (2) Congress exceeded its Commerce Clause power by passing the statutes; and (3) the statutes violate the Second Amendment right to bear arms. We disagree.

The statutes may require accommodation by state officials, but they do not interfere with the sovereignty of the states. Unlike the statute at issue in Printz, sections 5861(d) and 922(k) do not press state officials into federal service. Therefore, we conclude that Printz simply does not apply in this case.

Mack also argues that under United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), the statutes at issue in this case exceed Congress’s Commerce Clause power. We conclude, however, that Congress did not exceed its power by passing the statutes. We have already determined that the passage of § 5861(d) was a permissible exercise of Congress’s taxing power. See United States v. Tons, 461 F.2d 656, 657 (9th Cir.1972) (per curiam). Thus, the statute is not vulnerable to a Commerce Clause challenge. Further, after Lopez, in United States v. Hanna, 55 F.3d 1456, 1462 n. 2 (9th Cir.1995), we held that the requirement under § 922(g) that a firearm was, at some time, in interstate commerce is sufficient to establish a statute’s constitutionality under the Commerce Clause. Section 922(k) has a requirement identical to the requirement of the statute in issue in Hanna. Section 922(k) makes it unlawful to possess or receive a firearm with the serial number altered if it has been shipped or transported in interstate of foreign commerce. 18 U.S.C. § 922(k). Thus, we conclude that the prohibitions of § 922(k) do not exceed Congress’s Commerce Clause authority to legislate.

Mack also contends that the statutes violate his Second Amendment right “to keep and bear arms.” U.S. Const, amend. II. This court has clearly held, however, that private citizens do not have standing to bring a Second Amendment challenge. See Hickman v. Block, 81 F.3d 98, 101 (9th Cir.1996).

D. Entrapment by Estoppel and Public Authority Defense

Mack claims the trial judge erred by refusing to instruct the jury on the defenses of entrapment by estoppel and reliance on a public authority. These claims are without merit because Mack did not rely on the advice or authority of federal officials or agents. See United States v. Collins, 61 F.3d 1379, 1385 (9th Cir.1995) (holding that a defendant arguing entrapment by estoppel against a federal statute must have relied on federal official’s or agent’s erroneous advice); and see United States v. Burrows, 36 F.3d 875, 882 (9th Cir.1994) (holding the same for the public authority defense).

CONCLUSION

Based on the foregoing analysis, we affirm Mack’s convictions under 26 U.S.C. § 5861(d) and 18 U.S.C. § 922(k).

AFFIRMED.

1 . The NFA requires sawed-off shotguns to be registered with the Bureau of Alcohol, Tobacco, and Firearms, in the National Firearms Registry. See 26 U.S.C. § 5861(d).

2 . Our respected dissenting colleague's attempt to undercut this testimony is not valid. Although he claims he is taking Thompson's testimony "as a whole,” his presentation of it inappropriately fuses and blurs two separate conversations between Mack and Thompson, the first held in person at a gun show, and the second held days later over the telephone. A fair reading of the testimony reveals that Mack did not contradict or withdraw over the phone what he told Thompson in person, and he did not deny at trial that he told Thompson that his federal license authorized him to possess and to destroy NFA weapons. Mack’s oblique explanation that his statements to Thompson were "out of context” is an admission that he made them.

3 . With all respect to our colleague, his dissent misrepresents whose idea it was in the first place for Mack to take and to destroy these weapons. Reading the first two paragraphs of the dissent would falsely lead a reader to assume that the police agencies actively sought Mack out for this task when in fact it was the other way around-Mack approached them. The implication of the dissent's fanciful presentation, of course, is that it was "unfair” for the federal government to prosecute a person recruited and misled by local police; but that is not this case. The facts as developed in trial demonstrate otherwise.

For a real example of the hypothetical case suggested by our colleague, the reader might care to examine United States v. Barker, 546 F.2d 940 (D.C.Cir.1976). In Barker, low-level Watergate conspirators were absolved of criminal responsibility because they relied on "authoritative pronouncements of officials whose decisions we wish to see respected.” Id. at 947. For an excellent discussion of the exculpatory effect of certain mistakes of law, see Professor George Fletcher’s "Rethinking Criminal Law” (1978).

4 . We note the common practice of using private contractors to melt down these weapons in a smelter in the presence and under the direction and control of officers present at the scene. The mere circumstantial handling of such weapons under the immediate direction of state or government employees by private persons would not amount under the law either to receiving or possessing the weapons. Such episodic-handling lacks the required dominion and control required to satisfy these elements of the statute.