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Docket Number

Nos. 11282, 11286, 11287.

Attorney(S)

M.M. Weinberg, Jr., Sumter, S.C., (Shepard K. Nash, Sumter, S.C., on the brief) for appellant Charles Whitted Leavell. W.T. Klapman, Orangeburg, S.C., (Court appointed counsel) for appellants Jack Simmons Horger and John Michael O'Berry. Charles Porter, Asst. U.S. Atty., (Terrell L. Glenn, U.S. Atty., on the brief) for appellee.

Judges

Herbert Stephenson Boreman
Albert Vickers Bryan
James Braxton Craven

Acts

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Smart Summary

Case Summary: United States v. Leavell, Horger, O'Berry

Factual and Procedural Background

The three appellants were tried in the district court for participation in an unlawful conspiracy to violate the National Firearms Act and for related substantive offenses. The district court conducted a full trial at which the government used undercover agents. The trial evidence showed that Horger and O'Berry sold submachine guns, fully assembled and ready to fire automatically, to undercover agents. Leavell delivered to Horger's home nine or ten wooden boxes that, together with material delivered earlier, comprised all of the necessary parts to assemble sixteen fully operational .50 caliber machine guns, lacking only pintle and elevation traversing mechanism (which the opinion states were not essential to automatic operation). Horger and O'Berry paid Leavell $2,000 in cash at the time and agreed to pay $2,000 more.

The case was before the United States Court of Appeals for the Fourth Circuit (Nos. 11282, 11286, 11287). It was argued October 2, 1967, and decided November 6, 1967. The panel consisted of Judges Boreman, Bryan and Craven. The Fourth Circuit affirmed the district court's judgment.

Legal Issues Presented

Whether possession and transfer of a lot of parts that together contain all necessary and essential parts to assemble a machine gun falls within the ambit of the National Firearms Act.
Whether the government proved that the accused knew the parts were to be used, transferred, or dealt with as a complete machine gun and had the requisite intent to further that purpose.

Arguments of the Parties

Appellants' Arguments

Leavell's contention (as presented at trial and noted by the court) was that he merely sold demilitarized or scrap machine gun parts not intended for assembly into functioning machine guns.

Appellee's (Government's) Position

The government presented evidence that defendants participated in an unlawful conspiracy and that Horger and O'Berry sold fully assembled submachine guns to undercover agents, and that Leavell delivered parts sufficient to assemble sixteen fully operational machine guns, supporting conviction under the National Firearms Act.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
United States v. Kokin, 365 F.2d 595 (3d Cir. 1966)	Support for viewing conduct involving possession/transfer of parts sufficient to assemble a machine gun as within the ambit of the National Firearms Act.	The Fourth Circuit stated it was in accord with the Third Circuit's view as reflected in Kokin when concluding the defendants' conduct fell within the NFA.
United States v. Lauchli, 371 F.2d 303 (7th Cir. 1966)	Support for viewing conduct involving possession/transfer of parts sufficient to assemble a machine gun as within the ambit of the National Firearms Act.	The Fourth Circuit stated it was in accord with the Seventh Circuit's view as reflected in Lauchli when concluding the defendants' conduct fell within the NFA.

Court's Reasoning and Analysis

The court summarized the trial evidence and found that the government established beyond all reasonable doubt both participation in an unlawful conspiracy to violate the National Firearms Act and guilt of related substantive offenses. The Fourth Circuit relied on several evidentiary points:

Direct sales of fully assembled, ready-to-fire submachine guns by Horger and O'Berry to undercover agents supported findings of unlawful transfer.
Leavell delivered boxes containing, together with earlier deliveries, all the necessary parts to assemble sixteen fully operational machine guns; only pintle and elevation traversing mechanism were absent, and the opinion noted those were not essential to automatic operation.
The payment of $2,000 cash with an agreement to pay an additional $2,000 was inconsistent with Leavell's claim that the items were merely demilitarized or scrap parts, permitting the jury to infer an agreement to sell machine guns rather than mere parts.
The district judge's jury instruction required a finding that the lot of parts contained all necessary and essential parts needed for assembling a machine gun, and that the accused knew the parts were to be used or transferred as a complete machine gun with intent to further that purpose; the Fourth Circuit approved that instruction.
The Fourth Circuit aligned its view with the Third and Seventh Circuits (Kokin and Lauchli) in concluding that such conduct falls within the scope of the National Firearms Act.

Holding and Implications

AFFIRMED.

The court affirmed the district court's judgment, concluding that the evidence supported convictions for conspiracy and related substantive offenses under the National Firearms Act. The opinion states that the other assignments of error were considered and adjudged without merit. The opinion does not announce the setting of a new rule beyond aligning the Fourth Circuit's view with the Third and Seventh Circuits on the point that possession/transfer of parts sufficient to assemble a machine gun, coupled with knowledge and intent, falls within the NFA; the direct effect is affirmation of the convictions in this case.

Show full summary ...

UNITED STATES of America, Appellee, v. Charles Whitted LEAVELL, Appellant. UNITED STATES of America, Appellee,

PER CURIAM:

In a fair trial in the district court, the participation of defendants in an unlawful conspiracy to violate the National Firearms Act and guilt of related substantive offenses was established beyond all reasonable doubt. Both Horger and O'Berry sold submachine guns fully assembled and ready to fire automatically to undercover government agents. On the Sunday morning agreed upon by Horger and undercover agents for the transfer and sale of sixteen .50 caliber machine guns, Leavell delivered to Horger's home nine or ten wooden boxes containing (with what had been delivered by him the night before) all of the necessary parts to assemble 16 fully operational machine guns. Nothing was lacking except pintle and elevation traversing mechanism, neither of which is essential to automatic operation. Horger and O'Berry paid Leavell $2,000.00 in cash and agreed to pay him $2,000.00 more, an amount of money quite inconsistent with Leavell's contention that he merely sold demilitarized or scrap machine gun parts not intended for assembly. From Horger's testimony at the trial the jury could fairly infer that Leavell agreed to sell and did sell machine guns — not just parts.

26 U.S.C.A. § 5801, et seq. See 26 U.S.C.A. § 5849.

The district judge fairly presented the defendant's contention and correctly charged the jury, we think, as follows:

"[T]hat in determining whether the 50 caliber machine gun parts seized by the government at the Horger shed were possessed in violation of the National Firearms Act it is necessary that you determine from the evidence in the case that such lot of parts contained all necessary and essential parts needed for assembling of a machine gun; and that the accused knew that such parts were to be used, transferred, or dealt with as a complete machine gun, and with the intent to further such purpose."

In viewing such conduct as within the ambit of the National Firearms Act, we find ourselves in accord with the Third and Seventh Circuits. United States v. Kokin, 365 F.2d 595 (3d Cir. 1966); United States v. Lauchli, 371 F.2d 303 (7th Cir. 1966).

The other numerous assignments of error have been considered and are adjudged to be without merit.

Affirmed.

UNITED STATES v. LEAVELL