Citation Codes

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Docket Number

Nos. 15933-4.

Attorney(S)

Marvin Kraus (court appointed), Cincinnati, Ohio, for appellant, Fogarty. Paul H. Tobias, Cincinnati, Ohio, for appellant, Wainwright. G. Wilson Horde, Knoxville, Tenn. (J.H. Reddy, U.S. Atty., G. Wilson Horde, Asst. U.S. Atty., Knoxville, Tenn., on the brief) for appellee.

Judges

Harry Phillips

Acts

Internal Revenue Code — Alcohol, Tobacco, And Certain Other Excise Taxes — Machine Guns, Destructive Devices, And Certain Other Firearms — General Provisions And Exemptions — General Provisions — Registration Of Firearms
Internal Revenue Code — Alcohol, Tobacco, And Certain Other Excise Taxes — Machine Guns, Destructive Devices, And Certain Other Firearms — General Provisions And Exemptions — General Provisions — Restrictive Use Of Information
Internal Revenue Code — Alcohol, Tobacco, And Certain Other Excise Taxes — Machine Guns, Destructive Devices, And Certain Other Firearms — General Provisions And Exemptions — Exemptions — Special (Occupational) Tax Exemption

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Smart Summary

Case Summary: United States v. John T. Fogarty & Percy Ewell Wainwright

Factual and Procedural Background

This appeal concerns two defendants, John T. Fogarty and Percy E. Wainwright, who were charged in a one-count indictment with unlawful possession of an unregistered firearm in violation of 26 U.S.C. § 5851 and the registration requirements of 26 U.S.C. § 5841. The district court tried the case without a jury (defendants waived a jury). The court found both defendants guilty and sentenced Fogarty to three years and Wainwright to five years. At the time of trial both defendants were serving Tennessee state prison sentences for burglary of telephone coin boxes that involved the same gun.

The parties stipulated that the defendants were legally found to be in possession of the unregistered gun described in the indictment. The district court made factual findings regarding the gun: it was an English rifle modified by sawing the barrel to about 14 inches; it could discharge a shot by explosive energy; it could be concealed under a coat; it had a muffler/silencer; and it was not designed to be fired from the shoulder. The district court concluded the weapon fell within the statutory definition of "firearm" under the National Firearms Act. The court of appeals review before the Sixth Circuit addressed whether that conclusion was correct.

Legal Issues Presented

Whether the sawed-off, modified English rifle described in the record falls within the statutory definition of "firearm" (including "any other weapon") under 26 U.S.C. § 5848 and therefore was required to be registered under the National Firearms Act.
Whether scienter (knowledge that the weapon was a registrable "firearm") is an element of the offense of possessing an unregistered firearm under the statute.

Arguments of the Parties

Appellants' Arguments

Appellants contended the device was essentially a burglary "tool" designed solely to break into pay telephone coin boxes and not a "firearm" as defined by the statute.
They argued the end-cylinder mechanism was fitted to the telephone key slot, that a rubber lining reduced bullet velocity to prevent ricochet and to avoid penetrating completely through the coin box, and that the device could not practically be used other than for opening pay telephones.
Appellants asserted the device was not an instrument of offensive or defensive combat and thus should not be characterized as a "weapon" under the statute.

Appellee's (Government's) Position

The government relied on the statutory definition of "firearm" and on the undisputed factual showing that the device could discharge a projectile by explosive energy (it was test-fired and a projectile traveled about fifty yards into a dirt bank).
The government treated the statutory elements—barrel length, overall length and whether a device discharged a shot by explosive energy, and concealability—as dispositive and argued the device met those statutory criteria.
The government did not need to prove defendants' knowledge that the device was a registrable firearm because scienter is not an element of the offense, as previously decided by this court.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
United States v. Decker, 292 F.2d 89 (6th Cir.) (cert. denied)	The statute covers an object if it "could discharge a shot through the energy of an explosive"; scienter is not an element of the offense.	The court relied on Decker to hold that because the gun could discharge a shot by explosive energy, it was covered by the National Firearms Act and that the government did not need to prove knowledge that the weapon required registration.
United States v. Thompson, 202 F. Supp. 503 (N.D. Cal.)	Determination of whether an object is a "firearm" depends largely on whether it will propel a shot through explosive energy.	Cited to support the court's focus on the gun's capability to discharge a shot by explosive energy as central to the statutory definition.
Sipes v. United States, 321 F.2d 174 (8th Cir.) (cert. denied)	Lack of sights or the fact that an object can be fired other than from the shoulder does not remove it from the statutory definition of "rifle."	Used to show that design features (e.g., lack of sights, not fired from shoulder) do not prevent classification as a statutory firearm.
Tatum v. United States, 71 App.D.C. 398, 110 F.2d 555	Broad prior characterizations of "weapon" have encompassed diverse items (example: automobile, tools) for statutory purposes.	Referenced to counter appellants' argument that the device must be an instrument of combat to be a "weapon."
Fall v. Esso Std. Oil Co., 297 F.2d 411 (5th Cir.) (cert. denied)	The characterization of the nature of an instrument is usually a question for the jury.	Quoted to acknowledge that character determination is generally for a jury, but the judge's factual finding here was upheld as not erroneous.
United States v. Coots, 196 F. Supp. 775 (E.D. Tenn.)	Similar recognition that characterization of an instrument's nature is ordinarily for a jury.	Cited alongside Fall to support the procedural point concerning factual determinations of an instrument's character.
United States v. Freeman, 203 F.2d 387 (7th Cir.)	The physical weapon itself can reveal its true nature for classification purposes.	Cited to support the statement that the weapon before the court disclosed its true nature and supported the factual finding that it was a firearm.
United States v. McGuire, 328 F.2d 303 (6th Cir.)	Advises that a defendant may seek reduction of sentence under Rule 35 of the Federal Rules of Criminal Procedure.	Referenced to inform appellants that if they seek reduction due to prior state imprisonment, Rule 35 is the appropriate procedural remedy.

Court's Reasoning and Analysis

The court's analysis proceeded from the statutory text and relevant legislative history to the undisputed facts about the physical characteristics and demonstrated functioning of the device.

Key statutory language: the court relied on the definition of "firearm" in 26 U.S.C. § 5848, which includes short-barreled rifles and "any other weapon" capable of being concealed on the person from which a shot is discharged by an explosive. The court emphasized the clause covering "any other weapon" — i.e., devices capable of being concealed and of discharging a shot by explosive energy.

Legislative history: the court reviewed amendments and legislative history to show Congress intended to focus the National Firearms Act on modern, lethal weapons readily usable by criminals and to exempt antique-collector concerns; the court concluded Congress did not intend to exempt "tools" or "gadgets" that meet the statutory requirements.

Application of facts to law:

Factual findings (undisputed or stipulated) established the weapon was an English rifle modified to about a 14-inch barrel, could be concealed under a coat, and had a muffler or silencer; most crucially, it was test-fired and discharged a projectile by explosive energy that traveled about fifty yards.
The court applied controlling precedents (notably United States v. Decker and United States v. Thompson) to hold that the dispositive inquiry is whether the object can discharge a shot through explosive energy; because it can, it fits within the statutory definition of a firearm.
The court addressed appellants' contention that the device was merely a burglary instrument and not a "weapon" by referring to authority classifying diverse objects as "weapons" and by noting that a hand-held device that can fire a projectile at least fifty yards is plainly capable of killing or injuring a person.
The court recognized that deciding the character of an instrument is ordinarily a jury question, but treated the district judge's factual determination as a non-erroneous finding of fact, particularly because the weapon was introduced into evidence and inspected by the court (consistent with Sipes and Freeman).
On the element of scienter, the court followed Decker in concluding that knowledge that the device was a registrable firearm is not required for conviction under the statute.

Holding and Implications

Holding: The Sixth Circuit affirmed the district court's judgment. The court held that the sawed-off and modified rifle described in the record was a "firearm" within the meaning of the National Firearms Act and therefore required to be registered, and that possession of such an unregistered firearm violated the statute.

Immediate consequences:

The convictions of defendants-appellants for unlawful possession of an unregistered firearm were affirmed.
The court stated that scienter is not an element of the offense; the government need not prove that defendants knew the device was a registrable firearm.
On the sentencing issue, the court noted it lacked jurisdiction to review the severity of the sentences imposed by the district court in this direct appeal and informed appellants that, if they seek reduction of sentence in light of their state imprisonment for related offenses, the proper procedural route is a motion under Rule 35 of the Federal Rules of Criminal Procedure.

Broader implications: The opinion applies established statutory interpretation and precedent to confirm that the ability to discharge a projectile by explosive energy and fall within the statute's other descriptors (such as concealability and shortened barrel) bring a device within the National Firearms Act. The opinion does not purport to create a new legal rule beyond its application of existing statute and precedent.

Disposition: Affirmed.

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UNITED STATES of America, Plaintiff-Appellee, v. John T. FOGARTY and Percy Ewell Wainwright, Defendants-Appellants.

PHILLIPS, Circuit Judge.

This appeal presents the question of whether a sawed-off rifle, hereinafter described, which was used by defendants to rob coin boxes in pay telephones, is a firearm required to be registered under the National Firearms Act, 26 U.S.C. § 5841. Defendants-appellants contend that the gun is nothing more than a burglary tool and does not come within the statutory definition of a firearm. The district court held to the contrary.

The term "firearm" is defined by 26 U.S.C. § 5848 as follows:

"For purposes of this chapter —

"(1) Firearm. — The term `firearm' means a shotgun having a barrel or barrels of less than 18 inches in length, or a rifle having a barrel or barrels of less than 16 inches in length, or any weapon made from a rifle or shotgun (whether by alteration, modification, or otherwise) if such weapon as modified has an over-all length of less than 26 inches, or any other weapon, except a pistol or revolver, from which a shot is discharged by an explosive if such weapon is capable of being concealed on the person, or a machine gun, and includes a muffler or silencer for any firearm whether or not such firearm is included within the foregoing definition." 26 U.S.C. § 5848 (Supp. 1964).

26 U.S.C. § 5848, further provides:
"(5) Any other weapon —

"The term `any other weapon' means any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive, but such term shall not include pistols or revolvers or weapons designed, made or intended to be fired from the shoulder and not capable of being fired with fixed ammunition."

Defendants were charged in a one count indictment with unlawfully possessing a firearm, in violation of 26 U.S.C. § 5851, said firearm not having been registered with the Secretary of the Treasury as required by 26 U.S.C. § 5841. Pleas of not guilty were entered. The case was tried before the district judge, sitting without a jury, defendants having waived trial by jury. The court found both defendants guilty as charged and sentenced Fogarty to a term of three years and Wainwright to a five year term. At the time of trial both defendants were serving sentences in the Tennessee state prison for burglary of telephone coin boxes by use of the gun herein involved.

The case was tried solely upon the issue of whether the gun in question falls within the statute.

The following stipulation was entered into by the parties:

"It is stipulated that the defendants, John T. Fogarty and Percy Ewell Wainwright were legally found to be in possession of the unregistered gun described in the indictment. * * *"

The district judge, Honorable Robert L. Taylor, made the following findings of fact relevant to the gun:

"The testimony shows that the weapon involved in this case was an English rifle and the defendant, or one of them, Wainwright, sawed it off so as to make the barrel around 14 inches. The testimony further shows that from this barrel a shot may be discharged by an explosive and that the gun may be concealed on the person if the person wears a coat or overcoat while carrying it.

"The proof further shows that it has a muffler or silencer to cut down the noise of the projectile which is used in the shot. The proof further shows, * * * that the device in question was not designed to be fired from the shoulder. * * *"

After quoting from § 5848(5) (see note 1), the court expressed the following conclusion:

"In the opinion of the Court this provision is broad enough to cover the gun which is the subject of this indictment and which is made a part of the record in this case."

Section 2733 of the Internal Revenue Code of 1939, which is the predecessor of the present Section 5848, contained no definition of "rifle," "shotgun" or "any other weapon." Definitions of these terms were added in the Internal Revenue Code of 1954 because restrictions were being imposed on antique gun collectors and it was "felt that these restrictions should be removed in pursuance of the clearly indicated congressional intent to cover under the National Firearms Act only such modern and lethal weapons, except pistols and revolvers, as could be used readily and efficiently by criminals or gangsters." U.S. Code Congressional and Administrative News, p. 4542 (1954).

Congress redefined "firearm" in 1960, Pub.L. 86-478, 74 Stat. 149. The legislative history pertinent thereto discloses the following statement of purpose:

"The primary purpose of that act was to make it more difficult for the gangster element to obtain certain types of weapons. The type of weapon with which these provisions are concerned are the types it was thought would be used primarily by the gangster-type element." U.S. Code Congressional and Administrative News, p. 2112 (1960).

"It is understood that firearms in the `any other weapon' category included gadget-type and unique weapons, which are often sought after by gun collectors. Moreover, it appears doubtful that criminal elements use these types of weapons to any significant extent in their criminal activities, particularly since the alternatives of a pistol or a revolver, * * are available." U.S. Code Congressional and Administrative News, p. 2113 (1960).

The legislative history demonstrates that these clarifications were directed toward a particular group, i.e. gun collectors. No attempt has been made to exclude any "tool" or "gadget" if the "tool" or "gadget" meets the statutory requirements, particularly the ability to propel a projectile by the explosion of energy.

In United States v. Decker, 292 F.2d 89, (C.A.6), cert. denied, 368 U.S. 834, 82 S.Ct. 58, 7 L.Ed.2d 36, this court said: "If the weapon could discharge a shot through the energy of an explosive, then it was covered by the statute. * * * It was a firearm only if it could discharge a shot through the energy of an explosive." 292 F.2d at 90. In United States v. Thompson, 202 F. Supp. 503 (N.D. Calif.) the court stated:

"It is important to note that a determination of what is and what is not a `firearm' depends in great part upon whether the particular object in question will or will not propel a shot through explosive energy." 202 F. Supp. at 506.

The testimony is uncontradicted that the gun in this case has fired a projectile through explosive energy. A government witness testified that when the gun was test fired, a projectile traveled fifty yards and went into a dirt bank.

The court in Sipes v. United States, 321 F.2d 174, 178 (C.A.8), cert. denied, 375 U.S. 913, 84 S.Ct. 208, 11 L.Ed.2d 150, in considering the statutory definition of a "rifle" as applied to a particular gun, observed that although "it had no sights or that it could be fired elsewhere than from the shoulder makes it no less a rifle within the statutory definition." 321 F.2d at 178.

Appellant further contends that the gun is not a "weapon" as used in the definition of "firearm" because it is not an instrument of offensive or defensive combat. It is argued that the sole purpose of the gun was to break into the coin box in telephone booths; that the cylindrical mechanism of the end of the gun was made to fit into the key slot of a pay telephone; that the rubber lining inside the cylinder was designed to slow down the velocity and power of the bullet, so that it would not bounce back and hit the user and also in order that it would not go completely through the coin box; and that it was not possible to use the gun for any purpose other than breaking into pay telephones by shooting into the coin box. It is to be noted that an automobile, a rolled-up kit of tools, a pin and lye have all been classified as a "weapon." See Tatum v. United States, 71 App.D.C. 398, 110 F.2d 555. We do not doubt that defendants could have used this gun as an instrument of offensive or defensive combat. A weapon which can be held in the hands and will fire a projectile a distance of at least fifty yards quite obviously could be used to kill, maim or injure a human being.

The determination of the character of the instrument is usually one for the jury. See Fall v. Esso Std. Oil Co., 297 F.2d 411 (C.A.5), cert. denied, 371 U.S. 814; United States v. Coots, 196 F. Supp. 775 (E.D.Tenn.). The determination by the district judge that the gun in question came within the statutory definition was a finding of fact. We hold under the facts and circumstances of this case that the findings of the district court are not erroneous. It should be added that the gun here involved was introduced in evidence and was before this court for examination. "The weapon itself * * * revealed its true nature." Sipes v. United States, supra, 321 F.2d at 178. See also United States v. Freeman, 203 F.2d 387, 389 (C.A.7).

We agree with the district court that the gun was a firearm required to be registered under the National Firearms Act. The mere possession of such a firearm is a violation of the statute. It is not necessary for the government to prove that defendants knew that the weapon was a firearm which was required to be registered. Scienter is not an element of the offense. United States v. Decker, supra, 292 F.2d at 90.

Appellants place strong emphasis upon the fact that they already have served a sentence in the Tennessee state penitentiary for burglary growing out of the use of this gun in robbing telephone coin boxes. We have no jurisdiction to review the severity of the sentences imposed by the district court. If appellants contend that their sentences are too severe in the light of their imprisonment in the Tennessee penitentiary for companion offenses, they have a remedy under Rule 35 of the Federal Rules of Criminal Procedure to move the district court for a reduction of sentence. United States v. McGuire, 328 F.2d 303 (C.A.6).

We express appreciation to Mr. Paul A. Tobias and Mr. Marvin Kraus of the Cincinnati bar for their able services as court-appointed attorneys for appellants.

Affirmed.

UNITED STATES v. FOGARTY