JERRY E. SMITH, Circuit Judge:
Wendell Ardoin appeals his conviction of possessing, manufacturing, failing to register, and failing to pay taxes on illegal machineguns. Ardoin argues that the statute under which he was charged, requiring registration and payment of taxes, was implicitly repealed by a statute declaring machineguns manufactured after 1986 ("post-1986 machineguns") illegal. He also claims that the statute prohibiting "making" of firearms is unconstitutionally vague. Furthermore, he challenges the district court's refusal to grant a new trial based upon new evidence and his sentence under the Sentencing Guidelines (the "Guidelines"). We conclude that the statute under which Ardoin was convicted was not implicitly repealed and is not unconstitutionally vague, and we affirm his conviction and sentence.
Ardoin is an avid gun collector and dealer. He is a member of the local sheriff's and police department reserves. In 1989, he became a gun dealer and obtained a Class I gun license by filing the appropriate forms with the Bureau of Alcohol, Tobacco, and Firearms ("ATF"). He then filed a Form 11 with ATF to obtain his Class III license to buy and sell machineguns.
In 1989, Ardoin also became a Colt distributor for law enforcement agencies. As a distributor, he was able to sell to law enforcement agencies any class of weapons, including machineguns, as long as he maintained his Class III license.
The semi-automatic weapons purchased through the Welsh Police Department did not require the filing of forms with ATF or the payment of transfer tax, as they were not automatic weapons. The Baton Rouge weapons, however, were automatic, and Ardoin filed a Form 10 with ATF. Form 10 is used to register weapons to a particular law enforcement agency and to obtain a tax-exempt status on the transfer. After filing the forms, Ardoin obtained the machineguns through the Welsh Police Department.
Also in 1989, Ardoin's partner, Michael Hebert, converted some semi-automatic
On November 6, 1991, Ardoin was indicted on fourteen counts of conspiracy to violate the National Firearms Act ("NFA"), 26 U.S.C. §§ 5861(d), (e), and (l) and 7201, making of machineguns without having filed a written application or paying the making tax (in violation of §§ 5861(f) and 5871), evading the payment of taxes (in violation of § 7201), engaging in the business as a dealer without having paid the special occupational tax (in violation of §§ 5861(a) and 5871), making false entries on applications for tax-exempt transfers and registrations (in violation of §§ 5861(l) and 5811), and possession of unregistered firearms (in violation of §§ 5861(d) and 5871. At trial, the government contended that the various weapons were in the physical possession of Ardoin's partnership, Bayou State Armory, not the local police departments. Therefore, Ardoin should have filed a Form 1 instead of a Form 10 and should have paid a making tax. Ardoin responded that the Welsh Police Department had authorized him to receive the weapons and that he was a commissioned officer acting on the department's behalf. Furthermore, ATF had sent out a circular stating that it would no longer accept Form 1's and that the guns were tax-exempt, since they were made for a government agency. Ardoin was unable to obtain a copy of the ATF circular, and ATF agent Paul Rash testified that no such circular existed.
A jury found Ardoin guilty on all twelve counts.
This case presents a novel constitutional issue in this circuit: whether § 102(9) of the Firearms Owners' Protection Act of 1986 ("FOPA"), 18 U.S.C. § 922(o), which amended the Gun Control Act of 1968 by making possession of machineguns illegal, implicitly repealed portions of the NFA. We review such legal questions de novo. United States v. Guajardo, 950 F.2d 203, 206 (5th Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1773, 118 L.Ed.2d 432 (1992).
Ardoin argues that 26 U.S.C. §§ 5821, 5861(d), (e), (f), (l), 5871, and 5845 are unconstitutional because they were originally based upon Congress's taxing power.
Ardoin cites United States v. Rock Island Armory, 773 F.Supp. 117 (C.D.Ill.1991), and United States v. Dalton, 960 F.2d 121 (10th Cir.1992), as authority for this position. In Rock Island Armory, the court held portions of the NFA to have been implicitly repealed by the FOPA.
Two bases exist for declaring the portions of the NFA pertaining to post-1986 machineguns to have been implicitly repealed. First, the fact that ATF no longer collects taxes or accepts registration forms for such weapons makes compliance with § 5861(d) impossible.
The government cites United States v. Jones, 976 F.2d 176 (4th Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 2351, 124 L.Ed.2d 260 (1993), to rebut these two arguments. The court held in Jones that in the absence of an affirmative showing of an intention to repeal a statute, the only permissible justification for repeal by implication is when the earlier and later statutes are irreconcilable. Id. at 183 (quoting Morton v. Mancari, 417 U.S. 535, 550, 94 S.Ct. 2474, 2482-83, 41 L.Ed.2d 290 (1974)).
But 18 U.S.C. § 922(o), prohibiting post-1986 machineguns, can be reconciled with § 5861. Citing Minor v. United States, 396 U.S. 87, 96-97, 90 S.Ct. 284, 288-89, 24 L.Ed.2d 283 (1969), for the proposition that Congress can tax illegal conduct such as the sale of narcotics, the court concluded that the prohibition of post-1986 machineguns does not mean that Congress cannot tax them. Although it is illegal to possess or manufacture these weapons, one illegally doing so would be required to register them with ATF and pay taxes on them. And if ATF refuses to allow registration or the payment of taxes, one can comply with § 5861(d) by not violating § 922(o), i.e., by not possessing or manufacturing any post-1986 machineguns.
Jones, 976 F.2d at 183 (citing Minor).
Jones dealt with the taxing authority argument in two ways. First, ATF has the authority to tax now-illegal machineguns. Although it chooses not to allow tax payments or registration, it still has the authority to do so. Thus, the basis for ATF's authority to regulate—the taxing power—still exists; it is merely not exercised. Second, the court noted that although the NFA was originally upheld under Congress's taxing power, no one could seriously contend that the regulation of machineguns could not also be upheld under Congress's power to regulate interstate commerce.
We adopt the analysis of the Fourth Circuit. The NFA can be upheld on the preserved, but unused, power to tax or on the power to regulate interstate commerce. Since the provisions of the NFA can be reconciled with the FOPA, the doctrine of implicit repeal must be rejected.
Ardoin next challenges the constitutionality of his conviction for "making" a firearm, as the Supreme Court has recently held that the term "making" is ambiguous. We review this legal issue de novo. Guajardo, 950 F.2d at 206.
In United States v. Thompson/Center Arms Co., ___ U.S. ___, 112 S.Ct. 2102, 119 L.Ed.2d 308 (1992), the Court recently considered the meaning of the term "make" as used in the NFA. In Thompson/Center, the defendant manufactured a single shot pistol. Included with the gun, however, was a conversion kit that allowed the purchaser to
The holding of Thompson/Center, however, is applicable only to unassembled parts. The statute is not ambiguous with respect to fully assembled machineguns. Ardoin argues that in a criminal proceeding the "rule of lenity" should apply. But the Thompson/Center Court would only hold the term "making" unconstitutionally vague as applied to unassembled machineguns. Ardoin manufactured fully assembled machineguns and should have known that such production was "making" under the statute. He cannot take advantage of an ambiguity with respect to some other fact situation.
Ardoin's main complaint seems to be that he was manufacturing these weapons for law enforcement agencies, and therefore he should have been exempt from the taxing laws. But that issue was tried before a jury. And although Ardoin makes reference to this argument, he never specifically appeals the jury's factual finding or the verdict. We find, therefore, that the statute was not unconstitutionally ambiguous with respect to the making of fully assembled post-1986 machineguns.
Ardoin argues that the ATF circular, which informed gun dealers that ATF would no longer accept Form 1's, represents new evidence requiring a new trial. To obtain a new trial based upon new evidence, a defendant must show that (1) the evidence was newly discovered and unknown to the defendant at the time of the trial; (2) failure to detect the evidence was not a result of lack of due diligence by the defendant; (3) the evidence is material, not merely cumulative or impeaching; and (4) the evidence will probably produce an acquittal. United States v. Peña, 949 F.2d 751 (5th Cir.1991). If any one factor is not satisfied, the motion for new trial should be denied. United States v. Lopez-Escobar, 920 F.2d 1241 (5th Cir.1991). We review the denial of such a motion for abuse of discretion. United States v. Adi, 759 F.2d 404 (5th Cir.1985).
The ATF circular fails to meet several components of the test. First, Ardoin knew about its existence but could not produce it at trial. He filed no subpoena for the document, indicating a certain lack of diligence. The district court therefore determined that the evidence was not "newly discovered" within the meaning of FED. R.CRIM.P. 33. Second, if we hold that the impossibility of complying with a statute does not render it unconstitutional, the circular was not particularly useful to Ardoin and would not "probably" produce an acquittal. Ardoin still could be convicted of failing to comply with the registration and taxation requirements, as he could have complied by not manufacturing the illegal weapons. Procedurally, a motion for new trial is disfavored; the discovery of the circular does not warrant a new trial.
Ardoin challenges his sentence imposed under the Guidelines because he was not granted a downward departure for his community service, employment record, lack of criminal record, and potential for victimization. We review the findings of fact under the "clearly erroneous" standard, but legal application of the Guidelines is reviewed de novo. United States v. Barbontin, 907 F.2d 1494 (5th Cir.1990).
Any departure from the Guidelines must be supported by adequate reasons that justify the departure "in terms of the policies underlying the sentencing guidelines" and must be reasonable. United States v. Buenrostro, 868 F.2d 135 (5th Cir.1989), cert. denied, 495 U.S. 923, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990). The Guidelines specifically reject first-time offender status as a ground for downward departure. First-time offenders are assigned criminal history category I, which adequately reflects the level of recidivism. U.S.S.G. § 4A1.3. Sections 5H1.5 and 5H1.6 also specifically reject community service and employment record as
We conclude that the district court considered all relevant factors and sentenced Ardoin to the lowest sentence within the range. The failure to depart downward was not in error.
WIENER, Circuit Judge, dissenting in part, concurring in part, and dissenting in the result:
Over a half-century ago, in 1934, Congress held hearings to determine whether it had the authority to regulate the manufacture, transfer, and possession of machine guns.
Despite its subsequent acquisition of virtually unbounded power under the post-New Deal Commerce Clause, Congress waited over five decades following its 1934 adoption of the NFA before banning citizens' possession of machine guns altogether. Section 922(o) of the Firearm Owners' Protection Act
Since the enactment of FOPA, the Bureau of Alcohol, Tobacco and Firearms (BATF) "has refused to approve any application to make, transfer, and pay the $200 tax on any machine gun made after May 19, 1986."
I hasten to add, however, that I do concur in some important pronouncements of the majority opinion. Specifically, I agree that the words "make" and "maker," found in the NFA, are not unconstitutionally vague as applied to this case: converting a semi-automatic
I cannot concur, though, in the majority's affirmance of Ardoin's conviction under provisions of the NFA when those provisions (1) have been totally eclipsed by section 922(o) of the FOPA, and (2) cannot be complied with due to the refusal of the government to permit compliance. I regret that the majority today elects to join what I believe to be the legally inferior side of a pre-existing circuit split on this issue. I fear that in so choosing for this circuit, the majority rejects two persuasive precedents (including one that sets forth the relevant history and purpose of the NFA in exhaustive detail)
In actuality, Ardoin advances three separate, alternative attacks on the viability of sections 5821, 5845, 5861(d), (e), (f), and (l), and 5871 of the NFA: 1) these sections were impliedly repealed by the enactment of section 922(o) of the FOPA, 2) the application of these sections to Ardoin's case violates due process (i.e., is fundamentally unfair) because the law (and BATF policy) makes compliance impossible, and 3) these sections—enacted pursuant to Congress' power to tax—have been rendered nugatory by the government's refusal to administer or enforce them to raise any revenue whatsoever.
1. Implied Repeal of Sections of the National Firearms Act
The majority correctly notes that an earlier statute may be implicitly repealed through the enactment of a later statute when—and only when—the two statutes are irreconcilable.
Until the enactment of section 922(o) of the FOPA, a citizen could legally make, transfer, or possess a machine gun, as long as he complied with the relevant registration and tax provisions of the NFA. Simply put, since 1934 the NFA has said to such a citizen, "You may manufacture, transfer, or possess a machine gun if—but only if—you register and pay taxes on it." Then along came section 922(o) of the FOPA—some fifty-two years later—and declared to that same citizen, "You may not manufacture, possess, or transfer machine guns—period." What sense does the NFA make now? The BATF operates as though Congress has passed two separate laws each criminalizing the mere possession of machine guns, leaving the BATF with the discretion to prosecute citizens' possession under either statute (or both). But that is not—and cannot be—the case.
There is no evidence that Congress ever adverted to the effect that the enactment of section 922(o) would have on related provisions of the NFA. But undeniably the enactment of section 922(o) did affect the NFA— enormously. Because the NFA forbids the BATF to register and accept taxes for illegal firearms,
Moreover, section 922(o) reflects Congress' judgment concerning the correct statutory formulation and the appropriate level of punishment for mere possession of a machine gun. Thus, if we uphold the continued application of the NFA to citizens who transfer, make, and possess machine guns—even though the NFA no longer serves any revenue-raising purpose—we are altering that congressional judgment. Why then does the BATF continue to prosecute citizens under NFA solely for the possession of machine guns, rather than resorting to section 922(o), which Congress expressly designed for that purpose? Perhaps because the statutory maximum fines for violating the NFA are greater than those provided under the FOPA.
The obsolescence of the NFA provisions at issue here is also exposed by the fact that— although expressly enacted to raise revenues from private citizens—those provisions no longer raise any revenue from the possession, transfer, and making of machine guns by private citizens. The suggestion that a tax measure can somehow have continued vitality when it no longer taxes certainly tests one's imagination. Although implied repeals are disfavored, I firmly believe that the sections of the NFA at issue here are so utterly irreconcilable with section 922(o) of the FOPA as a means of regulating private ownership of machine guns that they were impliedly repealed by FOPA's passage: with respect to the regulation of machine guns, the latter has superseded and supplanted the former.
2. Convicting Ardoin of Violating Applicable Sections of the NFA Violates Due Process
Since the enactment of section 922(o), the BATF has—with few exceptions—refused to register or to accept the $200 tax on any machine gun made after May 19, 1986.
The BATF's refusal to register or accept taxes for machine guns is not evinced solely in the BATF circular that Ardoin was unable to locate until after his trial; such refusal is expressly mandated by law. Sections 5812 and 5822 of the NFA state categorically that applications to register the transfer or making of firearms shall be denied if the transfer, making, or possession of the firearm would be illegal.
I thus find it indisputable that since May 19, 1986, the BATF has not, does not, and may not register or accept taxes for machine guns. Ardoin, presumed innocent, did not have to prove this assertion as part of his defense, for we know it to be the law. It seems inescapable to me that a private citizen literally cannot comply with the terms of sections 5821, 5845, 5861(d), (e), (f), and (l), and 5871 of the NFA no matter how sincerely he wants to comply and how hard he tries to comply, because the enactment of section 922(o) made compliance a legal impossibility.
Ardoin was convicted of violating the NFA. Specifically, he was convicted—inter alia—of making a machine gun without having filed an application to make and register the gun, of making a machine gun without having paid the making tax, and of transferring a machine gun without having filed an application to transfer the weapon. But he could not have paid the machine gun tax, because the BATF would not accept such payment. And filing applications, even on the correct form (form 1 instead of form 10 which Ardoin did try to use), would have been futile, because the BATF is required to reject those applications. Ardoin is thus being convicted of violating laws with which he could not have complied, even had he performed the proverbial hollow act and—like Luther—tacked his makeshift registration form and $200.00 to the BATF's front door.
The majority offers two responses to Ardoin's dilemma: (1) Congress has the authority to choose to tax an activity even though such activity is illegal; and (2) Ardoin could have complied with the application and tax provisions of the NFA simply "by not possessing or manufacturing any post-1986 machineguns."
The majority's assertion that Congress has the power to tax illegal activities is correct, but in my opinion that assertion is also irrelevant. The question here is not what Congress could have done, but what it did. I agree that, as oxymoronic as it may sound, Congress could devise a law that would both make illegal and at the same time tax the manufacture, transfer, and possession of machine guns: but Congress simply did not do that. Instead, Congress adopted the FOPA, which clearly has the effect of forbidding the government from registering and collecting taxes on illegal firearms—the exact opposite of affirmatively taxing an illegal activity.
The majority's "just say no" response, like that of the Fourth Circuit before it—in effect telling Ardoin that he could have avoided violation of the NFA simply "by not possessing or manufacturing any ... machineguns" —is even more troublesome to me. I keep asking myself "why is it that each time I revisit the majority's response I am reminded of Marie Antoinette's advice to `let them eat cake'?" Such casual, dismissive responses are just not satisfactory when it comes to engaging in an activity, such as keeping and bearing arms, that arguably implicates the Bill of Rights.
I do not dispute Congress' authority to make a law prohibiting citizens from owning or possessing machine guns.
I am compelled to reemphasize at this juncture that the gravamen of the NFA violations at issue here is not mere possession of an unregistered machine gun; it is the failure to register and pay taxes on that machine gun.
I also regret that I have been singularly unsuccessful in convincing my fellow panelists that the Supreme Court has rejected the very reasoning upon which they rely.
According to the Supreme Court, then, citizens do not violate the NFA solely by possessing unregistered machine guns: they must actually fail to register those weapons. And it is apparent—at least to me—that the failure to register and pay the tax on a firearm cannot be a prosecutable criminal act when the government refuses to accept the appropriate registration documents and tax payments even though the applicable registration and tax payment provisions remain "on the books." I find neither authority nor mandate for us to rewrite the NFA to criminalize mere possession of machine guns. Yet without such an act of judicial legislation, I can see no way for us to sanction enforcement of the NFA as it applies to ownership of machine guns manufactured after May 19, 1986. Convicting Ardoin of violating statutory provisions with which he cannot comply strikes me as offending fundamental fairness and thus due process. "One simply cannot be criminally liable for failing to do an act which [one] is ... incapable of performing."
3. Stripped of its Revenue-Raising Function, The NFA is Nugatory
As already noted, the NFA was passed in 1934 pursuant to Congress' power to collect taxes.
Neither can the constitutionality of the NFA as applied to citizens who possess, make, or transfer machine guns be rescued by incanting—as did the Fourth Circuit in Jones
In this same vein, the majority's willingness to uphold the NFA under the Commerce Clause misses separation of powers concerns. Under classical constitutional theory, the legislature must state—as part of its
I am of course aware that today the enumerated-power test of a federal statute's validity is whether "the Congress might reasonably find that the act relates to one of the federal powers."
For all of the foregoing reasons, I respectfully but earnestly DISSENT.