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United States v. Drasen

decided: April 29, 1988.


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 86 CR 500, Susan Getzendanner, Judge.

Cummings, Wood, Jr., and Manion, Circuit Judges. Manion, Circuit Judge, dissenting.

Author: Wood

WOOD, JR., Circuit Judge.

This is an interim appeal*fn1 by the government from the dismissal of six counts of a fourteen-count indictment. The first count charged the defendant Gerald Drasen, aided and abetted by defendants Anthony Aleo and Cynthia Aleo, with engaging in business as a dealer in rifles having barrels of less than sixteen inches in length without having paid the special occupational tax required by 26 U.S.C. § 5801, and without having registered with the Secretary of the Treasury as a dealer as required by 26 U.S.C. § 5802, in violation of 26 U.S.C. § 5861(a).*fn2 Counts three through seven charged defendants Anthony Aleo and Cynthia Aleo, aided and abetted by defendant Gerald Drasen, with transferring five different firearms, all having barrels of less than sixteen inches, in violation of 26 U.S.C. § 5845.


The defendants in this case were not dealing in assembled rifles, but were selling complete rifle parts kits. The government conceded during discovery that all of the short-barrel rifles involved were unassembled when the defendants sold and transferred them. The indictment was predicated upon the government's theory that the simultaneous transfer of the unassembled constituent parts of a short-barrel rifle constituted the transfer of a "rifle" within the meaning of 26 U.S.C. § 5845, in violation of 26 U.S.C. § 5861(e).*fn3 The defendants moved to dismiss six counts on the basis that the statute did not cover unassembled rifles that had never been assembled. The district judge so held and dismissed these counts. 665 F. Supp. 598. The question, therefore, is whether or not the unassembled and never previously assembled constituent parts of a rifle, which might or might not be assembled to form a short-barrel rifle, are in fact a short-barrel rifle within the meaning of the National Firearms Act, 26 U.S.C. § 5845 (1982) (the Act). The government claims that assembled and unassembled rifles are the same under the statute, but the defendants argue that the statute excludes parts of previously unassembled rifles.*fn4 The issue distilled from this situation is easier to state than to decide: we must determine the meaning of the statutory term "rifle" under the National Firearms Act. The place to begin and end is with the statute and its legislative history.


Section 5845(a)(3) defines "firearm" to include "a rifle having a barrel . . . of less than 16 inches in length." "Rifle" is defined in section 5845 as follows:

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.

26 U.S.C. § 5845(c) (1982).

The government reads that provision to include a complete rifle parts set, which it claims is the functional equivalent of an assembled firearm. The government argues that it is "only natural that Congress would have wanted to regulate all devices 'designed . . . made . . . and intended' to operate as short barrel rifles, and a parts set surely meets that definition." According to the government, a 1954 ruling by the Commissioner of Internal Revenue issued before Congress added the "readily restored to fire" language to the statute supports the government's view. The government argues that in the 1968 amendment to the Act, Congress stated its intention to endorse that administrative construction. Even though the government's statutory interpretation has some difficulty in accommodating the "readily restored" language, the government contends that, contrary to the district court's view, the statute nevertheless provided fair notice to the regulated firearms industry as to what is or is not unlawful. The government also argues that the defendants could have inquired to determine whether they were acting within the law.

The defendants' response is simply that a previously unassembled collection of rifle parts sold as a kit, although ready for assembly into a functioning rifle, does not violate the Act provisions requiring licensing and registration of certain rifles. The defendants find unsupportable the government's theories that the complete collection of parts in a kit is the functional equivalent of an assembled weapon and that the Act reaches a previously unassembled weapon that can be readily assembled. Furthermore, the defendants argue that we should construe an ambiguous criminal statute in favor of the defendants.

Applying the facts of this case, the statute on its face is not clear. Each of the parties therefore has some difficulty supporting their respective positions. Considering the statutory definition of "rifle" set out in section 5845(c), it is apparent that to clarify the statute little additional language would have been needed to accomplish what the government claims Congress intended. The statute could have defined a rifle as also including the parts thereof that could be readily assembled to form a functioning weapon. The ...

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