United States District Court, Central District of Illinois, Springfield Division
October 20, 2000
UNITED STATES OF AMERICA, PLAINTIFF,
JOSEPH FLEISCHLI, DEFENDANT.
The opinion of the court was delivered by: Richard Mills, District Judge.
"Keep thy shop, and thy shop will keep thee."
Ben Johnson, et al., Eastward Ho I (1606).
In addition to being a convicted felon, Joseph Fleischli is the
president of Springfield Armament Services, Inc., a licensed
manufacturer of firearms. On August 11, 1998, a grand jury
indicted Fleischli for possession of machine guns, possession of
a firearm by a felon, illegal manufacture of a machine gun, and
possession of unregistered explosive devices. Fleischli moved to
dismiss the indictment on September 1, 2000. Before any action
could be taken on Fleischli's motion, the grand jury returned a
Superseding Indictment. In addition to the four crimes charged in
the original indictment, the Superseding Indictment charged
Fleischli with an additional possession of machine guns offense
and another possession of a firearm by a felon offense.
Count I of Fleischli's original indictment charged him with
possession of four machine guns in violation of
18 U.S.C. § 922(o)*fn1. Section 922(o) defines a machine
gun in accordance with 26 U.S.C. § 5845(b). This provision
defines a machine gun as:
any weapon which shoots, is designed to shoot, or can
be readily restored to shoot, automatically more than
one shot, without manual reloading, by a single
function of the trigger.
Id. Fleischli argues that one of the four guns he is charged
with possessing, an Aircraft Machine Gun 7.62mm, does not fall
within this definition of a machine gun.*fn2 Fleischli bases his
argument on the Internal Revenue Service's Revenue Ruling 55-528.
Under this Revenue Ruling:
Any crank-operated gear-driven Gatling gun (produced
under 1862 to 1893 patents) employing a cam action to
perform the functions of repeatedly cocking and
firing the weapon, as well as any such gun actuated
by an electric motor in lieu of a hand-operated crank
(produced under 1893 and later patents), while being
a forerunner of fully automatic machine guns, is not
designed to shoot automatically or semiautomatically
more than one shot with a single function of the
trigger. Such weapons are held not to be firearms
within the purview of the National Firearms Act
(Chapter 53 of the Internal Revenue Code of 1954).
The Aircraft Machine Gun at issue here employs a cam action to
fire the weapon. See Dept. of Army Technical Manual TM
9-1005-298-12 at 1-1 (Aug. 1969). Thus, Fleischli argues it is
not a machine gun under revenue ruling 55-528. Revenue rulings,
however, do not have the force of law; they represent only the
IRS' opinion of the law. See Flanagan v. United States,
810 F.2d 930
, 934 (10th Cir. 1987). This Circuit affords revenue
rulings only "the lowest degree of deference." Bankers Life and
Casualty Company v. United States, 142 F.3d 973
, 978 (7th Cir.
1998). Moreover, the Government contests the revenue ruling's
classification of the Aircraft Machine Gun. The Government avers
that it will present testimony and other evidence to establish
that the gun is in fact a machine gun under § 922(o). Since the
gun's classification is an element of a § 922(o) offense, it is
obviously a jury question. As such, Fleischli is incorrect to
assert that revenue ruling 55-528 mandates dismissal.
Fleischli next argues that the indictment should be dismissed
because he possessed the firearms in the presence of a licensed
firearm manufacturer and the firearms were under the licensed
manufacturer's control. Section 922(o) makes it unlawful to
possess a firearm; it does not matter where or in whose presence
a person possesses it. Furthermore, since possession is an
element of the offense it is a factual issue for a jury to
decide. See United States v. Lloyd, 71 F.3d 1256 (7th Cir.
In a more sweeping effort to have Count I dismissed, Fleischli
argues that § 922(o) should be stricken as an unconstitutional
exercise of the Commerce Clause. The Seventh Circuit rejected
this argument in United States v. Kenney, 91 F.3d 884 (7th Cir.
1996). In Kenney, the Seventh Circuit found Congress had a
rational basis to regulate the local conduct of machine gun
possession "to effectuate § 922(o)'s purpose of freezing the
number of legally possessed machine guns . . . an effect that is
closely entwined with regulating interstate commerce." Kenney,
91 F.3d at 890. The Court stated that "both the nature of the
statute and the history of federal firearms legislation support
the conclusion that § 922(o) is a constitutional exercise of
Congress's Commerce Clause power." Id. at 891.
Fleischli recognizes that Kenney is the law of this circuit,
but contends the opinion should be revisited in light of United
States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d
658 (2000). In Morrison, the Supreme Court held that the
Commerce Clause did not permit Congress to enact a civil remedy
for victims of gender-motivated violence. See Id. at 1744. In
striking down the civil remedy provision, 42 U.S.C. § 13981, the
Court "reject[ed] the argument that Congress may regulate
noneconomic, violent criminal conduct based solely on the
conduct's aggregate effect on interstate commerce." See
Morrison, 529 U.S. at ___, 120 S.Ct. at 1754. The Court,
however, was careful to note that a principal infirmity of §
13981 was that the legislation "contain[ed] no jurisdictional
element establishing that the federal cause of action is in
pursuance of Congress' power to regulate interstate commerce."
Id. at 1751. The Court then went on to say that "such a
jurisdictional element would lend support to the argument that §
13981 is sufficiently tied to interstate commerce . . ." Id. at
In Kenney, the Seventh Circuit held that "there is a rational
basis to regulate the local conduct of machine gun possession . .
. to effectuate § 922(o)'s purpose of freezing the number of
illegally possessed machine guns . . . an effect that is closely
entwined with regulating interstate commerce." 91 F.3d at 889.
The Court does not read Morrison as affecting this holding.
Moreover, the Ninth Circuit, the only circuit to have considered
the constitutionality of § 922(o) since Morrison, has held
that "section 922(o) is a proper exercise of the authority
granted to Congress under the Commerce Clause." See United
States v. Smith, 217 F.3d 746, 750 (9th Cir. 2000). Although the
Ninth Circuit did not specifically address Morrison, the fact
that it did not indicates that the Court deemed it to have no
impact on § 922(o). Given the decisions in Kenney and
Smith, the Court finds no basis to conclude that § 922(o) is
unconstitutional. Thus, Count I of Fleischli's indictment will
not be dismissed. Count II
Count II of Fleischli's original indictment charges him with
being a felon in possession of a firearm. See
18 U.S.C. § 922(g)(1). Fleischli argues that Count II should be dismissed
because Special Agent Geever, a witness who testified in support
of the August 11, 1998, indictment, stated that the origin of two
of the eighteen weapons listed in Count II of that indictment
could not be determined. If the origin of the two weapons cannot
be proved, the Government cannot establish that the weapons
affected interstate commerce, an essential element of a felon in
possession charge. See Id. Thus, Fleischli argues that his
August 11, 1998, felon in possession charge should be dismissed.
Fleischli's argument would have merit were it not for the fact
that the October 5, 2000, superseding indictment does not charge
him with any offense relating to the two firearms in question.
Since there is no charge based on those firearms, Fleischli's
Fleischli also challenges § 922(g)(1)'s constitutionality.
Fleischli contends that § 922(g)(1) is invalid because the
Commerce Clause does not give Congress the power to criminalize
possession of a firearm merely because it traveled in or affected
interstate commerce. The Seventh Circuit rejected this argument
in United States v. Bell, 70 F.3d 495, 497-98 (7th Cir. 1995)
as has every circuit to have considered the argument. See, e.g.,
United States v. Wells, 98 F.3d 808 (4th Cir. 1996) United
States v. Gateward, 84 F.3d 670, 671-72 (3d Cir. 1996), cert.
denied, 519 U.S. 907, 117 S.Ct. 268, 136 L.Ed.2d 192 (1996);
United States v. Abernathy, 83 F.3d 17, 20 (1st Cir. 1996);
United States v. Spires, 79 F.3d 464, 466 (5th Cir. 1996);
United States v. Turner, 77 F.3d 887, 889 (6th Cir. 1996);
United States v. McAllister, 77 F.3d 387, 390 (11th Cir. 1996),
cert. denied, 519 U.S. 905, 117 S.Ct. 262, 136 L.Ed.2d 187
(1996); United States v. Sorrentino, 72 F.3d 294, 296-97 (2d
Cir. 1995); United States v. Bolton, 68 F.3d 396, 400 (10th
Cir. 1995), cert. denied, 516 U.S. 1137, 116 S.Ct. 966, 133
L.Ed.2d 887 (1996); United States v. Shelton, 66 F.3d 991, 992
(8th Cir. 1995) (per curiam), cert. denied, 517 U.S. 1125, 116
S.Ct. 1364, 134 L.Ed.2d 530 (1996); United States v. Hanna,
55 F.3d 1456, 1461-62 &
n. 2 (9th Cir. 1995). Nevertheless, Fleischli asks the Court to
reconsider the validity of § 922(g) in light of Jones v. United
States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000).
However, the Seventh Circuit has already stated that "[n]othing
in [Jones] casts doubt on the validity of § 922(g)". See
United States v. Wesela, 223 F.3d 656, 660 (7th Cir. 2000).
Finally, Fleischli contends that § 922(g)(1) does not apply in
this case because he possessed most of the firearms listed in
Count II at his private residence. This argument is utterly
without merit. Section 922(g)(1) states that:
It shall be unlawful for any person who has been
convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year to ship or
transport in interstate or foreign commerce, or
possess in or affecting interstate commerce, any
firearm or ammunition; or to receive any firearm or
ammunition which has been shipped or transported in
interstate or foreign commerce.
See Id. The statute is not premised on where a felon
possessed a firearm; it is premised on whether a felon
possessed a firearm. See Id. Accordingly, Fleischli presents no
valid basis for dismissing Count II.
Count III of Fleischli's original indictment charges him with
making a machine gun in violation of 26 U.S.C. § 5822.*fn3 The
machine gun he is charged with making is the Aircraft Machine Gun
discussed in Count I. As in Count I, Fleischli argues that the
gun is not a machine gun because it is not classified as such by
Internal Revenue Service Revenue Ruling 55-228. For the reasons
explained in Count I, the Court rejects this argument.
Under § 5822:
No person shall make a firearm unless he has (a)
filed with the Secretary a written application, in
duplicate, to make and register the firearm on the
form prescribed by the Secretary; (b) paid any tax
payable on the making and such payment is evidenced
by the proper stamp affixed to the original
application form; (c) identified the firearm to be
made in the application form in such manner as the
Secretary may by regulations prescribe; (d)
identified himself in the application form in such
manner as the Secretary may by regulations prescribe,
except that, if such person is an individual, the
identification must include his fingerprints and his
photograph; and (e) obtained the approval of the
Secretary to make and register the firearm and the
application form shows such approval. Applications
shall be denied if the making or possession of the
firearm would place the person making the firearm in
violation of law.
Id. Fleischli does not argue that he has satisfied any of these
requirements. Instead, he argues that § 5822 does not apply to
licensed firearm manufacturers.
Nothing in § 5822 supports Fleischli's argument that § 5822
does not apply to licensed manufacturers. Were this not enough,
the two provisions on which Fleischli relies to free him from §
5822's duties, 26 U.S.C. § 5841(b) and (c), actually impose
additional requirements on gun manufacturers. See § 5841(b)
(requiring manufacturers to register each firearm he
manufactures); § 5841(c) (specifying the manner in which a
manufacturer must register firearms). The only other authority
Fleischli cites in his attempt to have Count III dismissed is
26 U.S.C. § 5852(c), but this provision merely relieves a
manufacturer from having to pay a § 5821 firearm tax. See §
5852(c). As such, the Court will not dismiss Count III.
Count IV of the indictment charges Fleischli with illegal
possession of destructive devices in violation of 26 U.S.C. § 5861
(d), 5812(b), and 5871. Count IV
described the destructive devices Fleischli allegedly made as
"four explosive devices." Fleischli objects to this description,
arguing that Count IV would have to allege that the "explosive
devices" were similar to a bomb, grenade, a rocket having
propellant charge of more than four ounces, a missile having an
explosive or incendiary charge of more than one quarter ounce, or
a mine since 26 U.S.C. § 5845(f)(1)(F) identifies these items as
"similar" devices. See Id. The grand jury's superseding
indictment charges that Fleischli:
knowingly and unlawfully possess[ed] four destructive
devices, to wit: four explosive or incendiary bombs
or similar devices each consisting of a cardboard
container sealed at both ends, containing a mixture
of pentaerythitol tetranintrate (PETN) powder, a
non-electric blasting cap with a short length of
The Superseding Indictment sufficiently alleges possession of
items that qualify as similar devices under § 5845(f). Thus, the
Court will deny Fleischli's motion to dismiss Count IV.*fn4
Ergo, Defendant's Motion To Dismiss Indictment is DENIED.
IT IS SO ORDERED.