Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

U.S. v. FLEISCHLI

October 20, 2000

UNITED STATES OF AMERICA, PLAINTIFF,
V.
JOSEPH FLEISCHLI, DEFENDANT.



The opinion of the court was delivered by: Richard Mills, District Judge.

OPINION

"Keep thy shop, and thy shop will keep thee."

Ben Johnson, et al., Eastward Ho I (1606).

FACTS

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.

ANALYSIS

Count I

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. 1995).

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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.