United States v. Wonschik

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JAN 6 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 02-1276
FRANK HERBERT WONSCHIK, JR.,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 01-CR-410)

Jill M. Wichlens, Assistant Federal Public Defender, (Michael G. Katz, Federal
Public Defender, with her on the brief) Denver, Colorado for Defendant-
Appellant.

Robert M. Russel, Assistant United States Attorney, (John W. Suthers, United
States Attorney, with him on the brief), Denver, Colorado for Plaintiff-Appellee.

Before MURPHY , BRORBY , and McCONNELL , Circuit Judges.

McCONNELL , Circuit Judge.

In this appeal, we consider (1) whether a jury instruction that defined

“machinegun” as that term is defined in § 5845(b) of the National Firearms Act
(26 U.S.C. § 5845(b)) constructively amended a defendant’s indictment for

possessing “parts from which a machine gun could be assembled,” and (2)

whether a district judge’s leading jurors in reciting the Pledge of Allegiance

during voir dire violated a defendant’s right to a fair trial. We answer both

questions in the negative and, therefore, AFFIRM the judgment of the district

court.

I.

On the evening of November 19, 1999, Appellant Frank Herbert Wonschik,

Jr. was home alone at his house in a suburban neighborhood in Aurora, Colorado.

That night became memorable for Mr. Wonschik’s neighbors when they heard

gunshots coming from inside Mr. Wonschik’s house and noticed bullets passing

through the walls of their own house. The neighbors immediately summoned the

police, who arrived outside Mr. Wonschik’s house at about 7:00 p.m.

Mr. Wonschik staggered down his driveway to meet the police. He was

obviously drunk. He held up a large, M-80 style firecracker and a lighter and

asked the police, “Did you hear that loud bang?” Tr. 208. The officers, for safety

reasons, placed Mr. Wonschik in the back of a patrol car. Although the officers

asked him no questions, Mr. Wonschik began a bizarre soliloquy. He stated that

he had received death threats, that Colombian drug lords were watching him, that

one of his neighbors was out to get him, that he was a millionaire who spent

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$500,000 a year on lawyers, and that he had no idea how the holes in his wall got

there.

The police promptly obtained a search warrant and entered Mr. Wonschik’s

house. On the wall in the main room downstairs, the police observed a poster of a

wolf with bullet holes in it and several spent 10-millimeter casings nearby. It was

evident that Mr. Wonschik, in his inebriated condition, had fired several rounds

from a 10-millimeter pistol into the wolf and that those rounds had passed

through Mr. Wonschik’s walls and prompted the neighbors to call the police.

The officers also discovered, on a table in the same room, a partially

disassembled Colt AR-15 rifle, which is the civilian, semiautomatic version of the

military’s M-16 automatic rifle. 1
The police also found many boxes of 5.56

millimeter ammunition for the AR-15, as well as a coffee can full of spent 5.56

casings. The officers then searched a bedroom upstairs, where they found, in a

filing cabinet, a bag containing several small gun parts. The police determined

that the parts were apparently the components necessary to convert a

semiautomatic AR-15 into a fully automatic M-16, including an M-16 bolt carrier,

M-16 hammers, an M-16A2 trigger, M-16 disconnectors, disconnector springs, a

selector switch, a three-shot burst cam, and two drop-in auto sears. Finally, the

The Colt AR-15 is also known as the Colt Model SP-1, which is how Mr.
1

Wonschik’s rifle is designated in the indictment. The indictment describes the
weapon as “.223 caliber,” which is equivalent to 5.56 millimeter. R. doc. 1.

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police discovered, in a different bedroom, an instruction manual that explained

how to convert a semiautomatic AR-15 into a fully automatic weapon. The

manual warned that it was illegal to possess M-16 parts.

Mr. Wonschik was eventually indicted by a federal grand jury on one count

of illegal possession of a machine gun in violation of 18 U.S.C. § 922(o). The

grand jury specifically charged Mr. Wonschik with possessing “a combination of

parts . . . from which a machine gun could be assembled.” R. doc. 1. At trial, a

government expert witness testified that he installed some of the M-16 parts

found in the filing cabinet into Mr. Wonschik’s AR-15. The expert explained that

he was unable to make the weapon function with either of the drop-in auto sears

installed, so he tested the modified AR-15 without an auto sear. 2
He told the jury

that he twice loaded the modified weapon with two rounds and that both times the

weapon fired automatically, meaning that both rounds fired with one pull of the

trigger. On cross-examination, the government expert stated that he did not know

2
In an M-16, the “auto sear” facilitates proper timing of automatic firing by
catching the hammer when the bolt carrier forces it back after firing and then
releasing the hammer after the bolt carrier has moved forward in preparation for
the next cycle. Tr. 357. A “drop-in” auto sear replicates the function of an M-16
sear in an AR-15 that has been converted into an automatic weapon by the
addition of M-16 fire control parts. Tr. 309. An auto sear can, by itself,
constitute a “machinegun” under the National Firearms Act. United States v.
Cash, 149 F.3d 706, 706-08 (7th Cir. 1998).

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whether the modified AR-15 would successfully fire automatically until he tested

it.

Mr. Wonschik’s defense was that his weapon, as assembled by the

government expert, was not “automatic,” and therefore not a machine gun, and

that the government could not prove that he knew that his combination of parts

could be assembled into a functioning machine gun. In support of this theory, Mr.

Wonschik put his own expert witness on the stand. The defense expert testified

that Mr. Wonschik’s AR-15, as modified by the government expert, did not

qualify as an automatic weapon. Because the modified weapon did not contain an

auto sear, which the defense expert characterized as “an integral part of the fire

control system,” Tr. 380, the government expert was only able to get Mr.

Wonschik’s rifle to fire automatically by inducing a malfunction. Mr.

Wonschik’s expert also testified that he would not know whether a weapon

modified in this way would actually fire automatically without testing it.

Defense counsel moved for a judgment of acquittal on the ground that the

government had provided insufficient evidence that he knew that his parts could

be assembled into a machine gun. The district court denied the motion and

submitted the case to the jury. The jury was instructed that the government must

prove that the defendant knew that the relevant parts constituted “a combination

of parts from which a machine gun can be assembled.” R. doc. 42, Instruction 12.

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The instructions defined “machine gun” to include “any weapon which shoots, is

designed to shoot, or can be readily restored to shoot, automatically.” Id. The

jury convicted Mr. Wonschik of the one-count indictment. The district judge

subsequently sentenced Mr. Wonschik to 27 months’ imprisonment.

The morning before Mr. Wonschik’s trial began, the parties and the district

judge gathered in the courtroom before a panel of 47 potential jurors in order to

conduct voir dire. The judge introduced himself to the panel, and then began

speaking to the panel about the events of September 11 and the obligations of

American citizens. He referred to a young family friend in the Marines who was

deployed to the Middle East, and then said:

This kid is off to fight a war for us. The least we can do is to
uphold what he holds sacred. He pledged an oath to support and
defend the United States against all its enemies; and he expect us, you
and me, to uphold the Constitution of the United States. And that’s
what we’re going to do in this room today. And you people, citizens
of the United States, are going to bring life to the Constitution. The
Constitution is nothing but a shriveled piece of paper unless people
like you breathe life into it.
I didn’t do it before September 11, the Pledge of Allegiance, in
the morning we begin a trial. It isn’t that I didn’t put stock in it. Of
course, I did. But I just didn’t think it needed to intrude on the
business of the Court every time we pick a jury trial. I was wrong.
Each of us, me included, on an occasion of this importance, needs to
remind ourselves of our obligation to our country.
Would you join me now in the Pledge of Allegiance.

Tr. 16. The judge and jurors then apparently recited the Pledge of Allegiance as

it is codified in 4 U.S.C. § 4: “I pledge allegiance to the Flag of the United States

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of America, and to the Republic for which it stands, one Nation under God,

indivisible, with liberty and justice for all.”

On appeal, Mr. Wonschik contends that his conviction must be overturned

because (1) the jury instructions effectively amended the indictment; and (2) the

trial judge’s leading the Pledge of Allegiance during voir dire deprived him of a

fair trial.

II.

The jury convicted Mr. Wonschik of a violation of 18 U.S.C. § 922(o),

which makes it unlawful “for any person to transfer or possess a machinegun.”

The related definition section refers to the definition of “machinegun” provided in

§ 5845(b) of the National Firearms Act. 18 U.S.C. § 921(a)(23). The National

Firearms Act in turn provides the following definition:

(b) Machinegun. The term “machinegun” means 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. The term shall also include the frame
or receiver of any such weapon, any part designed and intended
solely and exclusively, or combination of parts designed and
intended, for use in converting a weapon into a machinegun, and any
combination of parts from which a machinegun can be assembled if
such parts are in the possession or under the control of a person.

26 U.S.C. § 5845(b).

The indictment closely follows this statutory language. The grand jury

alleged that Mr. Wonschik

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 did unlawfully and knowingly possess a machine gun, to wit: a
combination of parts, in the possession and control of FRANK
HERBERT WONSCHIK, Jr., namely: a Colt, Model SP1, .223 caliber,
semi-automatic rifle, an M16 selector, an M16 bolt carrier, M16
hammers, M16A2 trigger, M16 disconnectors, disconnector springs,
and a three shot burst cam, from which a machine gun could be
assembled . . . .

R. doc. 1.

Finally, Jury Instruction 12, which Mr. Wonschik claims impermissibly

broadened the indictment, also tracks the statutory language:

In order to convict the defendant . . ., the government must
prove each of the following elements beyond a reasonable doubt:
First: That the defendant knowingly possessed a machine gun;
and
Second: That the defendant knew that the Colt, Model SP1, .223
caliber, semi automatic rifle; and M16 bolt carrier, M16 hammers,
M16A2 trigger, M16 disconnectors, disconnectors [sic] springs, and a
three shot burst cam, was a combination of parts from which a
machine gun can be assembled.
As used in this instruction, the term “machine gun” includes 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. The term “machine gun” also
includes any combination of parts from which a machine gun can be
assembled if such parts are in the possession or under the control of a
person.

R. doc. 42.

Mr. Wonschik and the government both agree that the statute prohibits

possession of a “combination of parts from which a machinegun can be

assembled” and that the indictment charged Mr. Wonschik with possession of

such parts. The dispute is over how to define the term “machinegun” as it refers

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to the result of assembling the parts. Specifically, Mr. Wonschik contends that

“machinegun” here means a gun actually capable of firing automatically. His

position is therefore that, under the indictment, the government was required to

prove that he knowingly possessed a combination of parts from which a

functioning automatic weapon could be assembled. Instruction 12, however,

defined “machinegun” more broadly to include weapons “designed to shoot”

automatically, as well as weapons that actually shoot automatically. Thus,

according to the instruction, the jury did not have to find that Mr. Wonschik’s

parts could be assembled into a functioning automatic weapon, because the

instruction allowed conviction on the basis that his parts could be assembled into

a weapon that was merely “designed” to shoot automatically.

The government apparently agrees that the instruction allowed conviction

on that basis. However, according to the government, the instruction did not

impermissibly broaden the indictment because the instruction’s interpretation of

“machinegun” to include weapons designed to shoot automatically is perfectly

consistent with how “machinegun” is defined in § 5845(b). Because the

indictment tracks that same statutory language, it is reasonable, in the

government’s view, to interpret the term “machinegun” in the indictment as

referring to weapons designed to shoot automatically, as well as to actually

functioning automatic weapons.

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 Mr. Wonschik’s trial counsel did not object to Instruction 12. We therefore

review his constructive amendment claim for plain error. United States v. Cavely ,

318 F.3d 987, 999 (10th Cir. 2003). 3
When trial counsel fails to object, the

appellate court will liberally construe the indictment in favor of validity. United

States v. Phillips , 869 F.2d 1361, 1364-65 (10th Cir. 1988). We will only find

that a constructive amendment occurred when “the evidence presented at trial,

together with the jury instructions, raises the possibility that the defendant was

convicted of an offense other than that charged in the indictment.” United States

v. Apodaca , 843 F.2d 421, 428 (10th Cir. 1988) (citing Stirone v. United States ,

361 U.S. 212, 215-19 (1960)).

We are not persuaded that Mr. Wonschik’s interpretation of § 5845(b) and

the corresponding language in the indictment is correct. One serious problem

with Mr. Wonschik’s reading is that it would result in giving the term

“machinegun” two separate meanings within the same subsection of the National

Firearms Act. Mr. Wonschik contends that the term “machinegun” in the phrase

There is some uncertainty in our precedents as to whether a constructive
3

amendment of an indictment by jury instructions to which the defendant did not
object is reversible per se or reversible only where the amendment “affects
substantial rights” and “seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Compare United States v. Levine, 41 F.3d
607, 617 n.13 (10th Cir. 1994) with Cavely, 318 F.3d at 999. Because we
conclude that no constructive amendment occurred here, we need not resolve this
question.

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“parts from which a machinegun can be assembled” should mean something like

“a weapon that actually fires automatically,” even though the first sentence of the

same subsection expressly states that “the term ‘machinegun’ means any weapon

which shoots, is designed to shoot, or can be readily restored to shoot ,

automatically.” 26 U.S.C. § 5845(b) (emphasis added). Where, as here, a statute

begins with a sentence stating what a term “means,” and then repeats that term

later in the same subsection, it seems reasonable to give the later-appearing term

the same meaning that it was given in the first sentence. Cf. Estate of Cowart v.

Nicklos Drilling Co. , 505 U.S. 469, 479 (1992) (referring to the basic canon of

statutory construction that a term or phrase should generally be given the same

meaning each time it appears in the same act). Mr. Wonschik has provided no

authority supporting his claim that “machinegun” should mean less at the end of

the paragraph than it does at the beginning.

There does appear to be a confusing circularity to the treatment of

“machinegun” in § 5845(b). The statute offers a definition of machinegun as “any

weapon which shoots, is designed to shoot, or can be readily restored to shoot,

automatically,” and then goes on to state that “the term shall also include” the

frame or receiver of a machinegun, parts designed and intended to convert a

weapon into a machinegun, and parts from which a machinegun can be assembled.

Thus, the statute seems circularly to say that a “machinegun” is, among other

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things, a “receiver of a machinegun” or “parts that can be made into a

machinegun.” However, any resulting confusion can be resolved through close

attention to the subsection’s grammatical structure. Subsection (b), as noted

above, provides a primary definition of the term “machinegun” and then sets apart

this primary definition with a period. A new sentence then states that the “term

shall also include” receivers or parts bearing some relation to a “machinegun.”

This structure suggests that, where “machinegun” or “such weapon” appears in

the second part of the subsection, as an attribute of receivers or parts, the statute

implicitly substitutes in the primary definition of “machinegun” provided in the

first sentence. This reading provides a consistent definition for “machinegun”

and “such weapon” (namely, “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”) each time these terms

appear within the subsection. Thus, the phrase “a combination of parts from

which a machinegun can be assembled” actually means “a combination of parts

from which [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] can be assembled.” This is precisely the

definition set forth in Instruction 12. It follows that the instruction did not amend

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the indictment, but instead correctly tracked the statutory definition on which the

indictment was based.

III.

Although Mr. Wonschik’s trial counsel did not object to the jurors’

recitation of the Pledge of Allegiance, he now contends on appeal that the district

judge violated the Constitution. Mr. Wonschik argues that the district judge’s

action was unconstitutional under West Virginia State Board of Education v.

Barnette , 319 U.S. 624 (1943), in which the Supreme Court held that a state board

of education could not compel its students to recite the Pledge of Allegiance.

However, the question whether recitation of the pledge in this context violates

Barnette is irrelevant, because Mr. Wonschik does not claim that he was

compelled or invited to recite the pledge, and he does not have third-party

standing to raise claims on behalf of the potential jurors. See Terrell v. INS , 157

F.3d 806, 809 (10th Cir. 1998).

Mr. Wonschik’s more serious argument is that jurors’ recitation of the

pledge, in a case where the United States is a party, violates the other party’s

right to a fair trial because the jury is in effect pledging its allegiance to one party

in the case. Mr. Wonschik contends that the jury was particularly likely to draw

this inference in his case because immediately following recitation of the pledge,

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the district judge addressed the prosecutor and asked whether “the United States

of America” was ready to proceed. Tr. 16.

We recognize that trial judges, among their many other responsibilities,

should take care not to create the impression that it is appropriate for the judge or

the jury to favor the prosecution simply because the court and the prosecution are

both institutions of the United States. However, we do not think it reasonable to

suppose that the jurors inferred from the Pledge of Allegiance a patriotic

obligation to serve as a rubber stamp for the prosecution. Rather, we believe the

pledge represents, and evoked in the jurors’ minds, a more enlightened patriotism,

fidelity to which required them to uphold our nation’s Constitution and laws by

sitting as impartial finders of fact in the matter before them. That is as likely to

benefit a defendant as to prejudice him.

IV.

For the foregoing reasons, the judgment of the district court is

AFFIRMED . All pending motions are denied.

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