United States v. Theunick

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0170p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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-
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Nos. 08-1363/1452/1569
v.
,
>
-
-
GARY THEUNICK (08-1363), MAXWELL
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GARNETT (08-1452), and FREDERICK
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MACKINNON (08-1569),
Defendants-Appellants. -
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Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
Nos. 05-20002-001; 05-20002-003; 05-20002-002—
Robert H. Cleland, District Judge.
Argued: April 20, 2011
Decided and Filed: June 30, 2011
Before: MARTIN, SILER, and ROGERS, Circuit Judges.

_________________

COUNSEL
ARGUED: Jacob A. Manning, DINSMORE & SHOHL LLP, Wheeling, West Virginia,
Pamela C. Dausman, FOSTER, SWIFT, COLLINS & SMITH, PC, Lansing, Michigan,
Paul L. Nelson, FEDERAL PUBLIC DEFENDER’S OFFICE, Grand Rapids, Michigan,
for Appellants. Janet L. Parker, ASSISTANT UNITED STATES ATTORNEY, Bay
City, Michigan, for Appellee. ON BRIEF: Jacob A. Manning, DINSMORE & SHOHL
LLP, Wheeling, West Virginia, Michael J. Newman, DINSMORE & SHOHL LLP,
Cincinnati, Ohio, Pamela C. Dausman, Frank Harrison Reynolds, Donald E. Martin,
FOSTER, SWIFT, COLLINS & SMITH, PC, Paul L. Nelson, FEDERAL PUBLIC
DEFENDER’S OFFICE, Grand Rapids, Michigan, for Appellants. Janet L. Parker,
ASSISTANT UNITED STATES ATTORNEY, Bay City, Michigan, for Appellee.

1
Nos. 08-1363/1452/1569 United States v. Theunick, et al. Page 2

_________________

OPINION
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SILER, Circuit Judge. Gary Theunick, Frederick MacKinnon, and Maxwell
Garnett (collectively, “Defendants”) were convicted of possessing automatic weapons
and making false entries on weapons application and transfer forms in violation of
28 U.S.C. §§ 5861(d), 5861(l), and 7206(2). The Defendants raise various issues on
appeal, including the constitutionality of the statutes charged, double jeopardy, discovery
errors, and sentencing errors. For the following reasons, we AFFIRM.

I.

A.

MacKinnon was elected Ogemaw County prosecutor in 1993, where he worked
until losing his reelection bid in 2000. In 1997, he hired Theunick as chief assistant
prosecutor. During MacKinnon’s tenure, he and Theunick were the only prosecutors in
Ogemaw County.

Garnett was the chief of police in Rose City, Michigan. During this time, Rose
City was comprised of one square mile with a population of 800. The Rose City Police
Department (“RCPD”) had one full-time patrol officer and one police car.

In 1997, MacKinnon and Theunick began purchasing machine guns and silencers
under the authority of the Ogemaw County prosecutor’s office. They purchased these
weapons using Federal Bureau of Alcohol, Tobacco, and Firearms (“ATF”) forms for
the tax-exempt transfer and registration of firearms. The sellers, or transferors, of the
weapons were National Firearms Act (“NFA”) vendors. The ATF forms indicated that
the firearms were “being transferred to . . . a government entity.” The forms contained
a box to check if the firearm was being acquired “for personal use,” and these boxes
were not marked. The forms also indicated that the weapons were tax-exempt by nature
of their use by a government entity.
Nos. 08-1363/1452/1569 United States v. Theunick, et al. Page 3

MacKinnon and Theunick purchased these weapons using their personal funds.
They never sought repayment from the Ogemaw County Board of Commissioners,
which is the usual procedure for bills incurred at Ogemaw County offices. The Ogemaw
County sheriff and the Michigan State Police in Ogemaw County were unaware of the
firearms.

In April 2000, Garnett, MacKinnon, and Theunick simultaneously purchased
three handguns with silencers, and three additional silencers. Garnett sent the firearms
dealer a letter on Rose City letterhead stating, “please accept this letter as an official
order . . . . payment made in advance by the county prosecutor Gary Theunick and i [sic]
understand that he also will be ordering on his letterhead.” The letter also stated that the
purchase “is for official law enforcement use only and is not subject to any state or
federal taxs [sic].”

After MacKinnon was not reelected as county prosecutor in 2000, he and
Theunick executed ATF forms to transfer the weapons and silencers to the RCPD.
Separately, Theunick had a document prepared indicating that he donated the weapons
to the RCPD. When MacKinnon and Theunick left the prosecutor’s office in December
2000 and the incumbent prosecutor arrived, there was no record at the Ogemaw County
office of the purchase, possession, or transfer of the firearms.

Theunick then worked as assistant prosecutor in Newaygo County. RCPD
records indicate that Theunick also worked a few hours at the RCPD in May 2001.
MacKinnon was employed as assistant prosecutor in Midland County, but there is no
record of MacKinnon’s working at the RCPD. Between February 2001 and April 2001,
Theunick and Garnett purchased more machine guns and silencers. On the ATF forms,
they identified the RCPD as the transferee. In March 2001, Garnett signed a letter on
RCPD letterhead to purchase an AK47 automatic rifle. Theunick negotiated and paid
for that purchase, and faxed Garnett’s letter from the Newaygo County prosecutor’s
office to the firearms dealer.

In May 2001, ATF agents conducted an investigation into the transfers from the
Ogemaw County prosecutor’s office to the RCPD, but found none of the firearms at the
Nos. 08-1363/1452/1569 United States v. Theunick, et al. Page 4

RCPD. Garnett told an agent that Theunick and MacKinnon “never surrendered
possession of the weapons.” Two months later, the firearms were seized from the RCPD
by the Michigan State Police.

In June 2001, Garnett instituted a logbook for signing out the various guns
registered to the RCPD. The logbook entries indicate that Theunick and Garnett
regularly checked out NFA machine guns and silencers. Other officers signed out only
non-NFA firearms. Theunick did not work any hours for the RCPD in June 2001, and
worked approximately 40 hours for the RCPD in 2001.

In 2002, MacKinnon possessed a machine gun registered under the RCPD, and
shot the machine gun at Garnett’s residence with Theunick and other individuals. In
February 2003, Garnett and Theunick purchased an additional machine gun under the
authority of the RCPD. Garnett’s and Theunick’s employment with the RCPD was
terminated in July 2004. The logbook entries indicate that Theunick kept one machine
gun and silencer continuously from December 2003 to December 2004.

B.

In 2005, MacKinnon, Theunick, and Garnett were indicted by a grand jury in the
Eastern District of Michigan. Each was charged with conspiring to violate 26 U.S.C.
§ 5861(b), (d), (e), and (l), by receiving, possessing, and transferring machine guns and
silencers in violation of the NFA, and by making and causing false entries on NFA
applications. The Defendants were also charged with violating 26 U.S.C. § 7206(2) by
falsely claiming that the firearm transactions were tax-exempt. They were further
charged with the knowing possession of six machine guns and nine silencers not
registered in the National Firearms Registration and Transfer Record to the Defendant
in possession in violation of 26 U.S.C. § 5861(d), and with making and causing
materially false representations to the ATF regarding the identity of the persons
obtaining the firearms in violation of 26 U.S.C. § 5861(l).

The Defendants moved to dismiss the indictment for failing to state a criminal
act. They argued that they had authority to possess the weapons based on the
Nos. 08-1363/1452/1569 United States v. Theunick, et al. Page 5

documentation they submitted. The district court denied the motion, pointing out that
the question presented was whether the Defendants made false representations on such
documentation. The Defendants then challenged the constitutionality of §§ 5861(d),
5861(l), and 7206(2) as applied. The district court held that the charging statutes
provided adequate notice of the prohibited conduct and denied the motion to dismiss.

The Defendants were convicted of the conspiracy charge and seven counts of tax
evasion in violation of § 7206(2). Theunick individually was convicted of ten counts
under § 5861(d) and seven counts under § 5861(l). Theunick received concurrent
sentences of 60 months on the conspiracy conviction, 63 months for the §§ 5861(d) and
(l) convictions, and 26 months for the § 7206(2) conviction. MacKinnon was sentenced
to concurrent sentences totaling 60 months. Garnett received aggregate sentences of 71
months.

The Defendants raise various issues on appeal. Each Defendant challenges the
constitutionality of §§ 5861(d), 5861(l), and 7206(2) as applied. Theunick individually
claims his sentences under both § 7206(2) and § 5861(l) violate the Double Jeopardy
Clause, and that the district court erred in refusing to reduce his sentence for acceptance
of responsibility. Garnett challenges the district court’s refusal to give a public authority
jury instruction, contests a discovery ruling, and raises various sentencing issues.

II.

A.

We review questions of statutory interpretation de novo. United States v. Morris,
203 F.3d 423, 424 (6th Cir. 2000). Vagueness challenges that do not involve First
Amendment freedoms must be analyzed as applied to the specific facts of the case at
hand. Maynard v. Cartwright, 486 U.S. 356, 361 (1974).

A criminal statute is unconstitutionally vague if it “fails to provide the kind of
notice that will enable ordinary people to understand what conduct it prohibits,” or fails
to provide standards that prevent arbitrary and discriminatory enforcement. City of
Chicago v. Morales, 527 U.S. 41, 56 (1999). “[T]he practical necessities of discharging
Nos. 08-1363/1452/1569 United States v. Theunick, et al. Page 6

the business of government inevitably limit[s] the specificity with which legislators can
spell out prohibitions.” Boyce Motor Lines v. United States, 342 U.S. 337, 340 (1952).
It is fair “to require that one who deliberately goes perilously close to an area of
proscribed conduct shall take the risk that he may cross the line.” Id.

The Defendants argue the statutes charged are unconstitutional as applied. They
contend that the Internal Revenue Code and NFA statutes charged, in addition to an
uncharged provision in 18 U.S.C. § 922(o),1 “quite clearly permit some governmental
employees to possess and transfer automatic weapons, but those statutes are silent as to
under whose authority that possession is allowed and are therefore, unconstitutionally
vague.” They rely on United States v. Vest, 448 F. Supp. 2d 1002 (S.D. Ill. 2006), which
held several statutes involving the possession and transfer of machine guns
unconstitutional as applied to a law enforcement officer.

Contrary to their assertions, the statutes charged are not unconstitutionally vague
as applied to these Defendants. In essence, the question presented in this case is whether
the Defendants used the authority of their respective offices as a pretext for the personal
use of automatic weapons.2 Pursuant to the statutes charged, the Defendants were on
notice that falsifying information on firearm registration and tax-exempt transfer forms
clearly constitutes criminal behavior.

1
Section 922(o) makes it “unlawful for any person to transfer or possess a machinegun.”
Subsection (2) provides that “[t]his subsection does not apply with respect to a transfer to, or by, or
possession by or under the authority of, the United States or any department or agency thereof or a State,
or a department, agency, or political subdivision thereof . . . .”
2
In ruling on the motion to dismiss, the district court stated: “The [Defendants’] argument is, if
the documentation is accurate, there can be no violation because it is not unlawful for public law
enforcement entities within a state or political subdivision to possess these weapons. But the Government
says, we don’t dispute that claim; we do dispute the genuineness of the representations, that is, are the
defendants using their official position to mask an illegal possession of firearms, that is, to use and possess
these weapons personally when in fact there is no authority unless the weapons are possessed and used in
an official capacity. And I see that that essentially is the heart of the question to be tried to the jury.”
(emphasis added).
Nos. 08-1363/1452/1569 United States v. Theunick, et al. Page 7

First, 26 U.S.C. § 7206(2)3 prohibits causing a materially false statement to be
made in a document required by the internal revenue laws. An ordinary person readily
can understand that misrepresenting the tax-exempt status of a weapon transfer is a
crime. Second, 26 U.S.C. § 5861(d)4 prohibits knowing possession of an NFA firearm
not registered to the person in possession. An ordinary person is on notice that
disingenuously registering a firearm to an organization, while possessing it personally,
violates this provision. Finally, 26 U.S.C. § 5861(l)5 prohibits knowingly making, or
causing to be made, a false entry in the National Firearms Registration and Transfer
Record regarding an NFA firearm. An ordinary person is on notice that falsifying
information on an NFA form, such as the true identity of the transferee, violates this
provision.

The Defendants made multiple representations that the firearms they were
purchasing and transferring were for official law enforcement use only, and also
represented that the weapons were not for personal use. However, there is no indication
that the weapons were used for any law enforcement purposes in the several years the
Defendants possessed the weapons. The surreptitious transfer of the weapons from the
prosecutor’s office to the RCPD after MacKinnon’s failed reelection bid supports this
conclusion. The Defendants also made multiple representations that the weapons were
tax-exempt by nature of their official use. These representations could readily be
understood by an ordinary person as false entries prohibited by the statutes charged.

This is not the type of case in which the statutes’ potential vagueness is perhaps
troubling, such as in the Vest case. The defendant in Vest was an Illinois State Trooper
serving as the lead rifle instructor for the Illinois State Police. 448 F. Supp. 2d at 1004.

3
“Any person who . . . [w]illfully aids or assists in, or procures, counsels, or advises the
preparation or presentation under, or in connection with any matter arising under, the internal revenue
laws, of a return, affidavit, claim, or other document, which is fraudulent or is false as to any material
matter, whether or not such falsity or fraud is within the knowledge or consent of the person authorized
or required to present such return, affidavit, claim, or document . . . . shall be guilty of a felony . . . .”
4
“It shall be unlawful for any person . . . to receive or possess a firearm which is not registered
to him in the National Firearms Registration and Transfer Record . . . .”
5
“It shall be unlawful for any person . . . to make, or cause the making of, a false entry on any
application, return, or record required by this chapter [the NFA], knowing such entry to be false.”
Nos. 08-1363/1452/1569 United States v. Theunick, et al. Page 8

As rifle instructor, his duties included teaching officers to fire a variety of weapons, as
well as teaching them to recognize the sound of various weapons, “including automatic,
high-powered rifles.” Id. at 1005 n.1. Previous to his position as lead rifle instructor,
he served as the equipment officer for a SWAT team. Id. During his time as equipment
officer, he ordered a machine gun. Id. at 1004.

The defendant was later prosecuted under 18 U.S.C. § 922(o) and 26 U.S.C.
§ 5861(b) and (d). Id. at 1005. He challenged the constitutionality of these statutes as
applied, arguing that his possession of the weapons was “strictly related to these unusual
law enforcement functions.” Id. The district court found the statutes vague as applied
to the defendant. Id. at 1010. The court noted that the police officer was “required to
arm himself with an automatic weapon from time to time.” Id. Moreover, there was “no
evidence to support the notion that the defendant ever possessed or used the machine gun
at issue in this case for anything other than law enforcement purposes.” Id.

By contrast, § 922(o) is not charged in this case, and the law enforcement defense
in § 922(o)(2)(A) does not appear to extend to the statutes charged. There is no
indication that any of the Defendants were members of a specialized law enforcement
unit responsible for weapons instruction. Furthermore, the Defendants appear to have
possessed the weapons exclusively in a personal capacity, without any legitimate law
enforcement purpose.

The Defendants raise interesting issues regarding the applicability of these
statutes to law enforcement personnel. For example, Theunick asks, “Who chooses
which police departments–or indeed, which officers–should have automatic weapons and
which should not?” This question is not answered by the statutory text. In this case,
however, a separate question is the central issue, namely, whether the Defendants used
the authority of their positions as a pretext for acquiring multiple machine guns for their
personal use. This distinct question was answered by the jury in the affirmative.
Nos. 08-1363/1452/1569 United States v. Theunick, et al. Page 9

B.

Theunick individually argues that the offenses charged under § 7206(2) and the
offenses charged under § 5861(l) criminalize the same conduct and contain “the same
core elements.” He requests that we remand to the district court with instructions that
it exercise its discretion and vacate his conviction under either the § 7206(2) counts or
the § 5861(l) counts.6 We review Theunick’s double jeopardy claim for plain error
because he failed to raise it at the district court. Fed R. Crim. P. 52(a); United States v.
Olano, 507 U.S. 725, 732 (1993).

No person shall “be subject for the same offence to be twice put in jeopardy of
life or limb.” U.S. Const. amend. V. The prohibition against double jeopardy protects
individuals from multiple punishments for the same offense. United States v. DeCarlo,
434 F.3d 447, 454 (6th Cir. 2006). “However, a single transaction can give rise to
distinct offenses under separate statutes without violating the Double Jeopardy Clause.”
Id. (internal quotation marks omitted).

“[W]here the same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine whether there are two offenses
or only one, is whether each provision requires proof of a fact which the other does not.”
Blockburger v. United States, 284 U.S. 299, 304 (1932). In Blockburger, two distinct
offenses were charged, including the selling of narcotics without the original stamped
package and the selling of narcotics not in pursuance of a written order of the person to
whom the drug is sold. Id. at 303-04. Each offense was based upon the single sale of
narcotics by the defendant. Id. at 304. Because “each statute requires proof of an
additional fact which the other does not,” the defendant’s single act could be prosecuted
under both statutes without violating double jeopardy. Id.

The elements of § 5861(l) and § 7206(2) substantially overlap. Each requires
proof that Theunick provided materially false information. However, each statute
requires proof of a different fact relative to the misrepresentation that is specific to the

6
Theunick’s sentences are concurrent, so this remedy would not reduce his time served.
Nos. 08-1363/1452/1569 United States v. Theunick, et al. Page 10

respective statutory schemes. First, § 7206(2) requires proof that the misrepresentation
was made in connection with the internal revenue laws. By contrast, § 5861(l) requires
proof that the misrepresentation was made on an application or record required by the
ATF. Because “each statute requires proof of an additional fact which the other does
not,” Theunick can be prosecuted under both statutes without violating double jeopardy.
Id.7

C.

Theunick next argues the court erred in refusing to reduce his sentence based on
his acceptance of responsibility. Because the “sentencing judge is in a unique position
to evaluate a defendant’s acceptance of responsibility . . ., the determination of the
sentencing judge is entitled to great deference on review.” USSG § 3E1.1(a) n.5. We
therefore review the district court’s determination for clear error. United States v. Wolfe,
71 F.3d 611, 615-16 (6th Cir. 1995).

USSG § 3E1.1(a) provides for a two-level decrease in offense level “[i]f the
defendant clearly demonstrates acceptance of responsibility for his offense.” “In rare
situations a defendant may clearly demonstrate an acceptance of responsibility for his
criminal conduct even though he exercises his constitutional right to a trial.” USSG
§ 3E1.1 n.2. “This may occur, for example, where a defendant goes to trial to assert and
preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge
to a statute or a challenge to the applicability of a statute to his conduct).” Id. “In each
such instance, however, a determination that a defendant has accepted responsibility will
be based primarily upon pre-trial statements and conduct.” Id.

7
Theunick relies on our decision in DeCarlo, 434 F.3d at 456, in which we wrote that “the
Supreme Court modified the application of the Blockburger test in Whalen [v. United States, 445 U.S. 684
(1980)] and Illinois v. Vitale, 447 U.S. 410 (1980), when dealing with complex and overlapping statutes
that define multiple ways that they may be violated and contain alternative elements.” Id. The statute in
DeCarlo contained multiple alternative elements, any of which could be charged by the government.
Similarly, Whalen involved a felony murder statute that specified six alternative felonies as predicates.
445 U.S. at 1434. The double jeopardy analysis with such statutes is “modified” in that the court first
“constructs from the alternative elements within the statute the particular formulation that applies to the
case at hand” before applying the Blockburger test. These cases do not modify our analysis because the
statutes charged in this case do not contain such alternative elements.
Nos. 08-1363/1452/1569 United States v. Theunick, et al. Page 11

The district court did not clearly err in sentencing Theunick. Theunick argues
that he went to trial merely to preserve his legal argument regarding the constitutionality
of the statutes as applied. However, the question at trial was “not the documentation’s
facial validity, but instead the genuineness of the representations made in the
documentation and the identity of the true owner.” The government’s position is that
“the applications were completed with fraudulent designs.” These factual questions
were resolved by the jury after Theunick “put the government to its burden of proof at
trial.” See USSG § 3E1.1 n.2. Additionally, the district court noted that Theunick’s
actions prior to and during trial, including “post-indictment amendments of tax returns”
and “playing coy,” failed to demonstrate that he accepted responsibility.

D.

Garnett contends the court erred by refusing to give his proposed public authority
defense instruction. We review the district court’s denial of jury instructions for abuse
of discretion.8 King v. Ford Motor Co., 209 F.3d 886, 897 (6th Cir. 2000). The failure
to give a requested jury instruction is an abuse of discretion when it is “(1) a correct
statement of the law, (2) not substantially covered by the charge actually delivered to the
jury, and (3) concerns a point so important in the trial that the failure to give it
substantially impairs the defendant’s defense.” United States v. Franklin, 415 F.3d 537,
553 (6th Cir. 2005). We review jury instructions “as a whole” in order to determine
whether they “adequately inform the jury of relevant considerations and provide a basis
in law for aiding the jury to reach its decision.” Id. (internal quotation marks and
citations omitted).

A trial judge is “not required to adopt the language suggested by a defendant in
the Court’s instructions to the jury.” United States v. Garner, 529 F.2d 962, 970 (6th
Cir. 1976). “[H]owever, when a theory of defense finds some support in the evidence

8
The government argues that plain error review applies because Garnett failed to preserve his
objection to the court’s jury instruction. However, Garnett’s counsel objected during the court’s pre-
instruction discussion. After the court instructed the jury, the court asked whether Garnett had any
objections “other than the objections we have already stated to the instruction[.]” Garnett responded no,
indicating that he had no additional objections, rather than no objections at all. Accordingly, we review
for abuse of discretion.
Nos. 08-1363/1452/1569 United States v. Theunick, et al. Page 12

and in the law, a defendant is entitled to some mention of that theory in the instructions.”
Id.

The “public authority defense” encompasses “three versions,” two of which are
relevant here. United States v. Valentine, No. 94-6195, 1995 WL 390322, at *5 (6th Cir.
June 30, 1995) (unpublished) (citing cases from the First, Ninth, and Eleventh Circuits).
First, with the “public authority” defense, the defendant “seeks exoneration based on his
reasonable reliance on the authority of a government official to engage him in a covert
activity.” Id. (citing United States v. Baptista-Rodriguez, 17 F.3d 1354, 1368 n.18 (11th
Cir. 1994)). “The validity of this defense depends upon whether the government agent
in fact had the authority to empower the defendant to perform the acts in question.” Id.
A second iteration is “entrapment by estoppel.” Id. at *6. “This defense applies when
a government official tells a defendant that certain conduct is legal and the defendant
commits what would otherwise be a crime in reasonable reliance on the official’s
representation.” Id. Although it is somewhat unclear which type of public authority
defense instruction Garnett requested, it appears that it is the entrapment by estoppel
defense.9

“Entrapment by estoppel is an affirmative defense that is rarely available.”
United States v. Rector, 111 F.3d 503, 506 (7th Cir. 1997), overruled on other grounds,
United States v. Wilson, 169 F.3d 418, 426-27 (7th Cir. 1999) (internal citations
omitted). The defense requires a factual basis that must be established by the defendant.
Specifically, the defendant must show that the individual who misled the defendant was
an official of the state; the official actively misled the defendant; and the defendant’s
reliance was actual and reasonable. Rector, 111 F.3d at 506; accord United States v.
Aquino-Chacon, 109 F.3d 936, 938 (4th Cir. 1997); United States v. Trevino-Martinez,
86 F.3d 65, 69 (5th Cir. 1996); United States v. Smith, 940 F.2d 710, 714 (1st Cir. 1991);
United States v. Brebner, 951 F.2d 1017, 1024 (9th Cir. 1991).

9
Although Garnett’s notice of the public authority defense did not specify which iteration of the
defense applied, the parties later discussed the proposed defense using the phrase “entrapment by
estoppel.”
Nos. 08-1363/1452/1569 United States v. Theunick, et al. Page 13

Fed. R. Crim. P. 12.3(a) requires the defendant who intends to request the public
authority defense to notify the court and government in advance. The notice must
contain the following information: “(A) the law enforcement agency or federal
intelligence agency involved; (B) the agency member on whose behalf the defendant
claims to have acted; and (C) the time during which the defendant claims to have acted
with public authority.” Fed. R. Crim. P. 12.3(a)(2).

The district court did not abuse its discretion in denying Garnett’s jury
instruction on entrapment by estoppel. First, Garnett’s notice did not include all of the
information required by Fed. R. Crim. P. 12.3. He failed to specify in the notice the
official he claims to have relied upon, instead appearing to suggest that he relied on his
own authority. Garnett’s notice also contained an incorrect statement of the law. See
Franklin, 415 F.3d at 553. It stated that the “government must prove beyond a
reasonable doubt that the Defendant did not have actual authority or a reasonable belief
that he was acting within the scope of his authority as the Chief of Police.” However,
the defendant bears the burden of proving the affirmative public authority defense. See
Dixon v. United States, 548 U.S. 1, 7-17 (2006); Trevino-Martinez, 86 F.3d at 69.

Additionally, the district court determined that Garnett had not established the
requisite factual basis for the public authority defense. Garnett testified at trial that he
was told by an unnamed inspector at ATF or NFA that it was permissible for him to
purchase, register, and transfer as tax-exempt an NFA firearm. The court found this
testimony inadequate to support the defense:

The testimony was first fairly vague and non-specific. Secondly, the
nature and scope of the official’s duties and position remains
unexplained. Third, the statements allegedly made by the official remain
fairly vague and unlikely to establish the kind of predicate factually that
is ordinarily required to justify the giving of this instruction. Finally, and
probably most importantly, all of these things are merely the defendant
relating what he heard . . . . unsupported by any documentation,
unsupported by any testimony from any Government agent, unsupported
by any data sheets, physical evidence or the like.
Nos. 08-1363/1452/1569 United States v. Theunick, et al. Page 14

Accordingly, Garnett’s testimony failed to establish the factual basis to justify the rare
case in which an entrapment by estoppel instruction should be given. See Rector, 111
F.3d at 506.

The court noted that, although Garnett’s testimony did not support providing the
specific instruction requested, it could nevertheless “color the jury’s determination of
the intent with which he acted; the knowledge, the specific intent or lack of it and so
forth.” That is, the jury could use Garnett’s testimony in evaluating whether he
knowingly made fraudulent representations in the firearm applications. The jury could
also use this testimony in determining whether the employee possessing the firearm was
authorized by the law enforcement organization to possess the firearms within the scope
of the authorization and his official duties. These instructions allowed the jury to acquit
Garnett if it believed that he legitimately possessed the weapons for official purposes.

E.

Garnett claims the district court erred by quashing certain subpoenas. We review
the district court’s decision to quash a subpoena duces tecum under Fed. R. Crim. P.
17(c) for abuse of discretion. United States v. Hughes, 895 F.2d 1135, 1145 (6th Cir.
1990) (citing United States v. Nixon, 418 U.S. 683, 702 (1974)). The court’s decision
should not be disturbed absent a showing that it was “clearly arbitrary or without support
in the record.” Id.

Production of documents pursuant to Fed. R. Crim. P. 17(c) is appropriate where
“1) the documents are evidentiary and relevant; 2) they are not otherwise procurable,
with due diligence, in advance of trial; 3) the party cannot properly prepare for trial
without such production and inspection in advance of trial; and 4) the application was
made in good faith and is not a fishing expedition.” Nixon, 418 U.S. at 699.

In this case, the Defendants’ discovery requests and the government’s opposition
to them spanned a period of two years, with the district court eventually granting the
government’s motion to quash the subpoenas. The discovery motions requested various
government records related to weapons, including current inventory, regulations,
Nos. 08-1363/1452/1569 United States v. Theunick, et al. Page 15

policies, and training manuals, from “all governmental agencies which are within the
Department of Justice, the Department of Treasury, or the Department of Homeland
Security,” as well as the ATF, Federal Bureau of Investigation, Customs and Border
Patrol, Secret Service, United States Marshals Service, Immigration and Naturalization
Service, and Internal Revenue Service. According to Garnett, the requested materials
were “central” to their defense, “which is that [their] alleged behavior is consistent with
. . . behavior of federal and state law enforcement authorities.”

As an initial matter, Theunick, rather than Garnett, filed the discovery requests.
Garnett filed a notice of joinder in Theunick’s requests, but excluded paragraphs six
through nine. Garnett appears to raise paragraphs six and seven of the discovery motion
on appeal. The government argues that Garnett cannot raise the issue on appeal. Garnett
disputes this argument, citing his notice of joinder, his support of Theunick’s discovery
motions in court hearings, and the fact that the Defendants “pursued the common goals
of obtaining discovery and asserting similar arguments.”

Even if we assume Garnett properly joined in Theunick’s discovery requests, the
district court did not abuse its discretion in quashing the subpoenas. It offered two
reasons for its decision. First, the court determined that the requested information was
irrelevant “within the four corners of the indictment,” because the indictment charged
specific statutes requiring the government to prove the narrow issues of false statements,
false entries, and possession.

Second, the government stipulated that it would not argue in its case-in-chief
“whether it was an unusual event for a prosecutor’s office to obtain NFA weapons,” or
“compare this prosecutor’s office to other prosecutor’s offices.” This last point is
particularly persuasive, given that Garnett himself requested that the government be
prohibited from making such comparisons at trial, on the basis “that whether any, some,
most or no other prosecutor’s office obtained similar firearms has no bearing on the
legality of the purchase and later transfer of these firearms to the Rose City Police
Department . . . and that any references to other offices is wholly irrelevant.” Given the
Nos. 08-1363/1452/1569 United States v. Theunick, et al. Page 16

government’s stipulation and the nature of the Defendants’ discovery requests, the
district court’s decision to grant the motion to quash was not an abuse of discretion.

F.

Garnett also claims errors in his sentencing. The district court’s fact-bound
application of the Sentencing Guidelines is entitled to deferential review, Buford v.
United States, 532 U.S. 59, 64-66 (2001), and should be set aside only if it is clearly
erroneous, United States v. Lang, 333 F.3d 678, 682 (6th Cir. 2003). When the
defendant’s arguments “rest on the legal interpretation” of the Guidelines, we review the
court’s interpretation de novo. United States v. Peveler, 359 F.3d 369, 373 (6th Cir.
2004). However, “we shall not review decisions of a district court not to depart
downward unless the record reflects that the district court was not aware of or did not
understand its discretion to make such a departure.” United States v. Puckett, 422 F.3d
340, 345 (6th Cir. 2005).

Garnett first argues the district court erred by failing to depart downward
pursuant to USSG § 5H1.4 because of his numerous medical conditions. These
conditions include insulin-dependent diabetes, arthritis of the spine and hips, neuropathy,
heart problems, and unspecified complications from his previous exposure to Agent
Orange. However, the district court’s decision was not clearly erroneous. The court
heard testimony of a nurse practitioner in support of the requested departure, and the
government did not contest Garnett’s medical needs. The court concluded that the
Bureau of Prisons was able to satisfy his medical requirements. See United States v.
Russell, 156 F.3d 687, 694 (6th Cir. 1998). The court also stated that it considered
Garnett’s health problems in imposing a sentence at the low end of the Guidelines range.

Garnett next argues the court should have departed downward pursuant to USSG
§ 5H1.11 because of his military and public service. Garnett served in Vietnam, and
worked as a law enforcement officer for many years. Again, the court’s decision was
not clearly erroneous. The court characterized Garnett’s request for downward departure
based on his public service as “ironic,” because “the essence of the criminal activity of
which the defendant was convicted is inextricably tied up with the official law
Nos. 08-1363/1452/1569 United States v. Theunick, et al. Page 17

enforcement position.” Because “the crime wouldn’t have been able to have been
committed in the way in which it was had it not been for the position of public authority
and public trust that the defendant occupied as chief of police,” a downward departure
based on public service was not warranted.

Garnett’s arguments regarding these two denials of downward-departure requests
are without merit, as the denials are unreviewable decisions under Puckett. And to the
extent Garnett is considered to be arguing that his overall sentence was unreasonable as
a result of the downward-departure denials, the district court’s aforementioned
justifications readily convince us that Garnett’s sentence is not unreasonable because of
the denials.

Garnett also contests the court’s two-point increase in his Guidelines score under
USSG § 3B1.3 for abuse of a position of public trust, because that section “may only be
applied where the defendant abused a position of trust with the victim of his charged
conduct.” Because “the alleged ‘victim’ in this case would be the public at large, not a
particular victim,” Garnett contends the enhancement was improper. He cites United
States v. White, 270 F.3d 356, 371 (6th Cir. 2001), for this proposition.

Garnett’s interpretation of the Guidelines is untenable. In White, we “explicitly
[held] that the general public may be victims of a government employee’s crimes for
purposes of deciding whether the employee’s sentence may be enhanced pursuant to
§ 3B1.3.” Id. Accordingly, the district court properly applied the Guidelines when it
enhanced Garnett’s sentence based on its determination that he abused the “trust that the
citizens of Rose City and city council placed in” him as police chief.

AFFIRMED.