United States Court of Appeals
Fifth Circuit
F I L E D
REVISED JUNE 9, 2004
IN THE UNITED STATES COURT OF APPEALS June 8, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-10167
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
WILLIAM CLARK TAYLOR
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
No. 3:02-CR-163-1-D
Before KING, Chief Judge, and REAVLEY and EMILIO M. GARZA,
Circuit Judges.
PER CURIAM:*
William Taylor appeals both his conviction and his sentence
for knowingly possessing a firearm silencer. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
While enforcing a court-ordered eviction at Taylor’s
automotive shop, Dallas constables discovered approximately
thirty-five weapons, many modified, and a number of what appeared
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
1
to be homemade silencers. The constables called the Bureau of
Alcohol, Tobacco, and Firearms, who sent agents to the site.
Taylor consented, in writing, to allow ATF agents to search the
premises. ATF Special Agent Joseph Patterson seized silencers
found on Taylor’s workbench and elsewhere.1
When questioned about the silencers, Taylor admitted that
he had tried to make silencers with the help of a book entitled
“How to Build Practical Firearms Suppressors: an Illustrated
Step-by-Step Guide.” Agent Patterson discovered this book inside
a briefcase near the workbench where the silencers were found.
Taylor signed a written confession, which stated:
On Friday, December 8, 2000, I consented to the search of
my business to ATF Special Agent Joseph A.
Patterson. . . . I also told [Special Agent] Patterson
that I had found a couple of firearm silencers and I
decided to make them a little better. I bought a book on
how to make firearm silencers and I began to . . . make
silencers. . . . I made firearm silencers a couple of
times and I stuffed them on the end of my guns and fired
them. The silencers I made did not work very well.
Someone told me to quit making silencers because I
would be arrested.
Special Agent Patterson later confirmed that Taylor had not
registered the silencers with the National Firearms Registration
and Transfer Record.
Taylor was charged in a four-count indictment with several
1
The silencers (approximately ten or eleven in all)
varied greatly and were made from all sorts of common materials.
For example, one was a piece of plastic tubing wrapped in black
tape with a rubber cap on the end, another was a metal
cylindrical object with rubber insulation inside of it, and yet
another was a rubber tube with threads inside it and an end cap.
2
firearms offenses, including possession of unregistered silencers
and silencer parts, in violation of 26 U.S.C. §§ 5845(a)(7) and
5861(d).2 Taylor pleaded not guilty.
In his defense, Taylor took the witness stand. He testified
that he had ordered the how-to book on making silencers two years
before his eviction, when there was a Japanese fighting dog
terrorizing the neighborhood. By the time the book arrived,
however, the dog had died. Consequently, according to Taylor, he
was no longer interested in making silencers when he received the
book. Taylor also testified that he did not know he was in
possession of silencers and that he did not intend for the items
seized to be silencers.
Notwithstanding Taylor’s testimony, the jury found Taylor
guilty of knowingly possessing silencers.3 The district court
concluded, based on Taylor’s trial testimony, that he had
perjured himself. Thus, the district court increased Taylor’s
sentencing range by two levels, pursuant to U.S.S.G. § 3C1.1. In
2
Section 5861(d) makes it unlawful for any person “to
. . . possess a firearm which is not registered to him in the
National Firearms Registration and Transfer Record.”
Section 5845(a) defines the term “firearm” to include “any
silencer, as defined in 18 U.S.C. § 921.” Under 18 U.S.C. §
921(a)(24), a “silencer” is “any device for silencing, muffling,
or diminishing the report of a portable firearm, including any
combination of parts, designed or redesigned, and intended for
use in assembling or fabricating a firearm silencer or firearm
muffler, and any part intended only for use in such assembly or
fabrication.”
3
The jury found Taylor not guilty of the three remaining
firearm counts.
3
accordance with this new range, the district court sentenced
Taylor to fifty-two months’ imprisonment followed by three years
of supervised release.
II. SUFFICIENCY OF THE EVIDENCE
Taylor argues that the district court erred by denying his
motion for judgment of acquittal. According to Taylor, the
government’s evidence was insufficient to show (1) that he knew
the items were firearm silencers and intended for them to be
firearm silencers and (2) that the supposed firearm silencers
were “in or could readily have been put in operating condition.”
Since Taylor preserved his challenge to the sufficiency of the
government’s evidence, we review de novo the district court’s
denial of his motion for judgment of acquittal. United States v.
Carbajal, 290 F.3d 277, 289 (5th Cir. 2002). The question is
whether, viewing the evidence in the light most favorable to the
government, a rational jury could conclude that the government
proved all elements of the offense beyond a reasonable doubt.
Id.
We conclude that the government’s evidence was sufficient to
show that Taylor knew that the items in his possession were
firearm silencers and that he intended for them to be silencers.
Taylor argues that, because he is an experienced mechanic, if he
intended for the items to be silencers, they would have worked.
Yet, Taylor conceded that he had possessed silencers in the past
4
and that he had been interested in building silencers.
Furthermore, Taylor signed a confession admitting that he was
trying to make silencers with the help of a book entitled “How to
Build Practical Firearms Suppressors: an Illustrated Step-by-Step
Guide.” Agent Houde testified that the silencers found in
Taylor’s possession were “very consistent” with the silencers
illustrated in the how-to book. Finally, one of the silencers
was found attached to a firearm. Thus, the evidence supports the
jury’s determination that Taylor knew and intended for the items
found in his shop to be silencers or silencer parts.
The jury instructions also required the government to prove
that the silencers were “in or could readily have been put in
operating condition.” Taylor argues that there is no evidence
that the silencers actually worked. Indeed, Agent Alfred Houde,
who examined the items found in Taylor’s shop, testified that he
was unable to determine whether the silencers were functional
because “on each selected sample they blew off the gun and blew
down range or came apart after the initial shot.” But, contrary
to Taylor’s assertion, the government did not have to prove that
the silencers were in operating condition; it merely needed to
prove that they could readily have been put into operating
condition. And the evidence is sufficient to support this
conclusion. Agent Houde testified that the silencers were “in or
could readily have been put in operating condition.” According
to Agent Houde, many of the silencers were “very consistent” with
5
those described in Taylor’s how-to book. Furthermore, Agent
Houde opined that, if properly made, the silencers illustrated in
the how-to book would work. Agent Houde explained that affixing
the silencers to the firearms, with tape or bondo, would have
helped the silencers stay on the firearms. Given all this, as
well as Taylor’s mechanical ability, the jury could have
concluded beyond a reasonable doubt that Taylor could readily
have put the silencers into operating condition.
III. SENTENCING ENHANCEMENT
Taylor argues that the district court erred by finding that
he had committed perjury and, on this basis, enhancing his
sentence for obstruction of justice under U.S.S.G. § 3C1.1.4 We
review the district court’s perjury determination for clear
error. United States v. Gonzalez, 163 F.3d 255, 263 (5th Cir.
1998).
The district court found that the following statements given
by Taylor at trial were false:
. . . that he was no longer interested in making a
silencer at the time he got the book on how to make
silencers, because the problem he needed it for had
already taken care of itself and he did not need it
anymore;
. . .
4
Taylor also contends that it is unfair to increase his
sentencing range for three statements that the jury did not even
credit. Since there is no requirement, however, that the jury
actually believe the defendant’s perjured testimony, this
argument is unavailing.
6
. . . that he did not know he was in possession of silencers
and that they would be considered silencers; and
. . . that he did not intend for anything in Government
Exhibit 5--the box containing Government Exhibits 5A
and 97-107--to actually be a firearm silencer or
suppressor.
Taylor contends that these three statements were not false. We
conclude, however, that the district court did not clearly err in
finding otherwise. Taylor’s first statement directly contradicts
the written confession he gave to the government, wherein he
admitted the following: “I bought a book on how to make firearm
silencers and I began . . . to make silencers.” Further, the
evidence discussed above supports the conclusions that Taylor
knew that he possessed silencers and that he intended for the
items to be silencers. Consequently, we hold that the district
court correctly increased Taylor’s offense level by two under
U.S.S.G. § 3C1.1.5
IV. CONCLUSION
For the foregoing reasons, we AFFIRM both Taylor’s
conviction and his sentence for knowingly possessing a firearm
silencer.
5
In a footnote, Taylor also complains that it is
fundamentally unfair to make defendants choose between not
testifying, and risking “a jury’s wrath,” and testifying, and
being subjected to a two-level sentencing increase for perjury.
As the Supreme Court noted in United States v. Dunnigan, however,
“a defendant’s right to testify does not include a right to
commit perjury.” 507 U.S. 87, 96 (1993). Thus, Taylor’s
argument has no merit.
7
8