UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 92-7644
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DONALD WADE THOMAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
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(February 16, 1994)
Before POLITZ, Chief Judge, REAVLEY, and EMILIO M. GARZA, Circuit
Judges.
EMILIO M. GARZA, Circuit Judge:
The Defendant, Donald Wade Thomas, was convicted by a jury of
(1) possessing pipe bombs that were not registered in the National
Firearms Registration and Transfer Record, in violation of 26
U.S.C. § 5861(d) (1988); (2) transferring pipe bombs, in violation
of 26 U.S.C. §§ 5812, 5861(e) and 5871; (3) possessing pipe bombs
which were not identified by serial numbers, in violation of 26
U.S.C. § 5861(i); and (4) conspiring to commit all of the foregoing
substantive offenses.1 Thomas appeals, contending that (a) his
conviction is fundamentally unfair, and therefore violates his
right to due process of law, because he is being punished for
1
The district court sentenced Thomas to 63 months
imprisonment.
failing to register pipe bombs which the Bureau of Alcohol, Tobacco
and Firearms ("ATF") will not permit to be registered; and (2) the
evidence is insufficient to support his conviction because the
government failed to prove that the ATF would have registered the
pipe bombs. Finding no reversible error, we affirm.
I
Thomas contends that his conviction is fundamentally unfair
because he is being punished for failing to register, and obtain
serial numbers for, the pipe bombs which he possessed and
transferred, when the ATF will not register pipe bombs.2 In
arguing that the ATF will not permit registration, Thomas relies
exclusively on the testimony at trial of the government's
explosives expert. Agent Waskom was employed as an explosive
enforcement officer for the Explosive Technology Branch of the ATF.
It was his responsibility in that position to "provide technical
support and assistance with regard to the coordination and
administration of the federal explosive laws." Waskom examined,
took apart, and exploded several of Thomas's pipe bombs before
testifying, and his testimony primarily concerned the construction
and function of those bombs. However, Waskom was asked on direct
2
Cf. United States v. Dalton, 960 F.2d 121, 124 (10th Cir.
1992) (vacating unregistered firearm conviction on due process
grounds, where "[i]t [was] undisputed that the government [would]
not permit the registration of" the weapon in question) ("Because
the crimes of which Dalton was convicted . . . have as an essential
element his failure to do an act that he is incapable of
performing, his fundamental fairness argument is persuasive.").
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examination, "do you know of any case where a pipe bomb has been
granted a serial number?" Waskom replied, "None whatsoever."
Thomas moved for a judgment of acquittal before the district
court, arguing (as he does on appeal) that Waskom's aforementioned
testimony indicates that the ATF will not register pipe bombs such
as the ones he possessed, and that his conviction for failure to
register those bombs is therefore fundamentally unfair and
violative of his right to due process. The district court denied
Thomas's motion, refusing to find that the ATF would not register
the pipe bombs, since no evidence supported such a finding.3
We review the district court's factual determination for clear
error.4 We will not find a district court's ruling to be clearly
3
The district court's order denying the motion for
judgment of acquittal stated:
Defendant argues that he is factually if not statutorily
prohibited from registering plastic pipe bombs.
Defendant points to the testimony of Alcohol, Tobacco,
and Firearms ("ATF") Special Agent Tom Waskom to support
[his] argument. . . .
The Court disagrees. . . . This Court did not
receive evidence regarding ATF licensing procedures and
declines to make the finding requested by defendant[].
Record on Appeal, vol. 1, at 74-75.
4
See United States v. Deshaw, 974 F.2d 667, 669 (5th Cir.
1992) ("On appeal the district court's denial of a motion to
dismiss the indictment on the ground of double jeopardy is reviewed
de novo. We accept the underlying factual findings of the district
court unless clearly erroneous." (footnote omitted) (citing United
States v. Weeks, 870 F.2d 267, 269 (5th Cir.), cert. denied, 493
U.S. 827, 110 S. Ct. 92, 107 L. Ed. 2d 57 (1989)); United States v.
Luttrell, 609 F.2d 1190, 1192 (5th Cir. 1980) (upholding denial of
defendant's motion to dismiss indictment, where district court's
finding that prosecutor did not engage in misconduct was not
clearly erroneous); United States v. Cathey, 591 F.2d 268, 272 (5th
Cir. 1979) (holding that criminal defendant was not entitled to
dismissal of indictment because district court did not commit clear
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erroneous unless we are left with the definite and firm conviction
that a mistake has been committed. United States v. Mitchell, 964
F.2d 454, 457-58 (5th Cir. 1992). We find no such error here.
Waskom's testimony does not indicate that he was qualified to
discuss the ATF's registration policies, and he did not comment on
those policies. Waskom merely testified that he was not aware of
an instance where a serial number had been granted for a pipe bomb.
Waskom did not testify that, as a matter of policy, the ATF never
registers pipe bombs, and nothing in the record required the
district court to draw that inference from Waskom's statement.
Therefore, the district court's refusal to construe Waskom's
statement as a statement that the ATF will not register pipe bombs
was not clearly erroneous, and Thomas's argument is without merit.
II
Thomas also claims that the evidence is insufficient to
support his conviction because the government failed to prove that
the pipe bombs which he possessed and transferred were registerable
with the ATF. This claim is without merit because Thomas has
failed to show that registrability of the weapons is an element of
any of the offenses of which he was convicted.
26 U.S.C. § 5861(d) makes it an offense "to receive or possess
a firearm which is not registered . . . in the National Firearms
Registration and Transfer Record." Id. On its face, § 5861(d)
does not require that the firearm be registerable with the ATF.
error in finding that "there was no evidence that [government
witness] `deliberately attempted to mislead'" the grand jury which
returned the indictment).
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See id. Furthermore, we have stated that the statute "requires
only that the transferee not receive or possess unregistered
firearms." United States v. Sedigh, 658 F.2d 1010, 1012 (5th Cir.
1981) (citing 26 U.S.C. § 5861(d)), cert. denied, 455 U.S. 921, 102
S. Ct. 1279, 71 L. Ed. 2d 462 (1982).5
26 U.S.C. § 5861(i) makes it unlawful "to receive or possess
a firearm which is not identified by a serial number as required
by" Chapter 53 of the Internal Revenue Code.6 By its terms
§ 5861(i) plainly does not require the government to prove that the
firearm is one for which a serial number would be granted. Neither
do judicial decisions applying § 5861(i) indicate that the
government is required to prove that a serial number would be
issued for the weapon in question. See, e.g., United States v.
Stout, 667 F.2d 1347, 1353 (11th Cir. 1982) (holding that "the
government . . . undeniably bore its burden as to the essential
elements of 26 U.S.C. § 5861(i)" where the evidence showed that
"the silencers, made by defendants and in defendants' possession at
5
See also U.S. Fifth Circuit District Judges Association,
Pattern Jury Instructions, Instr. 2.87 (West 1990), the pattern
jury instruction for § 5861(d). That instruction requires the jury
to find that the defendant possessed an unregistered firearm. See
id. It does not require a finding that the firearm could have
been registered. See id.
6
26 U.S.C. § 5861(i); see id. § 5842 ("Any firearm
classified as a destructive device [such as a pipe bomb] shall be
identified in such manner as the Secretary may by regulations
prescribe."); 27 C.F.R. § 179.102 (stating that firearms shall be
identified by serial number, provided that the Secretary may
approve other means of identification for destructive devices, upon
application).
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the time of their arrest, were not stamped with any identifying
markings").
26 U.S.C. § 5861(e) makes it an offense to transfer a firearm
in violation of the provisions of" Chapter 53 of the Internal
Revenue Code. In United States v. Garrett, 583 F.2d 1381 (5th Cir.
1978), we held that a violation of § 5861(e) was established where
a firearm was transferred either (1) without the payment of the
transfer tax required by 26 U.S.C. § 5811, or (2) without the
filing of a transfer application in conformity with 26 U.S.C.
§ 5812. See id. at 1388. We did not interpret § 5861(e) to
require a showing that the weapon in question could have been
registered or issued a serial number.
In summary, we are not aware of any cases which hold that
registrability is an essential element of any of the offenses of
which Thomas was convicted. Neither does Thomas offer any
authority for his claim that the government was required to prove
registrability. Thomas merely states that "his conviction is based
on insufficient evidence as to the issue of whether the devices in
question are in fact registerable, [and] as United States v.
Daniels, [973 F.2d 272 (4th Cir. 1992), cert. denied, ___ U.S. ___,
113 S. Ct. 1064, 122 L. Ed. 2d 369 (1993)] points out, this is an
essential element of the offense of which he was charged."
Contrary to this assertion, Daniels provides no support for the
proposition that the government must prove that pipe bombs are
registerable with the ATF to convict a defendant for their
possession and transfer. Daniels holds that the essential elements
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of a violation of 26 U.S.C. § 5861(e) are (1) the knowing transfer;
(2) of a firearm; (3) in violation of the provisions of Chapter 53
of Title 26. Id. at 275. Daniels does not address the
registration and serial number requirements at issue here, and
certainly does not hold that registrability is an essential element
of any of the offenses of which Thomas was convicted. We therefore
are not persuaded that registrability is an essential element of
any of the offenses of which Thomas was convicted, and his
sufficiency argument fails.
III
For the foregoing reasons, we AFFIRM.
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