United States v. Ardoin

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 93-4272
_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

WENDELL ARDOIN,

Defendant-Appellant.

_________________________

Appeals from the United States District Court
for the Western District of Louisiana
_________________________
(April 6, 1994)

Before VAN GRAAFEILAND,* SMITH, and WIENER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Wendell Ardoin appeals his conviction of possessing, manu-

facturing, failing to register, and failing to pay taxes on

illegal machineguns. Ardoin argues that the statute under which

he was charged, requiring registration and payment of taxes, was

implicitly repealed by a statute declaring machineguns manufac-

tured after 1986 ("post-1986 machineguns") illegal. He also

claims that the statute prohibiting "making" of firearms is

*
Circuit Judge of the Second Circuit, sitting by designation.
unconstitutionally vague. Furthermore, he challenges the dis-

trict court's refusal to grant a new trial based upon new evi-

dence and his sentence under the Sentencing Guidelines (the

"Guidelines"). We conclude that the statute under which Ardoin

was convicted was not implicitly repealed and is not unconstitu-

tionally vague, and we affirm his conviction and sentence.

I.

A.

Ardoin is an avid gun collector and dealer. He is a member

of the local sheriff's and police department reserves. In 1989,

he became a gun dealer and obtained a Class I gun license by

filing the appropriate forms with the Bureau of Alcohol, Tobacco,

and Firearms ("ATF"). He then filed a Form 11 with ATF to obtain

his Class III license to buy and sell machineguns.

In 1989, Ardoin also became a Colt distributor for law

enforcement agencies. As a distributor, he was able to sell to

law enforcement agencies any class of weapons, including

machineguns, as long as he maintained his Class III license.1

Ardoin also purchased Colt semi-automatic weapons from the Welsh,

Louisiana, Police Department in exchange for supplying the

department with free equipment and/or weapons. Furthermore, he

obtained four automatic weapons from the Baton Rouge Police

Department on behalf of the Welsh Police Department's chief.

1
The government contends that Ardoin allowed his Class III license to
lapse in June 1989. His partnership reapplied for a Class III license in
August 1989; the application was approved on October 27, 1989.

2
 The semi-automatic weapons purchased through the Welsh

Police Department did not require the filing of forms with ATF or

the payment of transfer tax, as they were not automatic weapons.

The Baton Rouge weapons, however, were automatic, and Ardoin

filed a Form 10 with ATF. Form 10 is used to register weapons to

a particular law enforcement agency and to obtain a tax-exempt

status on the transfer. After filing the forms, Ardoin obtained

the machineguns through the Welsh Police Department.

Also in 1989, Ardoin's partner, Michael Hebert, converted

some semi-automatic weapons to automatic guns for the use of

local police and sheriff's departments. Before converting the

weapons, Ardoin filed a Form 10 with ATF for each weapon.

B.

On November 6, 1991, Ardoin was indicted on fourteen counts

of conspiracy to violate the National Firearms Act ("NFA"),

26 U.S.C. §§ 5861(d), (e), and (l) and 7201, making of

machineguns without having filed a written application or paying

the making tax (in violation of §§ 5861(f) and 5871), evading the

payment of taxes (in violation of § 7201), engaging in the

business as a dealer without having paid the special occupational

tax (in violation of §§ 5861(a) and 5871), making false entries

on applications for tax-exempt transfers and registrations (in

violation of §§ 5861(l) and 5811), and possession of unregistered

firearms (in violation of §§ 5861(d) and 5871. At trial, the

government contended that the various weapons were in the

3
physical possession of Ardoin's partnership, Bayou State Armory,

not the local police departments. Therefore, Ardoin should have

filed a Form 1 instead of a Form 10 and should have paid a making

tax. Ardoin responded that the Welsh Police Department had

authorized him to receive the weapons and that he was a

commissioned officer acting on the department's behalf.

Furthermore, ATF had sent out a circular stating that it would no

longer accept Form 1's and that the guns were tax-exempt, since

they were made for a government agency. Ardoin was unable to

obtain a copy of the ATF circular, and ATF agent Paul Rash

testified that no such circular existed.

A jury found Ardoin guilty on all twelve counts.2 He moved

for a new trial after obtaining a copy of the ATF circular. The

motion for new trial was denied. The sentencing court adopted

the factual findings contained in the presentence investigation

report ("PSR"), which recommended a range of forty-six to fifty-

seven months' imprisonment. Ardoin was sentenced to forty-six

months on each of the twelve counts, to run concurrently.

II.

This case presents a novel constitutional issue in this

circuit: whether § 102(9) of the Firearms Owners' Protection Act

of 1986 ("FOPA"), 18 U.S.C. § 922(o), which amended the Gun

Control Act of 1968 by making possession of machineguns illegal,

2
The 14-count indictment was amended prior to trial by dismissing two
of the counts.

4
implicitly repealed portions of the NFA. We review such legal

questions de novo. United States v. Guajardo, 950 F.2d 203, 206

(5th Cir. 1991), cert. denied, 112 S. Ct. 1773 (1992).

Ardoin argues that 26 U.S.C. §§ 5821, 5861(d), (e), (f),

(l), 5871, and 5845 are unconstitutional because they were

originally based upon Congress's taxing power.3 He reasons that

since individuals may not possess machineguns manufactured after

May 19, 1986, and ATF refuses to accept applications to register

or to pay the tax on such weapons, the constitutional authority

for provisions of the NFA dealing with the registration and

taxing of post-1986 machineguns is gone. Consequently, criminal

liability imposed under the NFA for failure to comply with these

provisions has also been repealed.

Ardoin cites United States v. Rock Island Armory,

773 F. Supp. 117 (C.D. Ill. 1991), and United States v. Dalton,

960 F.2d 121 (10th Cir. 1992), as authority for this position.

In Rock Island Armory, the court held portions of the NFA to have

been implicitly repealed by the FOPA.

Two bases exist for declaring the portions of the NFA

pertaining to post-1986 machineguns to have been implicitly

repealed. First, the fact that ATF no longer collects taxes or

accepts registration forms for such weapons makes compliance with

3
The one case in this circuit to consider the basis for the NFA is
United States v. Parker, 960 F.2d 498 (5th Cir. 1992), in which we noted that
§ 5861(d) "`is part of the web of regulation aiding enforcement of the
transfer tax provision in [26 U.S.C.] section 5811' and `the constitutional
bedrock for the statute' is `the power to tax' rather than `the commerce
power.'" Id. (quoting United States v. Ross, 458 F.2d 1144, 1145 & n.3 (5th
Cir.), cert. denied, 409 U.S. 868 (1972)).

5
§ 5861(d) impossible. Second, and more importantly in the Rock

Island Armory court's view, the refusal to tax these weapons

undercuts the constitutional basis of registration, since the NFA

was originally upheld under Congress's power to tax. The Tenth

Circuit adopts this view in Dalton.

The government cites United States v. Jones, 976 F.2d 176

(4th Cir. 1992), cert. denied, 113 S. Ct. 2351 (1993), to rebut

these two arguments. The court held in Jones that in the absence

of an affirmative showing of an intention to repeal a statute,

the only permissible justification for repeal by implication is

when the earlier and later statutes are irreconcilable. Id. at

183 (quoting Morton v. Mancari, 417 U.S. 535, 550 (1974)).

But 18 U.S.C. § 922(o), prohibiting post-1986 machineguns,

can be reconciled with § 5861. Citing Minor v. United States,

396 U.S. 87, 96-97 (1969), for the proposition that Congress can

tax illegal conduct such as the sale of narcotics, the court

concluded that the prohibition of post-1986 machineguns does not

mean that Congress cannot tax them. Although it is illegal to

possess or manufacture these weapons, one illegally doing so

would be required to register them with ATF and pay taxes on

them. And if ATF refuses to allow registration or the payment of

taxes, one can comply with § 5861(d) by not violating § 922(o),

i.e., by not possessing or manufacturing any post-1986

machineguns. Jones, 976 F.2d at 183 (citing Minor).4 Thus, the

4
As we have recently stated, "it is true that a transferee may be
prosecuted for possessing an unregistered firearm even though he himself
cannot comply with the registration requirement." United States v.

6
Jones court rejected the Tenth Circuit's view that compliance

with § 5861 was impossible and therefore that the statute was

implicitly repealed.

Jones dealt with the taxing authority argument in two ways.

First, ATF has the authority to tax now-illegal machineguns.

Although it chooses not to allow tax payments or registration, it

still has the authority to do so. Thus, the basis for ATF's

authority to regulate )) the taxing power )) still exists; it is

merely not exercised. Second, the court noted that although the

NFA was originally upheld under Congress's taxing power, no one

could seriously contend that the regulation of machineguns could

not also be upheld under Congress's power to regulate interstate

commerce.5

We adopt the analysis of the Fourth Circuit. The NFA can be

upheld on the preserved, but unused, power to tax or on the power

to regulate interstate commerce. Since the provisions of the NFA

can be reconciled with the FOPA, the doctrine of implicit repeal

must be rejected.

Ridlehuber, 11 F.3d 516, 526 (5th Cir. 1993) (citing United States v. Bright,
471 F.2d 723, 726 (5th Cir.), cert. denied, 412 U.S. 921 (1973); United States
v. Sedigh, 658 F.2d 1010, 1012 (5th Cir. Unit A Oct. 1981), cert. denied, 455
U.S. 921 (1982)). But this result does not offend due process, because "[t]he
requirement that a transferee must refuse to accept possession of an
unregistered firearm is rationally designed to aid in the collection of taxes
imposed by other provisions of the [NFA]." Id. at 527 (citation omitted).
The same is true for someone possessing an illegal post-1986 machinegun:
Ardoin should have refused the transfer. The fact that ATF does not accept
the registration of such weapons does not offend due process.
5
Of course, as we have recently noted, Congress's power to regulate
firearms under the Commerce Clause is not unlimited. See United States v.
Lopez, 2 F.3d 1342 (5th Cir. 1993), petition for cert. filed, 62 U.S.L.W. 3645
(U.S. Feb. 2, 1994) (No. 93-1260).

7
 III.

Ardoin next challenges the constitutionality of his

conviction for "making" a firearm, as the Supreme Court has

recently held that the term "making" is ambiguous. We review

this legal issue de novo. Guajardo, 950 F.2d at 206.

In United States v. Thompson/Center Arms Co., 112 S. Ct.

2102 (1992), the Court recently considered the meaning of the

term "make" as used in the NFA. In Thompson/Center, the

defendant manufactured a single shot pistol. Included with the

gun, however, was a conversion kit that allowed the purchaser to

convert the gun into a short-barreled rifle, a gun regulated by

ATF. The defendant paid the "maker" tax but sued ATF for a

refund. The Court held that the term "maker" in 26 U.S.C.

§§ 5821 and 5845 was ambiguous as applied to unassembled parts,

as there was only the possibility of their being assembled into a

regulated firearm.

The holding of Thompson/Center, however, is applicable only

to unassembled parts. The statute is not ambiguous with respect

to fully assembled machineguns. Ardoin argues that in a criminal

proceeding the "rule of lenity" should apply. But the

Thompson/Center Court would only hold the term "making"

unconstitutionally vague as applied to unassembled machineguns.

Ardoin manufactured fully assembled machineguns and should have

known that such production was "making" under the statute. He

cannot take advantage of an ambiguity with respect to some other

fact situation.

8
 Ardoin's main complaint seems to be that he was

manufacturing these weapons for law enforcement agencies, and

therefore he should have been exempt from the taxing laws. But

that issue was tried before a jury. And although Ardoin makes

reference to this argument, he never specifically appeals the

jury's factual finding or the verdict. We find, therefore, that

the statute was not unconstitutionally ambiguous with respect to

the making of fully assembled post-1986 machineguns.

IV.

Ardoin argues that the ATF circular, which informed gun

dealers that ATF would no longer accept Form 1's, represents new

evidence requiring a new trial. To obtain a new trial based upon

new evidence, a defendant must show that (1) the evidence was

newly discovered and unknown to the defendant at the time of the

trial; (2) failure to detect the evidence was not a result of

lack of due diligence by the defendant; (3) the evidence is

material, not merely cumulative or impeaching; and (4) the

evidence will probably produce an acquittal. United States v.

Peña, 949 F.2d 751 (5th Cir. 1991). If any one factor is not

satisfied, the motion for new trial should be denied. United

States v. Lopez-Escobar, 920 F.2d 1241 (5th Cir. 1991). We

review the denial of such a motion for abuse of discretion.

United States v. Adi, 759 F.2d 404 (5th Cir. 1985).

The ATF circular fails to meet several components of the

test. First, Ardoin knew about its existence but could not

9
produce it at trial. He filed no subpoena for the document,

indicating a certain lack of diligence. The district court

therefore determined that the evidence was not "newly discovered"

within the meaning of FED. R. CRIM. P. 33. Second, if we hold

that the impossibility of complying with a statute does not

render it unconstitutional, the circular was not particularly

useful to Ardoin and would not "probably" produce an acquittal.

Ardoin still could be convicted of failing to comply with the

registration and taxation requirements, as he could have complied

by not manufacturing the illegal weapons. Procedurally, a motion

for new trial is disfavored; the discovery of the circular does

not warrant a new trial.

V.

Ardoin challenges his sentence imposed under the Guidelines

because he was not granted a downward departure for his community

service, employment record, lack of criminal record, and

potential for victimization. We review the findings of fact

under the "clearly erroneous" standard, but legal application of

the Guidelines is reviewed de novo. United States v. Barbontin,

907 F.2d 1494 (5th Cir. 1990).

Any departure from the Guidelines must be supported by

adequate reasons that justify the departure "in terms of the

policies underlying the sentencing guidelines" and must be

reasonable. United States v. Buenrostro, 868 F.2d 135 (5th Cir.

1989), cert. denied, 495 U.S. 923 (1990). The Guidelines

10
specifically reject first-time offender status as a ground for

downward departure. First-time offenders are assigned criminal

history category I, which adequately reflects the level of

recidivism. U.S.S.G. § 4A1.3. Sections 5H1.5 and 5H1.6 also

specifically reject community service and employment record as

grounds for departure. Moreover, there is no authority in this

circuit for departing based upon the potential for victimization.

Ardoin argues that these factors are not ordinarily considered,

but in his case they ought to be.

We conclude that the district court considered all relevant

factors and sentenced Ardoin to the lowest sentence within the

range. The failure to depart downward was not in error.

AFFIRMED.

11
WIENER, Circuit Judge, dissenting in part, concurring in part, and
dissenting in the result:

Over a half-century ago, in 1934, Congress held hearings to

determine whether it had the authority to regulate the manufacture,

transfer, and possession of machine guns.6 As these hearings pre-

dated the vast New Deal enlargement of Congress' power under the

Commerce Clause, then Attorney General Homer S. Cummings correctly

explained to the gathered congressmen that Congress could not

simply ban machine guns because it had "no inherent police power to

[make law concerning] local crime."7 Only through Congress' power

to tax, explained Cummings, could machine guns be regulated.8 Thus

was born the National Firearms Act of 1934 (NFA), which imposed a

tax on the manufacture and transfer of machine guns pursuant to

Congress' power to raise revenue. Indeed, when the

constitutionality of the NFA was attacked, its validity was upheld

by the Supreme Court "precisely because the National Firearms Act

was a revenue measure only and did not purport to exercise any

general criminal power not delegated to Congress by the

Constitution."9

Despite its subsequent acquisition of virtually unbounded

6
National Firearms Act of 1934: Hearings Before the House
Committee on Ways and Means, 73rd Cong., 2d Sess. 6 (1934).
7
Id. at 8.
8
Id.
9
United States v. Rock Island Armory, Inc., 773 F. Supp. 117, 121
(C.D. Ill. 1991) (emphasis added) (citing Sonzinsky v. United
States, 300 U.S. 506, 57 S. Ct. 554, 81 L. Ed. 772 (1937), aff'g
86 F.2d 486 (7th Cir. 1936)).

1
power under the post-New Deal Commerce Clause, Congress waited over

five decades following its 1934 adoption of the NFA before banning

citizens' possession of machine guns altogether. Section 922(o) of

the Firearm Owners' Protection Act10 (FOPA) prohibits a private

citizen from possessing or transferring a machine gun that was not

made and registered before May 19, 1986, unless such transfer or

possession is authorized by federal or state governments or their

departments or agencies.11

Since the enactment of FOPA, the Bureau of Alcohol, Tobacco

and Firearms (BATF) "has refused to approve any application to

make, transfer, and pay the $200 tax on any machine gun made after

May 19, 1986."12 Yet the BATF continues to arrest and convict

citizens like Ardoin under the NFA for not registering and paying

taxes on their machine guns))even though it is legally impossible

for them to do so.13 Because I do not believe that a statute which

was enacted to tax a legal activity can legitimately be mutated

into a statute that criminalizes that very same activity, and

because I believe that convicting citizens for violating laws with

which they cannot possibly comply is fundamentally unfair, I

10
Firearms Owners' Protection Act of 1986, 18 U.S.C. § 922(o).
11
Rock Island Armory, 773 F. Supp. at 119 (interpreting the
FOPA).
12
Id.
13
Neither the BATF nor the majority indicates why the BATF
continues to prosecute citizens under the NFA for mere possession
of machine guns when Congress has enacted section 922(o) of FOPA
for that very purpose and when the relevant NFA provisions were
enacted not to ban machine guns, but expressly to collect taxes
from firearm-owning citizens.

2
respectfully dissent.

I hasten to add, however, that I do concur in some important

pronouncements of the majority opinion. Specifically, I agree that

the words "make" and "maker," found in the NFA, are not

unconstitutionally vague as applied to this case: converting a

semi-automatic firearm to a fully-automatic weapon clearly

constitutes "making" a machine gun. Neither do I quarrel with the

trial court's ruling that the Sentencing Guidelines))rightly or

wrongly))do not ordinarily permit a reduction in sentence for

first-time offender status, community service, or a history of

gainful, socially-productive employment.

I cannot concur, though, in the majority's affirmance of

Ardoin's conviction under provisions of the NFA when those

provisions (1) have been totally eclipsed by section 922(o) of the

FOPA, and (2) cannot be complied with due to the refusal of the

government to permit compliance. I regret that the majority today

elects to join what I believe to be the legally inferior side of a

pre-existing circuit split on this issue. I fear that in so

choosing for this circuit, the majority rejects two persuasive

precedents (including one that sets forth the relevant history and

purpose of the NFA in exhaustive detail)14 in favor of embracing a

third precedent which essentially holds that because Congress could

re-enact the tax-based NFA as a Commerce Clause-based ban against

mere possession of machine guns, we should behave as though

14
United States v. Dalton, 960 F.2d 121 (10th Cir. 1992); Rock
Island Armory, 773 F. Supp. at 121 (discussing the legislative
and judicial history of the NFA).

3
Congress did so.15

In actuality, Ardoin advances three separate, alternative

attacks on the viability of sections 5821, 5845, 5861 (d), (e),

(f), and (l), and 5871 of the NFA: 1) these sections were

impliedly repealed by the enactment of section 922(o) of the FOPA,

2) the application of these sections to Ardoin's case violates due

process (i.e., is fundamentally unfair) because the law (and BATF

policy) makes compliance impossible, and 3) these sections))enacted

pursuant to Congress' power to tax))have been rendered nugatory by

the government's refusal to administer or enforce them to raise any

revenue whatsoever.

1. Implied Repeal of Sections of the National Firearms Act

The majority correctly notes that an earlier statute may be

implicitly repealed through the enactment of a later statute

when))and only when))the two statutes are irreconcilable.16 From my

vantage point, however, the efforts of the Fourth Circuit in United

States v. Jones17 and of the majority today clearly fail to

reconcile sections 5821, and 5861 (d), (e), and (f) of the NFA with

section 922(o) of the FOPA.

Until the enactment of section 922(o) of the FOPA, a citizen

could legally make, transfer, or possess a machine gun, as long as

he complied with the relevant registration and tax provisions of

15
United States v. Jones, 976 F.2d 176, 184 (4th Cir. 1992).
16
Morton v. Mancari, 417 U.S. 535, 549-51, 94 S. Ct. 2474, 41 L.
Ed. 2d 290 (1974).
17
976 F.2d 176.

4
the NFA. Simply put, since 1934 the NFA has said to such a

citizen, "You may manufacture, transfer, or possess a machine gun

if))but only if))you register and pay taxes on it." Then along came

section 922(o) of the FOPA))some fifty-two years later))and declared

to that same citizen, "You may not manufacture, possess, or

transfer machine guns))period." What sense does the NFA make now?

The BATF operates as though Congress has passed two separate laws

each criminalizing the mere possession of machine guns, leaving the

BATF with the discretion to prosecute citizens' possession under

either statute (or both). But that is not))and cannot be))the case.

There is no evidence that Congress ever adverted to the effect

that the enactment of section 922(o) would have on related

provisions of the NFA. But undeniably the enactment of section

922(o) did affect the NFA))enormously. Because the NFA forbids the

BATF to register and accept taxes for illegal firearms,18 the

enactment of section 922(o)))which basically made the mere

possession of machine guns by private citizens illegal))rendered

the extensive registration and tax provisions of the NFA

essentially meaningless. Indeed, the NFA's regulation of machine

gun-ownership by private citizens was made instantly obsolete by

the advent of the FOPA. There is no longer any place for those

provisions in the present legislative scheme for regulation of most

18
See The National Firearms Act of 1934, 26 U.S.C. §§ 5812, 5822
(applications to register the transfer, making, or possession of
firearms shall be denied if the transfer, making, or possession
would be illegal) (emphasis added); 27 C.F.R. § 179.105.

5
prospective machine gun-owners. Their vestigial existence on the

statute books analogizes perfectly to the human appendix: no

useful function whatsoever, but unlimited potential for insidious

mischief.

Moreover, section 922(o) reflects Congress' judgment

concerning the correct statutory formulation and the appropriate

level of punishment for mere possession of a machine gun. Thus, if

we uphold the continued application of the NFA to citizens who

transfer, make, and possess machine guns))even though the NFA no

longer serves any revenue-raising purpose))we are altering that

congressional judgment. Why then does the BATF continue to

prosecute citizens under NFA solely for the possession of machine

guns, rather than resorting to section 922(o), which Congress

expressly designed for that purpose? Perhaps because the statutory

maximum fines for violating the NFA are greater than those provided

under the FOPA.19 More likely, BATF agents and prosecutors find it

easier to get convictions under the NFA, both because it appears to

have an easier mens rea requirement,20 and because the laundry list

19
A person who is convicted of violating any provision of the NFA
is "fined not more than $10,000, or be imprisoned not more than
ten years, or both." 26 U.S.C. § 5871. In contrast, a person
who is convicted of violating section 922(o) is fined not more
than $5,000 or imprisoned not more than 10 years, or both. 18
U.S.C. § 924(a)1(D) & (a)2.
20
A citizen may only be convicted for knowingly violating section
922(o). 18 U.S.C. § 924(a)(2). In contrast, a citizen may be
convicted under the NFA for "violat[ing] or fail[ing] to comply
with any provision." 26 U.S.C. § 5871.

6
of possible statutory violations is so very long.21 But Congress

clearly did not intend for its passage of the FOPA to transform the

preexisting NFA into a more severe ban against the simple

possession of machine guns, for such a mutation of the NFA makes

section 922(o) of the FOPA superfluous: what the BATF is supposed

to do under the FOPA can be done more easily (and with the

majority's blessing) under the "new," transmuted NFA, which has

been administratively (and now jurisprudentially) shorn of the

registration and taxation provisions that once were its whole

raison d'être.

The obsolescence of the NFA provisions at issue here is also

exposed by the fact that))although expressly enacted to raise

revenues from private citizens))those provisions no longer raise

any revenue from the possession, transfer, and making of machine

guns by private citizens. The suggestion that a tax measure can

somehow have continued vitality when it no longer taxes certainly

tests one's imagination. Although implied repeals are disfavored,

I firmly believe that the sections of the NFA at issue here are so

utterly irreconcilable with section 922(o) of the FOPA as a means

of regulating private ownership of machine guns that they were

impliedly repealed by FOPA's passage: with respect to the

regulation of machine guns, the latter has superseded and

supplanted the former.

21
Section 5861 of the NFA alone lists twelve separate acts that
constitute violations of the NFA. 26 U.S.C. § 5861.

7
2. Convicting Ardoin of Violating Applicable Sections of the
NFA Violates Due Process

Since the enactment of section 922(o), the BATF has))with few

exceptions))refused to register or to accept the $200 tax on any

machine gun made after May 19, 1986.22 In discussing Ardoin's

demand for a new trial based on his ultimate discovery of a BATF

circular which announced that the BATF would no longer register or

accept taxes on machine guns,23 the majority implies that Ardoin had

the burden of proving that the BATF no longer registers or accepts

taxes for machine guns. I respectfully disagree.

The BATF's refusal to register or accept taxes for machine

guns is not evinced solely in the BATF circular that Ardoin was

unable to locate until after his trial; such refusal is expressly

mandated by law. Sections 5812 and 5822 of the NFA state

categorically that applications to register the transfer or making

of firearms shall be denied if the transfer, making, or possession

of the firearm would be illegal.24 As the transfer, possession, and

making of machine guns by private citizens became illegal with the

adoption of section 922(o) of the FOPA, sections 5812 and 5822 of

the NFA clearly require the BATF to reject applications to register

22
United States v. Rock Island Armory, Inc., 773 F. Supp. 117,
119 (C.D. Ill. 1991); accord United States v. Dalton, 960 F.2d
121, 123 (10th Cir. 1992).
23
At trial the BATF consistently denied the existence of this
circular. Subsequent events have revealed that the BATF's denial
was incorrect if not duplicitous.
24
The National Firearms Act of 1934, 26 U.S.C. §§ 5812, 5822
(emphasis added).

8
the transfer or manufacture of machine guns.25 Additionally, 27

C.F.R. § 179.105 expressly restricts registration of machine guns

to those authorized for use by federal, state, or local government

entities.26 Finally, other courts have expressly found that the

BATF refuses to register or accept taxes for machine guns. I can

see no reason why we should not take judicial notice of this

recognition.27

I thus find it indisputable that since May 19, 1986, the BATF

has not, does not, and may not register or accept taxes for machine

guns. Ardoin, presumed innocent, did not have to prove this

assertion as part of his defense, for we know it to be the law. It

seems inescapable to me that a private citizen literally cannot

comply with the terms of sections 5821, 5845, 5861 (d), (e), (f),

and (l), and 5871 of the NFA no matter how sincerely he wants to

comply and how hard he tries to comply, because the enactment of

section 922(o) made compliance a legal impossibility. How then can

any court "reconcile" these two statutes?

Ardoin was convicted of violating the NFA. Specifically, he

was convicted))inter alia))of making a machine gun without having

filed an application to make and register the gun, of making a

machine gun without having paid the making tax, and of transferring

a machine gun without having filed an application to transfer the

25
Id.
26
Rock Island Armory, 773 F. Supp. at 119 (citing 27 C.F.R. §
179.105).
27
See, e.g., United States v. Dalton, 960 F.2d 121 (10th Cir.
1992); Rock Island Armory, 773 F. Supp. at 119.

9
weapon. But he could not have paid the machine gun tax, because

the BATF would not accept such payment. And filing applications,

even on the correct form (form 1 instead of form 10 which Ardoin

did try to use), would have been futile, because the BATF is

required to reject those applications. Ardoin is thus being

convicted of violating laws with which he could not have complied,

even had he performed the proverbial hollow act and))like

Luther))tacked his makeshift registration form and $200.00 to the

BATF's front door.

The majority offers two responses to Ardoin's dilemma:

(1) Congress has the authority to choose to tax an activity even

though such activity is illegal; and (2) Ardoin could have complied

with the application and tax provisions of the NFA simply "by not

possessing or manufacturing any post-1986 machineguns."28 Try as

I may, I cannot find either argument convincing.

The majority's assertion that Congress has the power to tax

illegal activities is correct, but in my opinion that assertion is

also irrelevant. The question here is not what Congress could have

done, but what it did. I agree that, as oxymoronic as it may

sound, Congress could devise a law))possibly by amending the

NFA))that would both make illegal and at the same time tax the

manufacture, transfer, and possession of machine guns: but

Congress simply did not do that. Instead, Congress adopted the

FOPA, which clearly has the effect of forbidding the government

from registering and collecting taxes on illegal firearms))the

28
See ante at 6.

10
exact opposite of affirmatively taxing an illegal activity.29 To

me, any discussion of what Congress could have done or might yet do

merely begs the question.

The majority's "just say no" response, like that of the Fourth

Circuit before it))in effect telling Ardoin that he could have

avoided violation of the NFA simply "by not possessing or

manufacturing any . . . machineguns"))is even more troublesome to

me. I keep asking myself "why is it that each time I revisit the

majority's response I am reminded of Marie Antoinette's advice to

'let them eat cake'?" Such casual, dismissive responses are just

not satisfactory when it comes to engaging in an activity, such as

keeping and bearing arms, that arguably implicates the Bill of

Rights.30

I do not dispute Congress' authority to make a law prohibiting

citizens from owning or possessing machine guns.31 And that is

precisely what Congress did when it enacted section 922(o) of the

FOPA. I do, however, question the fairness of continuing to

prosecute citizens like Ardoin for failing to register and pay

29
Again, see 26 U.S.C. §§ 5812, 5822; 27 C.F.R. § 179.105.
30
Statutes criminalizing the possession, transfer, and making of
machine guns are merely malum prohibitum laws. In contrast to
rape, murder, and robbery, such gun-related activities are not
inherently bad; they are only technically or artificially
illegal. Courts, however, must defer to Congress when it
legislates pursuant to its enumerated powers. Thus, had Ardoin
been properly indicted, prosecuted, and convicted under section
922(o) of the FOPA, I would not now be dissenting. But I simply
do not think that the NFA))which everyone concedes is a tax
law))can legitimately double as a per se prohibition against the
possession of machine guns.
31
Indeed, I would personally support well-conceived efforts to do
just that.

11
taxes on their machine guns now that the government does not allow

them to do so. Analogously, I acknowledge that since adoption of

the Sixteenth Amendment Congress has had the authority to

establish))as it has))a federal income tax. But I believe that it

would violate due process for the government to continue to arrest

citizens for failing to file returns and pay their federal income

taxes if Congress were to pass a law prohibiting the government

from accepting tax returns and tax payments. In other words, it is

not the government's ban on machine gun possession that here

violates due process; rather, it is the government's prosecution of

citizens like Ardoin for failure to register and pay taxes on their

machine guns))when the government refuses to accept registration

applications and tax-payments on such firearms))that strikes me as

violating due process.

I am compelled to reemphasize at this juncture that the

gravamen of the NFA violations at issue here is not mere possession

of an unregistered machine gun; it is the failure to register and

pay taxes on that machine gun.32 That is why section 922(o) was

enacted. If the NFA could double as a naked prohibition against

simple possession of an unregistered machine gun, section 922(o)

would have been wholly unnecessary. Yet today we allow the BATF to

ignore the NFA's registration and taxation provisions, thereby

transmuting the NFA into a second, and perhaps a more easily

enforced, criminal ban on the mere possession of machine guns.

I also regret that I have been singularly unsuccessful in

32
United States v. Dalton, 960 F.2d 121, 123 (10th Cir. 1992).

12
convincing my fellow panelists that the Supreme Court has rejected

the very reasoning upon which the majority opinion relies.33 In

Haynes v. United States, the government had arrested the defendant

under an earlier version of the NFA for possessing an unregistered

handgun.34 The government adopted the position approbated by the

majority today; namely, that the defendant's crime was the mere

possession of an unregistered firearm. The Supreme Court rejected

the government's postulate, recognizing that the criminally

proscribed act consisted of two elements: possession of a firearm,

coupled with the failure to register that firearm.35 The NFA's

registration requirement, stated the Court, "suggest[s] strongly

that the perimeter of the offense . . . is to be marked by the

terms of the registration requirement imposed."36 In other words,

failing to register a firearm is an essential constitutive element

of the substantive crime proscribed by the NFA))it is part of the

actus reus defined by the NFA.

According to the Supreme Court, then, citizens do not violate

the NFA solely by possessing unregistered machine guns: they must

actually fail to register those weapons. And it is apparent))at

least to me))that the failure to register and pay the tax on a

33
Dalton, 960 F.2d at 123 (referring to Haynes v. United States,
390 U.S. 85, 88 S. Ct. 722, 19 L. Ed. 2d 923 (1968)).

34
390 U.S. at 89.
35
Id. at 95.
36
Id. at 93; see also Dalton, 960 F.2d at 123 (for a more
detailed discussion of the Haynes opinion).

13
firearm cannot be a prosecutable criminal act when the government

refuses to accept the appropriate registration documents and tax

payments even though the applicable registration and tax payment

provisions remain "on the books." I find neither authority nor

mandate for us to rewrite the NFA to criminalize mere possession of

machine guns. Yet without such an act of judicial legislation, I

can see no way for us to sanction enforcement of the NFA as it

applies to ownership of machine guns manufactured after May 19,

1986. Convicting Ardoin of violating statutory provisions with

which the law prevents him from complying strikes me as offending

fundamental fairness and thus due process. "One simply cannot be

criminally liable for failing to do an act which [one] is . . .

incapable of performing." 37 For this reason, too, I believe that

Ardoin's conviction should be set aside.

3. Stripped of its Revenue-Raising Function, The NFA is Nugatory

As already noted, the NFA was passed in 1934 pursuant to

Congress' power to collect taxes.38 To remain legitimate, however,

a measure enacted under the tax power must raise some revenue.39

37
Dalton, 960 F.2d at 124 (quoting 1 W. LaFave & A. Scott, Jr.,
Substantive Criminal Law, § 3.3(c) at 291 (1986)).
38
Rock Island Armory, 773 F. Supp at 119-21 (citing National
Firearms Act: Hearings Before the House Comm. on Ways and Means,
73rd Cong., 2d Sess. 6-19 (1934).
39
See, e.g., United States v. Kahriger, 345 U.S. 22 (1953);
Sonzinsky v. United States, 300 U.S. 506, 514 (1937) (upholding
the constitutionality of the NFA because it was "productive of
some revenue"); Bailey v. Drexel, 249 U.S. 86 (1919) (holding the
Child Labor Tax Act unconstitutional because it was primarily a
penalty, not a tax); United States v. Dalton, 960 F.2d 121, 124-
25 (10th Cir. 1992); United States v. Rock Island Armory, Inc.,
773 F. Supp. 117, 119 (C.D. Ill. 1991).

14
As the BATF no longer registers or accepts tax payments for

privately-owned machine guns manufactured after May 19, 1986, the

NFA provisions at issue cannot possibly raise any revenues from

private citizens (unless criminal fines are considered revenues).

Such provisions have therefore ceased to be valid manifestations of

Congress' power to tax.40

Neither can the constitutionality of the NFA as applied to

citizens who possess, make, or transfer machine guns be rescued by

incanting))as did the Fourth Circuit in Jones41))that the Act

"could" be upheld under Congress' power to regulate interstate

commerce. I am convinced that the Act could only be upheld under

the Commerce Clause if the Act were expressly adopted (or now re-

adopted) by Congress under that clause. The undeniable fact

remains, though, that Congress did not enact the NFA under the

Commerce Clause and has not seen fit to re-enact it under that

clause in all the decades that have ensued since the NFA's original

enactment under Congress' power to tax. Indeed, in 1934, Congress'

enactment of the NFA under its commerce power would almost

certainly have been declared unconstitutional. Arguably, because

the power and scope of any act of Congress depends on the

enumerated power under which it is passed, a hypothetical NFA

enacted under Congress' commerce power would be an entirely

different act: an act that Congress never voted on))an act that

40
Dalton, 960 F.2d at 124-25; Rock Island Armory, Inc., 773 F.
Supp. at 119.
41
976 F.2d 176, 184 (4th Cir. 1992).

15
might never have passed.

In this same vein, the majority's willingness to uphold the

NFA under the Commerce Clause gives me separation of powers

concerns. Under classical constitutional theory, the legislature

must state))as part of its legislation))the particular power that

authorizes it to enact the law in question. Judges should not be

in the business of re-writing legislation by upholding laws on the

basis of enumerated powers that are different from the ones invoked

by Congress.

I am of course aware that today the enumerated-power test of

a federal statute's validity is whether "the Congress might

reasonably find that the act relates to one of the federal

powers."42 But))in my opinion))that maxim only applies to acts that

are silent as to their sources of authority. In this case, there

is no such silence; we know that Congress expressly passed the NFA

pursuant to its power to tax and has allowed it to remain thus

grounded for nearly sixty years. I have seen no evidence that

Congress now intends to augment the power and scope of that act by

imbuing it with the authority of the modern Commerce Clause.

Moreover, it seems clear to me that if we approve this

transformation, we become a party, at least by complicity, to what

amounts to executive legislation: it is the Department of the

Treasury's BATF))an arm of the Executive branch))that advances this

42
John E. Nowak & Ronald D. Rotunda, Constitutional Law § 3.3
(West Publishing 1991).

16
interpretation; Congress remains mute.43 With the NFA stripped of

its revenue-raising function, I would void Ardoin's conviction on

this ground as well.

For all of the foregoing reasons, I respectfully but earnestly

DISSENT.

43
When the registration requirement is severed from the NFA a new
substantive crime is created))a law that originally required
registration of firearms is mutated into a law that proscribes
possession of firearms. See Haynes v. United States, 390 U.S.
85, 88 S. Ct. 722, 19 L. Ed. 2d 923 (1968) (holding that failure
to register a machine gun is part of the substantive crime
defined by the NFA). The BATF is therefore currently enforcing a
different NFA than the one that was actually passed by Congress.

17