Cite as U.S. v. Jacques, actual, unedited transcript of Court decision, No. 51375 (W.D.Wa. September 27, 1968) Filed March 15, 1971 IN THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF WASHINGTON NORTHERN DIVISION UNITED STATES OF AMERICA, Plaintiff, vs. No. 51375 HERBERT ENGLAND JACQUES, Defendant. Transcript of proceedings had in the within-entitled and numbered cause, commencing at 9:30 a.m., September 27, 1968 before the Honorable WILLIAM J. LINDBERG, a United States District Judge, at Seattle, Washington. A P P E A R A N C E S JOHN DARRAH, Assistant United States Attorney, Western District of Washington, 10th Floor, United States Courthouse, Seattle, Washington, appeared for and on behalf of the plaintiff, and MURRAY GUTERSON, 812 Hoge Building, Seattle, Washington, appeared for and on behalf of the defendant. Trial proceedings having previously been had, testimony and other evidence having been offered, arguments having been made by and on behalf of respective counsel, the following proceedings were had: P R O C E E D I N G S THE COURT: Cause Number 51375, United States versus Jacques. The matter before the court for decision this time is defendant's motion for return of property seized as a result of an illegal search, the property being four F.A.L. Browning rifles, referred to here by the government as "machine guns." 26 U.S.C. 5862 provides that any "firearm" involved in any violation of the provisions of the National Firearms Act is subject to seizure and forfeiture under the applicable provisions of the Internal Revenue Laws. 26 U.S.C. 7301 through 7344. The issue for decision is whether the particular Browning rifles are "firearms" illegally possessed under the provisions of 126 U.S.C. 5841 through 5862. A "firearm" as defined under the National Firearms Act is not contraband merely because it meets the definition of "firearms" as set forth in that act. The Act prescribes very heavy taxes on the manufacture of such weapons in this country and on the transfer of such weapons. It also proscribes the import of such weapons without special permits, and requires the use of special forms for transfer of such weapons, and requires the possessors of such weapons to register such possession. When any of these procedures are not complied with, the weapon becomes contraband. It is unnecessary to review all these provisions with respect to this case because by stipulation of the parties I understand the only dispute relates to whether the rifles are in fact firearms as that term is used in the statute. The question is a mixed question of law and fact. It is evident from the testimony that these rifles, when seized, were not in condition to deliver automatic fire. However, the basic rifle was originally designed to shoot, automatically, more than one shot, without manual reloading, by a single function of the trigger, although the particular FN-FAL rifles were manufactured by Browning without the automatic sear normally found on the basic rifle and also have selector switches and trigger plungers of a slightly different design from that on the basic rifle. As a result they are unable to deliver full automatic fire as presently constituted. If the automatic sear is installed in one of these rifles, it still cannot be fired automatically, since the design of the modified trigger plunger and modified selector switch prevents automatic fire. However, if a small shim of thin metal or heavy paper is placed at the proper point in the trigger mechanism any of these rifles, with the automatic sear in place, will deliver full automatic fire. The installation of an automatic sear on any of the rifles and the insertion of the shim can be accomplished in a minute or two with the help of a screwdriver and knowledge of the mechanism. The part known as the automatic sear, which must be in place before any of these rifles can be made to fire automatically, is available from various mail order sources. The question before the court is thus whether on these clear facts the FN-FAL rifles involved here are "machine guns" within the meaning of that term as defined in 26 U.S.C. 5848(2). When the Browning Arms Co. first proposed to import FN-FAL rifles without automatic sears into this country for sale to civilians, they sought a ruling from the Internal Revenue Service as to whether the rifles were or were not machine guns. The Revenue Service informed Browning that they were not machine guns. Two years later, after a number of the guns had been imported into the U.S., the IRS reversed itself, and informed Browning that it now considered the guns to be machine guns, and that any further imports must be treated as machine guns. However, it informed Browning that it would not prosecute regarding any guns imported before the date of its letter informing Browning as to its change of position. The defendant argues that this series of administrative actions gives him a right to have these guns treated as something other than machine guns. However, the decision of the IRS not to prosecute with respect to guns imported before the date of its later letter is a matter of executive grace, and the defendant cannot rely on it. Coming to the definition of machine gun, Title 26 U.S.C. 5848(2) defines a machine gun as follows: "The term 'machine gun' means any weapon which shoos, or is designed to shoot, automatically or semi-automatically, more than one shot, without manual reloading, by a single function of the trigger." Under this definition, an ordinary military machine gun would not fit the definition unless it was equipped with a supply of ammunition and a clip, magazine or belt, or some other required device as needed to feed successive rounds of ammunition into the gun. In this, the definition is significantly different from that of a "rifle" under the Act, which is defined in 26 U.S.C. 5848(3) as a weapon designed to use the energy of the explosive in a fixed metallic cartridge to fire only a single projectile through a rifled bore. This definition recognizes the rifle as something apart from its ammunition, whereas the definition of "machine gun" makes no such distinction. However, few would argue that a Thompson submachine gun, complete except for a supply of ammunition, was intended by Congress to fall outside the definition of "machine gun" under the act. In this case, I think it is fair to characterize the weapons before the court as machine guns with enough parts missing to render them inoperative as machine guns. The cases cited by defendant to the Court, it is argued, support the view that these rifles are not machine guns under the National Firearms Act. Referring to these cases first, in United States v. Thompson, 202 F.Supp. 503 (W.D.Calif. 1962), a sawed off shotgun which lacked a firing pin was not a "shotgun" under the Act, since, being incapable of fire in its present condition, it did not fit the statutory definition of being "designed and made to use the energy of the explosive in a fixed shotgun shell to fire through a smooth bore." Without a firing pin, the weapon could not be fired, and thus did not fit the definition. In United States v. Cosey, 244 F.Supp. 100 (E.D.La. 1965), a similar situation was distinguished where there was evidence that the shotgun could be made to fire by the insertion, in a matter of seconds, of a common nail into the place where the firing pin would normally be. The court said, "The temporarily inoperable instrument can thus with a minimum effort, time and ingenuity be made to fire a shotgun shell. We feel that the purpose of the statute would be frustrated or defeated if we accepted defendant's contention that in the absence of the firing pin, a shotgun is not a firearm under the statute." The court did not need to find fault with the Thompson decision, which is to the effect that the absence of a necessary part renders what would otherwise be a firearm into a non-firearm, because in Cosey the missing part could be picked up anywhere. Finally, in the case of United States v. Kokin, Crim. No. 168- 64 D.N.J. Sep. 28, 1965, aff'd 365 F.2d 595 (3d Cir. 1966), in response to a letter ordering an M-1 carbine and stock and an itemized list of M-2 parts, the defendant sent the requested items to a government agent. The parts were exactly those needed in order to assemble a working M-2 carbine, which is a machine gun. The district court ruled that the defendant had not transferred a machine gun, and found the defendant innocent on this count. Under another count, however, the defendant sold the same set of parts to a government agent who requested an M-1 carbine together with all the parts needed to convert it to an M-2. Since in this case the defendant knew the parts were going to be used in the manufacture of an M-2, the court ruled that he had transferred a machine gun. The Court of Appeals affirmed this conviction. In United States v. Lauchli, 371 F.2d 303 (7 Cir. 1966) the defendant transferred 109 Thompson submachine guns and Browning machine guns to a government agent. The guns were not assembled but the defendant assembled seven of them at random and test-fired them before delivering them to the agent. The court ruled that in these circumstances the defendant had transferred 109 machine guns. None of these cases would dispose of the issues on this motion, unless the Thompson case is taken to be controlling. Coming then to the issue here, it is my decision that the rifles, having been designed as fully automatic weapons, are basically machine guns under the statutory definition. Accepting the testimony of the government expert, Harold Earl Johnson, who seemed to be extremely well informed, while not now equipped to fire fully automatically, may be readily and easily converted, and I cannot find that the Internal Revenue Service interpretation is erroneous. It is my finding that the rifles are thus contraband and a firearm as described in the statute, and should be forfeited. I might say, incidentally, that the Washington state statute could render the whole question academic, although I have not based my ruling on it. As you may know, R.C.W. 9.41.200 defines a machine gun-as: "Any firearm or weapon known as a machine gun . . . not requiring that the trigger be pressed for each shot and having a reservoir clip . . . or other separable mechanical device for storing, carrying, or supplying ammunition which can be loaded into such weapon . . . and fired therefrom at the rate of five or more shots per second." I do not recall that there was any testimony in the hearing of this matter that this type of machine gun -- that is, that this type of rifle was capable of firing more than 600 rounds per minute or 10 rounds per second. However, I believe that the testimony, as I recall it, would have that capability. However, the Court can take judicial notice also of the fact that R.C.W. 9.41.220 states that: "All machine guns, or parts thereof, illegally held or possessed are hereby declared to be contraband, and it shall be the duty of all peace officers . . . " And this, I suppose may be beyond the powers of the Washington Legislature, but it states that: ". . . it shall be the duty of all peace officers and/or any officer or member of the Armed Forces of the United States or the State of Washington to seize said machine gun, or parts thereof, wherever and whenever found.: Also, Section 9.41.190 provides that: "That it shall be unlawful for any person to . . . own . . . or have in possession, or under control, any machine gun, or any part thereof capable of use or assembling or repairing any machine gun: Provided, however, that such limitation shall not apply to any peace officer in the discharge of official duty, or to any officer or member of the Armed Forces of the United States or the state of Washington." I just call attention to that. I have not determined whether or not those sections of the statute have ever been relied upon or whether they are constitutional, but I make that reference as an aside. It may or may not have any bearing on the case. In any event, I find there should be forfeiture. MR. DARRAH: Thank you, your Honor. Your Honor, at this time, I would pass up to you an order dismissing the Indictment in this matter which has been approved by Mr. Guterson, reciting the fact that the order suppressing the evidence was made, and also that the government elected not to go forward on the one remaining count. MR. GUTERSON: I have approved that, your, Honor, but I would ask the Court, after the wording in the order where it says that the Indictment should be dismissed, that the court insert the words "with prejudice." MR. DARRAH: We would certainly agree to that. MR. GUTERSON: Mr. Darrah agreed there would be no contemplation of an appeal on the criminal end of it. THE COURT: I don't know what type of order you need for the forfeiture. Do you anticipate an appeal? MR. GUTERSON: May I address myself one moment to that? Mr. Darrah prepared a stipulation, and he sent a copy up to me a few days ago, which he prepared in the thought the Court would rule in the way it did rule, but in addition to the Court's ruling on those four FAL's, the stipulation contemplates a disposition with respect to the carbines that were also seized in this case, and this is still under discussion between Mr. Jacques personally and Mr. Darrah and the Alcohol and Tobacco tax. We have now concluded the criminal aspect of the trial in every respect and, therefore, with consent of my client, I am not going to have any further connection with the civil end. It was by agreement that I came here. There is no dispute with that, but Mr. Jacques with Mr. Darrah will personally work out a stipulation which may or may not turn out to be satisfactory to both of them, and then will be presented by Mr. Darrah, and either Mr. Jacques or the government can appeal the civil aspects if they are not entirely satisfied. I do feel that in light of my relationship with Mr. Jacques in the criminal matter; I would want to the Court to know I would not be further involved. THE COURT: Incidentally, did you ever go into that Washington statute at all? MR. GUTERSON: No. THE COURT: In trying to explore this thing, I have, in the various aspects - - MR. DARRAH: (interposing) If the Court please, the civil aspects of the case are governed by the Revenue statute. It requires a forfeiture proceeding. This was filed and the stipulation is captioned under that file heading, and I assumed that Mr. Jacques, by himself, or with some other attorney will bring this to a head and we will certainly advise the Court. THE COURT: Very well; now, will that be captioned under the criminal title? MR. DARRAH: It will be captioned under the criminal title. I believe what I will do is ask for a transcript of this and have an actual - - so that we can have a ruling on the weapons themselves. THE COURT: Yes, very well, I have prepared it rather hurriedly, and I may change it. That last part with regard to the Washington statute I don't think should be incorporated, because I think it is more or less of an aside. MR. DARRAH: Well, it is important, I think, in the final disposition of the parts. THE COURT: It could be. It could be, I don't know what position the government is taking because that was never referred to at all. MR. DARRAH: No, I don't believe so, I think that -- THE COURT: (interposing) Undoubtedly the Department must be aware of it. MR. DARRAH: Yes. THE COURT: They were aware of the tax on cigarettes, the state tax. MR. GUTERSON: Right. MR. DARRAH: Thank you very much. (Whereupon, hearing the above-entitled matter was adjourned.) REPORTER' S CERTIFICATE I, Earl V. Halvorson, Official Court Reporter for the United States District Court Western District of Washington, do hereby certify that the foregoing is a full, true and correct transcript of proceedings had in the within entitled and numbered cause on the date hereinbefore set forth, and I do further certify that the foregoing transcript has been prepared by me or under my direction.