United States v. Steve Just ( 1996 )

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No. 95-1692
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United States, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Steve Just, * Eastern District of Missouri
*
Appellant. *
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Submitted: December 12, 1995
Filed: February 5, 1996
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Before MAGILL, GOODWIN,* and MURPHY, Circuit Judges.
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MURPHY, Circuit Judge.
Steve Just appeals from his conviction for illegal possession
and transfer of a machinegun in violation of 18 U.S.C. § 922(o).
On appeal he argues that the indictment failed to allege an
essential element of the charged offense and that the district
court1 erred in its evidentiary rulings. We affirm.
In May 1993 the Missouri State Highway Patrol received
information from a confidential informant that Steve Just had a
fully automatic machinegun for sale. An investigation was
initiated, and the Bureau of Alcohol, Tobacco and Firearms (ATF)
*The HONORABLE ALFRED T. GOODWIN, United States Circuit
Judge for the Ninth Circuit, sitting by designation.
1
The Honorable Catherine D. Perry, United States District
Judge for the Eastern District of Missouri.
was contacted for assistance. On May 13, 1993, Michael Cooper, an
undercover officer, met with Just at his residence to inspect the
weapon. The informant and an individual named Douglas Ehler were
also present during the meeting. Just brought out a Japanese Type
99, 7.7 caliber gun that was stored in a guitar case and was broken
down into a number of pieces. After Just assembled the weapon,
Cooper negotiated a deal and purchased it for $700.00. Prior to
turning over the gun, Just wiped his fingerprints from it with a
rag. The transaction was recorded by a surveillance team of ATF
agents.
Just was indicted by a grand jury, and the case went to trial
before a jury. Just argued that the gun he sold was not a
"machinegun" as defined by the statute because it was an inoperable
artifact. Expert witnesses for each side testified on that issue,
and there was evidence that ammunition was available for the gun,
that it had been field tested, and that it had the capacity to fire
as a fully automatic weapon although it malfunctioned after two
shots. The jury also heard the recording of the entire transaction
between Just and Cooper. Just was convicted.
Just now argues that the indictment was insufficient because
it failed to allege that the machinegun was unregistered, which he
claims is an essential element of the charged crime. He asserts
that the indictment thus failed to invoke the jurisdiction of the
district court and that his Fifth Amendment rights were violated.
A challenge to the sufficiency of an indictment is reviewed de
novo.
As a general rule an indictment is sufficient if it "first,
contains the elements of the charged offense and fairly informs a
defendant of the charge against which he must defend, and second,
enables him to plead double jeopardy as a bar to a future
prosecution." Hamling v. United States, 418 U.S. 87, 117 (1974).
2
Just did not file a motion to dismiss the indictment before
trial, but waited until the close of the government's evidence to
move to dismiss. Although the sufficiency of an indictment is a
jurisdictional issue that may be raised at any time, an indictment
that is challenged after jeopardy has attached will be liberally
construed in favor of sufficiency. United States v. Lucas, 932
F.2d 1210, 1218 (8th Cir. 1991). The indictment will then be
upheld unless it is "so defective that by no reasonable
construction can it be said to charge the offense for which the
defendants were convicted." Id. (quoting United States v. Czeck,
671 F.2d 1195, 1197 (8th Cir. 1982).
The indictment charged Just with knowing possession and
transfer of a machinegun, described the specific facts and
circumstances supporting the charge, and cited to 18 U.S.C. §
922(o).2 Although citation to the charging statute does not
necessarily cure the omission of an essential element of the
offense, United States v. Zangger, 848 F.2d 923, 925 (8th Cir.
1988), in this case there is sufficient information provided in the
indictment to inform Just of the charges against him. The
indictment is not so defective that it cannot be reasonably
construed to charge a violation of § 922(o).
Moreover, we are not persuaded that non-registration of a
machinegun is an element of a § 922(o) offense. The statute
provides:
2
The indictment charges that "[o]n or about May 13, 1993,"
Just "did knowingly possess and transfer a machine gun, to wit: a
Japanese, Type 99, 7.7 Japanese caliber machine gun, bearing
serial number 10224. In violation of Title 18 United States
Code, Section 922(o) and punishable under Title 18, United States
Code, Section 924(a)(2)."
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(1) Except as provided in paragraph (2), it shall be unlawful
for any person to transfer or possess a machinegun.
(2) This subsection does not apply with respect to --
(A) 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; or
(B) any lawful transfer or lawful possession of a
machinegun that was lawfully possessed before the date
this subsection takes effect.
18 U.S.C. § 922(o). The exceptions contained in part (2) of the
subsection establish affirmative defenses to the defined offense.
They are not elements of the offense that must be charged in the
indictment. See McKelvey v. United States, 260 U.S. 353, 357
(1922). Just could have defended against the charge by showing
that he lawfully possessed the machinegun prior to the enactment of
the statute on May 19, 1986 and that he lawfully transferred it to
Officer Cooper. This would have required proof that the weapon was
registered in the National Firearms Register and Transfer Record,
but that does not convert lack of registration to an element of the
offense or require the government to prove it where the appropriate
defense was not raised.
The jury in this case was in fact instructed that the
government was required to establish not only that Just knowingly
transferred a machinegun, but also that the machinegun was not
registered. Just suggests that the jury may have been confused
because the instruction was inconsistent with the elements stated
in the indictment. Although the government offered the instruction
at trial, it now argues that it was not an accurate statement of
the elements of a § 922(o) charge. The instruction created an
additional burden for the government, not for Just. Any error in
its submission to the jury was therefore harmless.
Just also argues that the district court abused its discretion
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by admitting certain evidence. A trial court has broad discretion
to determine both the relevance of evidence and whether its
probative value outweighs the danger of unfair prejudice. United
States v. Hernandez-Cuartas, 717 F.2d 552, 554 (11th Cir. 1983).
First, Just challenges as irrelevant and prejudicial Cooper's
testimony regarding undercover police work:
In my role as an undercover officer, how well I portray
myself in my undercover role, failure to do so well is
very dangerous on my part because of the type of people
that I'm dealing with. Some of the people that I have
dealt with in an undercover investigation are very
dangerous and carry weapons, and if I do not do a good
job or if they suspect that I'm a police officer, my life
would be in jeopardy, as well as the life of the
informant, if they are present during these
investigations. And also if I don't do a good job, then
I won't make a prosecutable case against the person that
I am investigating.
(Tr. 175-76). Just argues that there is no evidence to support the
inference that he is the type of person that Cooper described.
Cooper's testimony about undercover work was admitted as background
to explain some of his actions and the type of language that the
jury would later hear on the recording of the transaction. It was
not an abuse of discretion to admit it.
Second, Just objects to testimony by the government's expert
witness that the firearm sold by Just was a "machinegun" as that
term is used in the statute.3 He argues that the opinion addressed
the ultimate factual issue and was not helpful to the jury.
Expert testimony is admissible if it "will assist the trier of fact
to understand the evidence or to determine a fact issue in a case,"
Fed. R. Evid. 702, but it is not necessarily objectionable for
3
As used in § 922(o), the term "machinegun" has the meaning
given the term in section 5845(b) of the National Firearms Act,
28 U.S.C. § 5845(b). 18 U.S.C. § 921(23).
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addressing the ultimate fact issue. Fed. R. Evid. 704; United
States v. Cotton, 22 F.3d 182, 195 (8th Cir. 1994). Here, the jury
heard evidence about the characteristics of the firearm and two
conflicting expert opinions as to whether the weapon was a
machinegun. Just's expert witness admitted that he was not
familiar with the statutory definition of the term. The district
court did not abuse its discretion in allowing the government's
witness to state his conclusion that the weapon was a "machinegun."
See United States v. McCauley, 601 F.2d 336, 338 (8th Cir. 1979)
(expert opinion that weapon was a "machinegun" in prosecution for
possession of unregistered firearm in violation of 18 U.S.C. §
5861(d)).
Finally, Just contests the admission of a mail order catalog
advertisement offering to sell ammunition for Japanese machineguns
because it was published fourteen months after the date of the
charged offense. He argues that the advertisement and the
testimony related to it had no probative value and was highly
prejudicial. We disagree. The advertisement showed generally what
is available in the ammunition marketplace, and the jury was aware
of the time differential between the offense and the catalog
publication. Moreover, this was not the only evidence of
availability. Just himself offered as evidence the entire tape of
the transaction during which he insisted twice that a magazine for
the weapon could be obtained for $75. Admission of the mail order
catalog was not an abuse of discretion.
For the stated reasons the judgment of conviction is affirmed.
GOODWIN, Circuit Judge, dissenting.
Because the evidence that the weapon was a machine gun was
extremely thin, I believe the admission of prejudicial testimony
about the nature of gun dealers, which ordinarily might have been
a harmless error, was not harmless in this case. Accordingly, I
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dissent.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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