United States v. Nerses Bronsozian ( 2019 )

FILED
NOT FOR PUBLICATION
APR 15 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50197
Plaintiff-Appellee, D.C. No.
2:16-cr-00196-SVW-1
v.
NERSES NICK BRONSOZIAN, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted April 10, 2019**
Pasadena, California
Before: GRABER and BYBEE, Circuit Judges, and HARPOOL,*** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
***
The Honorable M. Douglas Harpool, United States District Judge for the
Western District of Missouri, sitting by designation.
A jury found Defendant Nerses Nick Bronsozian guilty of possessing an
unregistered firearm in violation of 26 U.S.C. § 5861(d). He timely appeals his
conviction, and we affirm.
1. Defendant argues that:
(a) Congress lacks the constitutional authority to punish the possession of an
unregistered machine gun because § 5861(d) "is punitive in nature and it generates
no tax revenue";
(b) the statute violates the Due Process Clause because Defendant cannot be
punished for possessing a machine gun that was impossible for him to register; and
(c) 18 U.S.C. § 922(o), which bans the possession of all machine guns,
implicitly repealed § 5861(d).
We rejected all of those claims in Hunter v. United States, 73 F.3d 260 (9th
Cir. 1996) (per curiam). As a three-judge panel, we may depart from Hunter only
if it is clearly irreconcilable with a later Supreme Court or en banc decision. Miller
v. Gammie, 335 F.3d 889, 892–93 (9th Cir. 2003) (en banc). Defendant argues
that Hunter is fatally undermined by National Federation of Independent Business
v. Sebelius ("NFIB"), 567 U.S. 519 (2012), at least with respect to his first
argument. We disagree.
2
NFIB characterized the "penalty" in the Patient Protection and Affordable
Care Act ("ACA") as a "tax" and, from that premise, reasoned that the ACA
permissibly exercised Congress’s taxing power. Id. at 561–63. By contrast, here,
Congress expressly delegated the taxing power. Moreover, Hunter addressed
(among other issues) whether § 5861(d), which was enacted in aid of a firearms tax
provision, remained constitutional in light of the federal agency’s decision to deny
the licensing and registration applications that would have triggered the taxable
event. NFIB did not address that issue in any way, even indirectly. Finally, NFIB
emphasized that it was not making new law, but merely applying longstanding
principles to decide whether a "penalty" was really a "tax." Id. at 565–66.
2. Defendant next argues that the government withheld material exculpatory
evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). The claimed
violation pertains to statements that a Bureau of Alcohol, Tobacco, Firearms and
Explosives ("ATF") agent made to prosecutors in a different case, concerning the
violence of the Vagos gang. On de novo review, United States v. Antonakeas, 255
F.3d 714, 725 (9th Cir. 2001), we hold that Defendant suffered no prejudice, which
is a necessary element for his claim to succeed, Strickler v. Greene, 527 U.S. 263,
282 (1999).
3
The only disputed issue at trial was whether Defendant knew that the firearm
he sold to the ATF agent was, in fact, a fully automatic machine gun. The violence
of the Vagos gang was relevant only to the extent that it could explain away
Defendant’s own recorded statements about the machine gun’s fully automatic
characteristics. To support his theory that he said the firearm was fully automatic
to satisfy an intimidating person, rather than to describe what he actually knew, he
had to show his own knowledge about the gang. The agent’s knowledge was, at
best, marginally relevant. And there already was extensive evidence offered at trial
to show the Vagos gang’s violent tendencies. See Benn v. Lambert, 283 F.3d
1040, 1053 (9th Cir. 2002) ("Evidence is deemed prejudicial, or material, only if it
undermines confidence in the outcome of the trial.").
3. Finally, Defendant argues that the ATF agent’s testimony was false, thus
violating the principles of Napue v. Illinois, 360 U.S. 264, 269 (1959). We have
carefully reviewed the record and conclude that the testimony complained of was
neither false nor incongruent with testimony offered in a different case. See
Jackson v. Brown, 513 F.3d 1057, 1075 (9th Cir. 2008) ("Napue applies whenever
a prosecution ‘knew or should have known that the testimony was false.’" (quoting
Hayes v. Brown, 399 F.3d 972, 984 (9th Cir. 2005) (en banc))).
AFFIRMED.
4