RALPH R. ROSS, PETITIONER V. UNITED STATES OF AMERICA No. 90-6405 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Seventh Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A15) is reported at 917 F.2d 997. JURISDICTION The judgment of the court of appeals was entered on November 5, 1990. The petition for a writ of certiorari was filed on December 3, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether petitioner's conviction for possessing an unregistered firearm violated the Ex Post Facto Clause because he possessed the firearm both before and after enactment of the statute that made such possession illegal. 2. Whether the district court properly ordered petitioner to reimburse the Federal Defender Program for the cost of his court-appointed counsel. 3. Whether factors that the district court relied on in sentencing petitioner had to be proved beyond a reasonable doubt. 4. Whether the district court correctly instructed the jury that the government was required to prove only that petitioner knew the weapon that he possessed was a firearm in the general sense, as opposed to a machinegun. STATEMENT Following a jury trial in the United States District Court for the Northern District of Illinois, petitioner was convicted of possession of an unregistered firearm, in violation of 26 U.S.C. 5861(d) (Count 1). In addition, petitioner pleaded guilty to, and was convicted of, storing explosive material in a manner not in conformity with the Secretary of the Treasury's regulations, in violation of 18 U.S.C. 842(j) (Count 2). He was sentenced to 36 months' imprisonment on Count 1, to be followed by a three-year term of supervised release, to five years' probation on Count 2, and to a $5,000 fine. Additionally, petitioner was ordered to reimburse the Federal Defender Program for the costs of his representation. The court of appeals affirmed. Pet. App. A1-A16. 1. On November 4, 1987, an ATF agent searched petitioner's house and discovered more than 50 guns, including a 1915 French Chauchat machinegun. All the guns except the machinegun were properly registered. Pet. App. A1-A2. The machinegun was designed to fire more than one round of ammunition by a single pull of the trigger and was equipped with the frame or receiver of a machinegun. The weapon could not be redesigned to be anything other than a machinegun. Gov't C.A. Br. 6. A plug of weld inside the machinegun's chamber area rendered it incapable of firing. However, an ATF agent determined that the gun could be readily restored to shoot within several hours by removing the weld. Pet. App. A1-A2. Petitioner claimed that he did not know that the gun was automatic; he asserted that the weapon had previously belonged to his father, who had told him that it was a replica. He stated that he had not registered the weapon because he did not consider it to be a firearm. He did, however, admit that he knew it was plugged. Pet. App. A2. Petitioner also admitted to substantial knowledge about firearms. For instance, he admitted that, using a false name, he had ordered two kits containing gun parts which, between them, contained all the parts necessary for building a STEN II submachine gun. Gov't C.A. Br. 7-8. In its closing charge, the district court instructed the jury that the government must prove that the French Chauchat weapon was possessed by petitioner, that it was a machinegun, that it was not properly registered, and that the defendant "knew that (the Chauchat weapon) was a gun." Pet. App. A4 n.1. Prior to sentencing, the government requested the district court to depart upward from the applicable Sentencing Guideline range because petitioner's criminal history category did not adequately reflect his prior criminal conduct. In support of the motion, the government presented evidence that petitioner had, inter alia, retaliated against a police officer who had been involved in legal proceedings against him by shooting at his front window with a BB gun. Additionally, the government presented evidence that six weeks prior to fatally shooting his brother, petitioner had made a statement to the police that he would kill his brother before he took any more beatings from him. Gov't C.A. Br. 9-10. /1/ Finally, there was also evidence that petitioner had "engaged in numerous instances of repeated harassments against lawyers and investigators who had some brush or connection with him," including "bizarre" instances in which those individuals "got numerous unwanted magazines and other unsolicited matter." Pet. App. C5. The district court found that petitioner's criminal history category did not adequately reflect the seriousness of his past criminal conduct and that a substantial likelihood existed that he would commit other crimes in the future. The court therefore found that an upward departure was warranted, and raised petitioner's criminal history category from two to four, which placed petitioner in a Guideline range of 30 to 37 months' imprisonment. Pet. App. C6-C7. The government also requested the court to order petitioner to repay the cost of his representation. The government presented evidence that petitioner possessed the sole beneficial interest in a house valued at $149,600, and that on the day of his arraignment, he signed over his interest in the house to a friend. However, petitioner continued to pay taxes on the property, and was going to be allowed to live in the home of the friend to whom he had deeded his own house. The district court found that the circumstances of the transfer suggested that it was not a legitimate transaction, but rather had been an effort to deceive the court as to the true nature of his finances. Accordingly, the court ordered petitioner to reimburse the program for the cost of his attorney. Pet. App. A3; Pet. App. C48; Gov't C.A. Br. 10, 28-29. 2. The court of appeals affirmed petitioner's conviction. The court rejected petitioner's claim that his conviction constituted ex post facto punishment because he possessed the machinegun prior to enactment of the statute. The court found that although petitioner had possessed the machinegun prior to the 1986 amendments to the statute that made possession illegal, the conduct for which petitioner was charged and convicted occurred on November 4, 1987, well after the amendments took effect. Pet. App. A2-A3. The court also upheld the district court's order that petitioner reimburse the Federal Defender Program for the cost of his court-appointed counsel, finding that the district court had not abused its discretion in finding that the transfer of petitioner's house was not a legitimate transaction. Pet. App. A3. The court further rejected petitioner's claim that the sentencing factors relied on by the district court, such as his role in the offense and his refusal to accept responsibility, were essential elements of the offense that must be proved beyond a reasonable doubt to a jury rather than by a preponderance of the evidence to the sentencing judge. Ibid. Finally, relying on earlier Seventh Circuit decisions and on this Court's decision in United States v. Freed, 401 U.S. 601 (1971), the court of appeals held (Pet. App. A4-A9) that the district court had correctly instructed the jury that the government was required to prove only that petitioner knew the weapon was a firearm in the general sense, not that he knew it was a machinegun. The court reasoned that the applicable statute, 26 U.S.C. 5861(d), does not contain a scienter element, but merely provides that it "shall be unlawful for anyone to receive or possess a firearm which is not registered to him in the National Firearm Registration and Transfer record." Pet. App. A4. Moreover, explained the court of appeals, in Freed "the (Supreme) Court held that the Act did not require any specific intent or knowledge that the firearm was unregistered, and concluded that 'the only knowledge required to be proved was knowledge that the instrument possessed was a firearm.'" Pet. App. A5 (quoting Freed, 401 U.S. at 607). The court of appeals noted that "the holding that Section 5861(d) dispenses with any mental state concerning one element of the offense implies that mental states are unnecessary concerning the others in the same subsection." Pet. App. A7. Judge Manion concurred with the panel's resolution of the first three issues presented, but dissented as to its conclusion that the government need prove only that petitioner knew that the machinegun constituted a firearm in the general sense. Pet. App. A9-A15. ARGUMENT 1. Petitioner argues (Pet. 12-15) that his conviction violated the Ex Post Facto Clause of the Constitution, Art. I, Section 9, Cl. 3, because he lawfully possessed the machinegun prior to the 1986 amendments to the Firearms Act, which he claims redefined the term "machinegun" so as to bring his weapon within the registration requirements of Section 5861(d). Assuming that petitioner possessed the machinegun lawfully prior to 1986, his conviction in the instant case still would not implicate any ex post facto concerns. A legislative act does not fall within the prohibitions of the Ex Post Facto Clause unless it criminalizes "action done before the passing of the law, and which was innocent when done." Collins v. Youngblood, 110 S. Ct. 2715, 2719 (1990) (quoting Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798) (emphasis omitted)). However, petitioner's conviction did not rest on his possession of the machinegun prior to the 1986 amendments to the Act. Rather, as the court of appeals found (Pet. App. A2), the conduct forming the basis for petitioner's conviction occurred in November 1987, well after the amendments to the Act took effect. Thus, because petitioner's conviction was based on his continued possession of the machinegun after the enactment of the law, no ex post facto concerns are raised. 2. Petitioner argues (Pet. 19-22) that the district court abused its discretion by ordering him to reimburse the Federal Defender Program for the cost of his court-appointed counsel because there was no evidence at the time the court issued the order that he had the ability to make repayment. The court of appeals correctly rejected this claim. A district court, within its sound discretion, may direct a defendant to pay for the cost of his appointed counsel if the court determines that the defendant is financially able to make such payment. 18 U.S.C. 3006A(c); United States v. Durka, 490 F.2d 478 (7th Cir. 1973). Here, the district court specifically found prior to imposing the order that petitioner maintained an interest in his house, which he could draw upon to repay the cost of his representation. See Pet. App. C9. That determination is supported by the record and merits no further review by this Court. 3. Petitioner also argues (Pet. 22-26) that in sentencing him the district court departed upward from the Guideline range based on conduct that had not been established by prior convictions. However, courts traditionally have had great latitude in imposing sentence and have considered a wide range of factors in deciding upon a sentence, including conduct that did not result in a conviction. United States v. Tucker, 404 U.S. 443, 446 (1972); United States v. McDowell, 888 F.2d 285, 290 (3d Cir. 1989); Walker v. Endell, 850 F.2d 470, 477 (9th Cir.), cert. denied, 488 U.S. 926 (1981). Use of the Sentencing Guidelines does not change this basic approach. Indeed, Guideline Section 4A1.3(e) provides, in relevant part, that the court may depart upward from the Guideline range based on information concerning "prior similar adult criminal conduct not resulting in a criminal conviction." See also United States v. Juarez-Ortega, 866 F.2d 747, 749 (5th Cir. 1989) (consideration of facts of offense of which defendant was acquitted was not improper where the facts were not disputed as false or unreliable); United States v. Mocciola, 891 F.2d 13, 16-17 (1st Cir. 1989) (court may consider both uncharged conduct and facts underlying a prior acquittal in determining sentence); United States v. Ryan, 866 F.2d 604, 609 (3d Cir. 1989) (Guidelines intended to permit sentencing courts to continue to consider evidence on counts of which a defendant was acquitted). Petitioner's argument presupposes that the sentencing court may enhance a defendant's sentence under the Sentencing Guidelines based only on facts that have been proved beyond a reasonable doubt. That, however, is not the case. Before the advent of the Guidelines, it was settled law that the reasonable-doubt standard did not apply to the findings made at sentencing, and that the preponderance standard satisfied due process concerns. McMillan v. Pennsylvania, 477 U.S. 79, 84-93 (1986); United States v. Lee, 818 F.2d 1052, 1057 (2d Cir.), cert. denied, 484 U.S. 956 (1987); United States v. Davis, 710 F.2d 104, 106 (3d Cir.) (collecting cases), cert. denied, 464 U.S. 1001 (1983). /2/ Neither the Sentencing Reform Act of 1984, 18 U.S.C. 3553 et seq. and 28 U.S.C. 991-998, nor the Guidelines require the government to bear a greater burden of proof. See, e.g., United States v. McDowell, 888 F.2d 285, 291 (3d Cir. 1989); United States v. Guerra, 888 F.2d 247, 250-251 (2d Cir. 1989), cert. denied, 110 S. Ct. 1833 (1990). /3/ 4. Finally, petitioner contends (Pet. 27-38) that 26 U.S.C. 5861(d), which proscribes the possession, making, and transferring of unregistered firearms, requires proof that he knew that the weapon was a machinegun proscribed by the National Firearms Act, and not merely that he knew that the weapon was a firearm in the general sense. The court of appeals properly rejected this argument. Under 26 U.S.C. 5861(d), it is "unlawful for any person * * * to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record." The term "firearm" is defined in Section 5845(a) "to include short-barrel shotguns and rifles, sawed-off shotguns and rifles, machine guns, silencers, destructive devices and 'any other weapon,' as defined in 26 U.S.C. Section 5845(e)." United States v. Williams, 872 F.2d 773, 774 (6th Cir. 1989). /4/ The courts have generally held, following United States v. Freed, 401 U.S. 601 (1971), that knowledge of a weapon's specific characteristics is not an essential element of the crime. In Freed, this Court reversed a district court's dismissal of an indictment under Section 5861, which charged the defendant with possession of unregistered hand grenades, "for absence of an allegation of scienter." 401 U.S. at 607. The Court held that the National Firearms Act required no specific intent or knowledge that the weapons in question were unregistered. Rather, the "only knowledge required to be proved was knowledge that the instrument possessed was a firearm." Ibid. The Court found that the imposition of criminal liability with only this element of scienter did not violate the Due Process Clause. As the Court explained, "(t)his is a regulatory measure in the interest of the public safety, which may well be premised on the theory that one would hardly be surprised to learn that possession of hand grenades is not an innocent act." Id. at 609. See also United States v. International Minerals & Chemical Corp., 402 U.S. 558, 565 (1971) (where "dangerous or deleterious devices * * * are involved, the probability of regulation is so great that anyone who is aware that he is in possession of them or dealing with them must be presumed to be aware of the regulation"). In accord with Freed, courts generally have held that "the government does not have to prove that the defendant knew that the weapon in his possession was a 'firearm' within the meaning of the statute." United States v. Gonzalez, 719 F.2d 1516, 1522 (11th Cir. 1983) (emphasis in original), cert. denied, 465 U.S. 1037 (1984). Accord United States v. Mittleider, 835 F.2d 769, 774 (10th Cir. 1987), cert. denied, 485 U.S. 980 (1988); United States v. Shilling, 826 F.2d 1365, 1368 (4th Cir. 1987), cert. denied, 484 U.S. 1043 (1988); United States v. Woodruff, 600 F.2d 174, 176 (8th Cir. 1979); Morgan v. United States, 564 F.2d 803, 805-806 (8th Cir. 1977); United States v. DeBartolo, 482 F.2d 312, 316-317 (1st Cir. 1973). See 2 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions (3d ed. 1977) Section 59.03 (essential elements) and Section 59.04 (scienter not required). As the court below properly explained (Pet. App. A7), "(a)lthough the Court (in Freed) did not address whether the defendant needed to know that the item was a 'firearm' in either lay or legal senses, the holding that Section 5861(d) dispenses with any mental state concerning one element of the offense implies that mental states are unnecessary concerning the others in the same subsection." A few courts have recognized one narrow exception to the general rule that knowledge of a weapon's specific characteristics is not an essential element of the crime. The Fifth, Sixth, and Ninth Circuits have held that such knowledge is required when the statute is applied to weapons that appear on visual inspection to be semi-automatic, and thus not covered by the statute, although they have been internally modified to be fully automatic. See United States v. Anderson, 885 F.2d 1248, 1251 (5th Cir. 1989) (en banc); United States v. Williams, 872 F.2d 773 (6th Cir. 1989); and United States v. Herbert, 698 F.2d 981 (9th Cir.), cert. denied, 464 U.S. 821 (1983). Unlike the usual case where the guns or weapons by their very nature give their possessors notice of the likelihood of regulation, a seemingly lawful semi-automatic firearm -- with no outward markings to show it has been altered -- gives its possessor no such notice. The Fifth, Sixth, and Ninth Circuits have held that in such a situation it is not unreasonable to require the government to prove that the defendant knew that the unregistered firearm he possessed could fire automatically and was thus within the proscription of the National Firearms Act. The machinegun at issue in this case, however, does not belong to that class of "firearms" that give no indication from their outward appearance of any probability that they are subject to regulation. Rather, the record establishes that the machinegun was designed to fire more than one round of ammunition by a single pull of the trigger and was equipped with the frame or receiver of a machinegun. Indeed, the weapon could not be redesigned so that it was not a machinegun. Gov't C.A. Br. 6. Because the nature of the weapon could be readily inferred from its outward appearance, it appears that all courts would apply the general rule that the government need not prove that the defendant knew that his weapon was a firearm within the meaning of the statute. /5/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General DEBORAH WATSON Attorney JANUARY 1991 /1/ Petitioner was acquitted on self-defense grounds of murder charges brought as a result of the shooting. Gov't C.A. Br. 10 n.3; Pet. App. C3. /2/ In fact, trial courts historically imposed sentence without an established burden or standard of proof. McMillan, 477 U.S. at 91. /3/ Petitioner also argues (Pet. 39-44) that he did not receive adequate notice of the sentencing factors that would be relied on by the court to enhance his sentence. However, the record establishes that prior to trial, the government notified petitioner that it would seek an upward departure from the Sentencing Guidelines, and identified two specific instances of conduct on which it intended to rely: petitioner's retaliation against those involved in proceedings against him, and statements he made concerning the murder of his brother. See Gov't C.A. Br. 9-10. Additionally, prior to sentencing, the court advised petitioner that the factors it would rely on were contained in the PSI prepared by the probation office. See Pet. 41. Petitioner had an opportunity to comment on that report, and, if he disagreed with the report, to request the sentencing court to make a finding as to the accuracy of any allegation in the report. Indeed, petitioner admits (Pet. 9) that prior to sentencing, he filed "corrections to the PSI" and an "answer to (the government's) petition for upward departure and version of the offense." /4/ Section 5845(b) defines the term "machinegun" as any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person. /5/ Petitioner also argues (Pet. 15-19) that the district court amended the indictment by instructing the jury that the government was only required to prove that petitioner knew the weapon was a gun, as opposed to a machinegun. However, the indictment did not charge defendant with knowledge that the weapon was a machinegun as defined by the Act, nor was it required to so charge. Rather, because the machinegun in question did not fall within the narrow exception to the general rule outlined above, the government was required to prove only that petitioner knew that the weapon was a firearm within the general meaning of the term. In any event, the external appearance of the weapon proclaimed its status as a machinegun.