                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-5-2004

USA v. Grier
Precedential or Non-Precedential: Precedential

Docket No. 02-3427




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Recommended Citation
"USA v. Grier" (2004). 2004 Decisions. Paper 1053.
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                          PRECEDENTIAL

                              Filed December 30, 2003

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                    No. 02-3427


           UNITED STATES OF AMERICA
                         v.
                   ABDUL GRIER,
                             Appellant

   On Appeal from the United States District Court
       for the Eastern District of Pennsylvania
               (D.C. No. 00-cr-00356-2)
       District Judge: Hon. Charles R. Weiner

               Argued June 30, 2003
Before: SLOVITER, AMBRO, and BECKER, Circuit Judges

             (Filed December 30, 2003)

                  Jeremy C. Gelb (Argued)
                  Philadelphia, PA 19106
                    Attorney for Appellant
                                    2


                           Patrick L. Meehan
                            United States Attorney
                           Laurie Magid
                            Deputy United States Attorney
                           Robert A. Zauzmer
                            Assistant United States Attorney
                           Nancy B. Winter (Argued)
                            Assistant United States Attorney
                           Office of United States Attorney
                           Philadelphia, PA 19106
                              Attorneys for Appellee


                    OPINION OF THE COURT

SLOVITER, Circuit Judge.
   Appellant Abdul Grier appeals from the judgment of
conviction entered following his guilty plea to charges under
several provisions of the National Firearms Act (“NFA”).1
Grier argues that the resulting sentence should be vacated
because (1) Congress’ enactment of the Firearms Owners’
Protection Act of 1986 (“FOPA”), 18 U.S.C. § 922(o),
implicitly repealed the NFA provisions to which he pled
guilty; (2) the NFA offends due process because it is unfair
to convict a person for failing to register a firearm when the
Government will no longer permit such a registration; and
(3) the NFA is unconstitutional as it no longer functions as
a revenue-raising mechanism within Congress’ taxation
power.
  We have previously reviewed cases that touched upon the
NFA after the FOPA’s enactment but we have not directly
examined the precise issues Grier raises here. See generally
United States v. Rybar, 103 F.3d 273, 275 n.2 (3d Cir.
1996) (declining to comment on the district court’s finding
that   enforcement     of  26    U.S.C.    § 5861(e)    was

1. The District Court granted Grier’s motion under 28 U.S.C. § 2255 to
vacate, set aside or correct a sentence based on Grier’s allegation that
his attorney failed to file a timely appeal notwithstanding Grier’s request
that he do so.
                             3


unconstitutional); United States v. Palmieri, 21 F.3d 1265,
1275 (3d Cir.), vacated, 513 U.S. 957 (1994). Those issues
are now directly before us.

                             I.

          FACTS AND PROCEDURAL HISTORY
   In April 2000, agents from the Bureau of Alcohol,
Tobacco, and Firearm (“ATF ”) learned that Grier and his
two co-defendants, David Lewis and Cornelius Middleton,
were manufacturing and selling homemade, fully-automatic
machine guns. Thereafter, on April 11, 2000, Andre Brooks,
an undercover ATF cooperator, purchased one machine gun
from Lewis. At that time, Lewis suggested that he could sell
Brooks additional guns in the near future. The following
week, Brooks met Grier, Lewis, and Middleton in Grier’s
residence, where Brooks observed Grier and Middleton
assembling several machine guns. The next day, Brooks
purchased at Lewis’ house three machine guns
manufactured by Grier, for which Brooks paid $5,800.00 in
prerecorded Government funds.
   On April 28, 2000, Brooks purchased another machine
gun from Lewis for $1,800.00, again paying in prerecorded
Government funds. As Brooks was leaving, Grier appeared
and offered to sell Brooks six additional machine guns that
he was assembling. On May 23, 2000, Brooks went to
Grier’s residence to inspect the guns he had agreed to
purchase. Brooks saw Grier, Middleton, and a young boy
(later identified as juvenile “B”) working on the machine
guns, and arranged to meet with Grier on the following day
to purchase the guns. On May 24, 2000, ATF agents
intercepted and arrested Grier at the designated meeting
place with three machine guns in his possession. ATF
agents then executed search warrants for Grier’s residence
and found a full-scale firearms manufacturing room on the
third floor. Agents recovered all tools and materials
necessary to the production of automatic weapons, several
machine guns and semi-automatic weapons in mid-
production, and $500 of prerecorded Government funds
that Brooks had used to purchase weapons.
                               4


   A federal grand jury indicted Grier, Lewis, and Middleton
with conspiracy to possess, transfer and make machine
guns in violation of 26 U.S.C. §§ 5861(c), (e), and (f); three
counts of making firearms in violation of 26 U.S.C.
§ 5861(f); two counts of possessing firearms in violation of
26 U.S.C. § 5861(c); three counts of transferring firearms in
violation of 26 U.S.C. § 5861(e); and one count of
possessing firearms by a convicted felon in violation of 18
U.S.C. § 922(g)(1). Grier, represented by court-appointed
counsel, pled guilty to these charges. Some time thereafter,
the District Court sentenced Grier to 144 months in prison.
This sentence reflected both the enhancements for Grier’s
leadership roles in the various offenses and a reduction for
his voluntary acceptance of responsibility.
  On appeal, Grier does not challenge any of the above
facts. Nor does he argue that his conduct did not fit within
the language of the statutory provisions (all part of the NFA)
for which he was indicted and to which he pled guilty.
Instead, he challenges the constitutionality of the NFA.

                              II.

      JURISDICTION AND STANDARD OF REVIEW
   The District Court properly exercised subject matter
jurisdiction over this case pursuant to 18 U.S.C. § 3231.
This court has appellate jurisdiction pursuant to 28 U.S.C.
§ 1291.
  The Government argues that because Grier did not raise
the appealed issues in the District Court, the plain error
standard applies pursuant to Federal Rule of Criminal
Procedure 52(b). The Supreme Court recently reaffirmed its
interpretation of Rule 52(b), stating that
    before an appellate court can correct an error not
    raised at trial, there must be (1) error, (2) that is plain,
    and (3) that affects substantial rights. . . . If all three
    conditions are met, an appellate court may then
    exercise its discretion to notice a forfeited error, but
    only if (4) the error seriously affects the fairness,
    integrity, or public reputation of judicial proceedings.
                                 5


United States v. Cotton, 535 U.S. 625, 631-32 (2002)
(quotations and internal citations omitted).
   Grier asserts that this court’s review of his due process
and fundamental fairness claims is plenary. However, he
offers no authority to support this claim. As the
Government correctly argues, “[c]alling the district court’s
alleged error in this case one of ‘constitutional dimension’
does not change the analysis.” Br. of Appellee at 11. “[A]
constitutional right may be forfeited in criminal as well as
civil cases by the failure to make timely assertion of the
right.” Yakus v. United States, 321 U.S. 414, 444 (1944).
  Although we believe the Government is correct in its
assertion that, under the circumstances here, plain error
review is appropriate, we will also examine Grier’s legal
contention    de   novo     to avoid    any    subsequent
misunderstanding of the scope of our holding. The outcome
of this case would not differ.

                                III.

                          DISCUSSION
A.   Continued Validity of the National Firearms Act
   Grier argues first that the FOPA, which amended the
Gun Control Act, implicitly repealed the NFA provisions
under which he was charged and sentenced. The NFA
prohibits the transferring, making, or possessing of
machine guns2 without paying taxes on the weapons and
registering as a firearms dealer. 26 U.S.C. § 5861. The NFA
also provides that applications for registration shall be
denied if the transfer, possession or making of the firearm
would be illegal. 26 U.S.C. §§ 5812, 5822. The FOPA makes
it “unlawful for any person to transfer or possess a
machinegun.” 18 U.S.C. § 922(o)(1). The FOPA thus makes
it legally impossible for machine gun dealers to register

2. The NFA defines a machine gun 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.” 26 U.S.C. § 5845(b).
                              6


under the NFA, as the transfer and possession of such
firearms manufactured after May 19, 1986 (when the FOPA
became effective) is illegal. This court has sustained the
constitutionality of 18 U.S.C. § 922(o). Rybar, 103 F.3d at
273.
   Grier argues that, “[a]lthough Congress was silent on the
impact that § 922(o) would have on the [NFA] provisions,
the import of the subsequent legislation was to render
meaningless the registration and tax provisions of the
former.” Br. of Appellant at 13. Grier relies exclusively on
United States v. Dalton, 960 F.2d 121 (10th Cir. 1992), as
authority for this claim. In Dalton, the Court of Appeals for
the Tenth Circuit vacated a conviction under 26 U.S.C.
§ 5861(d), holding that Congress implicitly repealed this
NFA provision when it enacted § 922(o). Id. at 125-26. Grier
also points to the approval by the Court of Appeals for the
Ninth Circuit, in dicta, of the Dalton court’s analysis. United
States v. Kurt, 988 F.2d 73, 75-76 (9th Cir. 1993). The
Ninth Circuit, however, later overruled this position in
Hunter v. United States, 73 F.3d 260, 261-62 (9th Cir.
1996), leaving Dalton as the only case authority supporting
Grier’s reasoning.
   Since Dalton was decided, the Courts of Appeals in six
circuits have rejected its reasoning and concluded to the
contrary that the FOPA did not implicitly repeal the NFA
registration and taxation provisions. United States v. Elliott,
128 F.3d 671, 672 (8th Cir. 1997); Hunter, 73 F.3d at 261-
62; United States v. Rivera, 58 F.3d 600, 601-02 (11th Cir.
1995); United States v. Ardoin, 19 F.3d 177, 179-80 (5th
Cir. 1994); United States v. Ross, 9 F.3d 1182, 1193-94
(7th Cir. 1993), vacated on other grounds, 511 U.S. 1124
(1994); United States v. Jones, 976 F.2d 176, 182-83 (4th
Cir. 1992). These courts began their analysis with the
premise that, “[i]n the absence of some affirmative showing
of an intention to repeal, the only permissible justification
for repeal by implication is when the earlier and later
statutes are irreconcilable.” Jones, 976 F.2d at 183
(emphasis in original) (quoting Morton v. Mancari, 417 U.S.
535, 550 (1974)). In the view of these courts, the two
statutes are easily reconcilable because one can comply
with both the NFA provisions and the FOPA “by refusing to
                             7


deal in newly-made machine guns.” Id. Since the “two
statutes are capable of co-existence, it is the duty of the
courts . . . to regard each as effective.” Mancari, 417 U.S.
at 551.
  We agree with the reasoning of these courts supporting
the continuing validity of the NFA provisions, and we reject
Grier’s argument to the contrary. Accordingly, the District
Court’s acceptance of Grier’s guilty plea to the charges of
conspiracy to transfer, make, and possess, and
transferring, making, and possessing unregistered machine
guns in violation of 26 U.S.C. § 5861 was not plain error.
Giving the issue plenary review, we also conclude that the
NFA has not been implicitly repealed.
B.   Grier’s Due Process Challenge to Conviction under
     the NFA
   Grier’s second argument is that his conviction under the
NFA offends due process and fundamental fairness.
Specifically, Grier argues that § 922(o)’s enactment made it
legally impossible for him to comply with the NFA’s
registration and tax requirements. He reasons that because
the NFA provides that applications for registration shall be
denied if the transfer, making, or possession of the firearm
would be illegal, the FOPA’s ban on all new machine guns
renders any transfer or possession of such guns violative of
the NFA. Under Grier’s theory, the failure to register and
pay taxes on firearms was an essential element of the
crimes for which he was sentenced. He concludes that
because he was incapable of performing an essential
element, he cannot be held criminally liable for that crime.
  To support his argument, Grier again relies solely on
Dalton. The problem with Grier’s claim, however, is that he
could have complied with both statutes by simply not
possessing, transferring, or making machine guns. Ardoin,
19 F.3d at 180; Jones, 976 F.2d at 183. Moreover, given the
two equally valid and applicable statutes, “there is nothing
wrong with the government’s decision to prosecute under
one and not the other, so long as it does not discriminate
against any class of defendants . . . .” Jones, 976 F.2d at
183 (citing United States v. Batchelder, 442 U.S. 114, 123-
23 (1979)). The District Court therefore properly rejected
Grier’s due process claim.
                             8


C.   Constitutional Challenge to Congress’ Power to
     Enact the NFA
   Grier raises, lastly, the issue of whether the NFA remains
on sound constitutional basis given the FOPA’s enactment.
When the constitutionality of the NFA was originally
challenged in the Supreme Court, the Court interpreted the
NFA as a revenue raising measure passed under Congress’
taxing authority. In Sonzinsky v. United States, 300 U.S.
506 (1937), the Court stated that the NFA “[o]n its face
[was] only a taxing measure” and that any indirect
regulatory effects of the taxes did not undermine
Congressional authority to pass the law under its taxing
power. Id. at 513. Grier argues that with the enactment of
§ 922(o) the NFA’s function as a revenue generating scheme
was eliminated and, in the process, the constitutional
legitimacy of the NFA was destroyed.
   The six circuits that have rejected Dalton’s view on the
FOPA’s implicit repeal of the NFA have also rejected
Dalton’s position that the NFA lacks a constitutional basis
after the enactment of § 922(o). The Court of Appeals for the
Fifth Circuit, for example, reasoned that though the ATF
“chooses not to allow tax payments or registration [of
machine guns], 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.” Ardoin, 19 F.3d at
180. More importantly, the Supreme Court has stated that
“[a] statute does not cease to be a valid tax measure . . .
because the revenue obtained is negligible, or because the
activity is otherwise illegal.” Minor v. United States, 396
U.S. 87, 98 n.13 (1969). The Court’s position is particularly
applicable to the NFA which, despite § 922(o), still retains
some revenue generating capacity. As the Government
notes, “to the extent that it remains lawful under § 922(o)
to transfer machineguns manufactured before May 1986,
those transfers require the payment of tax.” Br. of Appellee
at 17; see also 18 U.S.C. § 922(o)(2)(B) (exempting machine
guns lawfully possessed before the subsection was passed
from the ban). Thus, the NFA remains a proper exercise of
the congressional taxing power under the Constitution.
                             9


                            IV.

                     CONCLUSION
  For the foregoing reasons, we reject all of Grier’s
challenges to the NFA, and will affirm his judgment of
conviction and sentence.

A True Copy:
        Teste:

                 Clerk of the United States Court of Appeals
                             for the Third Circuit
