           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                       2    United States v. Bournes                     No. 01-2416
        ELECTRONIC CITATION: 2003 FED App. 0274P (6th Cir.)
                    File Name: 03a0274p.06                               Patricia G. Gaedeke, UNITED STATES ATTORNEY,
                                                                         Detroit, Michigan, for Appellee. ON BRIEF: Jonathan
                                                                         Epstein, FEDERAL PUBLIC DEFENDERS OFFICE,
UNITED STATES COURT OF APPEALS                                           Detroit, Michigan, for Appellant. Patricia G. Gaedeke,
                                                                         UNITED STATES ATTORNEY, Detroit, Michigan, for
                  FOR THE SIXTH CIRCUIT                                  Appellee.
                    _________________
                                                                                             _________________
 UNITED STATES OF AMERICA , X
            Plaintiff-Appellee, -                                                                OPINION
                                   -                                                         _________________
                                   -  No. 01-2416
           v.                      -                                       MARTHA CRAIG DAUGHTREY, Circuit Judge. The
                                    >                                    defendant, Robert Bournes, pleaded guilty to possession of
                                   ,                                     unregistered firearms in violation of 26 U.S.C. § 5861(d),
 ROBERT BOURNES,                   -
         Defendant-Appellant. -                                          reserving the right to appeal the district court’s denial of his
                                                                         motion to dismiss the indictment based on his contention that
                                  N                                      the statute violates his right to bear arms under the Second
      Appeal from the United States District Court                       Amendment and that the conviction violated his right to due
     for the Eastern District of Michigan at Detroit.                    process because he could not comply with its terms. We find
    No. 99-80469—Gerald E. Rosen, District Judge.                        no valid grounds for reversal and specifically reject the so-
                                                                         called “doctrine of impossibility” on which the defendant
                    Argued: March 27, 2003                               relies.

               Decided and Filed:      July 11, 2003*                        FACTUAL AND PROCEDURAL BACKGROUND

 Before: MARTIN, Chief Circuit Judge; KENNEDY and                           Defendant Bournes first came to the attention of law
           DAUGHTREY, Circuit Judges.                                    enforcement because of his involvement with certain militant
                                                                         groups in Michigan. At some time after 1986 but prior to
                      _________________                                  1998, Bournes purchased the parts for and built a Sten-type
                                                                         9mm machine gun and a .30 caliber belt-fed, bipod-mounted
                           COUNSEL                                       machine gun. In January 1998, a confidential informant
                                                                         brought an undercover agent from the Bureau of Alcohol,
ARGUED:   Jonathan Epstein, FEDERAL PUBLIC                               Tobacco, and Firearms to Bournes’s home in Blissfield,
DEFENDERS OFFICE, Detroit, Michigan, for Appellant.                      Michigan. Bournes showed the ATF agent numerous
                                                                         firearms, including the two machine guns, and several
                                                                         thousand rounds of ammunition. During a subsequent visit,
    *
                                                                         Bournes demonstrated the machine guns and then allowed the
      This decision was originally issued as an “unpublished decision”   ATF agent to fire the weapons, which, the agent determined,
filed on July 11, 2003.

                                  1
No. 01-2416                    United States v. Bournes      3    4    United States v. Bournes                     No. 01-2416

were fully automatic. ATF agents executed a federal search        however, that “the Second Amendment guarantees a
warrant of Bournes’s home in March 1998 and recovered the         collective rather than an individual right.” United States v.
machine guns and other firearms. According to Bournes, he         Warin, 530 F.2d 103, 106 (6th Cir. 1976). Accordingly,
then tried to register the weapons in May 1998, by going          “there can be no serious claim to any express constitutional
through what he described as a “Class Two manufacturer,”          right of an individual to possess a firearm.” Stevens v. United
but he was unable to register the machine guns because he         States, 440 F.2d 144, 149 (6th Cir. 1971).
himself did not have a Class Two license.
                                                                    Recognizing this authority and our well-entrenched rule
   In May 1999, Bournes was indicted by a federal grand jury      that a panel of this court cannot overrule the published
for possession of unregistered firearms in violation of 26        opinion of another panel unless an intervening Supreme Court
U.S.C. § 5861(d). After the indictment was returned, Bournes      decision mandates modification of the prior opinion, see
again attempted without success to register the machine guns.     United States v. Ables, 167 F.3d 1021, 1027 (6th Cir. 1999),
Bournes then moved to dismiss the indictment, on the              Bournes urges us to reconsider our holding in Warin in light
grounds: (1) that there was no basis for federal jurisdiction     of United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).
because his possession of the machine guns was not related to     But whatever the value of dicta in that opinion referring to the
interstate commerce; (2) that, as a member of the Michigan        Court’s understanding of the Second Amendment’s “textual
Militia Corps Wolverines, he had a Second Amendment right         exegesis,” id. at 265, we have reaffirmed Warin on at least
to possess the machineguns; (3) that the federal government       two occasions in the interim. See United States v. Baker, 197
prevented him from registering the machine guns and,              F.3d 211, 216 (1999); United States v. Napier, 233 F.3d 394,
therefore, could not prosecute him for failing to register the    402 (6th Cir. 2000). Without a subsequent en banc ruling to
weapons; and (4) that 26 U.S.C. § 5861(d) and 18 U.S.C.           the contrary, we are therefore bound to apply Warin in this
§ 922(o), which prohibit the transfer or possession of machine    case.
guns, violate the Second Amendment by banning all machine
guns. The district court held a hearing and denied Bournes’s      2. Due Process Claim
motion to dismiss the indictment. See United States v.
Bournes, 105 F. Supp. 2d 736 (E.D. Mich. 2000).                      The National Firearms Act prohibits a private citizen from
                                                                  receiving or possessing an unregistered firearm, see 26 U.S.C.
  On the day his trial was scheduled to begin, Bournes            § 5861(d), and provides that all applications to register a
entered into a conditional plea agreement, by which he            firearm will be denied if possession of the firearm is itself
reserved his right to appeal the district court’s denial of his   unlawful. See 26 U.S.C. §§ 5812(a), 5822. The Firearm
motion to dismiss the indictment.                                 Owners’ Protection Act, which amended the Gun Control Act
                                                                  of 1968, makes it illegal for any person to possess a machine
                       DISCUSSION                                 gun that was not lawfully possessed before May 19, 1986.
                                                                  See 18 U.S.C. § 922(o). Together the two acts make it
1. Second Amendment Claim                                         statutorily impossible for an individual to register a machine
                                                                  gun built or transferred after the effective date of the Firearm
  Bournes first argues that § 5861(d) is “an unconstitutional     Owners’ Protection Act.
infringement on [his] Second Amendment right to keep and
bear arms.” In reviewing such a claim, we have held,
No. 01-2416                    United States v. Bournes        5   6      United States v. Bournes                   No. 01-2416

  Bournes nevertheless contends that his conviction under              comply with both acts by refusing to deal in newly-made
§ 5861(d) is a violation of due process guaranteed by the Fifth        machine guns. . . . What Jones is really complaining
Amendment because, restricted by the terms of these two                about is that the amendment to the Gun Control Act
legislative acts, he cannot register his machine guns. In              effectively rendered possession of certain guns automatic
support of his argument, Bournes points to United States v.            violations of both the Gun Control Act and the National
Dalton, 960 F.2d 121 (10th Cir. 1992), and urges us to adopt           Firearms Act. Yet there is nothing either inconsistent or
the “impossibility defense” enunciated in that opinion. Dalton         unconstitutionally unfair about Congress'[s] decision to
was an attorney who accepted a machine gun as payment                  do so. And, faced with two equally applicable penal
from a client and was convicted of possessing and transferring         statutes, there is nothing wrong with the government's
an unregistered firearm in violation of §§ 5861(d) and (e).            decision to prosecute under one and not the other. . . .
See id. at 122. The Tenth Circuit determined that Dalton’s
failure to register the machine gun was a “fundamental             Id. at 183.
ingredient” of his offenses and held that the conviction was
fundamentally unfair because it was legally impossible for            Every other circuit that has considered this issue has
Dalton to register the machine gun and thereby comply with         rejected Dalton and, instead, adopted the reasoning of Jones.
§ 5861(d). See id. at 124, 126.                                    See United States v. Elliot, 128 F.3d 671, 672 (8th Cir. 1998)
                                                                   (per curiam) (upholding § 5861(d) conviction because
   In response, the government directs our attention to the        § 922(o) and § 5861(d) are reconcilable); Hunter v. United
Fourth Circuit’s decision in United States v. Jones, 976 F.2d      States, 73 F.3d 260, 262 (9th Cir. 1996) (per curiam) (same);
176, 182-83 (4th Cir. 1992), cert. denied, 508 U.S. 914            United States v. Ardoin, 19 F.3d 177, 180 (5th Cir. 1994)
(1993). The defendant in Jones had converted two shotguns          (same), cert. denied, 513 U.S. 933 (1994); United States v.
into machine guns and then transported the firearms across         Ross, 9 F.3d 1182, 1194 (7th Cir. 1993) (same), vacated on
state lines and sold them to an undercover agent. See id. at       other grounds, 511 U.S. 1124 (1994); see also United States
178-79. A jury convicted Jones of violating three provisions       v. Rivera, 58 F.3d 600, 601-02 (11th Cir. 1995) (applying
of the National Firearms Act: § 5861(c) for possessing             Jones-type reasoning and rejecting Dalton in case of
firearms made without the requisite permission; § 5861(e) for      convicted felon who could not, by statute, register firearm).
transferring firearms without the requisite approval; and
§5861(j) for transporting unregistered firearms. Id. at 179.         Although we have previously been asked to adopt Dalton,
The defendant, relying on Dalton, argued that his conviction       we have declined to do so, finding that the facts of the cases
was fundamentally unfair because the Firearm Owners’               under review could be distinguished from those in the Tenth
Protection Act made it impossible for him to receive the           Circuit case. See United States v. Mise, 240 F3.d 527, 530
authorization necessary to comply with the National Firearms       (6th Cir. 2001) (distinguishing Dalton because registration of
Act. The Fourth Circuit disagreed, reasoning:                      pipe bomb was not clearly a legal impossibility); id. at 533
                                                                   (Clay, J., concurring and calling for Sixth Circuit to reject
  [T]he two statutes are not irreconcilable because, despite       Dalton and adopt Jones); see also United States v. M/G
  Jones'[s] assertions to the contrary, Jones can comply           Transport Services, Inc., 173 F.3d 584, 587 (6th Cir. 1999)
  with both acts. While he may not be able to register             (distinguishing Dalton given legal possibility of obtaining
  newly-made machine guns in which he deals, neither act           permit necessary to comply with Clean Water Act). We take
  requires him to deal in such guns. Simply put, Jones can         this occasion, involving a case with facts squarely on point
No. 01-2416                   United States v. Bournes      7

with those in Dalton, to reject the reasoning of that opinion
and, instead, follow our sister circuits in adopting the more
compelling reasoning of Jones. We hold that compliance
with the relevant provisions of both the National Firearms Act
and the Firearms Owners’ Protection Act is easily achieved:
Bournes could have complied simply by electing not to
possess the machine guns at issue in this case. Furthermore,
“the Constitution does not forbid making the same conduct
illegal under two statutes, and the government is permitted to
prosecute under either one.” Hunter, 73 F.3d at 262; see also
Jones, 976 F.2d at 183, citing United States v. Batchelder,
442 U.S. 114, 123-24 (1979), and Ball v. United States, 470
U.S. 856, 859 (1985). It follows that the defendant’s
conviction was not fundamentally unfair or otherwise a
violation of due process.
                      CONCLUSION
   For the reasons set out above, we sustain the district
court’s denial of the defendant’s motion to dismiss the
indictment and AFFIRM the judgment of conviction and
sentence in all respects.
