United States v. Fleischli, Joseph ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-2703
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSEPH H. FLEISCHLI,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 00 CR 30008—Richard Mills, Judge.
____________
ARGUED JANUARY 7, 2002—DECIDED SEPTEMBER 12, 2002
____________
Before MANION, ROVNER and EVANS, Circuit Judges.
ROVNER, Circuit Judge. Joseph Fleischli was convicted
by a jury of two counts of possession of machine guns in
violation of 18 U.S.C. § 922(o)(1), one count of transpor-
tation of a firearm by a felon in violation of 18 U.S.C.
§ 922(g)(1), one count of possession of a firearm by a fel-
on in violation of 18 U.S.C. § 922(g)(1), one count of un-
lawful manufacture of a machine gun in violation of 26
U.S.C. § 5861(f), and one count of possession of an unregis-
tered destructive device in violation of 26 U.S.C. § 5861(d).
Fleischli was sentenced to 120 months’ imprisonment,
three years of supervised release and a $600 special
assessment. He appeals from both his conviction and his
2 No. 01-2703
sentence on numerous constitutional, statutory and factual
grounds. We affirm.
I.
Fleischli concedes that prior to the events that led to
his indictment, he had been convicted of four felonies. Two
convictions related to the illegal manufacture and posses-
sion of firearms and two related to illegal drugs. In March
and May of 1998, an informant told the Springfield, Illi-
nois ATF office that Fleischli had an aircraft machine
gun (sometimes called a “minigun”) and that Fleischli had
taken it to Missouri in the Spring of 1998. The informant
said that in Missouri, Fleischli and others had fired the
minigun. Around this same time, Donald Gibbs, an associ-
ate of Fleischli, approached Deputy James Malone in the
Macoupin County Sheriff’s Department with an unusual
request. Gibbs wanted the Sheriff’s Department to issue
a letter to the Treasury Department requesting a dem-
onstration of a Steyr machine gun in anticipation of a pos-
sible purchase. Gibbs gave the deputy Fleischli’s business
card which listed Fleischli as president of Springfield
Armaments Services, Inc. (“SAS”), a Class II licensed fire-
arms manufacturer. Gibbs told the deputy that Fleischli
was a licensed firearms manufacturer who owned a mini-
gun and wanted to add to his collection. Gibbs provided
the deputy with a sample letter to use in drafting the let-
ter to the Treasury Department, requesting permission
for Fleischli, as a licensed dealer, to purchase the gun.
The deputy recognized Gibbs as a convicted felon and
notified his captain who, in turn, notified the Springfield
ATF about this strange encounter.
The ATF learned that SAS was incorporated in 1996
by Delmar and Diamonda Tobias, who were Fleischli’s
father-in-law and mother-in-law, and by Vernon Medlock.
These three made up the board of directors as well. Delmar
No. 01-2703 3
Tobias1 was listed as president and Medlock was the
secretary/treasurer. Apparently, Fleischli had attempted
(and failed) to obtain a federal firearms license in 1991 and
sought restoration of his federal explosives privileges in
1993. The ATF was therefore already familiar with Fleischli
when Captain Jeff Rhodes called from the Sheriff’s Depart-
ment to tell them about Gibbs’ conversation with Deputy
Malone. The ATF agents decided to investigate, with the
aid of Deputy Malone, possible firearms violations by
Fleischli.
The ATF subsequently recorded a number of calls be-
tween Malone and Fleischli. The deputy initiated contact
by calling the number listed on the business card provided
by Gibbs. That number turned out to belong to Otto Ameri-
can Boiler, a business Fleischli owned in Springfield. Dur-
ing these recorded calls, Fleischli told the deputy about
his firearms manufacturing business, the minigun he
had constructed, and other machine guns he owned. To
persuade the Sheriff’s Department to issue the Treasury
letter, Fleischli agreed to demonstrate the minigun on
August 11, 1998 at the Brittany Range in Macoupin
County. At the August 11 demonstration, ATF seized the
minigun. ATF agents questioned Fleischli, Delmar Tobias
and Medlock about SAS. Fleischli said the minigun be-
longed to SAS, that SAS was Tobias’s company and that he
(Fleischli) was just an employee. Fleischli admitted he
possessed other machine guns in a safe at Otto Amer-
ican Boiler and other firearms at his home. Fleischli
volunteered that an ATF agent previously told him he
could not obtain a federal firearms license in his wife’s
name so he decided to use his father-in-law instead. As
the finger-pointing escalated, Tobias told the agents that
SAS was Fleischli’s idea and that Tobias was simply a
1
Hereafter we will use the name “Tobias” to refer to Delmar
Tobias.
4 No. 01-2703
partner. Tobias told the agents that Fleischli purchased
all the guns that were registered to SAS. Medlock also
washed his hands of blame, telling the agents that Fleischli
asked him to be secretary/treasurer of SAS but that he
received no pay and played no active role in the company.
On that same day, ATF agents armed with warrants
obtained before this questioning searched Otto American
Boiler, SAS and Fleischli’s home. The agents recovered
approximately seventy-five firearms from Fleischli’s home.
They seized machine guns, machine gun parts and explo-
sive devices from his place of business. Machine guns
registered to SAS were found at Otto American Boiler.
Registration forms and other paperwork related to the
guns were found at Otto American Boiler in Fleischli’s
office in his desk drawer. Following these seizures on
August 11, the agents gathered evidence about the prior
shooting demonstration in Missouri. They obtained wit-
ness statements, a videotape of the event, and photographs.
A six-count indictment against Fleischli followed.
Fleischli moved to suppress evidence seized from his
home and business and moved to dismiss the indictment.
He argued that the search warrants were not based on
probable cause because one of the informants supply-
ing information used to obtain the warrant was not reli-
able. That informant, Danny Dapron, told the agents he
had last seen the minigun and other guns at Fleischli’s
home and business on February 1, 1998. Dapron had a
checkered past himself and Fleischli argued he could not
have seen the guns on February 1, 1998 because he
(Dapron) was in jail at that time. The court denied the
motion to suppress because Dapron was just one of sev-
eral sources of information supporting the warrant. In-
deed, Fleischli himself had independently corroborated
Dapron’s statements during his many recorded conversa-
tions with Deputy Malone. The district court therefore
denied the motion to suppress and also rejected Fleischli’s
No. 01-2703 5
arguments in support of his motion to dismiss the indict-
ment. A jury subsequently found Fleischli guilty on all
six counts and the district court sentenced him to 120
months’ imprisonment. In determining Fleischli’s sentence,
the court included a two-level increase for his role in
the offense as manager of an illegal business. Fleischli
appeals.
II.
Fleischli raises eleven challenges to his conviction and
one to his sentence for an even dozen. He contends that:
(1) there was no probable cause to issue the warrants used
to search his home and business premises on August 11,
1998; (2) he was exempt from section 922(o)(1) by virtue
of section 922(o)(2) because he was an authorized agent
of a licensed firearms manufacturer; (3) section 922(o)(1)
exceeds Congress’s powers under the Commerce Clause;
(4) the government failed to prove in the section 922(g)(1)
possession count that Fleischli’s possession of firearms
substantially affected interstate commerce; (5) section
922(g)(1) exceeds Congress’s powers under the Commerce
Clause to the extent that it applies to Fleischli’s mere
possession of firearms in his home and business; (6) section
5822 does not encompass Fleischli’s manufacture of
machine guns because he was acting as an agent of a li-
censed manufacturer; (7) the minigun was not a machine
gun within the meaning of section 5845 because it does
not fire automatically and does not have a trigger; (8) the
term “similar device” in the definition of the term “destruc-
tive device” in section 5845 is unconstitutionally vague;
(9) the four alleged destructive devices seized from Fleischli
did not come within the purview of section 5845(f) be-
cause they were used only as fireworks; (10) Fleischli
could not be convicted of transporting firearms under
section 922(g)(1) because he was merely a passenger in a
6 No. 01-2703
vehicle used to transport firearms; (11) evidence of
Fleischli’s possession of firearms in Missouri was inad-
missable under the Sixth Amendment which requires
that a person be tried within the state and district in
which the crime occurred; and (12) the court erred in
applying a two-level enhancement for Fleischli’s role in
the offense because there were no other participants in
the offense. A number of Fleischli’s arguments are easily
resolved by well-settled law and we will address them in
summary fashion.
A.
On August 11, 1998, ATF agents searched Fleischli’s
home and business pursuant to two warrants. The war-
rants were issued on the basis of probable cause estab-
lished by the affidavit of ATF Special Agent Robert
Schmidt. Fleischli maintains that the warrants were
improperly issued and not based on probable cause be-
cause Agent Schmidt credited information from Danny
Lee Dapron, an unreliable informant, in drafting his
affidavit. In the affidavit, Schmidt reported that he inter-
viewed Dapron, a former employee of Otto American Boiler.
Dapron told Schmidt that he saw the minigun at Otto
American Boiler on February 1, 1998, and that Fleischli
kept another gun in a safe on the premises as well. Dapron
also reported seeing a number of firearms in a vault
in the basement of Fleischli’s home on that same day.
Fleischli complains that the affidavit did not contain the
basis of Dapron’s knowledge and that the agent did not
corroborate the information. Moreover, Fleischli contends,
Dapron was an unreliable source with a criminal record
who was actually in jail on February 1, 1998, the day
he claims to have seen guns at Fleischli’s home and busi-
ness. Finally, Fleischli complains that the information
provided by Dapron was stale by the time the warrant
No. 01-2703 7
was executed, approximately six months later. Fleischli
thus asks us to conclude that the warrant was not based
on probable cause and that the evidence seized from his
home and business should be suppressed.
We review de novo the district court’s determination
that probable cause existed to support a search warrant.
Ornelas v. United States, 517 U.S. 690, 699 (1996); United
States v. Singleton, 125 F.3d 1097, 1102 (7th Cir. 1997),
cert. denied, 522 U.S. 1098 (1998). We review for clear
error, however, findings of historical fact and give due
weight to inferences drawn from those facts by resident
judges and local law enforcement agencies. Ornelas, 517
U.S. at 699; Singleton, 125 F.3d at 1102. We begin by
reviewing the affidavit on which the court relied in issuing
the warrants. Special Agent Schmidt’s twelve-page affida-
vit contains an extensive amount of information from a
variety of sources, including Fleischli himself. In recorded
conversations with Deputy Malone, Fleischli corroborated
much of the information provided by Dapron and others.
A few examples will suffice to demonstrate the reliability
of the information provided in the affidavit.
Dapron, a family friend of Fleischli’s for thirty-seven
years, worked at Otto American Boiler for a number of
years. He correctly identified Delmar and Diamonda
Tobias as Fleischli’s in-laws, he knew that Fleischli’s wife
held an Illinois explosives license, he knew that Fleischli
had taken the guns to Knob Creek, Kentucky for shoot-
ing demonstrations on a number of occasions, and he
knew where Fleischli stored his guns in safes both at his
home and at Otto American Boiler. Dapron identified
the types of guns Fleischli owned, naming the models
and manufacturers. In short, Dapron demonstrated an
intimate knowledge of Fleischli, his guns, and his home and
business. Much of the detailed information provided by
Dapron was corroborated by Fleischli himself, lending
further credibility to Dapron’s information. Fleischli told
8 No. 01-2703
Malone, for example, that he had just returned from a
machine gun shoot in Knob Creek, Kentucky, and that he
had attended shooting events at Knob Creek twice a
year for eighteen years. Fleischli told the deputy he had
brought several guns with him down to Knob Creek. When
asking for the Treasury letter, Fleischli originally asked
that it be sent to 1905 East Washington, which turned
out to be the address of Otto American Boiler. The phone
number on Fleischli’s business card for SAS also turned
out to be the number of Otto American Boiler. Fleischli
also told the deputy about some of the guns he owned,
including some that had been identified by Dapron. Special
Agent Schmidt confirmed that Fleischli’s wife held a val-
id explosives license from the State of Illinois. Further
confirmation of Dapron’s information was provided by
Delmar Tobias who told a sheriff’s deputy that his son-in-
law stored the minigun in his (Fleischli’s) safe. When an
affidavit relies on an informant’s tip, the issuing judge
must look to the totality of the circumstances in determin-
ing whether probable cause exists. Illinois v. Gates, 462
U.S. 213, 238 (1983); United States v. Spry, 190 F.3d 829,
835 (7th Cir. 1999), cert. denied, 529 U.S. 1130 (2000).
Probable cause is a fluid concept, based on a reasonable
belief that evidence in the place to be searched will lead
to an arrest or conviction for a particular offense. United
States v. McClinton, 135 F.3d 1178, 1183 (7th Cir. 1998),
cert. denied, 524 U.S. 921 and 525 U.S. 885 (1998). “Proba-
ble cause denotes more than a mere suspicion, but does
not require certainty.” Id. Special Agent Schmidt’s affida-
vit provides sufficiently reliable information on which to
base a finding of probable cause. In addition to informa-
tion from Dapron and Fleischli himself, Special Agent
Schmidt relied on information from another confidential
informant, from Fleischli’s associate Gibbs, and from
sheriff’s department and ATF investigators. Although
Dapron was the only link to the location where the guns
would be found, numerous sources including Fleischli
No. 01-2703 9
himself verified that he currently possessed a large num-
ber of firearms. Although Dapron had a criminal record
and may have misidentified the date on which he last
saw the guns, he demonstrated an extensive and intimate
knowledge of Fleischli’s family, business and home, as
well as his gun collection. Much of this information
was independently corroborated, lending further credibil-
ity to the facts that could not be confirmed until the
search was actually conducted (i.e., the presence of guns
in particular locations within Fleischli’s home and busi-
ness). The court thus did not err in issuing the warrant
based on information provided by Dapron and others.
B.
Fleischli was convicted of two counts of possession of
machine guns in violation of 18 U.S.C. § 922(o)(1). He ar-
gues on appeal that he was exempt from the operation of
section 922(o)(1) by virtue of section 922(o)(2) and the
accompanying federal regulations. Section 922(o)(1) states:
Except as provided in paragraph (2), it shall be unlaw-
ful for any person to transfer or possess a machinegun.
19 U.S.C. § 922(o)(1). Section 922(o)(2) states in relevant
part:
This subsection does not apply with respect to . . . a
transfer to or by, or possession by or under the author-
ity of, the United States or any department or agency
thereof or a State, or a department, agency, or political
subdivision thereof[.]
18 U.S.C. § 922(o)(2)(A). Federal regulations provide that
qualified manufacturers may “import and manufacture
machine guns . . . for use by dealers qualified under this
part as samples as provided in paragraph (d) of this sec-
tion.” 27 C.F.R. § 179.105(c). Paragraph (d), in turn,
explains that applications to transfer and register certain
10 No. 01-2703
machine guns will be approved “if it is established by
specific information the expected governmental customers
who would require a demonstration of the weapon . . . and
letters from governmental entities expressing a need for
a particular model or interest in seeing a demonstration
of a particular weapon.” Presumably this is the letter
Fleischli and Gibbs sought to have the Sheriff’s Department
issue. Fleischli now argues that, in the Spring of 1998,
when he transported machine guns to Missouri, he was
authorized to do so by the president of SAS, a licensed
manufacturer, and he was accompanied by the president
of SAS on this trip as well. Because he was acting as
an agent of the corporation, his possession of the guns was
the corporations’s possession. He thus maintains that
he did not violate section 922(o)(1).
We review this question of statutory interpretation de
novo. United States v. Jain, 174 F.3d 892, 897 (7th Cir.
1999), cert. denied, 528 U.S. 889 (1999). Fleischli, in es-
sence, argues that a felon who may not possess any fire-
arms may immunize himself from prosecution for possess-
ing more tightly regulated machine guns by hiding behind
a corporate charter. He maintains that because his status
as a felon is not an element of a section 922(o) violation, he
may not be prosecuted under that provision if a licensed
corporation authorized him to possess and transport a
machine gun. Fleischli’s argument is bold but unavailing.
First, SAS would never have obtained a license if it had
truthfully disclosed that it was a front for a convicted fel-
on to gain access to firearms. Under 18 U.S.C. § 923(d)(1),
an applicant for a license to manufacture or deal in fire-
arms will be approved if “the applicant (including, in the
case of a corporation, partnership, or association, any in-
dividual possessing, directly or indirectly, the power
to direct or cause the direction of the management and
policies of the corporation, partnership, or association) is
not prohibited from transporting, shipping, or receiving
No. 01-2703 11
firearms or ammunition in interstate commerce under
section 922(g) and (n) of this chapter[.]” In other words, if
Fleischli had held himself out to be the president of SAS
during the licensing process (as he did when he approached
the Sheriff’s Department for the Treasury letter), SAS
would not have received its license. See also 18 U.S.C.
§ 925(b) (allowing a licensed manufacturer, dealer or
collector under indictment for a felony to continue opera-
tions until any conviction pursuant to the indictment be-
comes final). The statutory scheme when viewed as a
whole was never intended to allow convicted felons to hide
behind a corporate charter to gain access to the most
heavily regulated firearms, such as machine guns.
Second, it is well-settled that “an agent cannot be in-
sulated from criminal liability by the fact that his prin-
cipal authorized his conduct.” McNamara v. Johnston,
522 F.2d 1157, 1165 (7th Cir. 1975), cert. denied, 425
U.S. 911 (1976). See also Gillespie v. City of Indianapolis,
185 F.3d 693 (7th Cir. 1999), cert. denied, 528 U.S. 1116(2000) (upholding challenge to section 922(g)(9) by a police
officer who lost his job because he could not possess a
firearm after being convicted of domestic violence); United
States v. Floyd, 882 F.2d 235, 240 (7th Cir. 1989) (holding
union official could not be absolved of wrongdoing by
claiming the act was done with union authorization un-
der the principal recognized in McNamara). In short, a
convicted felon who could not have legitimately obtained
a manufacturer’s or dealer’s license may not obtain access
to machine guns by setting up a sham corporation.
C.
Fleischli next contends that Congress exceeded its pow-
ers under the Commerce Clause when it enacted section
922(o)(1). Fleischli concedes that we have previously
rejected a Commerce Clause challenge to section 922(o).
12 No. 01-2703
See United States v. Kenney, 91 F.3d 884 (7th Cir. 1996).
He maintains, however, that Kenney is now in conflict
with the Supreme Court’s more recent ruling in United
States v. Morrison, 529 U.S. 598 (2000), and that we must
therefore reverse his convictions on Counts 1 and 3. In
Morrison, the Supreme Court struck down a section of
the Violence Against Women Act that created a federal civil
remedy for gender-motivated violence because gender-
motivated violence is not an activity that substantially
affects interstate commerce. Nothing in Morrison casts
doubt on the validity of section 922(o)(1), and our analysis
in Kenney remains sound. See also United States v. Haney,
264 F.3d 1161, 1166-71 (10th Cir. 2001), cert. denied, 122
S. Ct. 2362 (2002) (upholding section 922(o) against a post-
Morrison Commerce Clause challenge). Seeing no reason
to doubt our earlier analysis and no reason to split from
the well-reasoned decision of our sister circuit, we affirm
Fleischli’s convictions on Counts 1 and 3.
D.
Fleischli challenges his conviction under 18 U.S.C.
§ 922(g)(1), the “felon in possession” statute, because
the government was not required to prove that his pos-
session of firearms substantially affected interstate com-
merce. Again Fleischli acknowledges that we have re-
jected an identical argument in the past. See Gillespie, 185
F.3d at 705. This time he maintains that Gillespie can-
not stand in light of Jones v. United States, 529 U.S.
848 (2000). But we have rejected that argument as well,
and Fleischli offers us no reason to reconsider our earlier
opinions. See United States v. Mitchell, 2002 WL 1790467,
*2 (7th Cir. Aug. 5, 2002); United States v. Wesela, 223
F.3d 656, 660 (7th Cir. 2000), cert. denied, 531 U.S. 1174(2001). See also United States v. Singletary, 268 F.3d 196,
205 (3rd Cir. 2001), cert. denied, 122 S. Ct. 1450 (2002)
(collecting cases).
No. 01-2703 13
E.
We next review Fleischli’s claim that section 922(g)(1)
does not extend to firearms possessed in Fleischli’s home
or business. He bases this argument on Jones, stating
that the possession of firearms in a home or non-firearms
related business (presumably Otto American Boiler) is
not in any sense commercial activity. Thus, he argues, as
applied to him, section 922(g)(1) exceeds Congress’s pow-
ers under the Commerce Clause. This is a curious argu-
ment given Fleischli’s claim above that he did not person-
ally possess any of the firearms but rather held them as
an agent of SAS, a licensed firearms manufacturer. In
that capacity, we have no doubt he would concede his
possession of firearms affected commerce. Fleischli is
entitled to argue in the alternative, however. This claim
is really just a slightly different twist on Fleischli’s
claim above that the government should have been re-
quired to prove that his possession of firearms substan-
tially affected interstate commerce. We have held numer-
ous times that the Commerce Clause requirement is met
in the case of firearms possession when the guns have
previously traveled in interstate commerce. See Mitchell,
2002 WL 1790467 at *2; Wesela, 223 F.3d at 660. Noth-
ing in Jones requires a different result.
F.
Fleischli next challenges his conviction under 26 U.S.C.
§ 5822. Presumably he means to challenge his convic-
tion under 26 U.S.C. § 5861(f) which states that “[i]t shall
be unlawful for any person to make a firearm in violation of
the provisions of this chapter[.]” Section 5822, in turn,
provides the scheme by which persons seeking to manu-
facture firearms may apply for permission to do so. Sec-
tion 5822 provides that no person shall make a firearm
unless he has filed a written application with the Secre-
14 No. 01-2703
tary, paid any appropriate taxes, identified the firearm
on the application, identified himself on the application
(a photograph and fingerprints must be included if the
applicant is an individual), and obtained the approval of
the Secretary to make and register the firearm. Section
5822 also provides “Applications shall be denied if the
making or possession of the firearm would place the per-
son making the firearm in violation of the law.” Fleischli
contends that section 5822 did not apply to him because
he manufactured the gun in question under the auspices
of SAS, a licensed manufacturer. Section 5822, he main-
tains, does not apply to licensed manufacturers but rath-
er applies to non-licensed persons who wish to manufacture
a machine gun. Because SAS was licensed under section
5802, it was not required to apply for approval under
section 5822, and because Fleischli was employed by SAS,
his manufacture of a machine gun could not be prosecuted
under section 5822.
Fleischli does not cite a single case in support of
this novel theory. It is essentially a replay of his argu-
ment that he is not subject to section 922(o)(1) because
he was acting as the agent of a licensed manufacturer.
We reject this claim here as we rejected it in section B
above. First, SAS would not have obtained a license to
manufacture guns if it had disclosed that Fleischli, a
convicted felon, would be central to the operation. Second,
Fleischli may not hide behind a corporate charter to en-
gage in conduct he could not legally accomplish as an
individual. Such a theory is contrary to the language and
structure of the statutory scheme regulating firearms. If
Fleischli’s theory prevailed, a hypothetical “Felons, Inc.”
could provide convicted felon-employees with access to
firearms they could not legally obtain, completely thwarting
Congressional intent to keep firearms out of the hands
of convicted felons. We do not believe Congress intended
to create such a gaping loophole, and no statutory lan-
No. 01-2703 15
guage supports such an expansive reading. McNamara,
522 F.2d at 1165; Gillespie, 185 F.3d at 693; Floyd, 882
F.2d at 240. Indeed, section 5822 specifies that applica-
tions will be denied if the making or possession of a fire-
arm would place the person making the firearm in viola-
tion of the law. As a convicted felon, Fleischli’s application
would be denied because possession of a gun would
place him in violation of 18 U.S.C. § 922(g)(1). Fleischli’s
conviction under section 5861 will stand.
G.
Fleischli challenges his convictions for possessing and
manufacturing a machine gun on the ground that the
minigun does not meet the statutory definition of a
machine gun. In particular, he claims the minigun is not
a machine gun as that term is defined in 26 U.S.C.
§ 5845(b) because the minigun does not fire automatically
and does not have a trigger. Section 5845(b) defines a
machine gun as follows:
The term “machinegun” means 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.
26 U.S.C. § 5845(b). The words “automatic” and “trigger”
are not defined in the statute or regulations. Fleischli
argues that a gun does not fire automatically unless it
uses a portion of the energy of a firing cartridge to ex-
16 No. 01-2703
tract the fired cartridge and chamber the next round
without a separate pull of the trigger. He derives this
meaning from the United States Code’s definition of “semi-
automatic.” He also claims the minigun is akin to a
Gatling gun, which is not considered a machine gun under
an IRS ruling. Relying on firearms reference manuals, he
also contends that his minigun lacked a trigger as that
term is defined in the firearms field because the minigun
operates by virtue of an electrical on-off switch.
In interpreting the National Firearms Act (“NFA”), the
Supreme Court offered commonsense explanations of the
terms “automatic” and “semiautomatic” that give us all the
ammunition we need to dispose of Fleischli’s disingenuous
argument:
As used here, the terms “automatic” and “fully auto-
matic” refer to a weapon that fires repeatedly with a
single pull of the trigger. That is, once its trigger
is depressed, the weapon will automatically continue
to fire until its trigger is released or the ammunition
is exhausted. Such weapons are “machineguns” within
the meaning of the Act. We use the term “semiauto-
matic” to designate a weapon that fires only one shot
with each pull of the trigger, and which requires
no manual manipulation by the operator to place
another round in the chamber after each round is fired.
Staples v. United States, 511 U.S. 600, 602 n.1 (1994).
Fleischli dismisses this passage as not binding, arguing
that the Court did not define “automatically” but rather
defined “automatic.” We think the Court’s meaning is
plain enough. If Fleischli’s minigun, with one application
of the trigger, continued to fire until the trigger was
released or the ammunition exhausted, it was a machine
gun within the meaning of the Act.
That leads us to consider whether the minigun had a
trigger. Fleischli’s minigun was activated by means of
No. 01-2703 17
an electronic on-off switch rather than a more traditional
mechanical trigger. He maintains that an electronic
switch does not meet the traditional definition of trigger
and that the minigun, which fired between 2000 and 6000
rounds per minute once it was switched on, was therefore
not a machine gun. This is a puerile argument, based on
hyper-technical adherence to literalism. We are not sur-
prised to learn that Fleischli is not the first defendant
to make such a brazen argument, although he appears to
be the first to do so in this circuit. We join our sister cir-
cuits in holding that a trigger is a mechanism used to
initiate a firing sequence. United States v. Jokel, 969 F.2d
132, 135 (5th Cir. 1992) (commonsense understanding
of trigger is mechanism used to initiate firing sequence);
United States v. Evans, 978 F.2d 1112, 1113-14 n.2 (9th
Cir. 1992), cert. denied, 510 U.S. 821 (1993) (trigger is
anything that releases the bolt to cause the weapon to fire).
Fleischli’s definition “would lead to the absurd result
of enabling persons to avoid the NFA simply by using
weapons that employ a button or switch mechanism for
firing.” Evans, 978 F.2d at 1113-14 n.2. The dictionary
definition of “trigger” includes both the traditional (“a small
projecting tongue in a firearm that, when pressed by the
finger, actuates the mechanism that discharges the
weapon”) and the more general (“anything, as an act or
event, that serves as a stimulus and initiates or precip-
itates a reaction or series of reactions.”). See WEBSTER’S
UNABRIDGED DICTIONARY OF THE ENGLISH LANGUAGE (2001).
Fleischli’s electronic switch served to initiate the firing
sequence and the minigun continued to fire until the
switch was turned off or the ammunition was exhausted.
The minigun was therefore a machine gun as defined in
the National Firearms Act.
H.
We next consider whether the term “similar device” in
26 U.S.C. § 5845(f) is unconstitutionally vague. Fleischli
18 No. 01-2703
was convicted of violating section 5861(d), which prohibits
possession of an unregistered firearm. Section 5845(a)(8)
defines “firearm” to include a “destructive device.” Section
5845(f), in turn, defines destructive device:
The term “destructive device” means (1) any explosive,
incendiary, or poison gas (A) bomb, (B) grenade, (C)
rocket having a propellant charge of more than four
ounces, (D) missile having an explosive or incendiary
charge of more than one-quarter ounce, (E) mine, or
(F) similar device[.]
26 U.S.C. § 5845(f). The statute further provides that the
term “destructive device” does not include devices that
are not designed or redesigned for use as weapons. 26
U.S.C. § 5845(f)(3). Fleischli was charged with possess-
ing four “explosive or incendiary bombs or similar de-
vices each consisting of a cardboard container sealed
at both ends, containing a mixture of pentaerythritol
tetranintrate (PETN) powder, a non-electric blasting cap
with a short length of fuse.” R. 26 at 7. Fleischli main-
tains that the use of the word “similar” causes a reason-
able person to speculate as to how nearly a device must
resemble a bomb, grenade, rocket, missile or mine in
determining whether the device is encompassed by the
statute. Fleischli thus contends the statute is unconstitu-
tionally vague.
The three circuits to consider this issue have all found
that the statute is not unconstitutionally vague. See
United States v. Markley, 567 F.2d 523, 527-28 (1st Cir.
1977), cert. denied, 435 U.S. 951 (1978); United States v.
Ross, 458 F.2d 1144, 1145 (5th Cir. 1972), cert. denied,
409 U.S. 868 (1972); United States v. Morningstar, 456 F.2d
278, 281 (4th Cir. 1972), cert. denied, 409 U.S. 896 (1972).
All three courts agreed that a person of ordinary intelli-
gence would understand the statute to include any com-
bination of parts intended to be used as a bomb or weap-
No. 01-2703 19
on or from which a bomb or weapon could be readily
assembled. Fleischli’s device comes well within the pur-
view of the statute. He maintains, however, that the
four devices he was charged with possessing were not
intended for use as weapons but rather as fireworks. He
complains that the jury was not instructed that the gov-
ernment was required to prove the devices were designed
or redesigned for use as a weapon.
The jury was instructed as follows:
You must determine whether any of the devices
charged in Count 6 is a destructive device. If the
objective design of the device indicates that the ob-
ject has no legitimate social or commercial purpose,
the defendant’s intent in possessing that device is
not relevant to your determination. However, if the
assembled device may form an object with both a
legitimate and a nonlegitimate use, then you may
consider the defendant’s subjective intent in decid-
ing whether that device qualifies as a destructive
device.
R.81, Tr. at 461. This instruction was a correct statement
of the law in this circuit, and allowed Fleischli to pro-
ceed with his defense that the objects were actually fire-
works, not destructive devices. See United States v.
Saunders, 166 F.3d 907, 914 (7th Cir. 1999); United States
v. Johnson, 152 F.3d 618, 625 (7th Cir. 1998). The jury
simply did not believe his version of events. The statute
gave adequate notice of what conduct was proscribed, and
the jury was properly instructed about the government’s
burden of proof. We find no error.
I.
Fleischli next raises a sufficiency of the evidence chal-
lenge, arguing that the government failed to prove that
20 No. 01-2703
the four devices were designed or redesigned for use as
weapons. He claims that the undisputed evidence shows
that the devices were intended for use as fireworks at
the Tobiases’ farm. Fleischli’s in-laws apparently held a
valid fireworks permit. Fleischli has an uphill battle in
making out a sufficiency of the evidence claim. In review-
ing this claim we must determine whether, after view-
ing the evidence in the light most favorable to the pros-
ecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.
United States v. Copus, 93 F.3d 269, 271 (7th Cir. 1996).
We may reverse a conviction only when the record is de-
void of any evidence, regardless of how it is weighed, from
which a jury could find guilt beyond a reasonable doubt. Id.The government presented evidence that Fleischli pos-
sessed four fully assembled devices consisting of blasting
caps (detonators), varying amounts of PETN (a highly
explosive powder), and fuses. Government evidence dem-
onstrated that lighting the fuse would cause the blast-
ing cap to activate, which in turn would detonate the
explosive powder. The resulting explosion was of suf-
ficient force to damage property and cause personal injury.
In response to Fleischli’s claim that the devices were
intended for use as fireworks, an ATF explosives expert
testified that no commercial firecrackers of which he
was aware used a detonator or PETN. The ATF expert
testified that he knew of no social or commercial use for
the devices as assembled. This evidence was more than
adequate to support a conviction under section 5861(d).
J.
Fleischli was convicted of transporting firearms in
interstate commerce in violation of 18 U.S.C. § 922(g)(1).
The district court here instructed the jury that a “defen-
dant transports a firearm when he transports or causes
No. 01-2703 21
to be transported the firearm in a vehicle.” R. 81, Tr. at 458.
The charge was based on the transport of the minigun
from Illinois to Missouri in the Spring of 1998. The gun
was transported in a trailer that was towed by a van
owned and driven by Kevin Traeger. Fleischli and his
family were passengers in Traeger’s van. Fleischli cites
Muscarello v. United States, 524 U.S. 125 (1998), for the
proposition that the driver of the vehicle was the only
person legally liable for transporting the firearms. Because
Fleischli was merely a passenger in the van in which the
minigun was transported, he maintains he did not “trans-
port” the gun. He does not dispute that, as a factual mat-
ter, he agreed to bring his minigun to Missouri to attend
a shooting event, that the minigun was loaded into
Traeger’s trailer at Otto American Boiler, that Fleischli
demonstrated the gun in Missouri, and that the gun
was returned to the safe at Otto American Boiler at the
end of the day.
In Muscarello, the Court considered the meaning of
“carry” as that term is used in 18 U.S.C. § 924(c)(1). The
Court concluded that “carry” is not limited to the carry-
ing of weapons directly on the person but can include
their carriage in a car. 524 U.S. at 132. According to the
Court, a person may “carry” firearms in a wagon, truck, car
or other vehicle that one accompanies. 524 U.S. at 128. The
Court rejected the petitioner’s claim that such a broad
definition of “carry” would make it equivalent to “trans-
port,” which clearly had a separate meaning in the stat-
ute. The Court commented that “carry” implies personal
agency and some degree of possession, “whereas ‘trans-
port’ does not have such a limited connotation, and, in
addition, implies the movement of goods in bulk over
great distances.” 524 U.S. at 134. “ ‘Transport’ is a broad-
er category that includes ‘carry’ but also encompasses
other activity.” 524 U.S. at 135.
22 No. 01-2703
There is no support in the language of the statute or the
case law for Fleischli’s distinction between a passenger
and driver of the vehicle in which the firearm is
transported. Under Muscarello, the key to the meaning
of “carry” is personal agency and possession. “Transport”
includes “carry” and is a broader category. The evi-
dence demonstrated that the gun belonged to Fleischli,
that it was transported to Missouri at his impetus, that
he accompanied the gun in a van to Missouri and over-
saw the loading and unloading of the gun at both ends
of the trip. In short, he transported the gun to Missouri
as that word is commonly understood. The government
was required to prove no more than that. The district
court’s instruction accurately conveyed the law by clarify-
ing that the standard could be met by showing that
Fleischli caused the firearm to be transported.
K.
Over Fleischli’s objection, the government offered evi-
dence of Fleischli’s possession of firearms in Missouri.
Fleischli contends that this evidence violated his Sixth
Amendment right to be tried in the district where the
crime was committed. Possession of a firearm is a con-
tinuing offense which ceases only when the possession
stops. United States v. Ballentine, 4 F.3d 504, 507 (7th Cir.
1993), cert. denied, 510 U.S. 1179 (1994). Continuing
offenses may be prosecuted in any district in which
they occurred. United States v. Chin, 981 F.2d 1275, 1278
(7th Cir. 1992), cert. denied, 508 U.S. 923 (1993). Thus,
Fleischli was properly prosecuted for possession in ei-
ther Illinois or Missouri, and the court did not err by
admitting evidence of Fleischli’s gun-related activities
in Missouri. Moreover, Fleischli was also charged with
transporting a gun from Illinois to Missouri and evidence
of his possession of the gun in Missouri was highly rele-
vant to that charge and appropriately admitted.
No. 01-2703 23
L.
Finally, Fleischli contests his sentence, arguing that
the district court incorrectly applied an enhancement for
his role in the offense pursuant to U.S.S.G. §3B1.1(c).
That provision allows a court to increase the defendant’s
offense level by two levels if the defendant was an orga-
nizer, leader, manager, or supervisor in any criminal
activity. Fleischli contends that this enhancement may
be applied only when the offense is committed by more
than one participant. Because “participant” is defined as
a person who is criminally responsible for the commission
of the offense (regardless of whether that person is con-
victed), and there were no other criminally responsible
persons, Fleischli argues that the district court erred in
applying the enhancement. Fleischli is correct that a sec-
tion 3B1.1(c) enhancement may be applied only when
there is another participant in the offense. United States
v. Mustread, 42 F.3d 1097, 1103 (7th Cir. 1994); U.S.S.G.
3B1.1, Application Note 2 (“To qualify for an adjust-
ment under this section, the defendant must have been
the organizer, leader, manager, or supervisor of one
or more other participants.”). The district court was
aware of this limitation, and declined to apply an adjust-
ment under section 3B1.1(c). Instead the court departed
upward, relying on additional language from Application
Note 2:
An upward departure may be warranted, however,
in the case of a defendant who did not organize, lead,
manage, or supervise another participant, but who
nevertheless exercised management responsibility
over the property, assets, or activities of a criminal
organization.
U.S.S.G. § 3B1.1, Application Note 2.
In particular, the court referenced Application Note 2
and then noted:
24 No. 01-2703
And here the government clearly established at
trial that the defendant procured parts for illegal
weapons and engaged in illegal weapons manufacture.
He arranged for potential sale of the Minigun. He
demonstrated its firepower at a gun show. And he had
Mr. Tobias register arms and conduct transactions in
his stead. Similarly, Mr. Fleischli employed Mr. Med-
lock as the firearm company’s secretary-treasurer
because Mr. Medlock had a valid firearm owner iden-
tification card, FOID card, and could use it to pos-
sess guns which the defendant could not legally pos-
sess himself. So these activities, it seems to the
Court, clearly warrant a two-point upward departure
pursuant to 3B1.1.
R.79, Sentencing Tr. at 8-9. The court had already found
that it was Fleischli’s idea to set up the corporation
after repeated attempts to gain access to firearms legally
had failed.
We review the court’s decision to depart upward from
the applicable Guideline range for abuse of discretion.
United States v. Leahy, 169 F.3d 433, 439 (7th Cir. 1999).
We see no abuse of discretion here. Fleischli set up a
sham corporation using friends and relatives to help him
gain access to firearms he could not obtain legally. He
recruited others to act as straw men in his gun purchase
activities, and directed the operation himself. He main-
tained in his own home and business a veritable arsenal
of weapons that were registered to this company, exercis-
ing management responsibility over the property, assets,
or activities of a criminal organization. We therefore
affirm the district court’s application of an upward de-
parture to Fleischli’s sentence.
No. 01-2703 25
III.
For the reasons stated above, we find no error in
Fleischli’s conviction or sentence. We therefore affirm the
judgment of the district court.
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—9-12-02