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UNITED STATES v. KELLY

October 6, 1982

UNITED STATES OF AMERICA
v.
KEVIN KELLY



The opinion of the court was delivered by: BRODERICK

 BRODERICK, J.

 Defendant Kevin Kelly was found guilty by a jury on both counts of a two-count indictment charging him with (1) knowingly and unlawfully possessing a machine gun not registered to him in the National Firearms Registration and Transfer Record, in violation of 26 U.S.C. § 5861(d), and (2) making a machine gun without complying with the requirements of Chapter 53, § 5822 of the National Firearms Act, in violation of 26 U.S.C. § 5861(f). At trial, the government produced evidence on the basis of which the jury found, beyond a reasonable doubt, that the bolt and trigger housing of a UZI semi-automatic weapon were sent to the defendant by a Special Agent of the Bureau of Alcohol, Tobacco and Firearms, and that the defendant sent back to the agent a bolt and trigger housing modified in such a manner that the Agent was able to insert the modified bolt and trigger housing into a UZI semi-automatic gun so that it operated as an automatic weapon.

 Defendant has now moved for an arrest of judgment under Fed.R.Crim.P. 34, and for a new trial under Fed.R.Crim.P. 33. For the reasons stated below both motions are denied.

 Defendant's Motion for Arrest of Judgment.

 Defendant seeks arrest of the judgment against him on the ground that the Government failed to allege and prove that he possessed the entirety of parts capable of constructing a completed machine gun. Under Fed.R.Crim.P. 34, judgment may be arrested only if the indictment does not charge an offense against the United States or if the Court was without jurisdiction of the offense charged. Such a motion must be based on a defect apparent upon the face of the indictment itself, and not upon the evidence or its sufficiency. United States v. Sisson, 399 U.S. 267, 280-81, 26 L. Ed. 2d 608, 90 S. Ct. 2117 (1970); United States v. Frezzo Bros., 461 F. Supp. 266, 268 (E.D. Pa. 1978).

 The Court holds, as it ruled in denying defendant's motion to dismiss the indictment, that the indictment was sufficient as a matter of law to charge the offenses of making and possessing a machine gun in violation of 26 U.S.C. § 5861. The indictment states the specific sections of the statute which were violated, gives the approximate dates of the offenses, and gives a brief description of the offenses. Defendant thus had sufficient notice of the offense for which he was charged. See United States v. Miah, 433 F. Supp. 259, 263-64 (E.D. Pa. 1977). Further, the indictment tracks the language of the applicable statute, and alleges the elements necessary to prove each offense.

 It was not necessary for the indictment to describe in detail what portions of the machine gun the Government intended to introduce at trial. United States v. Curtis, 520 F.2d 1300, 1302 (1st Cir. 1975). Defendant's contention that the Government's proof at trial was insufficient to make out a violation of the statute is properly raised in a motion for a new trial, and will be discussed below.

 Defendant's Motion For a New Trial

 Defendant moves under Fed.R.Crim.P. 33 for a new trial on the following six grounds: (1) the verdict was against the law as it existed at the time of trial; (2) the Court erred in charging the jury that possession and fabrication of any combination of parts designed and intended for the construction of a machine gun, rather than of all parts necessary to construct a completed machine gun, was sufficient to constitute a violation of 26 U.S.C. § 5861; (3) the Court erred by not charging the jury that proof that the defendant knew that what he possessed was a firearm within the common meaning of the term was required; (4) the Court erred in allowing the government to introduce evidence of other machine gun modifications performed by the defendant similar to that for which he was charged and for which he was not charged in the instant trial; (5) the Court erred in failing to answer two questions submitted by the jury during its deliberation and reiterating its original charge; and (6) the verdict was against the weight of the evidence.

 Defendant's first two contentions are based upon the statutory definition of a machine gun as set forth in 26 U.S.C. § 5845(b), which reads:

 
The term "machine gun" 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 include the frame or receiver of any such weapon, any combination of parts designed and intended for use in converting a weapon into a machine gun, and any combination of parts from which a machine gun can be assembled if such parts are in the possession or under the control of a person.

 Defendant asserts that under this definition the bolt and trigger housing he possessed and modified did not constitute a "machine gun". Defendant relies upon United States v. Seven Miscellaneous Firearms, 503 F. Supp. 565 (D.D.C. 1980), and the use of the word "and" in the second sentence of the definition. Defendant argues that possession or control of a "combination of parts designed and intended for use in converting a weapon into a machine gun" does not alone constitute possession or control of a machine gun. Rather, defendant argues, a person must also possess or control a "frame or receiver", as well as "any combination of parts from which a machine gun can be assembled" before he possesses a machine gun within the meaning of § 5845(b).


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