[00:00:00] Speaker 01:
And we'll move on to the last case for today, which is Kitson.

[00:00:47] Speaker 00:
You're on video that's that's why Good morning, and may it please the court.

[00:00:56] Speaker 02:
My name is Michael Benson I represent Daniel Kitson and like I would like to reserve five arguments for five minutes for rebuttal You got it five minutes five arguments.

[00:01:06] Speaker 01:
No five minutes.

[00:01:07] Speaker 01:
Yes

[00:01:11] Speaker 02:
While this case presents four strong arguments on appeal, I would like to start by focusing on the statutory construction issue.

[00:01:19] Speaker 02:
There is no doctrine that allows a court to expand criminal liability within a statute beyond the plain language of that statute.

[00:01:33] Speaker 02:
Under the unique and unusual circumstances of this case, Mr. Kitson was found guilty only of aiding and abetting the transfer of a PPSH 41.

[00:01:45] Speaker 01:
Wait, hold on.

[00:01:46] Speaker 01:
How do we know that's the case?

[00:01:49] Speaker 02:
Your Honor, we know that for two reasons.

[00:01:51] Speaker 02:
The first is that the jury, there were two counts.

[00:01:54] Speaker 02:
One was felon in possession of a firearm.

[00:01:56] Speaker 01:
Right, no.

[00:01:57] Speaker 01:
But the Supreme Court has said you can't analyze one count by looking at the verdict in another.

[00:02:02] Speaker 01:
So we have to review each count of conviction separately.

[00:02:06] Speaker 01:
And the count was charged with both transfer and possession, correct?

[00:02:10] Speaker 02:
The count was charged with both transfer and possession.

[00:02:13] Speaker 01:
So we don't know whether he was convicted of, because there was no special verdict in this case, correct?

[00:02:19] Speaker 02:
we'd request a special verdict form, and it was denied.

[00:02:22] Speaker 01:
Right.

[00:02:22] Speaker 01:
So there was no special verdict form.

[00:02:24] Speaker 01:
So we don't know if the theory the jury convicted on was transfer or possessed, or if six people thought it was possessed and six people transferred.

[00:02:31] Speaker 01:
We don't know.

[00:02:33] Speaker 02:
I think in this case, where

[00:02:36] Speaker 02:
The only difference between the two counts is that in the machine gun count, the jury had to find an addition that the weapon was a machine gun.

[00:02:49] Speaker 02:
And where Mr. Kitson stipulated that he knew he had been convicted of an offense punishable by more than a year, the only way to make sense of that verdict is that... Right, but as the Supreme Court said, you can't do what you're trying to do right now.

[00:03:05] Speaker 01:
in Powell.

[00:03:06] Speaker 01:
Didn't Chief Justice Rehnquist say in Powell or Justice Rehnquist then in Powell say, look, we don't know why verdicts come the way they do.

[00:03:13] Speaker 01:
And you can't analyze parts of this one to try to analyze that one.

[00:03:19] Speaker 02:
What's more, with respect to the aiding and abetting theory.

[00:03:22] Speaker 01:
Is my reading of Powell wrong?

[00:03:27] Speaker 01:
I mean, counsel, there's clear Supreme Court authority saying, as I understand it, we can't do what you're saying.

[00:03:32] Speaker 01:
Do you have a case that says we can do what you're doing right now?

[00:03:38] Speaker 02:
Your Honor, if the court finds that the verdict is unclear on this, the jury was still instructed on a theory of liability that included the aiding and abetting.

[00:03:50] Speaker 01:
That's fair.

[00:03:51] Speaker 01:
So I think we can talk about the count of conviction without talking about the other one.

[00:03:55] Speaker 01:
And you can explain why that count was problematic.

[00:03:57] Speaker 01:
I think you might be onto something there.

[00:04:00] Speaker 01:
But I don't think it's because we can look at count two.

[00:04:02] Speaker 01:
You have to analyze just count one and explain why one of the theories in count one was invalid.

[00:04:08] Speaker 01:
Because there were two.

[00:04:14] Speaker 02:
Your Honor, I don't agree, but I'll move on.

[00:04:19] Speaker 02:
With respect to the aiding and abetting theory, the idea was that he aided and abetted the transfer of a firearm, the transfer of the PPSH 41.

[00:04:28] Speaker 02:
And in this case, 922.02a specifically excludes any transfer to the government.

[00:04:37] Speaker 02:
The transfer in this case was to an undercover ATF agent who was working on behalf of the United States government for a department or agency of the United States.

[00:04:52] Speaker 02:
I think that the main counterarguments to Mr. Kitson's view of this statute have to do with concerns over his culpability,

[00:05:04] Speaker 02:
or with concern general policy reasons.

[00:05:06] Speaker 02:
And I'd like to contrast this case with DeRusso, which is a Fourth Circuit case, albeit on a different section of 922.

[00:05:14] Speaker 02:
In DeRusso, there was no doubt that the defendant intended to transfer firearms to Haiti.

[00:05:28] Speaker 02:
developed a complicated scheme to do this.

[00:05:30] Speaker 02:
He went so far as to fake documents, including a fake military rank of colonel in order to support that scheme to transfer the firearms to Haiti.

[00:05:40] Speaker 02:
And what's more, he wanted to transfer the firearms to individuals in Haiti in order that those firearms be used in violent conflict in Haiti.

[00:05:48] Speaker 02:
He got on a plane, and he went to Haiti to do just that.

[00:05:51] Speaker 02:
And the only reason that those firearms didn't go to individuals was because he was intercepted by law enforcement.

[00:06:01] Speaker 02:
In DeRusso, the Fourth Circuit said that because that section of 922 doesn't include attempt liability, this R section does not, Mr. DeRusso was not guilty of transferring the firearms to an unlicensed person in Haiti.

[00:06:16] Speaker 01:
So let me just to understand your theory.

[00:06:19] Speaker 01:
I'm gonna provide a hypothetical that'll help me kind of understand where you're going Let's assume for a moment.

[00:06:24] Speaker 01:
I'm an arms trafficker and I get a phone call from a guy and he says hey, I am a DEA agent and I want to shoot up a school and I understand you can get me a machine gun so can you transfer me a machine gun and I'm a DEA agent and I'm going to use this machine gun to shoot up a school and

[00:06:46] Speaker 01:
under your reading of the statute, that transfer would not be prosecutable, correct?

[00:06:54] Speaker 02:
I don't think that that is correct because I'm guessing that that DEA agent wouldn't testify that they took the firearm on behalf of the United States to shoot up a school.

[00:07:08] Speaker 01:
So the words on behalf.

[00:07:11] Speaker 01:
I'm looking at the language here in the statute.

[00:07:15] Speaker 01:
I don't see those words in the statute.

[00:07:17] Speaker 02:
The transfer is to the United States.

[00:07:20] Speaker 02:
Right.

[00:07:21] Speaker 02:
And I would think that in your hypothetical, the transfer is to a private individual who also happens to be a DEA agent.

[00:07:27] Speaker 01:
So in that situation, you're saying we would read the words on behalf into the statute.

[00:07:34] Speaker 02:
I don't think we'd read the words on behalf into the statute.

[00:07:36] Speaker 02:
I think that the firearm wouldn't be transferred to the United States.

[00:07:41] Speaker 01:
So even though he works for the United States, and he's an agent for the United States,

[00:07:47] Speaker 01:
I think in that hypothetical, that's correct.

[00:07:50] Speaker 01:
And the difference would be what?

[00:07:53] Speaker 02:
In this case, the DEA agent testified clearly that he took the firearm on behalf of the Bureau of Alcohol, Firearms, and Tobacco.

[00:08:01] Speaker 01:
And so if the guy said, on behalf of the DEA, I'm going to shoot up this school?

[00:08:07] Speaker 02:
And that were accurate, yes.

[00:08:09] Speaker 01:
So in that situation, OK, so just to be clear, so you're not asking us to read on behalf into it.

[00:08:16] Speaker 01:
On, to walk me through it again, so it was a transfer to the United States.

[00:08:21] Speaker 02:
Correct.

[00:08:22] Speaker 01:
So when would it not be to the United States if it's given to a federal officer?

[00:08:26] Speaker 02:
I would think that it wouldn't be a transfer to the United States if the federal officer was taking it for their own private use.

[00:08:32] Speaker 01:
OK, but that's not in the statute either, those words.

[00:08:36] Speaker 02:
No, the words are to the United States.

[00:08:38] Speaker 01:
Right.

[00:08:39] Speaker 01:
So I guess what I'm trying to understand is that when I asked you the hypotheticals, your responses were to read words into the statute.

[00:08:46] Speaker 01:
And you're saying that in this case, we shouldn't read words into the statute.

[00:08:51] Speaker 02:
If my first response was inarticulate, I apologize.

[00:08:54] Speaker 02:
What I think the operative word that distinguishes this case from your hypothetical are the words in the statute to the United States.

[00:09:03] Speaker 02:
If this court were to hold that any time a federal agent possesses a firearm,

[00:09:10] Speaker 02:
that a firearm has been transferred to the United States, then I agree with you.

[00:09:15] Speaker 02:
That would also fit in under your hypothetical.

[00:09:17] Speaker 02:
I just don't think that that's right.

[00:09:19] Speaker 02:
I think that when a federal agent owns something that they're using for their own personal use and take for their own personal use, that that's not a transfer to the United States.

[00:09:31] Speaker 01:
OK.

[00:09:31] Speaker 01:
There are a number of cases from other circuits, which I didn't see mentioned in the briefs, that talk about this statute.

[00:09:38] Speaker 01:
And they say it's authorized by the government for the benefit of the federal, state, or local government entities.

[00:09:45] Speaker 01:
The 11th Circuit's read the statute that way.

[00:09:47] Speaker 01:
The 10th Circuit's read the statute that way.

[00:09:49] Speaker 01:
I think the 4th Circuit's read the statute that way.

[00:09:51] Speaker 01:
I wanted to get your response to those cases.

[00:09:55] Speaker 02:
Your Honor, in those cases, in none of those cases is the difference between the possession and the transfer section of 922.02a at issue.

[00:10:08] Speaker 02:
And possession requires the authority of the United States.

[00:10:12] Speaker 02:
Because, and I think there's clear law about this, when individuals who also happen to work for the government own firearms, their possession has to be authorized by the United States to be protected under the statute.

[00:10:27] Speaker 02:
The transfer section doesn't include that restriction.

[00:10:31] Speaker 02:
What's more, I think my take is as long as the transfer is to the United States,

[00:10:37] Speaker 02:
than it is for the benefit of the United States.

[00:10:41] Speaker 02:
The purpose of this statute is, I think, twofold.

[00:10:47] Speaker 02:
First, I think the statute takes the position that there is nothing inherently wrong or immoral about wanting to own or owning machine guns.

[00:10:58] Speaker 02:
This is not a statute that is targeted at machine gun owners or prospective machine gun owners.

[00:11:05] Speaker 02:
And that's why, up till today, it is still possible to own a machine gun in the United States.

[00:11:11] Speaker 02:
And over 700,000 machine guns are lawfully owned in the United States.

[00:11:16] Speaker 02:
Instead, this statute is directed at a purpose of removing machine guns from commerce.

[00:11:23] Speaker 02:
And when a transfer is to the United States, I think the machine gun is removed from commerce and is possessed by the government.

[00:11:30] Speaker 01:
And can you then talk about, there's this Ninth Circuit case called Perry that the District Court relied very heavily on.

[00:11:36] Speaker 01:
Can you explain why that case, I read your brief and I wasn't sure I followed why that case isn't very close to our case.

[00:11:45] Speaker 02:
So the district court relied on Basque, which relied on Perry.

[00:11:50] Speaker 02:
And the difference in Perry, first off, Perry's a different statute.

[00:11:55] Speaker 02:
It's not a 922-0 case.

[00:11:57] Speaker 01:
No, I mean, but it's pretty close.

[00:11:59] Speaker 01:
It talks about the sale.

[00:12:02] Speaker 02:
It cited a Fifth Circuit case.

[00:12:06] Speaker 02:
Brooks, which held that the exemption in that case only applied to certain conduct, and sales was not on the list of conduct within the exemption.

[00:12:18] Speaker 02:
So it didn't protect sales at all, regardless of whether or not they were to the government.

[00:12:25] Speaker 01:
You mean transfer was not in the statute?

[00:12:27] Speaker 01:
Sale was in the statute, wasn't it?

[00:12:31] Speaker 01:
Yes, I think that's right.

[00:12:32] Speaker ?:
OK.

[00:12:34] Speaker 01:
So you're saying because 925A did not have the word transfer in it, therefore we can ignore that case.

[00:12:41] Speaker 02:
That's what the Fifth Circuit said.

[00:12:43] Speaker 02:
The Fifth Circuit's holding was that.

[00:12:46] Speaker 02:
The reason that it wasn't protected was because the conduct didn't appear on the list of protected conduct in the exemption.

[00:12:52] Speaker 01:
Now, the Fifth Circuit subsequently said that the argument that you're advancing here is absurd.

[00:12:58] Speaker 01:
So how do we read that Fifth Circuit law in light of that?

[00:13:02] Speaker 02:
That case was a possession case.

[00:13:05] Speaker 02:
And I think it would be absurd to say that, for example, Mr. Bohannon's possession of the PPSH 41 in this case was authorized by the United States.

[00:13:16] Speaker 02:
So I just don't think that that court considered this argument.

[00:13:30] Speaker 02:
And I've already gone here a little bit, but I think one of the reasons that we know that this transfer protection is broad is by comparing it with the neighboring provisions in the statute.

[00:13:44] Speaker 02:
O2B protects only

[00:13:51] Speaker 02:
transfers that lawful transfers, lawful possession of firearms lawfully owned before the enactment of the Firearm Owners Protective Act.

[00:14:01] Speaker 02:
Those words don't appear before transfer.

[00:14:04] Speaker 02:
And as we've just talked about with respect to possession, very next comma over, possession requires the authority of the United States

[00:14:14] Speaker 02:
which also does not appear in the transfer protection, which is part of why I think we read that broadly.

[00:14:26] Speaker 02:
The government has relied on a number of cases that narrow criminal statutes.

[00:14:34] Speaker 02:
I do not think that those cases support the notion that you can broaden criminal liability beyond the plain text of the statute.

[00:14:44] Speaker 02:
to cover otherwise culpable conduct that you feel that the statute missed.

[00:14:52] Speaker 02:
Excitement video, for example, narrowed the statute by putting the knowing

[00:14:58] Speaker 02:
The concern there is that individuals could engage in conduct that they have no way of knowing violates the law, and that we should not do that without express and clear instructions from Congress in a serious case to do that.

[00:15:12] Speaker 02:
Those concerns just don't apply when we're considering whether a criminal statute reaches particular conduct.

[00:15:21] Speaker 02:
I see I'm reaching my time for rebuttal.

[00:15:24] Speaker 02:
I'd like to reserve the rest of my time.

[00:15:26] Speaker 02:
Sure.

[00:15:40] Speaker 04:
Good morning, Your Honors.

[00:15:41] Speaker 04:
May it please the court, Sarah Barr appearing on behalf of the United States.

[00:15:46] Speaker 04:
The defendant in this case brokered the black market sale of a machine gun to a person that he thought was a gun and drug trafficker.

[00:15:54] Speaker 04:
Subsection 2A does not excuse his criminal liability simply because that buyer turned out to be an undercover agent.

[00:16:01] Speaker 04:
And we know from Judge Owen's questioning, this statute isn't so plain.

[00:16:07] Speaker 04:
No court has interpreted the statute in the way that the defendant does, including this court in Basquiat.

[00:16:14] Speaker 04:
And we know it's not so plain, because the defendant's interpretation reads into the statute an unwritten amnesty that conflicts with the structure, the legislative history, the context, and that conflicts with the overall regulatory scheme that Congress left intact in the National Firearms Act.

[00:16:35] Speaker 03:
I guess it's a question of who's reading something in or not, right?

[00:16:40] Speaker 03:
And, you know, the statute says that it won't apply to a transfer to the United States.

[00:16:48] Speaker 03:
And there were some questions about, that would be kind of hard questions if somebody, you know, whether somebody's the United States or not.

[00:16:58] Speaker 03:
That's not in this case.

[00:16:59] Speaker 03:
We know this ATF agent was not only working for the United States, but he was literally doing this.

[00:17:04] Speaker 03:
in his capacity as an agent.

[00:17:05] Speaker 03:
He was giving the gun on behalf of the United States.

[00:17:07] Speaker 03:
So I don't think, so whether an, because the United States acts through people, whether somebody's acting on behalf of the United States or whether they're acting on their individual behalf could create hard questions, but that's not in this case.

[00:17:23] Speaker 03:
It does just say that it blanketly exempts transfers to the United States.

[00:17:30] Speaker 03:
And I, you know, I've been trying to think about

[00:17:34] Speaker 03:
And I think at the very end, you heard your counsel on the other side say, it seems like a lot of the cases you're relying on are cases where there is a mens rea requirement that narrows.

[00:17:46] Speaker 03:
And the courts have relied on the mens rea requirement as narrowing a statute.

[00:17:51] Speaker 03:
But you're trying to do the opposite with your reading of the statute.

[00:17:53] Speaker 03:
You're trying to say that somebody has to know

[00:17:59] Speaker 03:
something is true, that they are the United States or acting on behalf of the United States in order for this exception to apply.

[00:18:06] Speaker 03:
Let me give you an example that I'm struggling with.

[00:18:09] Speaker 03:
Let's say you have a statute that says, generally speaking, speed limit is 55 miles an hour, right?

[00:18:16] Speaker 03:
Speed limit is 55 miles an hour, but on Tuesdays,

[00:18:21] Speaker 03:
that it doesn't apply.

[00:18:23] Speaker 03:
It doesn't apply.

[00:18:24] Speaker 03:
And then there's this other statute that says it's 75 miles an hour unless stated otherwise.

[00:18:28] Speaker 03:
So it just turns out it's 75 on Tuesdays.

[00:18:31] Speaker 03:
And I'm driving to work and I forget it's Tuesday and I'm ripping along at 74 miles an hour and I get pulled over.

[00:18:42] Speaker 03:
And I don't know it's Tuesday.

[00:18:44] Speaker 03:
So I thought I was speeding.

[00:18:45] Speaker 03:
I'm very sheepish.

[00:18:46] Speaker 03:
But it's Tuesday.

[00:18:49] Speaker 03:
And so this exception that says it doesn't apply.

[00:18:52] Speaker 03:
Now, we would not normally ever read in a mens rea requirement, what you might call reverse mens rea.

[00:18:59] Speaker 03:
instead of a bad mind, a good mind requirement.

[00:19:02] Speaker 03:
We would just say there's an exception for Tuesdays and that might be crazy, but the law just doesn't reach.

[00:19:08] Speaker 03:
The law doesn't have a 55 mile an hour speed limit on Tuesdays.

[00:19:11] Speaker 03:
Is that not what you're doing here under some sort of purpose of say, well, it's crazy to have a speed limit of 75 miles an hour on Tuesdays.

[00:19:22] Speaker 03:
It should be 55 unless you know better.

[00:19:24] Speaker 04:
Sure.

[00:19:25] Speaker 04:
So I think that the court can resolve this issue on sort of the broader knowledge issue that we articulate in our brief.

[00:19:37] Speaker 04:
But the court can also resolve this on much narrower grounds specific to this statute, insofar as the knowledge requirement relates to

[00:19:48] Speaker 04:
the National Firearms Act.

[00:19:50] Speaker 04:
So what we have here, when we look at the plain terms and we're trying to determine what the meaning, what the language of the statute is, we follow tools of statutory interpretation, right, canons of construction.

[00:20:01] Speaker 04:
And those include that relevant statutes must be read as a harmonious whole, that statutes can't be in conflict with each other, that Congress doesn't pass an act that would violate another law.

[00:20:13] Speaker 04:
And that's what defendant's interpretation would do here.

[00:20:16] Speaker 04:
Because what Congress has said in the National Firearms Act, which it did not repeal, in which 922-0 is sort of the final step in Congress's interest in regulating guns,

[00:20:30] Speaker 04:
Right, Congress has said

[00:20:33] Speaker 04:
We care about making sure that people who are going to use guns for lawful purposes have them.

[00:20:38] Speaker 04:
And we care about making sure that people who are going to use guns for unlawful purposes don't have them.

[00:20:43] Speaker 04:
And we're going to require paperwork for all of that, lots of paperwork.

[00:20:47] Speaker 04:
We're going to tax guns.

[00:20:48] Speaker 04:
Guns have to be registered.

[00:20:50] Speaker 04:
In order to do a transfer, guns must be applied for and approved before the transfer happens.

[00:20:56] Speaker 04:
And that application requires identification and naming of the buyer.

[00:21:02] Speaker 04:
and fingerprints, and a photograph, so that we can confirm that the buyer is lawful.

[00:21:06] Speaker 03:
But by guns, you assume you mean machine guns, right?

[00:21:09] Speaker 03:
You keep saying guns, but you mean a machine gun?

[00:21:10] Speaker 03:
Right, sure.

[00:21:11] Speaker 04:
In this case, it's machine guns, right.

[00:21:14] Speaker 03:
But part of this whole context is, when all this was passed, up until a certain date, you could just own a machine gun.

[00:21:23] Speaker 03:
It's kind of crazy, but you just own a machine gun.

[00:21:24] Speaker 03:
And then, all of a sudden, in 1980-something, now you have to register it.

[00:21:29] Speaker 03:
But if you're the government,

[00:21:31] Speaker 03:
You realize like maybe some people aren't grandpa's going to have a machine gun in the basement and somehow I'm going to come in possession of grandpa's machine gun.

[00:21:40] Speaker 03:
And it's, and I'm like, oh my goodness, I got, and I've heard stories about this.

[00:21:43] Speaker 03:
And so you want to, um, and so what is, what is the, what does the government want in that instance?

[00:21:50] Speaker 03:
I mean, we don't really know this is part of the problem of a purpose of analysis, but one purpose that it could be was.

[00:21:55] Speaker 03:
They just want to get that into the hands of the government.

[00:21:58] Speaker 03:
Hence the blanket exception for transfers to the United States.

[00:22:02] Speaker 03:
And that seems to me, I think that was his argument.

[00:22:05] Speaker 03:
And so your purpose of argument is just ignoring the fact that it does serve a purpose to just get it into the hands of the United States.

[00:22:14] Speaker 03:
In other words, the opposite way of putting that is it doesn't somehow undermine and make this a null statute to say, you're just going to blanketly

[00:22:26] Speaker 03:
exempt transfers to the United States or to their agents in this case.

[00:22:30] Speaker 04:
Sure, so I would disagree with you that before 922-01 was passed, anyone could just have a machine gun.

[00:22:38] Speaker 04:
Machine guns were highly regulated.

[00:22:39] Speaker 04:
They were taxed.

[00:22:40] Speaker 04:
They had to be registered.

[00:22:41] Speaker 04:
You know, ownership had to be approved by the government.

[00:22:44] Speaker 03:
So that was already in place.

[00:22:45] Speaker 03:
There was a point where people ended up with machine guns.

[00:22:48] Speaker 03:
That's why there's so much on it.

[00:22:50] Speaker 03:
There was a point where people got them, and then they started to be regulated, and then they started to be taxed.

[00:22:55] Speaker 03:
and they started to be banned.

[00:22:57] Speaker 03:
So somebody might want to get rid of one, and it ends up in the hands of the government, and that would serve a purpose.

[00:23:05] Speaker 03:
That would, in theory, serve a purpose.

[00:23:06] Speaker 04:
That's their argument, as I understand it.

[00:23:10] Speaker 03:
And you have to disprove that.

[00:23:11] Speaker 03:
If you're going to rely on purpose to overcome the clear text, which blanketly

[00:23:17] Speaker 03:
which blanketly exempts transfers to the United States, then you would have to show that the purpose that they're relying on is silly or something.

[00:23:25] Speaker 03:
And it doesn't seem to me that it's facially silly at all to say that the government just, that you would write a statute that says, yeah, as long as we're getting it into the hands of the United States,

[00:23:35] Speaker 03:
that serves a good purpose.

[00:23:36] Speaker 04:
Sure, so two responses.

[00:23:38] Speaker 04:
Just quickly to go back to your found gun in the attic and you want to dispose of it, right?

[00:23:43] Speaker 04:
The NFA provides that that's not a transfer.

[00:23:47] Speaker 04:
The transfer is defined by the NFA and

[00:23:51] Speaker 04:
Other types of conveyances like that type of conveyance is not a transfer.

[00:23:55] Speaker 04:
So it's not governed by all of the regulatory requirements that the NFA requires.

[00:23:59] Speaker 04:
It still does require knowledge that you're giving it to the government, but that would be separate.

[00:24:05] Speaker 04:
That's not a transfer like we have in this statute.

[00:24:08] Speaker 03:
What is it if you have a firearm?

[00:24:10] Speaker 03:
An abandonment.

[00:24:11] Speaker 03:
What's that?

[00:24:12] Speaker 04:
It's abandoning the gun to the government, knowing that it's the government, right?

[00:24:18] Speaker 04:
Because I found this and I don't want it.

[00:24:19] Speaker 04:
So it's not a transfer.

[00:24:20] Speaker 04:
It doesn't have to be taxed.

[00:24:21] Speaker 04:
It doesn't have to be, you know, the person who's abandoning it doesn't have to register.

[00:24:26] Speaker 03:
So that's different.

[00:24:30] Speaker 03:
What is a transfer to the government within the meaning of the statute under your reading?

[00:24:34] Speaker 03:
It has to include a tax every time for it to fall within the meaning of the transfer to the United States?

[00:24:39] Speaker 03:
That can't be right.

[00:24:40] Speaker 04:
So Title 26, the National Firearms Act, defines transfer.

[00:24:45] Speaker 04:
And Title 26 has a whole slew of requirements.

[00:24:50] Speaker 04:
that transfers are subject to certain rules and restrictions, including any transfer must comply with the regulations authorized under this section, tax, well, for a machine gun, tax, registration, paperwork.

[00:25:07] Speaker 03:
I'm really struggling now because he was convicted for transferring a machine gun under your

[00:25:14] Speaker 03:
You're trying to retransfer really narrowly for purposes of exemption, but somebody could be convicted when they didn't pay the tax.

[00:25:21] Speaker 04:
So to go back to your purpose question, the reading of transfer matters because 922.01

[00:25:30] Speaker 04:
and the National Firearms Act are a holistic set of relevant statutes that we have to read harmoniously.

[00:25:38] Speaker 04:
And defendants' interpretation would necessarily violate the National Firearms Act, which is why we know it's not a plain reading.

[00:25:46] Speaker 04:
We don't have to go, I'm not saying it's the purpose.

[00:25:48] Speaker 04:
The plain reading.

[00:25:49] Speaker 03:
And why would it violate?

[00:25:51] Speaker 03:
Why would it violate?

[00:25:51] Speaker 03:
Why would saying, if you transfer to the United States, whether you know it's the United States or not,

[00:25:57] Speaker 03:
that you're exempted from the criminal liability.

[00:26:02] Speaker 03:
Why would that violate?

[00:26:04] Speaker 04:
Because he hasn't done the paperwork.

[00:26:05] Speaker 04:
He hasn't done an application.

[00:26:07] Speaker 04:
The gun isn't registered.

[00:26:09] Speaker 04:
The testimony at trial was the gun wasn't registered.

[00:26:11] Speaker 04:
So none of that was required.

[00:26:13] Speaker 04:
That's still required.

[00:26:14] Speaker 03:
In theory, you could.

[00:26:15] Speaker 03:
That's the thing.

[00:26:16] Speaker 03:
In theory, you could.

[00:26:18] Speaker 03:
you could find somebody guilty under possession.

[00:26:21] Speaker 03:
So I still don't see how it violates, because all that's being exempted is the precise act of transferring it.

[00:26:29] Speaker 03:
So all those things, you could, in theory, still find criminal liability for all of those things, just not for the literal transfer to the federal government.

[00:26:37] Speaker 04:
Right.

[00:26:38] Speaker 04:
So the facts in this case was that the defendant made sure that the buyer was, quote, not a cop.

[00:26:47] Speaker 04:
The pricing was that it was for a street sale.

[00:26:50] Speaker 04:
There's no question that this was a street sale.

[00:26:53] Speaker 04:
There's really no dispute that none of the still standing requirements under the NFA were not followed.

[00:27:00] Speaker 04:
So that's how we know that the plain text isn't so plain.

[00:27:04] Speaker 04:
And then we can move on to what other courts have done, which is focused on the legislative history, which is plain in Senator Hatch's statements that subsection 2A

[00:27:17] Speaker 04:
it's an official government use exception.

[00:27:21] Speaker 04:
It authorizes manufacturers and dealers to continue to possess and sell their machine guns to the government going through that whole authorization process because the government still has a legitimate use for them, right?

[00:27:33] Speaker 04:
So we want to make sure that no one reads this statute to prohibit

[00:27:38] Speaker 04:
that continued conduct by manufacturers and dealers, but it is unquestionably a total ban on the private transfer and private possession of machine guns except

[00:27:50] Speaker 04:
for subsection 2B.

[00:27:52] Speaker 04:
So what happened in this case is that defendant thought it was a private transfer, right?

[00:27:59] Speaker 04:
But he doesn't fall within the exception of 2B, which is the private transfer exception, because that requires a lawful transfer of a gun that was lawfully registered prior to 1986.

[00:28:10] Speaker 04:
And we don't have that here.

[00:28:11] Speaker 04:
So he's trying to shoehorn

[00:28:13] Speaker 04:
his argument into a subsection 2A exception, and it just isn't.

[00:28:18] Speaker 04:
No court has ever held that.

[00:28:19] Speaker 03:
It doesn't matter that B, you're using the word lawful transfer, but the way you're reading transfer in A, it would also have the word lawful in front of it, right?

[00:28:28] Speaker 03:
Because B says any lawful transfer, but

[00:28:34] Speaker 03:
A, you're saying it's only a transfer in A if it's a lawful transfer to the United States.

[00:28:39] Speaker 04:
Right.

[00:28:39] Speaker 04:
The lawfulness is presumed because it's to the government or from the government.

[00:28:43] Speaker 04:
And the government has to comply with the requirements of the NFA.

[00:28:50] Speaker 03:
If the government didn't, what if I knew it was a crime, but the government screws up?

[00:28:53] Speaker 03:
Have I committed a crime because the government didn't do the paperwork correctly?

[00:28:58] Speaker 03:
I'm selling.

[00:28:59] Speaker 03:
I'm a firearms company or something, and I'm selling to the government.

[00:29:04] Speaker 03:
to shoot up a school.

[00:29:06] Speaker 03:
I don't think it really matters.

[00:29:07] Speaker 03:
If you know it's the government, and there are all kinds of things the government may be doing that we don't think are appropriate, but I don't know why that matters.

[00:29:13] Speaker 03:
But I'm selling to the government.

[00:29:15] Speaker 03:
And I know it's the government.

[00:29:17] Speaker 03:
I think it's all appropriate.

[00:29:19] Speaker 03:
But it turns out the government isn't doing the paperwork and such correctly.

[00:29:22] Speaker 03:
Have I violated the law under your argument because it's not a lawful transfer in some sense?

[00:29:29] Speaker 03:
Because you're reading lawful into 2A.

[00:29:32] Speaker 04:
I think as long as... So you're not really reading Lawful into 2A.

[00:29:38] Speaker 03:
You're just reading a knowledge requirement into 2A and a reverse Mengeria requirement.

[00:29:41] Speaker 03:
And again, that goes back to my 75-55 hypo.

[00:29:45] Speaker 03:
I don't know any other circumstance where we do that, where there's a clear textual exception, or I should say broad textual exception, and we just read in and say, yeah, but you've got to know that you fall within that exception.

[00:30:02] Speaker 04:
Sure, and again, the court doesn't have to resolve this case on sort of that broadly applicable resolution.

[00:30:11] Speaker 04:
How the court can resolve this case is by asking, is the text plain?

[00:30:17] Speaker 04:
It can't be plain because reading it the way that the defendant reads it as plain, would

[00:30:23] Speaker 04:
would itself be in violation of another act that Congress meant to be read as a whole?

[00:30:30] Speaker 00:
Can I ask this in a different way?

[00:30:32] Speaker 00:
Yes.

[00:30:32] Speaker 00:
If you accept what the appellant is arguing here, then you would essentially, if I understand it, exempt traditional law enforcement use of undercover agents in the enforcement of this law.

[00:30:51] Speaker 00:
Is that essentially?

[00:30:52] Speaker 04:
I'm not sure that I understand.

[00:30:54] Speaker 00:
So our reading is that... Undercover agent, this fellow was an undercover agent.

[00:30:59] Speaker 00:
Correct.

[00:31:00] Speaker 00:
And so therefore the argument is that he was transferring to the government.

[00:31:05] Speaker 00:
Right.

[00:31:05] Speaker 00:
Within the meaning of this statute and therefore it's exempt.

[00:31:09] Speaker 00:
Right.

[00:31:09] Speaker 00:
If that is correct, well, and I also understand that traditionally law enforcement, federal law enforcement uses undercover people.

[00:31:18] Speaker 00:
Sure.

[00:31:18] Speaker 00:
Drug enforcement and all kinds of things.

[00:31:20] Speaker 00:
So the effect of this would be, if you accept the appellant's interpretation, that you would exempt that kind of traditional law enforcement conduct from this act.

[00:31:34] Speaker 00:
Right.

[00:31:34] Speaker 04:
Which it would be inconsistent with the whole rest of the Act.

[00:31:39] Speaker 04:
Precisely.

[00:31:39] Speaker 04:
Which is why I called it at the beginning sort of an unwritten amnesty that is counter to the intent of this statute, to the National Firearms Act requirements, and is not a tenable interpretation.

[00:31:52] Speaker 03:
Is that true?

[00:31:52] Speaker 03:
Because if I walk up to and I transfer, and the transfer of the firearm is exempted, pure of the plain language here,

[00:32:03] Speaker 03:
What else have I done just before I transferred it?

[00:32:07] Speaker 03:
I possessed it, right?

[00:32:08] Speaker 03:
And there is no.

[00:32:10] Speaker 01:
Well, not necessarily.

[00:32:12] Speaker 03:
Right, right.

[00:32:12] Speaker 03:
So in theory, like it could be, like this case maybe.

[00:32:15] Speaker 03:
But what I'm asking, is it necessarily true that you couldn't do sting operations?

[00:32:21] Speaker 03:
Because in theory, you would still prosecute somebody for the possession aspect of it, even though they gave it to the United States.

[00:32:30] Speaker 03:
And then you would just have to.

[00:32:32] Speaker 03:
This kind of went to, I think, a conversation that Judge Owens was having with your opposing counsel right at the beginning of his argument, which is that the judge would just have to be clearer in instructing the jury so that they didn't improperly convict them under the wrong prong.

[00:32:50] Speaker 04:
I apologize, Your Honor.

[00:32:52] Speaker 04:
Are you asking me a question about that?

[00:32:53] Speaker 03:
I'm asking you, why does this actually prevent people from doing stings?

[00:32:57] Speaker 03:
Because it seems to me, in the vast majority of cases, you would also be able to prosecute somebody for possessing the firearm, even if this exemption read the way that Mr. Kitson is arguing.

[00:33:09] Speaker 03:
You could still convict them under possessing.

[00:33:12] Speaker 04:
Sure, so this doesn't prevent the government from continuing to do sting operations, but it doesn't excuse a culpable defendant who thought he was selling a black market machine gun to a gun and drug trafficker from culpability.

[00:33:28] Speaker 03:
Well, I thought I understood Judge Schroeder's question to be, wouldn't this basically stop you from being able to do sting operations?

[00:33:35] Speaker 03:
Wouldn't it be exempting sting operations?

[00:33:37] Speaker 03:
And I thought your answer was yes.

[00:33:39] Speaker 03:
And I'm saying, is that really true?

[00:33:41] Speaker 03:
I think you could still do sting operations, or am I wrong?

[00:33:43] Speaker 04:
Sure, of course.

[00:33:44] Speaker 04:
Then I must have misunderstood if that was.

[00:33:46] Speaker 01:
You could do some.

[00:33:47] Speaker 01:
You could catch the dumb ones.

[00:33:50] Speaker 01:
The smart ones never actually handle the goods.

[00:33:52] Speaker 01:
They have someone else do it.

[00:33:53] Speaker 01:
So you could still catch the dumb ones, and you could still do the ATF

[00:33:56] Speaker 01:
House raids, those you could still do.

[00:33:59] Speaker 01:
But the Victor Boots of the world, you could not catch, because Victor Boot is not going to walk up with a box of machine guns.

[00:34:05] Speaker 04:
So I'm coming close to the end of my time.

[00:34:07] Speaker 04:
If there are no further questions, I'm happy to submit this on the produce.

[00:34:10] Speaker 01:
I do want to ask you something, because there's this whole other part of the case, which I think most people were actually more excited about than this discussion, which was the Bruin discussion.

[00:34:20] Speaker 01:
Sure.

[00:34:22] Speaker 01:
You know, we had a recent case called Duarte.

[00:34:24] Speaker 01:
Yes.

[00:34:25] Speaker 01:
Which, for the most part, I think the government was happy with the result.

[00:34:28] Speaker 01:
However, here's what I would say, is that in Duarte, one of the ways the case could have been resolved is on Miller versus Gammie.

[00:34:35] Speaker 01:
We could have said, look, there was this previous case, Vange, and that hasn't been changed by Bruin in the end of it.

[00:34:42] Speaker 01:
Our court did not do that.

[00:34:45] Speaker 01:
Orquart went back and did the full Bruin analysis, and two of us here were on that panel.

[00:34:50] Speaker 01:
We are familiar with what happened in that case.

[00:34:53] Speaker 01:
Here, the district court judge said, you know what?

[00:34:57] Speaker 01:
Under Bruin, we have this previous Ninth Circuit case.

[00:35:01] Speaker 01:
I think we're good enough.

[00:35:03] Speaker 01:
I'm paraphrasing, but that's kind of what happened here.

[00:35:05] Speaker 01:
Sure.

[00:35:06] Speaker 01:
After Duarte, which I understand is a case the government is a fan of, it seems to me that we can't just do what the district court did in this case.

[00:35:14] Speaker 01:
We actually do have to go back and kind of do the whole Bruin analysis because that's what we did in Duarte.

[00:35:21] Speaker 01:
Sure.

[00:35:22] Speaker 01:
Don't we have to do that in this case?

[00:35:24] Speaker 01:
Not us, maybe us, maybe district court.

[00:35:27] Speaker 01:
Can we just say, well, the other one was close enough, and can we still do that?

[00:35:31] Speaker 04:
Sure.

[00:35:31] Speaker 04:
I, of course, defer to the two members of the panel who are on Duarte and your reading of how you decided that.

[00:35:38] Speaker 04:
My reading is that Duarte says, Bruin didn't overturn Vongse.

[00:35:44] Speaker 04:
It's not irreconcilable.

[00:35:45] Speaker 04:
But we will still go on and do a fresh Bruin analysis.

[00:35:48] Speaker 04:
And here, under the fresh Bruin analysis,

[00:35:50] Speaker 04:
922G1 is fine.

[00:35:52] Speaker 04:
So I think what we would say here is that Bruin is not clearly irreconcilable with Henry, but even under a fresh analysis, the statute is constitutional under the Bruin two-step framework.

[00:36:06] Speaker 01:
But would you agree that what the district court did, you may agree with the result, but the district court did not do the fresh Bruin analysis?

[00:36:14] Speaker 04:
That's correct.

[00:36:17] Speaker 04:
Okay.

[00:36:17] Speaker 04:
In my recollection, yes.

[00:36:19] Speaker 00:
But you do not read the torte as requiring that.

[00:36:24] Speaker 00:
Correct.

[00:36:25] Speaker 04:
I do not read it as requiring that.

[00:36:26] Speaker 04:
That's a choice that was made.

[00:36:29] Speaker 04:
If there are no further questions, I will submit.

[00:36:31] Speaker 01:
All right.

[00:36:31] Speaker 01:
Thank you.

[00:36:32] Speaker 04:
Thank you.

[00:36:44] Speaker 02:
Thank you.

[00:36:44] Speaker 02:
I want to start with one of the arguments that my friend was responding to, which is the notion that our reading of this exemption would undermine sting operations.

[00:36:55] Speaker 02:
The first thing I want to say about that is that the real thing in this statute that creates a problem for sting operations, problems that I think would be uncontroversial, is that it doesn't include attempt liability, not the exception in O22A.

[00:37:08] Speaker 02:
The reason I say that is, for example, if you were to do a sting with a fake machine gun, cash changes hands, and someone buys the machine gun,

[00:37:19] Speaker 02:
There's no doubt that that person would not be liable under this statute despite intending to commit every single element of the offense and having a perfectly culpable mental state because one of the things, because it doesn't include a temp, that the government needs to prove is that the weapon really was a machine gun.

[00:37:37] Speaker 02:
This statute creates problems for sting operations necessarily by virtue of the decision of Congress not to include attempt liability.

[00:37:46] Speaker 02:
It doesn't exclude sting operations, but it's not a statute that's designed to create as broad a breadth for ATF sting operations as is possible.

[00:37:56] Speaker 02:
I don't know why Congress decided to do it that way, but I would note that STING operations, while they're commonly used, especially when it comes to firearms, are sometimes very, very controversial.

[00:38:08] Speaker 02:
And there may not have been the intent to try to enable as many STING operations as possible with this statute.

[00:38:17] Speaker 02:
With respect to the notion that no court has adopted our reading, no court's been faced with this issue of the transfer versus the possession.

[00:38:30] Speaker 02:
So I do not think it's the case that no court has adopted this reading because lots of courts have considered it and rejected it.

[00:38:37] Speaker 02:
This unusual circumstance just hasn't arisen before.

[00:38:41] Speaker 02:
And even though I think the court was commenting that people would be

[00:38:47] Speaker 02:
foolish to personally possess firearms that they're attending to sell, the cases suggest that most of the time people really are that foolish.

[00:38:58] Speaker 02:
Because there doesn't seem to be an issue most of the time getting people to actually possess, at least briefly, the machine guns.

[00:39:06] Speaker 03:
Well, even if they didn't possess it in the sense of physically possess it,

[00:39:10] Speaker 03:
There's a whole question of whether or not possession would reach sort of a constructive or aiding and abetting sort of, even though I don't physically hold it.

[00:39:20] Speaker 03:
If I'm carrying your briefcase when you're physically holding it, then in theory, the government could argue for conviction on that.

[00:39:28] Speaker 03:
Am I correct on that?

[00:39:29] Speaker 02:
Yes, Your Honor.

[00:39:30] Speaker 02:
And in this case, the jury instruction included constructive possession.

[00:39:34] Speaker 02:
It would not always be the case.

[00:39:37] Speaker 02:
It just would be something the government would have to prove, that you used that person, but you were the person really in control of the firearm.

[00:39:44] Speaker 03:
I'm trying to think of what cases could not be reached.

[00:39:47] Speaker 03:
It seems to me, I'm struggling to think of a hypothetical that could not be reached just on possession plus constructive possession, if the transfer is read the way you're asking for it to be interpreted.

[00:40:00] Speaker 03:
I mean, this case is kind of seems like the hypothetical to me in that, you know, our theory was that Mr. Kitson... Yeah, you have the fact that the jury did something different with an actual possession, but you do have the problem of the Supreme Court's view on inconsistent verdicts in Powell.

[00:40:19] Speaker 02:
I do want to note in the procedural history of this case, we filed a Rule 29 motion to dismiss or at least get rid of the aiding and abetting instruction that was solely on the transfer theory.

[00:40:31] Speaker 02:
And the court rejected that Rule 29 motion.

[00:40:34] Speaker 02:
I think at minimum, if the court disagrees with my view that a judgment of acquittal is appropriate, a new trial without this transfer theory would be appropriate.

[00:40:44] Speaker 01:
I do think that's the proper analysis.

[00:40:47] Speaker 01:
I understand.

[00:40:47] Speaker 01:
Can you talk about the Bruin question?

[00:40:50] Speaker 01:
Because I think that's why a lot of people might be here today.

[00:40:53] Speaker 01:
We haven't talked about it.

[00:40:54] Speaker 01:
But can you talk about whether you think that, obviously, you disagree with what the district court did.

[00:41:02] Speaker 01:
Do you think under Duarte, the path is to do a complete redo?

[00:41:08] Speaker 01:
Or what do we do after Duarte?

[00:41:09] Speaker 01:
What's the procedure?

[00:41:12] Speaker 02:
Your honor, I think that it's clear that in order

[00:41:18] Speaker 02:
not just under Duarte, but also under Bruin, that in order for a statute to be deemed constitutional, someone has to have done both the plain text and historical analysis of that statute.

[00:41:32] Speaker 02:
And that has not been done in this case.

[00:41:35] Speaker 02:
And previous case law has not done it in this circuit.

[00:41:39] Speaker 02:
So I do not think that's happened yet.

[00:41:41] Speaker 02:
And I think it has to happen in order to justify it, whether it happens by virtue of this court or whether it happens by remand.

[00:41:48] Speaker 03:
And if that does need to happen, what is your view as to whether or not this panel should do it or whether we should remand it to the district court to do in the first instance?

[00:41:57] Speaker 02:
I think the court should remand it because it's a factual inquiry, or at least a partial factual inquiry into the history.

[00:42:09] Speaker 02:
Since we're on Bruin, there was one point I want to make about where the case

[00:42:18] Speaker 02:
has gone in terms of the historical analogs is that there's really two classes of weapons that are being discussed in the briefing.

[00:42:27] Speaker 02:
One is so-called bowie knives.

[00:42:32] Speaker 02:
And I wanted to point out that only three states had possession bans of bowie knives.

[00:42:41] Speaker 02:
Georgia, Arkansas, and Tennessee.

[00:42:44] Speaker 02:
And Georgia's ban, although as with respect to pistols, was found to be unconstitutional.

[00:42:51] Speaker 02:
So it's only two that survived constitutional review.

[00:42:54] Speaker 02:
And all three of those states also banned pistols.

[00:42:59] Speaker 02:
The other weapon that I think subsequent case law has discussed, particularly Duncan versus Bonta, are so-called slung shots.

[00:43:10] Speaker 02:
Both slung shots and bowie knives really share a commonality that's just not true of fully, oh and I see I'm way over my head.

[00:43:18] Speaker 01:
It's okay, finish your point.

[00:43:21] Speaker 02:
A slung shot, a guide for producing a slung shot literally advises someone to put some change in a sock and some sand in it.

[00:43:33] Speaker 02:
That's what a slung shot is.

[00:43:35] Speaker 02:
A bowie knife is not some new development in knife technology that occurred in the 19th century.

[00:43:41] Speaker 02:
These are very simple, very cheap weapons.

[00:43:45] Speaker 02:
And the thing that distinguishes them are that they're so cheap and thus easy, frankly, for the lower classes to afford.

[00:43:52] Speaker 02:
And I've briefed the issue of the trend of restricting firearm possession to disfavored groups.

[00:43:59] Speaker 02:
and weapons that are easy to conceal.

[00:44:01] Speaker 02:
Neither of those things are true of the PPSH-41 in this case.

[00:44:05] Speaker 02:
It was sold for $8,000 and it is not easy to conceal.

[00:44:10] Speaker 02:
I'm way over my time.

[00:44:12] Speaker 01:
Thank you.

[00:44:12] Speaker 01:
Thank you to both of you for taking some tough questions Excellent briefing very fine argument We appreciate this matter submitted and I did not know that was called a slung shot if there's in the movie Death Wish With Charles Bronson when he sings around the sock now, you know what it's called So we are done for today and we will resume tomorrow at 830 maybe even a little earlier, but 830.

[00:44:33] Speaker 01:
Thank you