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9/22/2017 12:11:25 AM
Posted: 8/2/2005 12:21:56 PM EDT
I'm been, off and on, thinking of building an AR pistol, something with a short barrel, possibly even a pistol caliber. Is there any issue with me owning a short barreled AR pistol while having, say seven or eight complete rifles in my house also? Is there any reason for concern legally? I mean what's to stop the rifles from reshuffling uppers and lowers while in the safe, like they always do.
Link Posted: 8/2/2005 12:41:42 PM EDT
[Last Edit: 8/2/2005 12:46:20 PM EDT by Big-Bore]
None what so ever. However, I would not advise having more than one upper for the pistol if you also have rifles around, especially rifles with no upper.
When I did my pistol I bought 4 lowers, built them all as pistols, documented, then rebuilt the three other ones into rifles. They are pistols non-the-less so this might be an option if you want to have more than one pistol upper but not more than one lower built up as pistol. Once you build the lower as a pistol and document the first build, then you can convert over to rifle and back to pistol as much as you want. This is allowed under the TC Contender case. Just make sure you never have the pistol upper on a lower that has a stock attached.

Where you run into trouble is when the parts you have on hand "can ONLY" be built into an illegal weapon, like owning an AR pistol with entry length buffer tube AND the stock that would go on it but not owning any other AR rifles (which is what they are referring to in the letter I got from the ATFE). The only way that stock can be used is in the assembly of an illegal SBR. If you own other AR rifles then the stock can be used on them and the fact that you own a pistol it COULD be used on does not matter, so long as you don't put it on.
Link Posted: 8/4/2005 10:53:17 AM EDT
cool thanks, that was my main concern of doing a pistol build.
Link Posted: 8/4/2005 10:58:17 AM EDT
AR pistols KICK ASS

Check this out...

AR Pistol video from yesterday
Link Posted: 8/4/2005 11:09:22 AM EDT
[Last Edit: 8/4/2005 11:14:05 AM EDT by _DR]
Mongo, I had a court brief on a case where the individual was convicted for intent to assemble an illegal rifle, because he had a spare short upper. The outcome pretty much made one thing clear. As long a you don't have more short barrelled uppers than you do SBR registered lowers or pistol lowers, you are OK. This is of course assuming that you are not found to have a short upper mounted on non-sbr rifle receiver.

In the court case, the individual was convicted because he had a complete AR15, and also a spare short upper. His defense was he was planning to build a pistol, but had not acquired the pistol lower yet.
He was convicted on intent to assmble a title II weapon, because he had all the parts, and no where for that short upper to legally reside. I hate "intent" convictions, it's like being convicted for "intent" to rape just because you have a penis and are in the same room with a female. But that's the DOJ for you.


So if every short upper has a nice parking place, like a pistol receiver or SBR receiver, then you are OK. It's when you start having extra short uppers and title I rifle receivers in the same location that you risk an "intent" issue.

I can see if I can dig up that court brief if it is important to you. BTW there have been lengthy discussions on this in the FA forums.

ETA, sorry, didn''t read BigBore's post. I'm redundant
Link Posted: 8/5/2005 6:00:45 AM EDT
[Last Edit: 8/5/2005 6:00:57 AM EDT by eklikwhoa]

Originally Posted By Big-Bore:
None what so ever. However, I would not advise having more than one upper for the pistol if you also have rifles around, especially rifles with no upper.
When I did my pistol I bought 4 lowers, built them all as pistols, documented, then rebuilt the three other ones into rifles. They are pistols non-the-less so this might be an option if you want to have more than one pistol upper but not more than one lower built up as pistol. Once you build the lower as a pistol and document the first build, then you can convert over to rifle and back to pistol as much as you want. This is allowed under the TC Contender case. Just make sure you never have the pistol upper on a lower that has a stock attached.

Where you run into trouble is when the parts you have on hand "can ONLY" be built into an illegal weapon, like owning an AR pistol with entry length buffer tube AND the stock that would go on it but not owning any other AR rifles (which is what they are referring to in the letter I got from the ATFE). The only way that stock can be used is in the assembly of an illegal SBR. If you own other AR rifles then the stock can be used on them and the fact that you own a pistol it COULD be used on does not matter, so long as you don't put it on.



when you say "document" what do you actually do?

Link Posted: 8/5/2005 6:25:02 AM EDT
Keep all receipts for the purchase of the stripped lower and parts then take before and after pictures of the build. Have either the camera date the picture or include a newspaper in the photograph. It also does not hurt to get a copy of the 4473 where it states the lower was purchased as stripped or as being described as anything other than a "rifle" lower. Just make sure the description of the lower does not say "rifle." If you can get a letter from the maker stating the lower was never assembled into a rifle that is good, but not really needed. Ameetec will not send me a letter stating the 4 lowers I bought from him were sold new, stripped, and never assembled into a rifle so I have to rely on the sales receipt and 4473 to keep my butt covered. I asked my local ATFE agent about not being able to get the letter from the maker and she said it was no big deal, copies of the receipt and 4473 were good enough since they state the condition of the lower and it is a safe assumption that most lower makers/sellers do not sell "used" previously assembled lowers when they are selling them as new. She has never been wrong on anything before regarding AR pistol builds so I trust her completely.
Link Posted: 8/5/2005 6:30:45 AM EDT

Originally Posted By Big-Bore:
Keep all receipts for the purchase of the stripped lower and parts then take before and after pictures of the build. Have either the camera date the picture or include a newspaper in the photograph. It also does not hurt to get a copy of the 4473 where it states the lower was purchased as stripped or as being described as anything other than a "rifle" lower. Just make sure the description of the lower does not say "rifle." If you can get a letter from the maker stating the lower was never assembled into a rifle that is good, but not really needed. Ameetec will not send me a letter stating the 4 lowers I bought from him were sold new, stripped, and never assembled into a rifle so I have to rely on the sales receipt and 4473 to keep my butt covered. I asked my local ATFE agent about not being able to get the letter from the maker and she said it was no big deal, copies of the receipt and 4473 were good enough since they state the condition of the lower and it is a safe assumption that most lower makers/sellers do not sell "used" previously assembled lowers when they are selling them as new. She has never been wrong on anything before regarding AR pistol builds so I trust her completely.



+1 A friend who built an AR pistol just asked for a copy of the 4473, which had "pistol" on it.
Link Posted: 8/6/2005 2:31:15 AM EDT
You can own as many SBR uppers as you want as long as you have a registered lower. Additionally, that is the beauty of the AR-15, versatility. How can you measure intent?
Link Posted: 8/6/2005 5:00:00 AM EDT
[Last Edit: 8/6/2005 5:01:04 AM EDT by _DR]

Originally Posted By JimmyThompson:
You can own as many SBR uppers as you want as long as you have a registered lower. Additionally, that is the beauty of the AR-15, versatility. How can you measure intent?



In a perfect world, yes. The DOJ will measure "intent" anyway they see fit, unfortunately.
Link Posted: 8/7/2005 6:26:33 AM EDT

Originally Posted By _DR:

Originally Posted By JimmyThompson:
You can own as many SBR uppers as you want as long as you have a registered lower. Additionally, that is the beauty of the AR-15, versatility. How can you measure intent?



In a perfect world, yes. The DOJ will measure "intent" anyway they see fit, unfortunately.



_DR,

How did they even know he had the short upper? Just curious. I'm getting my pistol lower first just to be sure. No sense inviting trouble.
Link Posted: 8/7/2005 6:35:18 AM EDT

Originally Posted By Big-Bore:
Just make sure the description of the lower does not say "rifle."



Not so. It can be marked rifle. It doesn't matter. As long as it's never been assembled as a rifle.
Link Posted: 8/7/2005 7:28:34 AM EDT
BS yourself.

Read the letter direct from the ATFE at the top of the Pistol page. BS it all you want, it won't be my butt that gets hauled off to the pokey.
Link Posted: 8/7/2005 7:39:23 AM EDT
From what I have read, the 4473 has to be checked as a Pistol


If it was me doing a AR pistol build I would ask the dealer for a copy of the 4473 just to have on hand just incase
Link Posted: 8/7/2005 8:11:08 AM EDT
[Last Edit: 8/7/2005 8:17:58 AM EDT by JPN]
If the form is marked as "rifle", then the lower is documented as being a rifle when you bought it. Only a lower that has never previously been used to build a rifle can be used to build a pistol. The paper trail is what they can use to get you in trouble, and the word "rifle" on the form is the easiest way to hang you (documented proof of it being a "rifle", before you "converted" it to a pistol).

Real world facts mean nothing to the feds. The paperwork is what matters. At work, I can show the feds a part that appears to have never been installed and is still coated in the factory preservative, but if there is no documentation, the feds can say it's scrap metal. But if I show them an obviously worn out part that looks like it has 20,000 flight hours on it, and it is tagged as a new part and has the correct documentation for a new part, then the feds will say it is a new part. The paperwork is all the feds know (and they prove that regularly).


ETA: I keep a copy of the dealer receipt, with the serial number of the lower and stating it was sold to me as a stripped(new) pistol lower, inside the pistol grip. That way I have some form of documentation with the pistol at all times.
Link Posted: 8/7/2005 5:42:30 PM EDT
[Last Edit: 8/7/2005 5:42:57 PM EDT by _DR]

Originally Posted By C-4:

Originally Posted By _DR:

Originally Posted By JimmyThompson:
You can own as many SBR uppers as you want as long as you have a registered lower. Additionally, that is the beauty of the AR-15, versatility. How can you measure intent?



In a perfect world, yes. The DOJ will measure "intent" anyway they see fit, unfortunately.



_DR,

How did they even know he had the short upper? Just curious. I'm getting my pistol lower first just to be sure. No sense inviting trouble.


He was in trouble for something else and they searched his apartment. Probably the only way they would ever know. I see if I can dig up the brief.
Link Posted: 8/7/2005 5:47:11 PM EDT
[Last Edit: 8/7/2005 6:31:37 PM EDT by _DR]
OK, here is the brief in it's entirety. As I said, he was in trouble for other stuff, but the short upper added charges, so it's a legal precedent. The short upper was not on the rifle, which had a legal length upper on it at the time it was found. They still found that he was in violation of the NFA statutes by "having an unregistered SBR". I have the original electronic document from DOJ in PDF format if anybody wants it because I converted from PDF to text, and some of it came out garbled (the footnotes caused conversion issues), but you can get the idea. The red highlighted text is relevant to this discussion.

Granted, he was already a felon, and he did not have a registered SBR lower or AR15 pistol receiver, but this shows DOJ will convict for "intent" by just having the parts that can be assembled in an illegal manner, even if they can't prove you ever did so.

_DR


UNITED STATES of America, Plaintiff-Appellee,
v.
Jason Christopher KENT, Defendant-Appellant.
No. 97-8425.
United States Court of Appeals,
Eleventh Circuit.
May 4, 1999.


Appeal from the United States District Court for the Southern District of Georgia. (No. CR496-148), B. Avant
Edenfield, Judge.
Before ANDERSON and HULL, Circuit Judges, and HANCOCK*, Senior District Judge.


HULL, Circuit Judge:
Appellant Jason Christopher Kent appeals his convictions for five separate firearms offenses and
appeals his seventy-eight-month sentence. After review, we affirm.

I. PROCEDURAL HISTORY
A jury convicted Kent of five separate firearms offenses: possession of firearms, in violation of 18
U.S.C. § 922(g) (Count One); possession of a machine gun, in violation of 18 U.S.C. § 922(o) (Count Two);
possession of a rifle with a barrel length of less than sixteen inches (a "short-barreled rifle"), not registered
in the National Firearms Registration and Transfer Record, in violation of 26 U.S.C. § 5861(d) (Count Three);

knowingly transporting stolen firearms in interstate commerce, in violation of 18 U.S.C. § 922(i) (Count
Four); and bartering of stolen firearms, in violation of 18 U.S.C. § 922(j) (Count Five). At trial, the district
court denied Kent's motions for a judgment of acquittal. After his trial, Kent filed a motion for a new trial,
which the district court also denied.
On appeal, Kent contends, inter alia, that the trial evidence regarding Count Three was not sufficient
to sustain his conviction for possession of an unregistered short-barreled rifle and that the district court abused

*Honorable James H. Hancock, Senior U.S. District Judge for the Northern District of Alabama, sitting
by designation.


its discretion in denying his motions for a judgment of acquittal and for a new trial regarding Count Three.1
After review, we affirm Kent's conviction and sentence and the trial court's denial of his motions for a
judgment of acquittal and for a new trial.

II. FACTUAL BACKGROUND
In the apartment where Kent resided, law enforcement officials found sixteen firearms. Kent's
conviction under Count Three for possession of a short-barreled rifle was based on a Colt AR-15 found in
Kent's apartment. The weapon charged in Count Three was discovered in two pieces in Kent's apartment:

(1) a lower receiver unit with the stock and trigger mechanism and (2) an upper receiver unit containing a barrel with a length of less than sixteen inches (the "short-barreled upper receiver unit").
The lower receiver unit was a section of a .223 caliber, Colt AR-15 rifle, with serial number
SP166738. The short-barreled upper receiver unit was an AR-15-type unit, compatible with AR-15-type
lower receiver units. However, the short-barreled upper receiver unit was not attached to the lower receiver unit of this weapon at the time it was found, Instead, an upper receiver unit with a barrel length in excess of sixteen inches ("the longer barreled upper receiver unit") was attached to the lower receiver unit that was part of the weapon charge in count three..

1Kent also challenges the sufficiency of the evidence to sustain his convictions under Counts Two,
Four, and Five. After review, we find that Kent's insufficient-evidence claims lack merit, and we affirm
his convictions under Counts Two, Four, and Five without further discussion. See 11th Cir. R. 36-1.

Kent also contends that his conviction under Count One should be reversed based on
entrapment by estoppel, but the Government correctly argues that Kent failed to present that
claim to the district court. Kent's trial counsel did not move for a judgment of acquittal based on
this defense, request a jury instruction on this defense, or otherwise assert this defense at trial.
Because Kent is raising entrapment by estoppel as a defense for the first time on appeal, we
decline to address the issue. See Waldrop v. Jones, 77 F.3d 1308, 1313 n. 3 (11th Cir.1996) ("We
decline to address an issue not presented to the district court but raised for the first time on
appeal."); United States v. Edmondson, 818 F.2d 768, 769 (11th Cir.1987).

2The record does not establish exactly where in Kent's apartment the short-barreled upper receiver unit
and the lower receiver unit of the Colt AR-15 rifle were found. Hence, we do not know for certain
whether or not these two items were found in "close proximity," but know only that Kent had a small
apartment. Cf. United States v. Carmouche, 138 F.3d 1014, 1017 (5th Cir.1998) (concluding that a
factual stipulation that police found a shotgun "n close proximity" to a shotgun barrel, which "was
made to fit the shotgun" and was less than thirteen inches long, was sufficient to support a conviction and
sentence for possession of a short-barreled shotgun, in violation of 26 U.S.C. § 5861(d)).

2


of sixteen inches ("the longer-barreled upper receiver unit") was attached to the lower receiver unit that was
part of the weapon charged in Count Three.

Nonetheless, the evidence at trial showed the short-barreled upper receiver unit could be fastened to
the Colt AR-15 lower receiver unit through a two-step process. The first step—removing the upper receiver
unit that was on the Colt AR-15 rifle—could be accomplished easily by pushing out two pins in the lower
receiver unit and then lifting the upper receiver unit away from the lower receiver unit. The second step
would be placing the short-barreled upper receiver unit on the lower receiver unit and pushing the two pins
back into place to fasten the two receiver units together. This entire process could be completed in less than
a minute.3 ATF Firearms Enforcement Officer Robert Burrows testified that fastening the short-barreled
upper receiver unit to the Colt AR-15 lower receiver unit in this way "results in a weapon which is designed
and intended to be fired from the shoulder, capable of discharging a shot through a rifle bore[,] and having
a barrel length of less than sixteen inches."

Kent admitted that he possessed the short-barreled upper receiver unit that could be combined with
the Colt AR-15 lower receiver unit to form a short-barreled rifle. However, Kent testified that he owned the
short-barreled upper receiver unit only for its component parts. He claimed that he intended to use the gas
tube, the upper receiver assembly, the handguard assembly, the forward and rear sights, and "[e]verything
but the barrel."

Despite Kent's claim, the evidence did not suggest that he had ever removed any of the component
parts from the short-barreled upper receiver unit. Rather, the evidence showed that the short-barreled upper
receiver unit was found intact, as one complete unit.4 The shortbarreled upper receiver unit included an upper

3In a videotaped demonstration shown to the jury, ATF Firearms Enforcement Officer Robert Burrows
removed the upper receiver unit from an Essential Arms AR-15 rifle found in Kent's apartment and
fastened the short-barreled upper receiver unit in its place. This entire two-step process took Officer
Burrows approximately thirty seconds.

4In the brief on appeal, Kent's attorney mentions that this upper receiver unit, which the attorney
mistakenly refers to as a "barrel," was "found in Kent's junk parts box." From the pictures introduced, it
is evident that the parts box was filled with springs, triggers, and other spare gun parts and did not contain

3



receiver assembly, a rifle barrel, a flash suppressor, forward and rear sights, a sling, a scope with batteries
to activate the light in the scope, a gas tube, a handguard assembly, a bolt and bolt carrier—all welded or
otherwise fastened together as a single, active upper receiver unit. The short-barreled upper receiver unit's
flash suppressor had been welded permanently to the rifle barrel, and when law enforcement officials
measured the rifle barrel "from the chamber end to the end of the flash suppressor," they determined the
length to be fourteen inches. The sling on the short-barreled upper receiver unit was similar to the sling on
the Colt AR-15 upper receiver unit which had the longer rifle barrel. The Government contended that this
evidence of the short-barreled upper receiver unit being an intact, active unit, with a sling and with batteries
in the scope, and the fact that the short-barreled upper receiver unit was easily interchangeable with other AR15 upper receiver units including the longer-barreled unit on the Colt AR-15 when it was found in Kent's
apartment, demonstrated that Kent's intent was to use the short-barreled upper receiver unit as an intact unit
as opposed to using the unit for parts.

It is undisputed that Kent had not registered in the National Firearms Registration and Transfer
Record the weapon that could be assembled by connecting the short-barreled upper receiver unit to the Colt
AR-15 lower receiver unit.

III. STANDARD OF REVIEW
The sufficiency of the evidence to support Kent's conviction is reviewed de novo, viewing the
evidence in the light most favorable to the Government and drawing all reasonable inferences and credibility
choices in favor of the jury's verdict. United States v. Guerra, 164 F.3d 1358, 1359 (11th Cir.1999); United
States v. Awan, 966 F.2d 1415, 1434 (11th Cir.1992).

the upper receiver unit. There was some kind of short barrel among the parts in the box, but this barrel
was not the one attached to the upper receiver unit or described in the indictment and hence is not relevant
to this appeal. Furthermore, we note that the parts box to which Kent's attorney refers is a small, clear
plastic box, divided into twelve compartments—the kind of box often used for fishing tackle or sewing
supplies. This parts box would be too small to hold the upper receiver unit, even if the box were not
already filled with gun parts.

4


The district court's denial of the motions for a judgment of acquittal will be upheld if a reasonable
trier of fact could conclude that the evidence establishes the defendant's guilt beyond a reasonable doubt.
United States v. Keller, 916 F.2d 628, 632 (11th Cir.1990). The district court's denial of the motion for a new
trial is reviewed for abuse of discretion. United States v. Michael, 17 F.3d 1383, 1384 (11th Cir.1994).

IV. DISCUSSION
A. Possession of an Unregistered Firearm Under 26 U.S.C. § 5861(d)
In Count Three, Kent was found guilty of possession of a rifle with a barrel length of less than sixteen
inches, not registered in the National Firearms Registration and Transfer Record, in violation of 26 U.S.C.
§ 5861(d). Section 5861(d) of the National Firearms Act ("NFA")5 makes it unlawful for any person to
"possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record."
26 U.S.C. § 5861(d). The term "firearm" is defined for purposes of § 5861(d) and the NFA in general as
including, inter alia, "a rifle having a barrel or barrels of less than 16 inches in length." 26 U.S.C. §
5845(a)(3). The term "rifle," in turn, is defined as:

a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and
designed or redesigned and made or remade to use the energy of the explosive in a fixed cartridge
to fire only a single projectile through a rifle bore for each single pull of the trigger, and shall include
any such weapon which may be readily restored to fire a fixed cartridge.

26 U.S.C. § 5845(c). This definition of a rifle does not specify that a weapon must be assembled completely
in order to be a "rifle." Cf. United States v. Woods, 560 F.2d 660, 665 (5th Cir.1977) (interpreting 26 U.S.C.
§ 5845(d), the NFA definition of "shotgun"). Instead, for a weapon to be a "rifle," that weapon simply must
be capable of being "readily restored to fire." § 5845(c).

The parties do not dispute that the Colt AR-15, with the attached upper receiver unit with a longer
barrel, found in Kent's apartment, constituted a "rifle." They also do not dispute that if that upper receiver
unit was removed and the short-barreled upper receiver unit were fastened to the Colt AR-15's lower receiver
unit, the resulting weapon would be a "rifle." Instead, the issue presented in this case is whether Kent's

526 U.S.C. § 5849 provides that Chapter 53 of Title 26 may be cited as the National Firearms Act.
5


possession of the short-barreled upper receiver unit and the Colt AR-15 lower receiver unit, even though those
two units were not fastened together when found in Kent's apartment, constituted possession of a "rifle having
a barrel ... of less than 16 inches in length," a type of "firearm" required to be registered under § 5861(d).

B. Sufficiency of the Evidence that Kent Possessed a Short-Barreled Rifle
After review, we find that there was sufficient evidence to sustain Kent's conviction under Count
Three. The evidence indicates that the upper receiver unit was a complete, intact unit and that this
short-barreled upper receiver unit was "compatible" and could be interchanged readilywith the upper receiver
unit on the Colt AR-15. Moreover, an ATF agent testified that the result of interchanging these upper receiver
units would be "a weapon which is designed and intended to be fired from the shoulder, capable of
discharging a shot through a rifle bore[,] and having a barrel length of less than sixteen inches." Because the
short-barreled upper receiver unit and the Colt AR-15 lower receiver unit were located in the same, small
apartment and could be connected so quickly and easily, creating an operable short-barreled rifle with only
a minimum of effort, evidence that Kent possessed both of these units was sufficient to prove that Kent
possessed a "rifle having a barrel ... of less than 16 inches in length" for purposes of § 5861(d). See United
States v. Woods, 560 F.2d 660, 664 (5th Cir.1977); United States v. Zeidman, 444 F.2d 1051 (7th Cir.1971).

The Fifth Circuit's decision in Woods involved possession of a shotgun, rather than a rifle, but
provides guidance because the definition of a rifle in § 5845(c) contains some of the same language as the
definition of a shotgun in § 5845(d).6 Both definitions encompass "a weapon designed or redesigned, made
or remade, and intended to be fired from the shoulder ... and shall include any such weapon which may be
readily restored to fire." § 5845(c)-(d).

The weapon possessed by the defendant in Woods was found in two parts—a fourteen and
one-quarter inch shotgun barrel and a shotgun stock. 560 F.2d at 664. The barrel was found under a dining
room cabinet, and the stock was found on the top shelf of the same cabinet. Id. at 662, 664. At trial, an

6Decisions of the former Fifth Circuit rendered prior to October 1, 1981, are circuit precedent in the
Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc).

6


officer had demonstrated that these two parts easily could be connected to form a shotgun. Id. at 664. The
Fifth Circuit determined that the defendant's possession of these two parts should be considered possession
of an unregistered short-barreled "shotgun" in violation of § 5861(d). Id. The Court reasoned that "[t]he fact
that the weapon was in two pieces when found is immaterial considering that only a minimum of effort was
required to make it operable." Id. The Court explained that the NFA's definition of "shotgun," in "ection
5845(d)[,] does not specify that the parts must be assembled before it applies." Id. at 665. Moreover, the
Court emphasized that "[t]he firearm in question was capable of being 'readily restored to fire a fixed shotgun
shell,' and to reason otherwise would be to frustrate or defeat the very purpose of the statute." Id.

Similarly, in Zeidman, the Seventh Circuit affirmed a conviction for possession of an unregistered
"firearm" under § 5861(d). At issue in Zeidman was whether the defendant's possession of a pistol and a
detachable shoulder stock constituted possession of a short-barreled "rifle" for purposes of the NFA, even
though the pistol and shoulder stock were found in "different drawers of the same dresser." 444 F.2d at 1053.
Notwithstanding the absence of evidence that the defendant actually had attached the shoulder stock to the
pistol, the court concluded that the defendant had possessed a short-barreled "rifle" and hence a "firearm" for
purposes of the NFA. The court based this conclusion on the fact that the shoulder stock and pistol clearly
could be easily attached, as follows:

When viewed together, the interrelationship of these two items is apparent, even without
prior knowledge of their connection. The pistol fits snugly into the butt end of the shoulder stock.
With the end closed the stock operates both as a holster and as a means to conceal the weapon.
Furthermore, fixtures on the tapered end of the stock allow the pistol to be securely attached
thereto....

Once the two parts are attached in rifle form it becomes clear that the single unit fits the
definition of a short barreled rifle. 26 U.S.C. § 5845(c).
Id. Thus, as in the present case, the critical factor for the courts in Zeidman and Woods was that the weapon
could "be readily restored" to operate as a "firearm" for purposes of § 5861(d).

C. Thompson/Center and Owens
7



Kent argues that a different conclusion is required by either United States v. Thompson/Center Arms,
504 U.S. 505, 112 S.Ct. 2102, 119 L.Ed.2d 308 (1992), or United States v. Owens, 103 F.3d 953 (11th Cir.),
cert. denied, --- U.S. ----, 118 S.Ct. 44, 139 L.Ed.2d 11 (1997). We disagree. We first discuss both cases in
detail and then explain why they support the result here.

1. Thompson/Center
The issue presented in Thompson/Center was whether Thompson/Center Arms, a gun manufacturing
company, owed taxes under the NFA, 26 U.S.C. § 5821,7 for "making" a "firearm." 504 U.S. at 506-07, 112
S.Ct. 2102. Not all pistols, rifles, or other guns are covered by the taxes due under § 5821 because "[t]he
word 'firearm' is used as a term of art in the NFA." Id. at 507, 112 S.Ct. 2102. The term "firearm" is defined
for purposes of § 5821, just as it is for § 5861(d) in this case, by § 5845(a), which includes inter alia, "a rifle
having a barrel or barrels of less than 16 inches in length." 26 U.S.C. § 5845(a)(3). The question in
Thompson/Center was whether the company had "made" a "firearm," and particularly a short-barreled rifle,
subject to taxes under § 5821(a).

The evidence showed that Thompson/Center Arms had produced a parts kit that could be used to
convert a pistol it manufactured into either a short-barreled rifle or a non-"firearm" rifle. 504 U.S. 505, 507,
112 S.Ct. 2102, 119 L.Ed.2d 308 (1992). The pistol manufactured by Thompson/Center Arms was a
single-shot pistol called the "Contender" and was designed so that its handle and barrel could be removed
from its receiver. Id. at 508, 112 S.Ct. 2102. The kit Thompson/Center Arms manufactured for converting
the Contender into a rifle contained a twenty-one-inch rifle barrel, a rifle stock, and a wooden fore-end. Id.
Assembling these three parts with the Contender's receiver would result in a carbine rifle with a twenty-one
inch rifle barrel, which, like the pistol itself, would not be a "firearm" for purposes of the NFA. Id. at 507-08,
112 S.Ct. 2102. However, by using the ten-inch pistol barrel from the Contender instead of the

7Section 5821(a) provides that "[t]here shall be levied, collected, and paid upon the making of a
firearm a tax at the rate of $200 for each firearm made." 26 U.S.C. § 5821(a).

8


twenty-one-inch rifle barrel from the parts kit, a short-barreled rifle—a "firearm" under 26 U.S.C. §
5845(a)(3)—could be assembled. Id.

In Thompson/Center, a plurality of three Justices ultimately concluded that it was ambiguous whether
Thompson/Center Arms had "made" a short-barreled rifle for purposes of the NFA by packaging together the
pistol and the parts kit. Id. at 518, 112 S.Ct. 2102. In the course of reaching this conclusion, the plurality
focused on the NFA's definition of "make" in 26 U.S.C. § 5845(i).8 Even though the plurality decided that
the definition of "make" was ambiguous as applied to the specific combination of parts packaged by
Thompson/Center Arms, the plurality recognized that the definition clearly "cover more than final
assembly" of a "firearm" and that "some disassembled aggregation of parts must be included." Id. at 510, 112
S.Ct. 2102 (emphasis supplied). Moreover, the plurality recognized two factual situations in which, under
the NFA's definition of "make," packaging together unassembled parts would clearly constitute "making" a
"firearm." Id. at 510-12, 112 S.Ct. 2102.

According to the plurality, the first of these situations—the "paradigm" situation—would be the
aggregation of a set of parts that could only be used to assemble a "firearm" for purposes of the NFA. Id. at
510-13, 112 S.Ct. 2102. For example, the plurality explained that aggregating disassembled parts in a
complete short-barreled rifle kit would be "making" a short-barreled rifle. Id. at 511, 112 S.Ct. 2102. No
further assembly of those parts would be necessary to "make" a "firearm" for purposes of the NFA. Id.

The plurality then described the second of these situations in which making a combination of parts
clearly would constitute "making" a "firearm" for purposes of the NFA. The plurality referred to this second
situation as "facts one step removed from the paradigm." Id. at 512, 112 S.Ct. 2102. According to the
plurality, this near-paradigm situation would be packaging a complete gun other than a "firearm" together
with "a further part or parts that would have no use in association with the gun except to convert it into a

8The NFA's definition of "make" provides that "[t]he term 'make', and the various derivatives of such
word, shall include manufacturing (other than by one qualified to engage in such business under this
chapter), putting together, altering, any combination of these, or otherwise producing a firearm." 26

U.S.C. § 5845(i).
9

firearm." Id. at 511-12, 112 S.Ct. 2102. In other words, packaging a complete, non "firearm" rifle together
with a barrel less than sixteen-inches in length and any other parts that would have no use except to convert
that rifle into a short-barreled rifle would suffice to "make" a short-barreled rifle for purposes of the NFA.

The plurality, however, distinguished these two factual situations and the facts of Thompson/Center
Arms. Id. at 512-13, 112 S.Ct. 2102. The plurality observed that the aggregation of parts in the paradigm
situation had "no useful purpose except the assembly of a firearm" and that the aggregation in the
near-paradigm situation had "no ostensible utility except to convert a gun into [a firearm]." Id. In contrast,
the plurality reasoned that the particular pistol and conversion kit packaged by Thompson/Center Armscould
be used to assemble either a "firearm" short-barreled rifle or a non-"firearm" rifle. Id. Thus, because
Thompson/Center Arm's aggregation of parts into a kit did not fit either the paradigm or the near-paradigm
situation, the plurality concluded that it was not clear whether Thompson/Center Arms had "made" a
"firearm" for purposes of the NFA. Id. at 513-18, 112 S.Ct. 2102.

The plurality's "utility" analysis was criticized by the two Justices who joined the result reached by
the plurality but not the reasoning. Id. at 519-23, 112 S.Ct. 2102. Also, there were four dissenting Justices
who described the plurality's "utility" analysis as an "artificial line" and a "resort to ingenuity to create
ambiguity." Id. at 524, 112 S.Ct. 2102. These four Justices would have held that Thompson/Center Arms
had "made" a "firearm" simply by producing and packaging the components necessary to assemble a
short-barreled rifle. Id. at 523-26, 112 S.Ct. 2102. In light of these differing opinions, any lesson to be
learned from Thompson/Center is far from clear. In fact, to some extent, because there was no majority
opinion with the same reasoning, it is difficult to apply Thompson/Center to any subsequent case unless it
involves a factual situation that is the same or substantially similar to that at issue in Thompson/Center. We
find that Thompson/Center raises more questions than it answers and thus have looked for guidance to cases
with facts closer to those here—i.e., United States v.Woods, 560 F.2d 660 (5th Cir.1977), and United States

v. Zeidman, 444 F.2d 1051 (7th Cir.1971). Nonetheless, to the limited extent Thompson/Center may provide
10



guidance here, the facts of this case are most analogous to the facts described in the second, or near paradigm,
situation, and thus Thompson/Center would support sustaining Kent's conviction. The short-barreled upper
receiver unit here clearly and easily can be used to convert the Colt AR-15 into a "firearm" and has no other
ostensible purpose aside from making such a conversion.

One of the specific examples the Thompson/Center plurality cited of a case involving a
near-paradigm-type situation is the decision in Zeidman, which we discussed earlier. Thompson/Center, 504

U.S. at 512, 112 S.Ct. 2102. The defendant in Zeidman possessed a pistol and a detachable holster-shoulder
stock that could be fastened to the pistol, thereby converting the pistol to a short-barreled rifle. 444 F.2d at
1053. When law enforcement officials searched the defendant's home, they found the pistol and the stock
"in different drawers of the same dresser." Id. Nonetheless, the Zeidman court upheld the defendant's
conviction for possession of an unregistered short-barreled rifle in violation of § 5861(d) because the stock
clearly and easily could be used to convert the pistol to a "firearm." Id. Indeed, the stock had no other
ostensible purpose aside from converting the pistol to a "firearm." Id.
We recognize that Kent argues he had the short-barreled upper receiver unit to use for its parts.
However, the Government introduced sufficient evidence to raise an issue for the jury about whether Kent's
intent was to use the short-barreled upper receiver unit only for parts or to use the short-barreled upper
receiver unit with the lower receiver unit as an AR-15 rifle. The Government introduced a videotaped
demonstration which showed that it took only about thirty seconds to remove an AR-15 upper receiver unit
from a lower receiver unit and install the short-barreled upper receiver unit in its place. The Government also
introduced evidence that the upper receiver unit was a complete, intact unit that included not just a barrel, but
also a flash suppressor, forward and rear sights, a scope with batteries to activate the light in the scope, a gas
tube, a handguard assembly, and a sling ready to be attached to a lower receiver unit. In addition, there was
no other lower receiver unit found in Kent's apartment to which the short-barreled upper receiver unit could
be attached and used to create a legal weapon for purposes of the NFA. Moreover, Kent has never contended

11



that there was a pistol grip or any other piece that he could use to make a legal weapon from this
short-barreled upper receiver unit. Indeed, it would not be possible to combine the short-barreled upper
receiver unit with any kind of lower chamber or lower receiver unit, such as a pistol grip, to create a weapon
that would not be a "firearm" for purposes of the NFA.9

2. Owens
We also find that United States v. Owens expressly reserved the issue here and does not require a
reversal of Kent's conviction in Count Three. 103 F.3d 953 (11th Cir.1997). Owens, like the present case,
and unlike Thompson/Center, involves a challenge to a conviction for possession of an unregistered rifle in
violation of § 5861(d). 103 F.3d at 954. In Owens, the defendant argued that his conviction should be set
aside because it was ambiguous whether § 5861(d) required him to register his possession of a "firearm"when
he merely possessed unassembled parts. These parts included an Uzi mini-carbine, six magazines, a
seven-inch barrel, a nineteen and three-quarters-inch barrel, a barrel shroud, a sling, and a shoulder holster.
Id. at 954. From these parts, it was possible to assemble either a rifle with a seven-inch barrel that would
qualify as a "firearm" or a rifle with a nineteen-and-three-quarters-inch barrel that would not qualify as a
"firearm." Id. at 955. Thus, the parts possessed by Owens presented a situation more analogous to the facts
of Thompson/Center than to the rifle with interchangeable upper receiver units involved in this case.

However, because evidence in the record indicated that Owens did more than just possess parts that
could be assembled into a short-barreled rifle, this Court in Owens found it unnecessary to address the
applicability of Thompson/Center to the facts of Owens or to § 5861(d) in general. An ATF agent testified
that in the past Owens actuallyhad assembled the rifle using the seven-inch barrel—even though the rifle was
not so assembled at the time of Owens's arrest. Id. Owens thereby had in his possession a weapon that was
an unregistered, short-barreled rifle-an unregistered "firearm" for purposes of § 5861(d). As a result, this

9This is because, by definition, a "firearm" can be either "a rifle having a barrel or barrels of less than
16 inches in length" or "a weapon made from a rifle if such weapon as modified has ... a barrel or barrels
of less than 16 in inches in length." 26 U.S.C. § 5845(a)(3)-(4).

12


Court determined that § 5861(d), "as applied to Owens, clearly was not vague." Id. The Owens Court
reserved for consideration "whether the effect of [§ 5861(d) ] is uncertain with respect to other litigants." Id.

Turning to the instant case, we find that § 5861(d), as applied to Kent under the facts of this case, also
is not vague. While there is no direct evidence that Kent had assembled the rifle using the short-barreled
upper receiver unit before, there was sufficient evidence, as outlined above, that Kent did not have the
short-barreled upper receiver unit for parts, but for use with the lower receiver unit, which would constitute
possession of a "firearm" required to be registered under § 5861(d) of the NFA.


D. Denial of Kent's Motions for a Judgment of Acquittal and a New Trial
Because the evidence was sufficient to support the jury's verdict, we uphold the district court's denial
of Kent's motions for a judgment of acquittal. We also conclude that the district court's denial of the motion
for a new trial was not an abuse of discretion.

V. CONCLUSION
For the foregoing reasons, we affirm Kent's convictions and sentence and affirm the district court's
denial of Kent's motions for a judgment of acquittal and a new trial.
AFFIRMED.

13





Link Posted: 8/7/2005 7:05:57 PM EDT

Originally Posted By _DR:
While there is no direct evidence that Kent had assembled the rifle using the short-barreled
upper receiver unit before, there was sufficient evidence, as outlined above, that Kent did not have the
short-barreled upper receiver unit for parts, but for use with the lower receiver unit, which would constitute
possession of a "firearm" required to be registered under § 5861(d) of the NFA.



What utter fucking bullshit. What, they can read the guys mind?? I still can't fathom how the people of 1934 allowed the NFA to be passed.
Link Posted: 8/7/2005 7:12:55 PM EDT
[Last Edit: 8/7/2005 7:19:52 PM EDT by NAM]
I stand my ground.

Is it a good idea to have a pistol lower transferred as a pistol? Yes.

It is legally required? NO.

Yes, i read the letter. THe part we are concerned with here is "A rifle receiver that has never been barreled and/or stocked as a rifle may be utilized in the manufacture of a pistol."

Then they say the part abotu making sure ti doesn't say rifle. THey are contradicting themselves.

If it says rifle, and has never been assembled into a rifle, there's no reason you cannot build it into a pistol. Will they try to say it was transferred as a rifle and thusly illegal? possibly. But not liekly. Also, in the description field, all the FFL's i've ever dealt with state "AR-15 style RECEIVER". a receiver is neither a rifle nor a pistol. If your FFL states he's transferring an AR15 rifle, whe nhe's transferring a stripped receiver, I'd question the legality fo him doign that .Clearly his records are inaccurate.

Bottom line is that transferring it as a pistol is'nt necessary. Advisable? sure.. why not. But legally necessary? NO.


Read 4473. Line 26 is what they are talking about. If you write complete rifle in line 26, you are fucked. However, If line 26 properly notes that it's a receiver, you're ok. Line 16 is the type of transfer. This one could legally be either or. Suggest pistol, but not required.

ATF 4473 IS NOT REGISTRATION OF A FIREARM. (in theroy....tinfoil hat on)
Link Posted: 8/7/2005 7:35:25 PM EDT
[Last Edit: 8/7/2005 7:36:55 PM EDT by _DR]

Originally Posted By C-4:
Originally Posted By _DR:
While there is no direct evidence that Kent had assembled the rifle using the short-barreled
upper receiver unit before, there was sufficient evidence, as outlined above, that Kent did not have the
short-barreled upper receiver unit for parts, but for use with the lower receiver unit, which would constitute
possession of a "firearm" required to be registered under § 5861(d) of the NFA.


What utter fucking bullshit. What, they can read the guys mind?? I still can't fathom how the people of 1934 allowed the NFA to be passed.



Yep. "Intent" convictions piss me off, whether or not the individual deserves it or not is not the point.
Link Posted: 8/7/2005 7:40:39 PM EDT

Originally Posted By NAM:
I stand my ground.

Is it a good idea to have a pistol lower transferred as a pistol? Yes.

It is legally required? NO.

Yes, i read the letter. THe part we are concerned with here is "A rifle receiver that has never been barreled and/or stocked as a rifle may be utilized in the manufacture of a pistol."

Then they say the part abotu making sure ti doesn't say rifle. THey are contradicting themselves.

If it says rifle, and has never been assembled into a rifle, there's no reason you cannot build it into a pistol. Will they try to say it was transferred as a rifle and thusly illegal? possibly. But not liekly. Also, in the description field, all the FFL's i've ever dealt with state "AR-15 style RECEIVER". a receiver is neither a rifle nor a pistol. If your FFL states he's transferring an AR15 rifle, whe nhe's transferring a stripped receiver, I'd question the legality fo him doign that .Clearly his records are inaccurate.

Bottom line is that transferring it as a pistol is'nt necessary. Advisable? sure.. why not. But legally necessary? NO.


Read 4473. Line 26 is what they are talking about. If you write complete rifle in line 26, you are fucked. However, If line 26 properly notes that it's a receiver, you're ok. Line 16 is the type of transfer. This one could legally be either or. Suggest pistol, but not required.

ATF 4473 IS NOT REGISTRATION OF A FIREARM. (in theroy....tinfoil hat on)



Here's a weird one for ya. A good friend and coworker bought a new Beretta Storm carbine last January. They put "pistol" on the 4473. He didn't say anything at the time, thinking it was because it is pistol caliber (9mm) and has the magazine in the pistol grip like a pistol. But it has a permanent stock, makes it a longarm AFAIK. Doesn't sound right does it.
Link Posted: 8/8/2005 4:08:09 AM EDT

Originally Posted By Big-Bore:
BS yourself.

Read the letter direct from the ATFE at the top of the Pistol page. BS it all you want, it won't be my butt that gets hauled off to the pokey.



I think what he was saying is that the lower its self can be marked "RIFLE", but as long as it was bought stripped and it was never assembled into a rifle then it will work as long as you have a copy of the 4473 that list it as a pistol or reciever. This happened to someone I know, and it was a Grizzly (LAR) lower and LAR emailed him a letter for his records. Keep in mind LAR only makes lowers, and uppers (parts), they don't sell a complete AR15.
Link Posted: 8/8/2005 4:26:15 AM EDT

Originally Posted By DBAR:

Originally Posted By Big-Bore:
BS yourself.

Read the letter direct from the ATFE at the top of the Pistol page. BS it all you want, it won't be my butt that gets hauled off to the pokey.



I think what he was saying is that the lower its self can be marked "RIFLE", but as long as it was bought stripped and it was never assembled into a rifle then it will work as long as you have a copy of the 4473 that list it as a pistol or reciever. This happened to someone I know, and it was a Grizzly (LAR) lower and LAR emailed him a letter for his records. Keep in mind LAR only makes lowers, and uppers (parts), they don't sell a complete AR15.



Nope.

Bottom line: Has it ever had a stock on it?

No you say? Then tell me why you coudn't legally make it a pistol. The ATF may say "well, this nifty piece of paper says it's a rifle". If it never had a stock on it, it is legally neither a rifle nor a pistol.

Is marking the receiver a good idea? overkill, but couldn't hurt.
Is marking the 4473 as pistol a good idea? codunlt' hurt, but IMHO, not necesary
Is marking the decription as "stripped receiver" a good idea? Yes. After all, it is neither a rifle nor a pistol.

Bottom line, it's your ass. Remember, the ATF recommends against using an M16 carrier in an AR15. But it's perfectly legal. THey can advise against "rifle" being on the 4473 all they want.

Fact of the matter is if it's never been assembled into a rifle, it can be legally assembled into a pistol.
Link Posted: 8/8/2005 8:21:01 AM EDT
[Last Edit: 8/8/2005 8:22:15 AM EDT by KogaShuko]

DR,

How did they even know he had the short upper? Just curious. I'm getting my pistol lower first just to be sure. No sense inviting trouble.



DUDE was selling stolen firearms and they knew he had a machine gun. This guy was guilty of being bad that is why they charged him of all of this. They would have never cared about any of this had he not been SELLING stolen firearms and found it on a LEGITIMATE search warrent to find the stolen firearms.
Link Posted: 8/9/2005 3:20:46 PM EDT

then take before and after pictures of the build. Have either the camera date the picture or include a newspaper in the photograph.


To add to what Big-Bore said, on dating things. Once you have taken the pictures get them developed or printed out and send them through the mail addressed to yourself. This way you have date stamped on by the US post office.
Link Posted: 8/9/2005 6:44:25 PM EDT

Originally Posted By KogaShuko:

DR,

How did they even know he had the short upper? Just curious. I'm getting my pistol lower first just to be sure. No sense inviting trouble.



DUDE was selling stolen firearms and they knew he had a machine gun. This guy was guilty of being bad that is why they charged him of all of this. They would have never cared about any of this had he not been SELLING stolen firearms and found it on a LEGITIMATE search warrent to find the stolen firearms.



A couple of years ago, a minister in the area was arrested for NFA violations. The BATF showed up with a full team prepared for either an armed standoff with a crisis negotiator or an assault with a SWAT team. The minister fouled up their plans, and their media coverage of the incident (the BATF apparently waited for the TV crews to show up, before serving the warrant), by quietly allowing them in to serve their warrant and search his home. The BATF had flown a "specially trained agent" in from D.C., to inspect the minister's gun collection and determine if any of them were NFA items. The agent determined that 15 guns in the minister's collection were "definitely" NFA items and that they were not registered.

At the first hearing, the feds claimed they had 3 witnesses (who were never identified and never testified) that had given statements indicating the minister was mentally unstable and possibly suicidal, was a "Nazi-buff", had shot up the interior of a church bus (never proven, and the judge stated the feds had no evidence of this), and kept machineguns and explosives in his house (no explosives were ever found). Somehow, the 15 "definite" NFA firearms had been reduced to 8. The feds admitted that after further inspection and extensive lab testing, they were only able to get 8 of the minister's collection to fire more than one shot with a single pull of the trigger (nothing said about what they had to do to get more than one shot, or if the succesful test was actually a malfunction). The minister was released on bail, but ordered to undergo psychiatric treatment and was ordered to stay away from his church.

Eventually, the minister agreed to a guilty plea, with the understanding that the judge would go easy on the sentencing. After another minister testified with details of the arrested minister's community service (before the arrest and while waiting for trial) and asked for probation, the judge gave a sentence of a year and a day. Last I heard, the feds were appealing, because the judge gave a sentence far less than he was expected to give.

And now, the rest of the story...

The three "anonymous" witnesses were supposedly identified (by individuals who knew the minister and other people from his church) as two members of the church staff, who had been up for a large raise (a raise that the minister had questioned in a church business meeting) and an individual who worked for one of them. From their statements, it could be suggested that the witnesses wanted the BATF to show up at the minister's house with an expectation of, and preparation for a firefight (which could easily have resulted in the minister's death). One of the two staff members was later arrested for beating the crap out of his wife, and was forced to resign from his church position.

The only evidence ever offered, in court, to support the witnesses' statements, was the diminishing number of "definite" NFA firearms in the BATF lab, and drawings and tools that the BATF claimed showed an "intent to construct" more NFA items.
Link Posted: 8/12/2005 9:55:26 PM EDT
[Last Edit: 8/12/2005 10:00:00 PM EDT by repub18]

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