United States of America, and v. Richard J. Oba, And

448 F.2d 892 25 A.L.R.Fed. 325 UNITED STATES of America, Plaintiff and Appellee v. Richard J. OBA, Defendant and Appellant. No. 26481. United States Court of Appeals, Ninth Circuit. Aug. 23, 1971. Rehearing Denied Sept. 29, 1971. 1 Barnes Ellis (argued), Portland, Or., for defendant-appellant. 2 Michael Abbell (argued), Dept. of Justice, Washington, D. C., Sidney I. Lezak, U. S. Atty., Charles Turner, Asst. U. S. Atty., Portland, Or., for plaintiff-appellee. 3 Before BROWNING and CARTER, Circuit Judges, and BYRNE, * District Judge. WILLIAM M. BYRNE, District Judge: 4 This is an appeal by appellant Oba from his conviction upon a plea of guilty to Counts One and Two of an indictment charging him with possessing an unlawfully made firearm and with unlawfully transferring the same firearm in violations of 26 U.S.C. Sec. 5861 (c) and (e), respectively. At the time of pleading guilty, Oba retained, with permission of the Court, two legal questions for appeal, viz., (1) Did the indictment fail to state facts sufficient to constitute an offense, and (2) Would the National Firearms Act, as applied to him, force him to incriminate himself as to future acts. 5 On appeal, appellant contends…

This is an appeal by appellant Oba from his conviction upon a plea of guilty to Counts One and Two of an indictment charging him with possessing an unlawfully made firearm and with unlawfully transferring the same firearm in violations of 26 U.S.C. § 5861 (c) and (e), respectively. At the time of pleading guilty, Oba retained, with permission of the Court, two legal questions for appeal, viz., (1) Did the indictment fail to state facts sufficient to constitute an offense, and (2) Would the National Firearms Act, as applied to him, force him to incriminate himself as to future acts.

On appeal, appellant contends that the object described in the indictment (“seven sticks of dynamite wrapped with copper wire and equipped with a length of black dynamite fuse, together with dynamite caps * * * ”) does not come within the definition of “destructive device” found in 26 U.S.C. § 5845 (f). 1 The thrust of appellant’s argument is that the object is, intrinsically, not a weapon and that it can only be labelled a “destructive device” if that is the ultimate subjective intent of the possessor or transferor.

On June 19, 1968, the Omnibus Crime Control and Safe Streets Act ( Pub.L. 90-351, 82…

(dissenting) :

Appellant was convicted of possessing and transferring a “firearm” in violation of the National Firearms Act, as amended by Title II of the Gun Control Act of 1968, 26 U.S.C. § 5801 et seq. The “firearm” is described in the indictment as “a destructive device consisting of seven sticks of dynamite wrapped with copper wire and equipped with a length of black dynamite fuse, together with dynamite caps.” Appellant contends that, this is not a “firearm” within the meaning of the Act and therefore the indictment does not state facts sufficient to constitute an offense.

Appellant argues that the Act applies only to gangster-type weapons and major military ordnance — two objectively recognizable types of weaponry not commonly associated with lawful private activity; that the object described in the indictment is commercial blasting material assembled in the manner in which it is ordinarily assembled for use in law *896 ful industrial demolition, 1 2and not a weapon of the types identified in the statutory definitions; and that the district court erred when it held that commercial blasting material assembled for detonation in the usual way was converted into a “firearm”…