United States v. Joseph Anthony Herbert, United States of America v. John David Herbert

John David Herbert and Joseph Anthony Herbert appeal their convictions of conspiracy to violate the firearm laws contrary to 18 U.S.C. § 371 , and of possession, making, and transferring of unregistered machine guns in violation of 26 U.S.C. § 5861 (d), (e) and (f). We affirm as to John Herbert and reverse as to Joseph Herbert.

I

Appellant John Herbert, an attorney, and John Davis, a gun dealer, delivered five automatic weapons to Robert Jacob, an ATF informant. These weapons had originally been manufactured as semi-automatics, and had been internally converted to be automatic. The automatic character of the weapons was not obvious; the weapons externally appeared to be legal semi-automatics. Several different transactions took place between John Herbert and Jacob, one of which was videotaped. At the videotaped transaction, John Herbert and Davis were present, as welí as John’s younger brother, appellant Joe Herbert. Joe Herbert had driven Davis to pick up the weapons, had waited at Davis’ house while Davis worked on the guns in another room, and carried the guns into Jacob’s house. During the meeting at Jacob’s house, both appellants were present while the nature of the weapons…