*The HONORABLE ALFRED T. GOODWIN, United States Circuit

Judge for the Ninth Circuit, sitting by designation. 

 1The Honorable Catherine D. Perry, United States District

Judge for the Eastern District of Missouri.

___________

No. 95-1692

___________

United States, *

*

Appellee, *

*

v. *

*

Steve Just, *

* Appellant. *

Appeal from the United States

District Court for the

Eastern District of Missouri

___________

Submitted: December 12, 1995

Filed: February 5, 1996 ___________

Before MAGILL, GOODWIN,* and MURPHY, Circuit Judges. ___________

MURPHY, Circuit Judge.

Steve Just appeals from his conviction for illegal possession

and transfer of a machinegun in violation of 18 U.S.C. § 922(o).

On appeal he argues that the indictment failed to allege an

essential element of the charged offense and that the district

court1 erred in its evidentiary rulings. We affirm. 

In May 1993 the Missouri State Highway Patrol received

information from a confidential informant that Steve Just had a

fully automatic machinegun for sale. An investigation was

initiated, and the Bureau of Alcohol, Tobacco and Firearms (ATF)
2

was contacted for assistance. On May 13, 1993, Michael Cooper, an

undercover officer, met with Just at his residence to inspect the

weapon. The informant and an individual named Douglas Ehler were

also present during the meeting. Just brought out a Japanese Type

99, 7.7 caliber gun that was stored in a guitar case and was broken

down into a number of pieces. After Just assembled the weapon,

Cooper negotiated a deal and purchased it for $700.00. Prior to

turning over the gun, Just wiped his fingerprints from it with a

rag. The transaction was recorded by a surveillance team of ATF

agents.

Just was indicted by a grand jury, and the case went to trial

before a jury. Just argued that the gun he sold was not a

"machinegun" as defined by the statute because it was an inoperable

artifact. Expert witnesses for each side testified on that issue,

and there was evidence that ammunition was available for the gun,

that it had been field tested, and that it had the capacity to fire

as a fully automatic weapon although it malfunctioned after two

shots. The jury also heard the recording of the entire transaction

between Just and Cooper. Just was convicted.

Just now argues that the indictment was insufficient because

it failed to allege that the machinegun was unregistered, which he

claims is an essential element of the charged crime. He asserts

that the indictment thus failed to invoke the jurisdiction of the

district court and that his Fifth Amendment rights were violated.

A challenge to the sufficiency of an indictment is reviewed de

novo. 

As a general rule an indictment is sufficient if it "first,

contains the elements of the charged offense and fairly informs a

defendant of the charge against which he must defend, and second,

enables him to plead double jeopardy as a bar to a future

prosecution." Hamling v. United States, 418 U.S. 87, 117 (1974).
 2

The indictment charges that "[o]n or about May 13, 1993,"

Just "did knowingly possess and transfer a machine gun, to wit: a

Japanese, Type 99, 7.7 Japanese caliber machine gun, bearing

serial number 10224. In violation of Title 18 United States

Code, Section 922(o) and punishable under Title 18, United States

Code, Section 924(a)(2)." 

3

Just did not file a motion to dismiss the indictment before

trial, but waited until the close of the government's evidence to

move to dismiss. Although the sufficiency of an indictment is a

jurisdictional issue that may be raised at any time, an indictment

that is challenged after jeopardy has attached will be liberally

construed in favor of sufficiency. United States v. Lucas, 932

F.2d 1210, 1218 (8th Cir. 1991). The indictment will then be

upheld unless it is "so defective that by no reasonable

construction can it be said to charge the offense for which the

defendants were convicted." Id. (quoting United States v. Czeck,

671 F.2d 1195, 1197 (8th Cir. 1982).

The indictment charged Just with knowing possession and

transfer of a machinegun, described the specific facts and

circumstances supporting the charge, and cited to 18 U.S.C. §

922(o).2

 Although citation to the charging statute does not

necessarily cure the omission of an essential element of the

offense, United States v. Zangger, 848 F.2d 923, 925 (8th Cir.

1988), in this case there is sufficient information provided in the

indictment to inform Just of the charges against him. The

indictment is not so defective that it cannot be reasonably

construed to charge a violation of § 922(o).

Moreover, we are not persuaded that non-registration of a

machinegun is an element of a § 922(o) offense. The statute

provides:
4

(1) Except as provided in paragraph (2), it shall be unlawful

for any person to transfer or possess a machinegun.

(2) This subsection does not apply with respect to -- 

(A) a transfer to or by, or possession by or under the

authority of, the United States or any department or

agency thereof or a State, or a department, agency, or

political subdivision thereof; or 

(B) any lawful transfer or lawful possession of a

machinegun that was lawfully possessed before the date

this subsection takes effect.

18 U.S.C. § 922(o). The exceptions contained in part (2) of the

subsection establish affirmative defenses to the defined offense.

They are not elements of the offense that must be charged in the

indictment. See McKelvey v. United States, 260 U.S. 353, 357

(1922). Just could have defended against the charge by showing

that he lawfully possessed the machinegun prior to the enactment of

the statute on May 19, 1986 and that he lawfully transferred it to

Officer Cooper. This would have required proof that the weapon was

registered in the National Firearms Register and Transfer Record,

but that does not convert lack of registration to an element of the

offense or require the government to prove it where the appropriate

defense was not raised. 

The jury in this case was in fact instructed that the

government was required to establish not only that Just knowingly

transferred a machinegun, but also that the machinegun was not

registered. Just suggests that the jury may have been confused

because the instruction was inconsistent with the elements stated

in the indictment. Although the government offered the instruction

at trial, it now argues that it was not an accurate statement of

the elements of a § 922(o) charge. The instruction created an

additional burden for the government, not for Just. Any error in

its submission to the jury was therefore harmless. 

Just also argues that the district court abused its discretion
 3

As used in § 922(o), the term "machinegun" has the meaning

given the term in section 5845(b) of the National Firearms Act,

28 U.S.C. § 5845(b). 18 U.S.C. § 921(23). 

5

by admitting certain evidence. A trial court has broad discretion

to determine both the relevance of evidence and whether its

probative value outweighs the danger of unfair prejudice. United

States v. Hernandez-Cuartas, 717 F.2d 552, 554 (11th Cir. 1983). 

First, Just challenges as irrelevant and prejudicial Cooper's

testimony regarding undercover police work: 

In my role as an undercover officer, how well I portray

myself in my undercover role, failure to do so well is

very dangerous on my part because of the type of people

that I'm dealing with. Some of the people that I have

dealt with in an undercover investigation are very

dangerous and carry weapons, and if I do not do a good

job or if they suspect that I'm a police officer, my life

would be in jeopardy, as well as the life of the

informant, if they are present during these

investigations. And also if I don't do a good job, then

I won't make a prosecutable case against the person that

I am investigating.

(Tr. 175-76). Just argues that there is no evidence to support the

inference that he is the type of person that Cooper described.

Cooper's testimony about undercover work was admitted as background

to explain some of his actions and the type of language that the

jury would later hear on the recording of the transaction. It was

not an abuse of discretion to admit it.

Second, Just objects to testimony by the government's expert

witness that the firearm sold by Just was a "machinegun" as that

term is used in the statute.3

 He argues that the opinion addressed

the ultimate factual issue and was not helpful to the jury. 

Expert testimony is admissible if it "will assist the trier of fact

to understand the evidence or to determine a fact issue in a case,"

Fed. R. Evid. 702, but it is not necessarily objectionable for
6

addressing the ultimate fact issue. Fed. R. Evid. 704; United

States v. Cotton, 22 F.3d 182, 195 (8th Cir. 1994). Here, the jury

heard evidence about the characteristics of the firearm and two

conflicting expert opinions as to whether the weapon was a

machinegun. Just's expert witness admitted that he was not

familiar with the statutory definition of the term. The district

court did not abuse its discretion in allowing the government's

witness to state his conclusion that the weapon was a "machinegun."

See United States v. McCauley, 601 F.2d 336, 338 (8th Cir. 1979)

(expert opinion that weapon was a "machinegun" in prosecution for

possession of unregistered firearm in violation of 18 U.S.C. §

5861(d)). 

Finally, Just contests the admission of a mail order catalog

advertisement offering to sell ammunition for Japanese machineguns

because it was published fourteen months after the date of the

charged offense. He argues that the advertisement and the

testimony related to it had no probative value and was highly

prejudicial. We disagree. The advertisement showed generally what

is available in the ammunition marketplace, and the jury was aware

of the time differential between the offense and the catalog

publication. Moreover, this was not the only evidence of

availability. Just himself offered as evidence the entire tape of

the transaction during which he insisted twice that a magazine for

the weapon could be obtained for $75. Admission of the mail order

catalog was not an abuse of discretion.

For the stated reasons the judgment of conviction is affirmed.

GOODWIN, Circuit Judge, dissenting.

Because the evidence that the weapon was a machine gun was

extremely thin, I believe the admission of prejudicial testimony

about the nature of gun dealers, which ordinarily might have been

a harmless error, was not harmless in this case. Accordingly, I
7

dissent.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.