## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 11 1998 

### PATRICK FISHER Clerk 

### PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. BARRY P. FILLMAN, Defendant-Appellant, No. 98-3036

Appeal from the United States District Court

for the District of Kansas (D.C. No. 96-CR-10003)

On the briefs: Jerome R. Jones, Wichita, Kansas, for Defendant-App ellant. Jackie N. Williams, United States Attorney (Michael G. Christensen, Asst. U.S. Attorney, with him on the brief), Wichita, Kansas, for Plaintiff-Appellee.

Before SEYMOUR , Chief Judge, BRORBY and BRISCOE , Circuit Judges.

SEYMOUR , Chief Judge.1 After examining the briefs and appellate record, th is panel has determined

unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ause is therefore ordered submitted without oral argument.

-2- Appellant Barry P. Fillman was convicted of possess ing explosive materials while under indictment, in violation of 18 U.S.C. § 842(i). He contends that the statute does not cover his conduct because he was n ot “under indictment,” having been charged by information. We conclude Congress intended to prohibit both those charged by indictment and those charged by in formation from possessing explosives. We therefore affirm Mr. Fillman’s conv iction. 1

I. On June 30, 1995, police executed a search warrant at Mr. Fillman’s home and found three 90 gram high explosive cast booster s. At the time, Mr. Fillman had been charged by complaint/information in state court with a felony punishable by a term a term exceeding one year. A grand jury indicted Mr. Fillman for violating 18 U.S.C. § 842(i). The statute in question provides, in part, that “[i]t s hall be unlawful for any person . . . who is under indictment for . . . a cr ime punishable by imprisonment for a term exceeding one year . . . to receive or p ossess any explosive which has been shipped or transported in interstate or foreig n commerce.” 18 U.S.C. § 842-3-

(i) (1994). The term “indictment” is not defined i n the statute. Prior to trial, Mr. Fillman moved to dismiss this c ount, claiming that the statute covered only those who possessed an explosi ve after being charged by indictment, not by information. The district courtdenied his motion, and a jury found him guilty as charged.

II. We review de novo the district court’s interpretati on of a federal statute. See Southern Ute Indian Tribe v. Amoco Prod. Co. , 151 F.3d 1251, 1256 (10th Cir. 1998) (quoting Utah v. Babbitt , 53 F.3d 1145, 1148 (10th Cir. 1995)); FDIC v. Lowery , 12 F.3d 995, 996 (10th Cir. 1993). Mr. Fillman a rgues that the plain meaning of “indictment” covers only those charged b y grand jury, and that the statute therefore unambiguously excludes those char ged by information. It is true that the primary dictionary definition of “indictme nt” comports with Mr. Fillman’s interpretation. See B LACK ’ S L AW D ICTIONARY 772 (6th ed. 1990);
RANDOM H OUSE UNABRIGED D ICTIONARY972 (2d ed. 1993); W EBSTER ’ S T HIRD N EW I NTERNATIONAL D ICTIONARY 1150 (1981). However, a secondary definition of “indict” is “to charge with an offense or crime. ” RANDOM H OUSE UNABRIDGED D ICTIONARY972. Moreover, courts have interpreted the term “ indictment” in a similar statute to include an information, see Schook v. United States , 337 F.2d2 In both Schook v. United States , 337 F.2d 563 (8th Cir. 1964), and

Quinones v. United States , 161 F.2d 79 (1st Cir. 1947), the court construed 15 U.S.C. § 902 (e) which prohibited a person under in dictment for a crime punishable for a term exceeding one year from trans porting firearms. In 1968, Congress repealed that statute and enacted 18 U.S. C. § 922 to cover, inter alia, that conduct. See Pub. L. No. 90-618, 82 Stat. 1213 (codified at 18 U.S.C. § 922 (1994)). Congress also explicitly defined “indictm ent” in that statute to include “information.” 18 U.S.C. § 921 (a)(14). As we dis cuss infra , it is section 922 which is in pari materia with section 842, the prov ision under which Mr. Fillman is charged.

3 In United States v. Isaacs , 539 F.2d 686 (9th Cir. 1976), the court held that a defendant who had been charged by information had not made a false statement when he denied being “under indictment.” Id. at 688. The relevant statute required that the defendant know he was speaking fa lsely (that “indictment” included the term “information”) in order for him t o violate the law. See id. at 689 (Goodwin, J., concurring). In this case, as we ll is in Schookand Quinones , no such requirement exists. Isaacs is therefore distinguishable. See id

. -4- 563, 567-68. (8th Cir. 1964) (“There is no essentia l difference in the function or consequence of an ‘indictment’ and an ‘information’ .”); Quinones v. United States , 161 F.2d 79, 81 (1st Cir. 1947), 2 and Congress has similarly defined “indictment” in a related context, see 18 U.S.C. § 921(a)(14) (1994). 3 Adopting Mr. Fillman’s interpretation of the statut e would lead to serious inconsistencies in the law’s application between st ates that charge by grand jury and those that charge by information. It seems very unlikely that Congress intended to create such a discrepancy. See Schook , 337 F.3d at 567-68; Quinones , 161 F.2d at 81 (“With the object in mind of group ing together . . . potentially dangerous persons it seems hardly likel y that Congress intended to differentiate between those legally suspect because under indictment by grand-5-

jury and those legally suspect because an informati on had been filed against them by a prosecuting attorney.”). We therefore disagre e with Mr. Fillman’s contention that section 842 (i) unambiguously appli es only to those who have previously been charged by a grand jury. This interpretation finds support in the rule of st atutory construction that we may look at related statutes, that is, those law s that are in pari materia with 18 U.S.C. § 842, in order to ascertain Congress’ inten t. See 2B N ORMAN J. S INGER , S UTHERLAND ’ S S TATUTORY C ONSTRUCTION§ 51.02 (5th ed. 1992). This rule “assumes that whenever Congress passes a new statut e, it acts aware of all previous statutes on the same subject.” Erlenbaugh v. United States , 409 U.S. 239, 244 (1972); see, e.g. , United States v. Phommachanh , 91 F.3d 1383, 1386 (10th Cir. 1996) (construing 18 U.S.C. § 3583(d) inpari materia with 8 U.S.C. § 1251, as both statutes relate to aliens possiblysubject to deportation); Rocky Mountain Oil & Gas Ass’n v. Watt , 696 F.2d 734, 748 (10th Cir. 1982). Here, 18 U.S.C. § 842(i) is in pari materia with 18 U.S.C. §922(n), which is the current version of a statute enacted prior to s ection 842(i). Both provisions are part of broader laws that regulate explosive materials, and both specifically prohibit persons under indictment from shipping, tr ansporting or receiving explosives shipped in interstate commerce. Compare 18 U.S.C. § 842 (i) with184 18 U.S.C.§ 922(n) is a subpart of Chapter 44 whic h regulates firearms,

including explosive devices. See 18 U.S.C. § 921(a)(4)(A).

5 The definition of “indictment” to include “inform ation” has remained unchanged since Congress defined the term in 1968. See 18 U.S.C. § 921 (a) (14) (1994). However, Congress has altered other subsec tions. When 18 U.S.C. § 842(i) was enacted into law in 1970, it was most si milar to 18 U.S.C. § 922 (h), which was passed in 1968. This provision made it u nlawful for any person under indictment to receive firearms that had been shippe d in interstate commerce. In 1986, Congress amended the Act, and now section 922 (n) instead of section 922 (h) regulates that conduct. See Pub. L. No. 99-308 § 102, 100 Stat. 452 (codified as amended at 18 U.S.C. § 922 (1994)). -6- U.S.C. § 922(n) (1994). 4 There is one key difference: Congress defined “indictment” in the latter statute. “The term ‘ind ictment’ includes an indictment or information in any court under which a crime pun ishable by imprisonment for a term exceeding one year maybe prosecuted.” 5 18 U.S.C. § 921(a)(14) (1994). Because the two statutes are in pari materia, we rely on this definition in construing 18 U.S.C. § 842(i). To do otherwise would “emasculate Congress’ purpose” of protecting the public from explosive materials. Schook , 337 F.2d at 567. We hold that section 842(i) cover s those persons charged by information, including Mr. Fillman. Mr. Fillman contends we should apply the rule of le nity if we find the statute ambiguous. This rule “requires that unclea r penal statutes must be construed in favor of the accused.” Mahn v. Gunter , 978 F.2d 599, 601 (10th Cir. 1992). However, “[t]he rule’s application is limit ed to cases where, after reviewing all available relevant materials, the cou rt is still left with an ambiguous6 In a supplemental pro se brief on appeal, Mr. Fillm an contends the

government violated 18 U.S.C. § 201(c)(2) by promis ing leniency to a witness in the case in exchange for his testimony. We do not consider issues raised for the first time on appeal. See Pierce v. Shorty Small’s of Branson, Inc. , 137 F.3d 1190, 1192 (10th Cir. 1998). -7- statute.” United States v. Wilson , 10 F.3d 734, 736 (10th Cir. 1993) (citing Smith v. United States , 508 U.S. 223, 239(1993)); see also Mahn , 978 F.2d at 601. Section 842(i)’s most logical construction is also that supported by relevant material, i.e. , the definition of indictment in section 921(a) to include an information. Consequently, we see no need to resort to the rule of lenity.

III. Because we conclude that 18 U.S.C. § 842 (i) applie s to Mr. Fillman , we
AFFIRM his conviction. 6