1 The district court sentenced Thomas to 63 months

imprisonment. 

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

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No. 92-7644

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

DONALD WADE THOMAS,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Texas

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(February 16, 1994)

Before POLITZ, Chief Judge, REAVLEY, and EMILIO M. GARZA, Circuit

Judges.

EMILIO M. GARZA, Circuit Judge:

The Defendant, Donald Wade Thomas, was convicted by a jury of

(1) possessing pipe bombs that were not registered in the National

Firearms Registration and Transfer Record, in violation of 26

U.S.C. § 5861(d) (1988); (2) transferring pipe bombs, in violation

of 26 U.S.C. §§ 5812, 5861(e) and 5871; (3) possessing pipe bombs

which were not identified by serial numbers, in violation of 26

U.S.C. § 5861(i); and (4) conspiring to commit all of the foregoing

substantive offenses.1 Thomas appeals, contending that (a) his

conviction is fundamentally unfair, and therefore violates his

right to due process of law, because he is being punished for
 

2 Cf. United States v. Dalton, 960 F.2d 121, 124 (10th Cir.

1992) (vacating unregistered firearm conviction on due process

grounds, where "[i]t [was] undisputed that the government [would]

not permit the registration of" the weapon in question) ("Because

the crimes of which Dalton was convicted . . . have as an essential

element his failure to do an act that he is incapable of

performing, his fundamental fairness argument is persuasive.").

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failing to register pipe bombs which the Bureau of Alcohol, Tobacco

and Firearms ("ATF") will not permit to be registered; and (2) the

evidence is insufficient to support his conviction because the

government failed to prove that the ATF would have registered the

pipe bombs. Finding no reversible error, we affirm.

I

Thomas contends that his conviction is fundamentally unfair

because he is being punished for failing to register, and obtain

serial numbers for, the pipe bombs which he possessed and

transferred, when the ATF will not register pipe bombs.2 In

arguing that the ATF will not permit registration, Thomas relies

exclusively on the testimony at trial of the government's

explosives expert. Agent Waskom was employed as an explosive

enforcement officer for the Explosive Technology Branch of the ATF.

It was his responsibility in that position to "provide technical

support and assistance with regard to the coordination and

administration of the federal explosive laws." Waskom examined,

took apart, and exploded several of Thomas's pipe bombs before

testifying, and his testimony primarily concerned the construction

and function of those bombs. However, Waskom was asked on direct
 

3 The district court's order denying the motion for

judgment of acquittal stated:

Defendant argues that he is factually if not statutorily

prohibited from registering plastic pipe bombs.

Defendant points to the testimony of Alcohol, Tobacco,

and Firearms ("ATF") Special Agent Tom Waskom to support

[his] argument. . . . 

The Court disagrees. . . . This Court did not

receive evidence regarding ATF licensing procedures and

declines to make the finding requested by defendant[].

Record on Appeal, vol. 1, at 74-75.

 

4 See United States v. Deshaw, 974 F.2d 667, 669 (5th Cir.

1992) ("On appeal the district court's denial of a motion to

dismiss the indictment on the ground of double jeopardy is reviewed

de novo. We accept the underlying factual findings of the district

court unless clearly erroneous." (footnote omitted) (citing United

States v. Weeks, 870 F.2d 267, 269 (5th Cir.), cert. denied, 493

U.S. 827, 110 S. Ct. 92, 107 L. Ed. 2d 57 (1989)); United States v.

Luttrell, 609 F.2d 1190, 1192 (5th Cir. 1980) (upholding denial of

defendant's motion to dismiss indictment, where district court's

finding that prosecutor did not engage in misconduct was not

clearly erroneous); United States v. Cathey, 591 F.2d 268, 272 (5th

Cir. 1979) (holding that criminal defendant was not entitled to

dismissal of indictment because district court did not commit clear

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examination, "do you know of any case where a pipe bomb has been

granted a serial number?" Waskom replied, "None whatsoever."

Thomas moved for a judgment of acquittal before the district

court, arguing (as he does on appeal) that Waskom's aforementioned

testimony indicates that the ATF will not register pipe bombs such

as the ones he possessed, and that his conviction for failure to

register those bombs is therefore fundamentally unfair and

violative of his right to due process. The district court denied

Thomas's motion, refusing to find that the ATF would not register

the pipe bombs, since no evidence supported such a finding.3

We review the district court's factual determination for clear

error.4 We will not find a district court's ruling to be clearly
error in finding that "there was no evidence that [government

witness] `deliberately attempted to mislead'" the grand jury which

returned the indictment).

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erroneous unless we are left with the definite and firm conviction

that a mistake has been committed. United States v. Mitchell, 964

F.2d 454, 457-58 (5th Cir. 1992). We find no such error here.

Waskom's testimony does not indicate that he was qualified to

discuss the ATF's registration policies, and he did not comment on

those policies. Waskom merely testified that he was not aware of

an instance where a serial number had been granted for a pipe bomb.

Waskom did not testify that, as a matter of policy, the ATF never

registers pipe bombs, and nothing in the record required the

district court to draw that inference from Waskom's statement.

Therefore, the district court's refusal to construe Waskom's

statement as a statement that the ATF will not register pipe bombs

was not clearly erroneous, and Thomas's argument is without merit.

II

Thomas also claims that the evidence is insufficient to

support his conviction because the government failed to prove that

the pipe bombs which he possessed and transferred were registerable

with the ATF. This claim is without merit because Thomas has

failed to show that registrability of the weapons is an element of

any of the offenses of which he was convicted. 

26 U.S.C. § 5861(d) makes it an offense "to receive or possess

a firearm which is not registered . . . in the National Firearms

Registration and Transfer Record." Id. On its face, § 5861(d)

does not require that the firearm be registerable with the ATF.
 

5 See also U.S. Fifth Circuit District Judges Association,

Pattern Jury Instructions, Instr. 2.87 (West 1990), the pattern

jury instruction for § 5861(d). That instruction requires the jury

to find that the defendant possessed an unregistered firearm. See

id. It does not require a finding that the firearm could have

been registered. See id.

 

6 26 U.S.C. § 5861(i); see id. § 5842 ("Any firearm

classified as a destructive device [such as a pipe bomb] shall be

identified in such manner as the Secretary may by regulations

prescribe."); 27 C.F.R. § 179.102 (stating that firearms shall be

identified by serial number, provided that the Secretary may

approve other means of identification for destructive devices, upon

application).

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See id. Furthermore, we have stated that the statute "requires

only that the transferee not receive or possess unregistered

firearms." United States v. Sedigh, 658 F.2d 1010, 1012 (5th Cir.

1981) (citing 26 U.S.C. § 5861(d)), cert. denied, 455 U.S. 921, 102

S. Ct. 1279, 71 L. Ed. 2d 462 (1982).5 

26 U.S.C. § 5861(i) makes it unlawful "to receive or possess

a firearm which is not identified by a serial number as required

by" Chapter 53 of the Internal Revenue Code.6 By its terms

§ 5861(i) plainly does not require the government to prove that the

firearm is one for which a serial number would be granted. Neither

do judicial decisions applying § 5861(i) indicate that the

government is required to prove that a serial number would be

issued for the weapon in question. See, e.g., United States v.

Stout, 667 F.2d 1347, 1353 (11th Cir. 1982) (holding that "the

government . . . undeniably bore its burden as to the essential

elements of 26 U.S.C. § 5861(i)" where the evidence showed that

"the silencers, made by defendants and in defendants' possession at
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the time of their arrest, were not stamped with any identifying

markings").

26 U.S.C. § 5861(e) makes it an offense to transfer a firearm

in violation of the provisions of" Chapter 53 of the Internal

Revenue Code. In United States v. Garrett, 583 F.2d 1381 (5th Cir.

1978), we held that a violation of § 5861(e) was established where

a firearm was transferred either (1) without the payment of the

transfer tax required by 26 U.S.C. § 5811, or (2) without the

filing of a transfer application in conformity with 26 U.S.C.

§ 5812. See id. at 1388. We did not interpret § 5861(e) to

require a showing that the weapon in question could have been

registered or issued a serial number.

In summary, we are not aware of any cases which hold that

registrability is an essential element of any of the offenses of

which Thomas was convicted. Neither does Thomas offer any

authority for his claim that the government was required to prove

registrability. Thomas merely states that "his conviction is based

on insufficient evidence as to the issue of whether the devices in

question are in fact registerable, [and] as United States v.

Daniels, [973 F.2d 272 (4th Cir. 1992), cert. denied, ___ U.S. ___,

113 S. Ct. 1064, 122 L. Ed. 2d 369 (1993)] points out, this is an

essential element of the offense of which he was charged."

Contrary to this assertion, Daniels provides no support for the

proposition that the government must prove that pipe bombs are

registerable with the ATF to convict a defendant for their

possession and transfer. Daniels holds that the essential elements
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of a violation of 26 U.S.C. § 5861(e) are (1) the knowing transfer;

(2) of a firearm; (3) in violation of the provisions of Chapter 53

of Title 26. Id. at 275. Daniels does not address the

registration and serial number requirements at issue here, and

certainly does not hold that registrability is an essential element

of any of the offenses of which Thomas was convicted. We therefore

are not persuaded that registrability is an essential element of

any of the offenses of which Thomas was convicted, and his

sufficiency argument fails.

III

For the foregoing reasons, we AFFIRM.