Unpublished Disposition, 855 F.2d 863 (9th Cir. 1988)

No. 86-1180.

United States Court of Appeals, Ninth Circuit.

Before SCHROEDER and WIGGINS, Circuit Judges, STEPHENS^* , District Judge.

MEMORANDUM^** 

Clark Steven Hester appeals his conviction for possessing an unregistered machinegun in violation of 26 U.S.C. §§ 5861(d), 5871, 5845(a) (6), (b). He claims the government committed a Brady violation in withholding exculpatory evidence, that the district court erred in not recusing the government prosecutor and in not granting the defense a continuance, and that there was insufficient evidence to support his conviction. We affirm.

DISCUSSION

In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court ruled that suppression by the prosecution of evidence favorable to the accused violates due process when that evidence is material either to guilt or punishment. Id. at 87. Reversal is required only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial. See United States v. Bagley, 473 U.S. 667 (1985); United States v. Agurs, 427 U.S. 97, 112 (1976). An appellate court reviews de novo a challenge to a conviction based on a Brady violation in order to determine whether the government failed to disclose evidence that, in the context of a particular case, may have led the jury to entertain a reasonable doubt about the defendant's guilt. See United States v. Lehman, 792 F.2d 899, 901 (9th Cir.), cert. denied, 107 S. Ct. 232 (1986); United States v. Alderdyce, 787 F.2d 1365, 1369 (9th Cir. 1986).

The defense argues that the government in this case failed to inform them that upon the first test firing of the machinegun it did not operate in a fully automatic mode. There is not, however, any evidence in the record that the government withheld information concerning that first test fire. The record indicates that the defense had full knowledge of the results of the test firing six days before trial.

Moreover, even if that information had been withheld, it would not have been "material either to guilt or to punishment." Brady, 373 U.S. at 87. This is because the statute which defines a machinegun, 26 U.S.C. § 5845(b), is not limited to a weapon, when confiscated, that can fire in the fully automatic mode. The statute defines a machinegun as

any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any combination of parts designed and intended for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.

Id.¹  The government did not contend at trial that the machinegun they confiscated from Hester could have shot automatically, but instead, was "designed" to do so or could have been "readily restored" to that capability. See United States v. McCauley, 601 F.2d 336, 338 (8th Cir. 1979); United States v. Kelly, 548 F. Supp. 1130, 1132-34 (E.D. Pa. 1982). It was of no consequence, therefore, that the machinegun could not have fired in a fully automatic mode. Even if the government had withheld that information, that would not have been material to the question of the defendant's guilt or innocence. The government, therefore, committed no Brady violation in this case.

Hester claims that the district court erred in not recusing the government's prosecutor because he had participated in the alleged Brady violations. The defense suggests that the prosecutor's knowledge of exculpatory facts made him a material witness in the case and that under the "advocate witness" rule an attorney may not appear both as a witness and as an advocate in a prosecution. See United States v. Prantil, 756 F.2d 759, 764-65 (9th Cir. 1985). We review for an abuse of discretion the district court's decision to grant or deny a motion for recusal. Mayes v. Leipziger, 729 F.2d 605, 607 (9th Cir. 1984). Because no Brady violation was committed, we hold that it was not an abuse of discretion for the trial court to deny defendant's recusal motion.

The defendant claims that the district court erred in denying his motion for a continuance in order to have adequate time to evaluate the findings and conclusions of the government's expert witnesses before trial. A district court's decision regarding a motion for continuance is reviewed for an abuse of discretion. Ungar v. Sarafite, 376 U.S. 575, 589 (1964); United States v. Pederson, 784 F.2d 1462, 1464 (9th Cir. 1986). The district court denied the continuance because defendant's counsel failed to specify what purpose a delay would serve in assisting the preparation of the case. Defendant's counsel has failed to explain how their position was prejudiced by the denial of the continuance. We hold that it was not error for the district court to deny the motion.

The test for determining whether evidence is legally sufficient to sustain a conviction is whether, viewing the evidence and all reasonable inferences therefrom in a light most favorable to the government, any rational trier of fact could fairly find the defendant guilty of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Marabelles, 724 F.2d 1374, 1377 (9th Cir. 1984).

As noted above, the statute under which defendant was charged provides a very liberal definition of a machinegun. The evidence adduced at trial, through the government's expert witnesses, revealed that the .50 caliber weapon confiscated from Hester was designed to fire in an automatic mode. Moreover, testimony indicated that the faulty extractor switch that was in the confiscated weapon could have been mail-ordered and replaced in the weapon in a matter of minutes. Therefore, the weapon could have been "readily restored" to shoot automatically. This assuredly satisfied the first element of the offense, possessing a machinegun. Moreover, a search of the National Firearms Registration and Transfer Record, admitted into evidence, indicated Hester had never registered the weapon. Finally, Hester's sworn statement to the police, after he was arrested and given his Miranda warnings, revealed that the defendant was aware that he was in the possession of a machinegun. All of the elements of the offense having been satisfied, a rational trier of fact could have found Hester guilty of the offense of possessing an unregistered machinegun.

CONCLUSION

Defendant's conviction is upheld and the judgment of the district court AFFIRMED. Appellant's motion to strike the government's brief is DENIED.