Unpublished Disposition, 902 F.2d 41 (9th Cir. 1986)

MEMORANDUM^* 

Roger Dale Hawkins appeals his conviction for possession of an unregistered machine gun, in violation of 26 U.S.C. § 5861(d), and illegal transfer of that machine gun, in violation of 26 U.S.C. § 5861(e). He contends that the district court erred by failing to instruct the jury on the defense of entrapment by estoppel. We affirm.

The appeal from the conviction for possession of an unregistered machine gun presents a question never raised at trial. If the appellant believes he is entitled to relief, his remedy lies under 28 U.S.C. § 2254. The appeal of the conviction for illegal transfer of that machine gun does not appear to present a ground for relief.

The government investigated a former licensed firearms dealer named Reed because of his dealings in firearms. During early 1984, Reed purchased 18 MK-760 guns from the manufacturer. Several months later, the ATF informed Reed that he should return the guns to the manufacturer because it had determined that they were machine guns. When an ATF employee contacted Reed to return the guns, Reed stated that he had sold all the guns before the recall letter arrived and had lost the records for all but two of the sales. An undercover informant for the Bureau of Alcohol, Tobacco and Firearms (ATF) met with Reed at his home on July 10, 1986, for the purpose of purchasing from Reed an MK-760 gun. Reed contacted Hawkins and told him to "get the gun ready." Reed and the informant drove to the apartment where Hawkins was staying and, upon their arrival, Hawkins delivered an MK-760 gun to Reed.

The ATF subsequently examined the gun and concluded that it functioned as a machine gun when the selector switch was aligned with a scratch mark on the gun. Federal law prohibits the possession or transfer of an unregistered machine gun, as defined in 26 U.S.C. § 5845. See 26 U.S.C. §§ 5861(d) and (e).

Hawkins was charged with possession of an unregistered firearm (count one), obliteration of the serial number on that firearm (count two), and illegal transfer of that firearm (count three).¹  He pleaded not guilty to all counts.

At trial, Hawkins admitted that he possessed the unregistered machine gun and gave it to Reed on July 10, 1986, without complying with the statutory requirements for transfer.

In his defense, Hawkins testified that Reed gave him the machine gun in June 1985, in satisfaction of a debt, and assured him at the time of transfer that it was legal to possess the weapon without a permit. It is undisputed that Reed was a licensed firearms dealer at the time he delivered the gun to Hawkins. Reed also showed Hawkins a May 2, 1985 memorandum from a California Department of Justice criminologist stating that the MK-760 fired as a semi-automatic weapon; and a May 16, 1985 letter from the California Attorney General to the ATF stating that the MK-760 was a semi-automatic weapon and therefore did not require a permit for its lawful possession. Hawkins also said Reed showed him a copy of the owner's manual indicating that the MK-760 was a semi-automatic weapon. Hawkins further testified that he returned the gun to Reed on July 10, 1986, because Reed had told him approximately one week before that the ATF was recalling the weapon, and that he would therefore have to return the weapon to Reed. There seems to be no dispute that the weapon was a semi-automatic weapon. The issue was whether the weapon could be converted into a machine gun by adjusting a switch, and, if so, whether Hawkins intended to possess such a gun. The jury found against him on the case presented.

A defendant is entitled to a jury instruction on a defense theory which has a legal basis and some foundation in the evidence. Id. Hawkins' present theory could have been submitted on the record in this case. However, where the defendant neither objects to the absence of the instruction nor offers an instruction of his own, we review only for plain error. United States v. Egan, 860 F.2d 904, 907 (9th Cir. 1988). Hawkins failed to request a jury instruction on his present theory of entrapment by estoppel, and his requested general instructions on entrapment and estoppel were inadequate to apprise the district court of the defense he now says he should have the jury consider. See United States v. Tallmadge, 829 F.2d 767 (9th Cir. 1987).

A plain error is an error which is highly prejudicial and affects the substantial rights of the parties. Bryan, 868 F.2d at 1038. "There must be a high probability that the error materially affected the verdict." Id. at 1039. We will reverse a criminal conviction on the basis of plain error only in the exceptional case " 'when it appears necessary to prevent a miscarriage of justice or to preserve the integrity and reputation of the judicial process.' " Id. (quoting United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir. 1986)). In this case the district court's failure to instruct the jury sua sponte on Hawkins' defense of entrapment by estoppel can be challenged in post-conviction proceedings without any likelihood of miscarriage of justice. Hawkins is on probation. The district court should have an opportunity to consider the question before it can be assigned as error on appeal.

AFFIRMED.