Unpublished Disposition, 930 F.2d 30 (9th Cir. 1991)

MEMORANDUM^* 

Appellant, a federally licensed firearms dealer, appeals his conviction and sentence for possession of unregistered short-barreled shotguns in violation of 26 U.S.C. § 5861(d) and for possession of a machine gun with no serial number in violation of 26 U.S.C. § 5861(h).

* Appellant first contends that the district court erred in failing to suppress evidence of the machine gun that was found in a locked tool box in appellant's pickup when it was impounded by Nevada police officers. The district court held that the search of the tool box was justified as an inventory search under Colorado v. Bertine, 479 U.S. 367 (1987). We agree. Nevada officers testified at the suppression hearing that it is department policy to inventory the contents of a vehicle before having it towed and to open any locked containers to which they have keys. The search in this case was conducted in accordance with these standardized procedures and was thus valid as an inventory search. See id.

II

Appellant also appeals the district court's decision not to instruct the jury on the defense of entrapment by estoppel.¹  Under that theory, a defendant who relies reasonably and in good faith on a government agent's representation that his conduct is lawful may not be convicted. United States v. Tallmadge, 829 F.2d 767 (9th Cir. 1987).

Appellant here testified that he had relied upon a statement in an Alcohol, Tobacco, and Firearms Department (ATF) publication that possession of a short-barreled shotgun by a federally licensed firearms dealer did not violate Nevada law. Appellant claims that it was reasonable for him to assume that because his possession of the guns did not violate Nevada law, it also did not violate the registration requirements of federal law.

There is no evidence that any government agent advised appellant that he could possess the firearms legally without registering them as required by federal law. Nor is there any evidence that the ATF publication was affirmatively misleading--it simply stated a fact about Nevada law. The case is thus distinguishable from United States v. Tallmadge, 829 F.2d 767, in which a federally licensed firearms dealer specifically advised the defendant that his prior state conviction did not bar him from buying rifles under federal law.

Absent affirmatively misleading government conduct, appellant's good faith or even reasonable belief that he was acting legally is not any defense to these crimes, because specific intent to act illegally is not required. See Tallmadge, 829 F.2d at 772. In fact, as a federally licensed firearms dealer, he had, even more than the average citizen, an obligation to know the federal gun laws. Id. at 774. The district court did not err in refusing to instruct the jury on the appellant's theory of entrapment by estoppel, because there was no "evidence upon which the jury could rationally sustain the defense." United States v. Jackson, 726 F.2d 1466, 1468 (9th Cir. 1984).

III

Finally, appellant argues that the district court erred at sentencing in denying him a sentence reduction for acceptance of responsibility. U.S.S.G. Sec. 3E1.1. The district court noted that, although appellant had admitted possessing the guns, he did not admit any willfulness on his part. Appellant argues that this ground for denying the reduction was improper, because it required appellant to contradict his own testimony at trial and to admit a fact that was not an element of the crime, i.e., that he knew he possessed the guns illegally.

The district court's comments need not be read this way, however. Appellant could have admitted that, in an abundance of caution, he should have checked the federal laws instead of assuming that because possession of the guns was legal under state law, the registration requirements of federal law did not apply. The district court also noted that appellant continued to deny knowledge that the machine gun was fully automatic, and he did not promptly cooperate with authorities.

Contrary to appellant's contention, there is no record evidence that the district court denied the reduction in order to penalize appellant for going to trial. There was therefore no clear error in the district court's finding that appellant did not show sufficient contribution to merit a reduction for acceptance of responsibility.

AFFIRMED.