United States of America v. Richard Timothy Weaver, a/k/a Lucky

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
RICHARD TIMOTHY WEAVER, a/k/a
Lucky; ELMER LUKE MOORE, a/k/a No. 10-4885  Tramp; KIM H. BERRYMAN, a/k/a
Bear; STEVEN LYNN KNIGHT, a/k/a
Steve O; BRIAN SCOTT MITCHELL,
a/k/a Kegs; MICHAEL LEE PHELPS,
a/k/a AJ,
Defendants-Appellees. 
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Thomas E. Johnston, District Judge.
(2:09-cr-00222-5)
Argued: September 23, 2011
Decided: October 24, 2011
Before TRAXLER, Chief Judge, and WILKINSON and
NIEMEYER, Circuit Judges.
Reversed and remanded by published opinion. Judge
Wilkinson wrote the opinion, in which Chief Judge Traxler
and Judge Niemeyer joined.

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COUNSEL
ARGUED: Steven Loew, OFFICE OF THE UNITED
STATES ATTORNEY, Charleston, West Virginia, for Appel-
lant. Deirdre H. Purdy, Chloe, West Virginia, for Appellees.
ON BRIEF: R. Booth Goodwin II, United States Attorney,
Charleston, West Virginia, for Appellant. Carl James Ron-
caglione, Jr., Charleston, West Virginia, for Appellant Elmer
Luke Moore; Richard W. Weston, WESTON LAW OFFICE,
Huntington, West Virginia, for Appellant Kim H. Berryman;
Mark Lee McMillian, Charleston, West Virginia, for Appel-
lant Steven Lynn Knight; Roger D. Curry, CURRY AMOS &
ASSOCIATES, Fairmont, West Virginia, for Appellant Brian
Scott Mitchell; John A. Proctor, PROCTOR LAW OFFICES,
PLLC, Huntington, West Virginia, for Appellant Michael Lee
Phelps.
OPINION
WILKINSON, Circuit Judge:
The question here is whether 18 U.S.C. § 922(h), which
prohibits a person from possessing a firearm while "employed
for" a convicted felon, applies only to persons employed for
tangible compensation. After holding that § 922(h) requires
the government to prove some form of payment — and noting
the government’s concession that it could not make such a
showing here—the district court granted defendants’ motions
to dismiss all charges based on § 922(h). The statute, how-
ever, does not contain an inflexible requirement that compen-
sation be involved. Accordingly, we reverse the district
court’s dismissal of the charges and remand for further pro-
ceedings.
I.
Defendants Richard Weaver, Elmer Moore, Kim Berryman,
Steven Knight, Brian Mitchell, and Michael Phelps are
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alleged members of the Pagans Motorcycle Club (the
"PMC"), a gang located primarily along the East Coast of the
United States. The charges against them stemmed from orders
they received from Floyd Moore, who was then the national
vice president of the PMC. By virtue of his position in the
PMC hierarchy, Moore was able to issue orders to lower-
ranking PMC members.
Moore was also a convicted felon prohibited from possess-
ing a firearm. In an apparent attempt to circumvent the fire-
arm prohibition, Moore ordered PMC subordinates, including
defendants, to carry firearms in order to protect him. On at
least one occasion, defendants accompanied Moore while in
possession of firearms. Moore allegedly told various PMC
members that he did not need to carry a gun because other
members carried guns for him.
Defendants were each charged with possessing firearms
while being employed for a convicted felon in violation of 18
U.S.C. § 922(h), and all but Weaver were also charged with
conspiring to violate § 922(h). The statute provides:
It shall be unlawful for any individual, who to that
individual’s knowledge and while being employed
for any person described in any paragraph of subsec-
tion (g) of this section, in the course of such employ-
ment—
(1) to receive, possess, or transport any fire-
arm or ammunition in or affecting interstate
or foreign commerce; or
(2) to receive any firearm or ammunition
which has been shipped or transported in
interstate or foreign commerce.
18 U.S.C. § 922(h). Subsection (g) lists categories of individ-
uals — including convicted felons — that are prohibited from
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transporting, receiving, or possessing firearms. 18 U.S.C.
§ 922(g).
The defendants filed motions to dismiss the charges, argu-
ing in part that the words "employed for" and "employment,"
as used in the statute, require the government to prove that
they were employed for wages. The government asserted that
"employed" should be given a broader meaning that includes,
but is not limited to, the hiring of a person for wages. After
numerous pretrial proceedings, the district court held that
employment in the context of § 922(h) refers to an employer-
employee relationship that is proven only by payment of
wages or some other form of tangible compensation.
Meanwhile, defendants Weaver and Moore agreed to enter
conditional guilty pleas, which reserved the right to appeal the
district court’s ruling on the meaning of § 922(h). At the plea
hearing, the government conceded that it could not establish
a factual basis for the pleas under the court’s interpretation of
§ 922(h). The government added that its evidence would not
support a conviction on the § 922(h) offenses for those defen-
dants who were not present at the hearings, as it could not
prove that any of the defendants received tangible compensa-
tion. Consequently, the district court granted defendants’
motions to dismiss the § 922(h) charges. This appeal fol-
lowed.*
*We have jurisdiction under 18 U.S.C. § 3731, which states: "In a crim-
inal case an appeal by the United States shall lie to a court of appeals from
a decision, judgment, or order of a district court dismissing an indictment
. . . as to any one or more counts, or any part thereof . . . ." Although there
is no provision for summary judgment in the Federal Rules of Criminal
Procedure, the district court’s pretrial dismissal of the § 922(h) charges
was procedurally appropriate under Rule 12(b)(2). That rule provides that
"[a] party may raise by pretrial motion any defense, objection, or request
that the court can determine without a trial of the general issue." Fed. R.
Crim. P. 12(b)(2). As circuit courts have almost uniformly concluded, a
district court may consider a pretrial motion to dismiss an indictment
where the government does not dispute the ability of the court to reach the
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II.
The government contends that the district court erroneously
construed § 922(h) to require proof of tangible compensation.
This issue of statutory interpretation is one that we review de
novo. United States v. Ide, 624 F.3d 666, 668 (4th Cir. 2010).
Because the district court’s interpretation of § 922(h) imposes
an artificial restriction on the statute, we must reverse the
court’s dismissal of the charges.
A.
The starting point for any issue of statutory interpretation
is the language of the statute itself. United States v. Bly, 510
F.3d 453, 460 (4th Cir. 2007). "It is well established that
when the statute’s language is plain, the sole function of the
courts . . . is to enforce it according to its terms." Lamie v.
U.S. Tr., 540 U.S. 526, 534 (2004) (internal quotation marks
omitted).
The plain text of § 922(h) does not contain a rigid require-
ment that defendants be hired for tangible compensation.
motion and proffers, stipulates, or otherwise does not dispute the pertinent
facts. See United States v. Flores, 404 F.3d 320, 325 (5th Cir. 2005);
United States v. Yakou, 428 F.3d 241, 247 (D.C. Cir. 2005) (citing United
States v. Phillips, 367 F.3d 846, 855 & n.25 (9th Cir. 2004); United States
v. DeLaurentis, 230 F.3d 659, 660-61 (3d Cir. 2000); United States v.
Alfonso, 143 F.3d 772, 776-77 (2d Cir. 1998); United States v. Nabors, 45
F.3d 238, 240 (8th Cir. 1995); United States v. Hall, 20 F.3d 1084, 1087-
88 (10th Cir. 1994); United States v. Levin, 973 F.2d 463, 470 (6th Cir.
1992); United States v. Risk, 843 F.2d 1059, 1061 (7th Cir. 1988)).
Here, the government did not challenge the trial court’s authority to
decide the motion, and it conceded its inability to obtain convictions under
the court’s interpretation of § 922(h). Thus, the district court considered
a purely legal question: whether § 922(h) applies only to persons
employed for tangible compensation. There is no good reason to force the
court to incur the expense and delay of a trial that would inevitably lead
to the same outcome as its pretrial ruling.
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Although the term "employ" can mean "to provide with a job
that pays wages," it is not limited to this narrow definition. By
treating compensation as an essential condition of § 922(h),
the district court narrowed the intended scope of the statute,
adding an element of proof not present in the plain language.
Had Congress wanted to narrow the scope of § 922(h), it
could have used a monetary term, such as "hire," "compensa-
tion," or "wages," as it has done elsewhere in Title 18. See,
e.g., 18 U.S.C. § 436 ("Whoever . . . contracts . . . to hire out
the labor of any prisoners . . . shall be fined[.]"); 18 U.S.C.
§ 1958 (government must prove that defendant obtained "a
promise or agreement to pay . . . anything of pecuniary
value[.]"). But Congress did not do so. Instead, without any
reference to pecuniary or monetary value, it prohibited indi-
viduals from possessing firearms while "employed for" a con-
victed felon. We refuse to read into § 922(h) language that
Congress declined to include.
In addition to omitting any reference to compensation,
Congress chose not to use the term "employee of," which typ-
ically identifies a person hired for wages. Instead, it drew on
the term "employed for," which often means "used for" or
"engaged in the service of." For example, 18 U.S.C. § 1231
distinguishes "employees" — the workers hired for wages —
from persons who are "employed for" a purpose: "Whoever
willfully transports . . . any person who is employed or is to
be employed for the purpose of obstructing . . . peaceful pick-
eting by employees . . . [s]hall be fined[.]" Id. (emphasis
added). Congress’s decision to use the term "employed for"
— instead of "employee of" — in § 922(h) further under-
mines the district court’s holding that the statute requires
proof of tangible compensation.
B.
The district court’s interpretation of § 922(h) also over-
looks the structure and purpose of the statute. Section 922(h)
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immediately follows § 922(g), which prohibits certain indi-
viduals — including convicted felons — from possessing fire-
arms. Viewed in light of § 922(g), the purpose of § 922(h) is
apparent: it is meant to prevent the individuals listed in sub-
section (g) from circumventing the firearm prohibition by
employing armed bodyguards. In adopting § 922(h), Congress
explicitly targeted the members of criminal organizations. See
114 Cong. Rec. 13869 (1968) (statements of Sen. Long)
(referring to "triggermen," "goon squads," "member[s] of the
Mafia," and "the underworld element"). The district court’s
holding, however, would force the government to prove that
convicted-felon gang leaders compensated their bodyguards,
instead of simply proving that they ordered their subordinates
to carry firearms on their behalf. This interpretation frustrates
the statute’s purpose, allowing such gang leaders to exploit
the loophole that § 922(h) aimed to close by exerting control
over their underlings without paying them. Congress could
not have intended such a result.
C.
Finally, the cases reinforce the proposition that law does
not treat compensation as the sine qua non of an employer-
employee relationship. Rather, courts have defined the terms
"employ" and "employee" via flexible, multi-factor tests that
highlight elements of agency and control. Consistent with
these decisions, § 922(h) cannot be construed as applying
only to persons receiving some form of payment.
For example, in Community for Creative Non-Violence v.
Reid, 490 U.S. 730 (1989), the Supreme Court considered
whether a sculpture was "a work prepared by an employee
within the scope of his or her employment" under the Copy-
right Act of 1976. Id. at 738. Because the Act did not define
"employee," the Court reasoned, the term "should be under-
stood in light of the general common law of agency." Id. at
741. The artist in Reid received compensation, but the Court
did not treat this fact as dispositive, instead applying a twelve-
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factor test that stressed elements of control. Id. at 751. In
dicta, the Court expressly "reject[ed] the suggestion . . . that
the . . . term ‘employee’ refers only to formal, salaried
employees." Id. at 742 n.8.
Similarly, this court has embraced a more flexible defini-
tion of the word "employ." In United States v. Murphy, 35
F.3d 143 (4th Cir. 1994), we held that a county prison guard
was "employed to assist" federal agents under 18 U.S.C.
§ 1114. In reaching this result, we noted that "[t]he term
‘employ’ has a broad sweep and is expansively used:
‘employ’ means ‘to make use of,’ ‘to use advantageously,’ ‘to
use or engage the services of,’ ‘to provide with a job that pays
wages or a salary,’ as well as ‘to devote to or direct toward
a particular activity or person.’" Id.at 145 (citation omitted).
Other federal courts have also declined to treat compensa-
tion as the sole condition of an employment relationship. For
instance, in Boy Scouts of America v. Graham, 86 F.3d 861
(9th Cir. 1996), the Ninth Circuit looked to agency principles
in determining whether a volunteer had established the exis-
tence of an employment relationship. In the agency context,
the court noted, "[c]onsideration is not necessary to create the
relation of principal and agent and it is not necessary in the
case of master and servant." Id. at 865. Accordingly, the court
considered factors other than compensation, including the
power to select and dismiss the putative employee and the
level of control over on-the-job conduct. Id. Despite the lack
of compensation, the court found that a genuine issue of mate-
rial fact existed as to whether there was an employment rela-
tionship. Id. at 866.
Like their federal counterparts, state courts have long inter-
preted "employ" and "employee" as being determined by ele-
ments other than compensation. See, e.g., General Accident
Group v. Frintzilas, 443 N.Y.S.2d 989, 992 (N.Y. Sup. Ct.
1981) ("The word ‘employee’ does not necessarily connote
the payment of compensation[.]"); State ex rel. Cooper v.
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Roth, 44 N.E.2d 456, 458 (Ohio 1942) ("The term ‘employ-
ment’ connotes service or that which engages one’s time and
attention. It may be with or without compensation."); State v.
Gohl, 90 P. 259, 261 (Wash. 1907) (defining "employ" as
"[t]o use; to have in service; to cause to be engaged in doing
something; to make use of as an instrument . . . for a specific
purpose.").
Courts have used a number of standards in determining
whether an employment relationship exists. These standards
vary from case to case, but they do not turn exclusively on the
payment of wages or salary. Rather, courts have applied
multi-factor tests that go beyond a simplistic focus on tangible
compensation. In keeping with existing case law, the district
court’s one-factor test cannot stand.
III.
We do not know whether the government can prove that the
defendants breached § 922(h). We also decline to draft at this
preliminary stage of proceedings a definitive definition of the
disputed term. That is best left to the trial court upon remand.
We do, however, hold that compensation cannot be the sine
qua non of the words "employed for" in § 922(h). Making
compensation the indispensable ingredient of "employed for"
cannot be squared with the statute’s language, structure, and
purpose, or with prior judicial decisions. Accordingly, we
reverse the judgment and remand for further proceedings con-
sistent with this decision.
REVERSED AND REMANDED
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