United States of America v. Robert Bournes

*This decision was originally issued as an “unpublished decision”
filed on July 11, 2003.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0274P (6th Cir.)
File Name: 03a0274p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT BOURNES,
Defendant-Appellant.
X
-
-
-
->
,
-
-
N
No. 01-2416
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 99-80469—Gerald E. Rosen, District Judge.
Argued: March 27, 2003
Decided and Filed: July 11, 2003*
Before: MARTIN, Chief Circuit Judge; KENNEDY and
DAUGHTREY, Circuit Judges.
_________________
COUNSEL
ARGUED: Jonathan Epstein, FEDERAL PUBLIC
DEFENDERS OFFICE, Detroit, Michigan, for Appellant.
2 United States v. Bournes No. 01-2416
Patricia G. Gaedeke, UNITED STATES ATTORNEY,
Detroit, Michigan, for Appellee. ON BRIEF: Jonathan
Epstein, FEDERAL PUBLIC DEFENDERS OFFICE,
Detroit, Michigan, for Appellant. Patricia G. Gaedeke,
UNITED STATES ATTORNEY, Detroit, Michigan, for
Appellee.
_________________
OPINION
_________________
MARTHA CRAIG DAUGHTREY, Circuit Judge. The
defendant, Robert Bournes, pleaded guilty to possession of
unregistered firearms in violation of 26 U.S.C. § 5861(d),
reserving the right to appeal the district court’s denial of his
motion to dismiss the indictment based on his contention that
the statute violates his right to bear arms under the Second
Amendment and that the conviction violated his right to due
process because he could not comply with its terms. We find
no valid grounds for reversal and specifically reject the so-
called “doctrine of impossibility” on which the defendant
relies.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant Bournes first came to the attention of law
enforcement because of his involvement with certain militant
groups in Michigan. At some time after 1986 but prior to
1998, Bournes purchased the parts for and built a Sten-type
9mm machine gun and a .30 caliber belt-fed, bipod-mounted
machine gun. In January 1998, a confidential informant
brought an undercover agent from the Bureau of Alcohol,
Tobacco, and Firearms to Bournes’s home in Blissfield,
Michigan. Bournes showed the ATF agent numerous
firearms, including the two machine guns, and several
thousand rounds of ammunition. During a subsequent visit,
Bournes demonstrated the machine guns and then allowed the
ATF agent to fire the weapons, which, the agent determined,

-- 1 of 4 --

No. 01-2416 United States v. Bournes 3
were fully automatic. ATF agents executed a federal search
warrant of Bournes’s home in March 1998 and recovered the
machine guns and other firearms. According to Bournes, he
then tried to register the weapons in May 1998, by going
through what he described as a “Class Two manufacturer,”
but he was unable to register the machine guns because he
himself did not have a Class Two license.
In May 1999, Bournes was indicted by a federal grand jury
for possession of unregistered firearms in violation of 26
U.S.C. § 5861(d). After the indictment was returned, Bournes
again attempted without success to register the machine guns.
Bournes then moved to dismiss the indictment, on the
grounds: (1) that there was no basis for federal jurisdiction
because his possession of the machine guns was not related to
interstate commerce; (2) that, as a member of the Michigan
Militia Corps Wolverines, he had a Second Amendment right
to possess the machineguns; (3) that the federal government
prevented him from registering the machine guns and,
therefore, could not prosecute him for failing to register the
weapons; and (4) that 26 U.S.C. § 5861(d) and 18 U.S.C.
§ 922(o), which prohibit the transfer or possession of machine
guns, violate the Second Amendment by banning all machine
guns. The district court held a hearing and denied Bournes’s
motion to dismiss the indictment. See United States v.
Bournes, 105 F. Supp. 2d 736 (E.D. Mich. 2000).
On the day his trial was scheduled to begin, Bournes
entered into a conditional plea agreement, by which he
reserved his right to appeal the district court’s denial of his
motion to dismiss the indictment.
DISCUSSION
1. Second Amendment Claim
Bournes first argues that § 5861(d) is “an unconstitutional
infringement on [his] Second Amendment right to keep and
bear arms.” In reviewing such a claim, we have held,
4 United States v. Bournes No. 01-2416
however, that “the Second Amendment guarantees a
collective rather than an individual right.” United States v.
Warin, 530 F.2d 103, 106 (6th Cir. 1976). Accordingly,
“there can be no serious claim to any express constitutional
right of an individual to possess a firearm.” Stevens v. United
States, 440 F.2d 144, 149 (6th Cir. 1971).
Recognizing this authority and our well-entrenched rule
that a panel of this court cannot overrule the published
opinion of another panel unless an intervening Supreme Court
decision mandates modification of the prior opinion, see
United States v. Ables, 167 F.3d 1021, 1027 (6th Cir. 1999),
Bournes urges us to reconsider our holding in Warin in light
of United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).
But whatever the value of dicta in that opinion referring to the
Court’s understanding of the Second Amendment’s “textual
exegesis,” id. at 265, we have reaffirmed Warin on at least
two occasions in the interim. See United States v. Baker, 197
F.3d 211, 216 (1999); United States v. Napier, 233 F.3d 394,
402 (6th Cir. 2000). Without a subsequent en banc ruling to
the contrary, we are therefore bound to apply Warin in this
case.
2. Due Process Claim
The National Firearms Act prohibits a private citizen from
receiving or possessing an unregistered firearm, see 26 U.S.C.
§ 5861(d), and provides that all applications to register a
firearm will be denied if possession of the firearm is itself
unlawful. See 26 U.S.C. §§ 5812(a), 5822. The Firearm
Owners’ Protection Act, which amended the Gun Control Act
of 1968, makes it illegal for any person to possess a machine
gun that was not lawfully possessed before May 19, 1986.
See 18 U.S.C. § 922(o). Together the two acts make it
statutorily impossible for an individual to register a machine
gun built or transferred after the effective date of the Firearm
Owners’ Protection Act.

-- 2 of 4 --

No. 01-2416 United States v. Bournes 5
Bournes nevertheless contends that his conviction under
§ 5861(d) is a violation of due process guaranteed by the Fifth
Amendment because, restricted by the terms of these two
legislative acts, he cannot register his machine guns. In
support of his argument, Bournes points to United States v.
Dalton, 960 F.2d 121 (10th Cir. 1992), and urges us to adopt
the “impossibility defense” enunciated in that opinion. Dalton
was an attorney who accepted a machine gun as payment
from a client and was convicted of possessing and transferring
an unregistered firearm in violation of §§ 5861(d) and (e).
See id. at 122. The Tenth Circuit determined that Dalton’s
failure to register the machine gun was a “fundamental
ingredient” of his offenses and held that the conviction was
fundamentally unfair because it was legally impossible for
Dalton to register the machine gun and thereby comply with
§ 5861(d). See id. at 124, 126.
In response, the government directs our attention to the
Fourth Circuit’s decision in United States v. Jones, 976 F.2d
176, 182-83 (4th Cir. 1992), cert. denied, 508 U.S. 914
(1993). The defendant in Jones had converted two shotguns
into machine guns and then transported the firearms across
state lines and sold them to an undercover agent. See id. at
178-79. A jury convicted Jones of violating three provisions
of the National Firearms Act: § 5861(c) for possessing
firearms made without the requisite permission; § 5861(e) for
transferring firearms without the requisite approval; and
§5861(j) for transporting unregistered firearms. Id. at 179.
The defendant, relying on Dalton, argued that his conviction
was fundamentally unfair because the Firearm Owners’
Protection Act made it impossible for him to receive the
authorization necessary to comply with the National Firearms
Act. The Fourth Circuit disagreed, reasoning:
[T]he two statutes are not irreconcilable because, despite
Jones'[s] assertions to the contrary, Jones can comply
with both acts. While he may not be able to register
newly-made machine guns in which he deals, neither act
requires him to deal in such guns. Simply put, Jones can
6 United States v. Bournes No. 01-2416
comply with both acts by refusing to deal in newly-made
machine guns. . . . What Jones is really complaining
about is that the amendment to the Gun Control Act
effectively rendered possession of certain guns automatic
violations of both the Gun Control Act and the National
Firearms Act. Yet there is nothing either inconsistent or
unconstitutionally unfair about Congress'[s] decision to
do so. And, faced with two equally applicable penal
statutes, there is nothing wrong with the government's
decision to prosecute under one and not the other. . . .
Id. at 183.
Every other circuit that has considered this issue has
rejected Dalton and, instead, adopted the reasoning of Jones.
See United States v. Elliot, 128 F.3d 671, 672 (8th Cir. 1998)
(per curiam) (upholding § 5861(d) conviction because
§ 922(o) and § 5861(d) are reconcilable); Hunter v. United
States, 73 F.3d 260, 262 (9th Cir. 1996) (per curiam) (same);
United States v. Ardoin, 19 F.3d 177, 180 (5th Cir. 1994)
(same), cert. denied, 513 U.S. 933 (1994); United States v.
Ross, 9 F.3d 1182, 1194 (7th Cir. 1993) (same), vacated on
other grounds, 511 U.S. 1124 (1994); see also United States
v. Rivera, 58 F.3d 600, 601-02 (11th Cir. 1995) (applying
Jones-type reasoning and rejecting Dalton in case of
convicted felon who could not, by statute, register firearm).
Although we have previously been asked to adopt Dalton,
we have declined to do so, finding that the facts of the cases
under review could be distinguished from those in the Tenth
Circuit case. See United States v. Mise, 240 F3.d 527, 530
(6th Cir. 2001) (distinguishing Dalton because registration of
pipe bomb was not clearly a legal impossibility); id. at 533
(Clay, J., concurring and calling for Sixth Circuit to reject
Dalton and adopt Jones); see also United States v. M/G
Transport Services, Inc., 173 F.3d 584, 587 (6th Cir. 1999)
(distinguishing Dalton given legal possibility of obtaining
permit necessary to comply with Clean Water Act). We take
this occasion, involving a case with facts squarely on point

-- 3 of 4 --

No. 01-2416 United States v. Bournes 7
with those in Dalton, to reject the reasoning of that opinion
and, instead, follow our sister circuits in adopting the more
compelling reasoning of Jones. We hold that compliance
with the relevant provisions of both the National Firearms Act
and the Firearms Owners’ Protection Act is easily achieved:
Bournes could have complied simply by electing not to
possess the machine guns at issue in this case. Furthermore,
“the Constitution does not forbid making the same conduct
illegal under two statutes, and the government is permitted to
prosecute under either one.” Hunter, 73 F.3d at 262; see also
Jones, 976 F.2d at 183, citing United States v. Batchelder,
442 U.S. 114, 123-24 (1979), and Ball v. United States, 470
U.S. 856, 859 (1985). It follows that the defendant’s
conviction was not fundamentally unfair or otherwise a
violation of due process.
CONCLUSION
For the reasons set out above, we sustain the district
court’s denial of the defendant’s motion to dismiss the
indictment and AFFIRM the judgment of conviction and
sentence in all respects.

-- 4 of 4 --