USA v. Chan

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
UNITED STATES OF AMERICA,
Plaintiff,
vs.
CHRISTOPHER CHAN,
Defendant.
Case No. 22-cr-00109-DKW
ORDER DENYING
DEFENDANT’S MOTION TO
DISMISS COUNT 1 OF THE
SECOND SUPERSEDING
INDICTMENT
Defendant Christopher Chan moves to dismiss Count 1 of the Second
Superseding Indictment (“SSI”), arguing, inter alia, that Count 1, which alleges the
offense of possession of an unregistered short-barrel rifle, is inconsistent with
Count 2, which alleges the offense of possession of a machine gun. Dkt. No. 129.
According to Chan, because the same firearm cannot simultaneously be both a rifle
and a machinegun, when the SSI is read as a whole, Count 1 fails to state an
offense and must be dismissed. Id. at 1–5. Chan fails, however, to explain why
Count 1 does not mean precisely what it says—that he is charged with possession
of an unregistered rifle with a barrel length measuring less than 16 inches in length
in violation of 26 U.S.C. §§ 5841, 5845(a)(3), 5861(d), and 5871. Nor does Chan
address why the Government may not proceed on alternative theories of liability
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regarding the same alleged offense. Accordingly, as more fully explained herein,
Chan’s Motion to Dismiss Count 1 is DENIED.
FACTUAL & PROCEDURAL BACKGROUND
On November 17, 2022, Defendant Christopher Chan was indicted on a
single count of possession of an unregistered firearm, “namely, a rifle containing
no serial number or appropriate manufacturer markings, with a barrel length
measuring approximately 10.5 inches” in violation of 26 U.S.C. §§ 5841, 5861(d),
and 5871. Dkt. No. 34 at 2. A Superseding Indictment, filed on December 22,
2022, slightly modified this charge.1 See Dkt. No. 47 at 2. On May 25, 2023,
however, the Grand Jury returned a Second Superseding Indictment which added
an additional count—possession of a machinegun in violation of 18 U.S.C.
§ 922(o) and 18 U.S.C. § 924(a)(2). Dkt. No. 71 at 2–3. Accordingly, the now
operative SSI reads:
Count 1
Possession of an Unregistered Firearm
(26 U.S.C. § 5861(d))
On 	or 	about 	August 	16, 	2022, 	within 	the 	District 	of 	Hawaii,
CHRISTOPHER CHAN, the defendant, did knowingly possess a
firearm not registered to him in the National Firearms Registration and
Transfer Record, namely, a privately made AR-type rifle, containing no
1 Specifically, Count 1 was altered to allege that Chan “did knowingly possess a firearm not
registered to him in the National Firearms Registration and Transfer Record, namely, a rifle
containing no serial number or appropriate manufacturer markings, with a barrel length
measuring less than 16 inches in length, found in a Toyota Camry automobile. All in violation
of Title 26, United States Code, Sections 5841, 5861(d), and 5871.” Dkt. No. 47 at 2.
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serial number or appropriate manufacturer markings, with a barrel
length measuring less than 16 inches in length, which barrel the
defendant knew measured less than 16 inches in length, found in a
Toyota Camry automobile.
All in violation of Title 26, United States Code, Sections 5841,
5845(a)(3), 5861(d), and 5871.
Count 2
Possession of a Machinegun
(18 U.S.C. § 922(o))
On 	or 	about 	August 	16, 	2022, 	within 	the 	District 	of 	Hawaii,
CHRISTOPHER CHAN, the defendant, did knowingly possess a
machinegun, as defined in Title 18, United States Code, Section
921(a)(24) and Title 26, United States Code, Section 5845(b), namely:
(i) a machinegun conversion device designed and intended for use in
converting a weapon into a machinegun, that is, a weapon which shoots
automatically more than one shot without manual reloading by a single
function of the trigger, containing no serial number, and (ii) the
privately made AR-type rifle described in Count 1, in which the
machinegun 	conversion 	device 	was 	installed, 	which 	with 	the
installation of the machinegun conversion device did shoot and was
designed to shoot automatically more than one shot without manual
reloading by a single function of the trigger, both of which the
defendant knew to be a machinegun, or was aware of the essential
characteristics which made it a machinegun, found in a Toyota Camry
automobile.
All in violation of Title 18, United States Code, Sections 922(o) and
924(a)(2).
Id.
On April 23, 2024, Chan filed a Motion to Dismiss Count 1 of the Second
Superseding Indictment. Dkt. No. 129. The Government responded on May 7,
2024, Dkt. No. 135, and Chan replied on May 21, 2024, Dkt. No. 136. The Court
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held a hearing on May 28, 2024. Dkt. No. 137. At the conclusion of the same, the
Court orally denied Chan’s Motion to Dismiss. Id. This Order now follows to
further explain that ruling.
STANDARD OF REVIEW
Pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B)(v), a party may
raise by pretrial motion “a defect in the indictment or information, including . . .
failure to state an offense.” Fed. R. Crim. P. 12(b)(3)(B)(v). To state an offense,
the indictment needs to provide “a plain, concise, and definite written statement of
the essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1). As
such, the “indictment is sufficient if it, first, contains the elements of the offense
charged and fairly informs a defendant of the charge against which he must defend,
and, second, enables him to plead an acquittal or conviction in bar of future
prosecutions for the same offense.” Hamling v. United States, 418 U.S. 87, 117
(1974).
In considering such a motion, the Court is “bound by the four corners of the
indictment” and “must accept the truth of the allegations in the indictment in
analyzing whether a cognizable offense has been charged.” United States v. Lyle,
742 F.3d 434, 436 (9th Cir. 2014) (quoting United States v. Boren, 278 F.3d 911,
914 (9th Cir. 2002)). Although “the indictment should be read in its entirety,
construed according to common sense, and interpreted to include facts which are
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necessarily implied,” United States v. Berger, 473 F.3d 1080, 1103 (9th Cir. 2007)
(quotation marks and citation omitted), “each count in an indictment . . . is
regarded as if it were a separate indictment and must be sufficient in itself.”
United States v. Rodriguez-Gonzalez, 358 F.3d 1156, 1159 (9th Cir. 2004)
(quotation marks and citations omitted).
DISCUSSION
Chan seeks to dismiss Count 1 of the SSI, arguing that “the indictment’s
recitation of the essential facts alleged against Chan establishes, as a matter of law,
that Count 1 does not state the federal offense of possession of an unregistered
short-barrel rifle.” Dkt. No. 129 at 1. According to Chan, because “[t]he essential
facts averred in support of Count 2 state that . . . the AR-type firearm predicating
both Counts 1 and 2 was designed to shoot, and did shoot, more than one projectile
for each single pull of the trigger, that firearm cannot be, as a matter of law, a
‘rifle’ as defined in §5845(a)(3).” Id. at 4–5; see also 26 U.S.C. § 5845(c)
(defining a “rifle” as “a weapon designed . . . to fire only a single projectile
through a rifled bore for each single pull of the trigger.”). Put differently, because
the Government identifies the firearm at issue as a “machinegun” in Count 2, Chan
claims that it cannot also be a “rifle” for purposes of Count 1 and therefore, Count
1 must be dismissed. See id. at 4.
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That argument lacks merit. As an initial matter, even if there was an
irreconcilable inconsistency between Counts 1 and 2, it is unclear why the firearm
at issue must be considered a “machinegun” rather than a “rifle.” Indeed, Chan’s
argument would have the Court entirely ignore the plain language of Count 1,
which charges him with possession of a “firearm not registered to him . . . namely,
a privately made AR-type rifle, containing no serial number or appropriate
manufacturer markings, with a barrel length measuring less than 16 inches in
length” in violation of the statutes criminalizing the unregistered possession of
precisely such a weapon.2 Dkt. No. 71 at 2 (emphasis added); see 26 U.S.C.
§§ 5861(d), 5845(a)(3). This the Court will not do.
Moreover, and perhaps more importantly, at this stage of the proceedings,
the Government is entitled to allege alternative theories of liability for the same
underlying conduct. See Douglas v. Long, 661 F.2d 747, 749 (9th Cir. 1981) (“The
same offense may be charged, by several counts, as having been committed in
different ways or by different methods, in order to anticipate and accommodate
every possible contingency in the evidence. That is to say, the grand jury may
charge both offenses if the evidence before it would justify either conclusion.”
(quotation marks and citation omitted)). In other words, even if Counts 1 and 2 are
2 Contrary to Chan’s assertions at oral argument, it is clear from the text of Count 1, including the
statutory references therein, that the Government’s use of the term “rifle” is not a mere
colloquialism, but rather an intentional and specific reference to the type of firearm at issue.
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inconsistent with regard to their classification of the firearm at issue, the
Government is not required to gamble on obtaining a conviction on Count 2 alone.
Rather, it may charge Chan with both possession of an unregistered short-barrel
rifle in Count 1 and possession of a machinegun in Count 2, even if he “could not
in the end stand convicted of both offenses.” Ball v. United States, 470 U.S. 856,
860 n.8 (1985) (citing United States v. Gaddis, 424 U.S. 544, 550)). As such, the
Government’s decision to characterize the firearm as a machinegun in Count 2
does not provide a basis to find that Count 1 of the Second Superseding Indictment
fails to state the offense of possession of an unregistered short-barrel rifle or that it
otherwise demands dismissal. Chan’s motion is accordingly DENIED.3
CONCLUSION
For the reasons set forth herein, Defendant Christopher Chan’s Motion to
Dismiss Count 1 of the Second Superseding Indictment, Dkt. No. 129, is DENIED.
IT IS SO ORDERED.
DATED: May 31, 2024 at Honolulu, Hawai‘i.
3 Because the Court finds that Count 1 adequately states the federal offense of possession of an
unregistered short-barrel rifle, it need not and does not reach Chan’s alternate arguments that
should Count 1 be construed as possession of an unregistered machinegun, it would be
impermissibly multiplicitous and/or unconstitutional. See Dkt. No. 129 at 5–11.
___________________________
Derrick K. Watson
Chief United States District Judge
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