United States v. Harold E. Staples
1992 U.S. App. LEXIS 17635 · 1992 WL 181204 · 971 F.2d 608
August 3, 1992 · Docket 91-5033
Opinion
Harold E. Staples, III, appeals from his conviction on one count of unlawful possession of an unregistered machinegun in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. Staples contends that the district court erred: (1) by failing to instruct the jury that scienter is an element of unlawful possession under 26 U.S.C. § 5861; (2) by excluding certain documentary evidence under Fed.R.Evid. 401; and (3) by refusing to submit to the jury his proffered instruction on the word “automatically” as it is used in 26 U.S.C. § 5845(b). On its own motion, the court has also raised the issue of the constitutionality of § 5861(d) as a result of our recent opinion in United States v. Dalton, 960 F.2d 121 (10th Cir. 1992). For the reasons stated below, we affirm.
BACKGROUND
On December 29, 1989, members of the police department of Jenks, Oklahoma, and the Bureau of Alcohol, Tobacco, and Firearms (BATF) conducted a search of Staples’ home pursuant to a warrant. Among the items seized was an SGW .223 caliber Model X M14A1 assault rifle (“AR-15”), which Staples had purchased on April 9, 1983. Appellant’s App. Vol. I at 185, Tab K. There is no dispute that the. AR-15 had never been registered to Staples under the National Firearms Act (NFA), 26 U.S.C. § 5841, as a registerable automatic weapon.
At the time of the search, the AR-15 contained neither a bolt carrier nor a magazine. Numerous weapons parts were found in the room where the AR-15 was stored including the bolt carrier for an M-16 military rifle. The M-16 bolt carrier was discovered in the pocket of a briefcase located in the room.
BATF agents examined the AR-15 in their Washington, D.C., laboratory. The examination showed that the AR-15 had been assembled with certain internal parts originally manufactured for fully automatic military rifles like the M-16 including the hammer, disconnector, and trigger. The weapon did not, however, have an auto-sear. The sole function of that part is to permit automatic fire. The gun had a three-position selector switch. BATF Agent Joseph McLaughlin testified at trial that an external pin or “stop” on the side of the weapon’s receiver had been removed by filing. This external modification enabled a user of the weapon to rotate the selector switch to the full automatic position.
When the BATF agents cleaned and oiled the AR-15, .inserted an appropriate magazine, used the M-16 bolt carrier found in the same room as the AR-15, loaded the weapon with “soft-primer” ammunition, and rotated the selector switch to full automatic, the weapon fired more than one shot with a single pull of the trigger.
After a two-day trial, the jury found Staples guilty of possession of the unregistered AR-15 while acquitting him on a separate count of possessing an unregistered M-l rifle also found in the search. Staples filed motions for acquittal at the end of the government’s case and following the verdict. Both were denied. Consistent with the federal sentencing guidelines, the court sentenced Staples to five years probation with certain conditions, a $5,000 fine, and a $50 special assessment. The sentence has been stayed pending the outcome of this appeal.
DISCUSSION
. I. CONSTITUTIONALITY OF STAPLES’ CONVICTION UNDER 26 U.S.C. § 5861(d)
In United States v. Dalton, 960 F.2d 121 (10th Cir.1992), an opinion issued during the pendency of this appeal, we held a prosecution under § 5861(d) to be unconstitutional because that statute required the registration of a firearm which the government refused to register due to the ban on machineguns imposed after May 19, 1986 by 18 U.S.C. § 922(o).
Dalton was found guilty of possessing and transferring an unregistered firearm in violation of the National Firearms Act, I.R.C. §§ 5861(d), (e) (NFA). A separate criminal statute prohibits the possession of any machinegun made after that statute’s effective date in 1986. 18 U.S.C. § 922(o)(1988). It is undisputed that the government will not permit the registration of machineguns covered by section 922(o), and will not accept the tax which would otherwise be required by the registration requirements of the National Firearms Act. Dalton contends that due process bars his conviction under a statute which punishes his failure to register when that registration is precluded by law. We agree and reverse.
As a result of section 922(o), compliance with section 5861 is impossible. Dalton, 960 F.2d at 122, 126.
Because of the general similarity of the prosecution in this case with Dalton, and the fundamental nature of the issue involved, we raised the constitutional issue and permitted supplemental briefing by the parties. Since this is a potentially controlling issue, we address it first, applying the plain error standard of review.
After reviewing the record and arguments of the parties, we conclude that Dalton is distinguishable. Dalton concerned a weapon that was possessed for the first time in 1989, three years after the May 19, 1986, effective date of 18 U.S.C. § 922(o); whereas the gun in this case was purchased in 1983. Section 922(o )(2)(B) specifically exempts machineguns which were lawfully possessed (i.e., registered) prior to May 19, 1986. There is no dispute that machineguns could be registered prior to that date; thus, the reasoning in Dalton does not apply to the charge against Staples.
Neither of the parties address this distinction. The government contends mainly that Dalton is in error. Appellee’s Suppl. Br. at 6. However, even if Dalton applied to this case we could not overrule a previous opinion of this court. United States v. Spedalieri, 910 F.2d 707, 710 n. 3 (10th Cir.1990). En route to its conclusion, the government argues that § 5861(d) remains valid after Dalton because there are reasons the court did not cite to support upholding the provision, including Congress’ power to regulate the interstate movement of machineguns pursuant to the Commerce Clause. Appellee’s Suppl. Br. at 3, 5.
These arguments completely ignore the issue here — the requirement and date of registration of Staples’ AR-15. Our statement in Dalton that since 1986 the government has refused to register machineguns (apparently for any reason, whether regulatory or revenue), was confirmed by testimony in this case by the government’s witness, BATF Agent McLaughlin. He testified that the government would not register machineguns after the May 19, 1986 effective date of § 922(o).
Likewise, Staples’ arguments miss the point. He merely “adopts Dalton’s argument in toto that due process bars his conviction under a statute which punishes his failure to register when that registration is precluded by law.” Appellant’s Suppl. Br. at 7-8.
Staples does not, and, as explained above, cannot, argue that Dalton calls into question the validity of the nexus between § 922(o) and 26 U.S.C. § 5861(d) for any time prior to May 19, 1986.
His basic defense at trial was not that he could not register a machinegun, but that his weapon was not a machinegun under 26 U.S.C. § 5845 and, thus, was not subject to registration under the NFA. Alternatively, he contended that if his weapon was a machinegun, he did not know it; therefore, he lacked the requisite scienter to violate the registration requirement. See Reply Br. at 14-15. Staples had ample opportunity at trial to demonstrate that he complied with the registration provisions of the NFA prior to May 19, 1986, or that the weapon was converted into a machinegun after that date, but failed to do so.
II. SCIENTER UNDER 26 U.S.C. § 5861
Staples asserts that the district court failed to instruct the jury properly on the elements necessary to secure a conviction under § 5861 of the National Firearms Act.
Essential Elements of the Crime (26 U.S.C. § 5861(d))
In order to establish the offense charged in the indictment, each of the following essential elements must be proved beyond a reasonable doubt:
First: that the defendant knowingly-possessed the firearm described in the Indictment; and
Second: that such firearm was not registered to the defendant in the National Firearms Registration and Transfer Record.
The unlawful offense is complete when the two separate elements just stated are proved.
Appellant’s App. Vol. I at 21, Tab D.
Knowingly to Possess
A person is knowingly in possession if his possession occurs voluntarily and intentionally and not because of mistake or accident or other innocent reason. The purpose of adding the word knowingly was to insure that no one would be convicted of possession of a firearm if he did not intend to possess it.
The Government need not prove that a defendant knows he is dealing with a weapon possessing every last characteristic which subjects it to regulation. It is enough to prove he knows that he is dealing with a dangerous device of such type as would alert one to the likelihood of regulation. If he has such knowledge, and if the particular item is in fact regulated, he acts at his peril.It is enough to prove he knows that he is dealing with a dangerous device of such type as would alert one to the likelihood of regulation.If he has such knowledge, and if the particular item is in fact regulated, he acts at his peril.
Appellant’s App. Vol. I at 25, Tab D (emphasis added).
Mere Possession of Unregistered Firearm
Mere possession of an unregistered firearm is a violation of the law of the United States. It is not necessary for the Government to prove that the defendant knew that the weapon in his possession was a firearm within the meaning of the statute, only that he knowingly possessed it.
Appellant’s App. Vol. I at 26, Tab D (emphasis added). Staples contends that these instructions violate due process in that a jury could find him guilty of the offense charged without his having had any knowledge that he possessed a weapon subject to registration. Specifically, Staples argues that “scienter,” “actual knowledge,” or “specific intent”
The threshold question is whether, as the district court concluded, our decision in United States v. Mittleider, 835 F.2d 769 (10th Cir.1987), cert. denied, 485 U.S. 980, 108 S.Ct. 1279, 99 L.Ed.2d 490 (1988), controls the disposition of this issue. In Mitt-leider, we upheld a jury instruction substantively identical to the instructions challenged here,
Staples attempts to avoid Mittleider by labeling this and other critical language as “dicta” since the court concluded from its review of the record that the defendant also had actual knowledge that the firearm had been converted into an automatic weapon. We are not persuaded. The court’s reference to the defendant’s knowledge was simply an additional reason supporting the conviction. It did not diminish the force of the independent conclusion that actual knowledge is not an element of the offense. This is apparent in the next section of the opinion in which the court states:
In a related argument, defendant next claims there was insufficient evidence to show that he had actual knowledge that the J-15 firearm was an automatic weapon. His claim is premised on the implicit, and unsupported, assumption that the government was required to prove that he knew that the weapon was automatic. As discussed above, that .assumption is unfounded. See United States v. Shilling, 826 F.2d at 1367-68; Morgan v. United States, 564 F.2d [803] at 805-06 [(8th Cir.1977)].
Mittleider, 835 F.2d at 774-75 (emphasis added).
Staples also seeks to escape the clear command of Mittleider by claiming that his case is distinguishable on the facts. Staples asserts that Mittleider addressed a situation where a firearm contained external modifications while, in his own case, the weapon had only internal modifications. We do not read the record similarly. The uncontested testimony at trial by BATF Agents Ward and McLaughlin was that the weapon’s selector switch, located on the exterior of the receiver, could be turned to the automatic fire position and that there was a shiny spot on the receiver indicative of tampering. See Appellant’s App. Vol. II at 286, 291, Tab Q; Appellee’s Suppl. App. at 16-17. Since the weapon contained external modifications, there is no basis to distinguish this case from Mittleider,
We conclude that Mittleider controls this case and that the trial court properly instructed the jury on the substantive elements necessary for conviction under § 5861(d). Staples essentially concedes the inescapability of this conclusion by asking us to “reverse” Mittleider, Appellants Reply Br. at 15, which, of course, we are powerless to do even if so inclined. United States v. Spedalieri, 910 F.2d 707, 710 n. 3 (10th Cir.1990) (a three-judge panel may not overrule a previous opinion of this court).
III. ADMISSIBILITY OF CERTAIN EXHIBITS
Staples next argues that the district court erred by excluding certain documents that he obtained through discovery from BATF and sought to introduce as evidence at trial. These documents were: Defendant’s Exhibit 4, an unpublished internal BATF memorandum concerning AR-15’s manufactured with M-16 parts; Defendant’s Exhibit 8, a letter discussing AR-15’s with installed M-16 parts, sent by BATF in response to a constituent inquiry to Senator Mark Hatfield’s office; Defendant’s Exhibits 9, 10, 13, and 14 discussing the registrability of an auto sear; Defendant’s Exhibit 15, a BATF letter to a gun manufacturer discussing AR-15’s and auto sears; and Defendant’s Exhibit 5, an internal BATF report from 1967 concerning the test-fire of a particular AR-15 Sporter gun.
Staples argues variously that these exhibits either establish or tend to show that: (1) absent an auto sear, an AR-15 does not need to be registered under the NFA, Appellant’s Principal Br. at 23; (2) an AR-15 without an auto sear could not be registered pursuant to 18 U.S.C. § 922(o); (3) his weapon was not registerable, id.; (4) BATF knew that an AR-15 with M-16 parts could malfunction to fire more than one shot with a single pull of the trigger, id. at 27; (5) although BATF knew about the possibility of malfunction, it did not notify gun owners of this situation, id. at 26-29; (6) Staples had no personal notice of this “malfunction” condition known as “hammer-follow-down”; (7) his weapon is not a machine gun except by malfunction; (8) notice of registrability is an element of the crime of possession; and (9) that it was fundamentally unfair, amounting to a deprivation of due process, for the government to have prosecuted him when the government knew that this type of weapon could malfunction to fire automatically but did not publish a warning to gun owners alerting them of this problem.
The district court sustained objections to the admissibility of the documents, primarily on the grounds of relevance. The court did allow Staples to use the documents during cross-examination, and to place his position before the jury.
A district court is granted broad discretion in determining the relevancy of evidence. United States v. Alexander, 849 F.2d 1293, 1301 (10th Cir.1988). We review a trial court’s decision to admit or exclude a given piece of evidence under an abuse of discretion standard. Id. (citations omitted).
Fed.R.Evid. 401 defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
As explained below, the proffered documents had no tendency to establish any fact of consequence to the determination of this action. The offense charged is possession of a machine gun, defined in § 5845(b) as “any weapon which shoots ... automatically more than one shot ... by a single function of the trigger.” 26 U.S.C. § 5845(b) (emphasis added). The exhibits bore no direct relationship to any of the elements of the offense charged, making it more probable or less probable that this AR-15 with M-16 parts, having had its selector switch filed off, constituted a firearm subject to registration under the NFA.
Staples argues that an AR-15 without an auto sear is not a machine gun as defined under § 5845(b) and so does not have to be registered under the NFA. It is undisputed that weapons defined as “firearms” under § 5845 must be registered while weapons outside the definition need not be registered. It is also true that auto sears must be registered under the NFA.
Staples attempts to deduce from this that “[t]he implication is, of course, that absent an auto sear, the AR-15 with M-16 internal components is not a National Firearms Act weapon and thus, not registerable.” Appellant’s Principal Br. at 29. The district court refused to accept the implication that Staples advanced. The court noted variously: “Show me the regulation that says that you [can] not register a fully automatic AR-15 that doesn’t have a sear.” Appellant’s App. Vol. II at 433, Tab S.
[I]f this man is charged, and I haven’t heard it, with failure to register an auto sear, or an auto sear is some way involved in this case involving the registration, then I’ll let you use it.... But the mere fact they’ve said that an auto sear must be registered and is an automatic weapon under the statute doesn’t mean that nothing else is.
Id. at 467. We agree. The fact that an auto sear requires registration does not mean that all weapons which do not have auto sears are exempt from registration. The question is whether Staples’ sear-less AR-15 could fire automatically. Automatic weapons must be registered. Defendant’s Exhibits 9, 10, 13, 14, and 15 were not germane to any issue in the case, and it was not an abuse of discretion to exclude their admission.
In a related argument, Staples contends that his weapon was malfunctioning causing it to fire automatically more than one shot with a single pull of the trigger. In other words, if the weapon was a machine gun, it was so wholly by accident. He asserts that a weapon malfunctioning because of hammer-follow-down cannot constitute a firearm under the NFA and so does not have to be registered. We do not need to reach the broader question of whether a weapon that malfunctions can constitute a firearm under the NFA. Staples pursued his malfunction argument vigorously at trial both on direct and cross-examination. He testified himself, and elicited testimony from multiple witnesses, that his AR-15 had never fired more than one round with a single pull of the trigger. The government challenged that theory as part of its proof in support of the charge. The jury examined the weapon and saw videotapes of the weapon being fired. Thus it was able to evaluate Staples’ weapon and make an independent judgment as to its capabilities.
Staples next asserts that his conviction cannot stand because he had no notice that his weapon needed to be registered. This argument embraces two assertions: (1) that knowledge of registrability is an element of the offense; and (2) that a governmental agency has an affirmative duty to notify the public of what actions constitute a violation in the view of the agency.
Mittleider rejects the position that knowledge of registrability constitutes an element of the offense. The government is not required to prove that a defendant knows “that registration of the weapon was required.” 835 F.2d at 774; see also United States v. Freed, 401 U.S. 601, 607, 91 S.Ct. 1112, 1117, 28 L.Ed.2d 356 (1971). Since neither knowledge nor notice of reg-istrability is an element of the offense, it was not an abuse of discretion for the district court to find that documents discussing this point were irrelevant. Furthermore, the statutes themselves are the source of notice, and they are clear on the subject.
For these and other reasons, Staples’ other assertion is equally unavailing. BATF’s regulatory silence does not necessarily imply that his weapon was not subject to registration. See Appellant’s Principal Br. at 27.
The district court aptly made that point stating:
Your next question has dealt , with the other five M-16 parts, whether they were registerable. Now, as I said at the bench, if this expert [Agent McLaughlin] can testify that the mere possession of the five parts together with an AR-15 gun constitutes a failure to register, then you would be permitted to put in anything where they have ruled that it’s a non-registerable item. The facts of this case though are that there is a gun in being, there are installed parts .... that by reason of the manner in which the installation has actually occurred, that it shoots fully automatic and therefore falls within the definition of a machine gun.
Now, I will tell you once again, if you have got anything that is relative to this case, that where a gun with these installed parts that shoots fully automatic is not registerable, I will let you get into it.
Appellant’s App. Yol. II at 427, Tab S (emphasis added). Staples did not pursue the district court’s offer and has cited no case, statute, or BATF regulation to support his contention that the AR-15, as modified, was not subject to registration, or could not be registered under the NFA. Even if BATF ruled that a generic AR-15 with M-16 parts did or did not constitute a firearm requiring registration under the NFA, such a general ruling would not determine the issue of the registrability of Staples’ gun as a matter of law. Staples does not discuss, for instance, weapons where the selector switch has been externally modified by filing to allow the weapon to fire automatically instead of just semi-automatically; and he does not discuss the impact of the statute on specific weapons which, however configured generally, operate in fact as a machine gun.
Staples’ final contention is that these exhibits prove it was fundamentally unfair for the government to prosecute him. The unfairness of the prosecution is based on two grounds: (1) that the government knew that weapons of this type could malfunction yet concealed that fact from gun owners; and (2) that Staples’ gun was un-registerable as a matter of law. Both points are disposed of by our discussion above.
In sum, exclusion of the proffered exhibits did not constitute reversible error.
IV. “AUTOMATICALLY” UNDER 26 U.S.C. § 5845
Staples’ final argument is that the district court erred when it refused to give his tendered instruction on the word “automatically” as used in § 5845(b).
Section 5845(b) defines “machine gun” in relevant part as:
any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include ... any combination of parts from which a machine gun can be assembled if such parts are in the possession or under the control of a person.
26 U.S.C. § 5845(b) (emphasis added).
The district court instructed the jury in these terms, and refused the following instructions proffered by Staples.
AUTOMATIC — DEFINED
By automatic is meant self-acting, or the elimination of human agency or volition which results in the saving of labor and increased certainty and uniformity of operation. Citing Tripp Giant Leveler Co. v. Rogers, 61 F. 289, 290-91 (D.Mass. 1894).
AUTOMATICALLY — DEFINED
The word “automatically,” as applied to a mechanism, is in common use and is unambiguous. It means “self-acting,” and it implies a certain cycle of movements which the machine itself makes without outside control_ In the development of many machines there can be traced a constantly increasing extent of automatism; by which is meant that many steps or processes, which formerly had to be started, stopped, or controlled by the operative, are now started, stopped, or controlled by the machine itself. Citing American Roll Gold Leaf Co. v. W.H. Coe Mfg. Co., 212 F. 720, 724 (1st Cir.1914).
Appellants Principal Br. at 35.
Staples asserts that his instructions properly inject concepts of “reliability” and “lack of human agency” into the definition of “automatically.” Appellant’s Principal Br. at 36. He also repeats his argument that knowledge is a necessary element to be proved by the government — in this instance, knowledge of possession of a weapon which reliably fires automatically. Id. at 38.
Staples bases his reliability and lack of human agency argument on authority from a 1914 case out of the First circuit and an 1894 district court opinion. He concedes that “[tjhey were patent cases, but they weren’t firearm cases.” Appellant’s App. Vol. II at 488, Tab T. He does not cite and this court can not find any authority for employing the definition of automatically that he commends to us in the context of the National Firearms Act.
This Court must determine whether in light of the record as a whole the jury instructions as given correctly stated the applicable law and provided the jury with adequate understanding of the issues involved in the case. United States v. Agnew, 931 F.2d 1397, 1410 (10th Cir.1991); United States v. Willis, 890 F.2d 1099, 1104 (10th Cir.1989). We are satisfied that this standard was met by the court’s instructions.
We have examined all of Staples’ arguments, addressing those deemed appropriate, and we find no reversible error in the proceedings below. Accordingly, the judgment of conviction is
AFFIRMED.
. 18 U.S.C. § 922(o) provides in pertinent part:
(o)(l) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.
(2) This subsection does not apply with respect to—
(B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect.
18 U.S.C. § 922(o) (emphasis added). "The date this subsection takes effect" for § 922(o)(2)(B) is May 19, 1986. See Pub.L. 99-308, § 110(c).
. Q: So, the day before his house was searched, he couldn't have even registered the gun then?
A: No, sir.
Q: The gun wasn’t registerable by him, was it?
A: No, sir.
Q: ... The day before anything ever happened, he couldn’t have complied with the law if he wanted to, could he?
A: No, because the law was amended on May 1986 which forbade the private ownership of newly manufactured machine guns to civilians.
*611 Q: If he owned the gun prior to 1986 and it fired in semi-automatic fashion but owned it after that act that you’re talking about, how could — he couldn’t register it, could he?
A: Well, something obviously happened to the weapon from the time that he owned it until the time it was seized. Because if it was semiautomatic before May 16th, 1986, there would have been no need to register it because it was a legal legitimate firearm.
Q: He could have lawfully possessed it prior to the act taking effect?
A: Certainly. As long as it didn’t function automatically, no problem.
Q: But if it then functioned automatically through this hammer follow down concept after 1986, he couldn’t register it, could he? A: No. Because at that point, sir, it was contraband.
Appellant’s App. Vol. II at 350-52, Tab Q.
. The district court clearly understood this point as is obvious in its colloquy with Assistant United States Attorney Neal Kirkpatrick at a motions hearing only four days before the trial:
THE COURT: You would agree that the issue of when the stop was taken off the gun is a fact that goes to the jury, don’t you.
MR. KIRKPATRICK: They can argue it if they want.
THE COURT: If the stop was there at the time the gun was in the possession of the defendant it was not an automatic weapon.
MR. KIRKPATRICK: I would agree, yes, sir.
THE COURT: All right. All right.
THE COURT: [S]uppose Mr. Gilbert with Mr. Brewster looking over his shoulder finds that there is a regulation in effect that would prohibit the registering of this gun.
MR. KIRKPATRICK: Judge, that does not relieve us of the question, whether or not in fact when the nipple was filed off the side of the receiver. And there is still a question of fact the jury can decide. The case should not be continued. It has been continued.
THE COURT: I think what you’re telling me is, then, the sole issue is when was the nipple filed off.
MR. KIRKPATRICK: Yeah, the defendants—
THE COURT: Because if it was filled [sic] off and in the possession of the defendant it makes no difference whether he can register it, because it obviously becomes registerable; is that right?
MR. KIRKPATRICK: Yes, sir.
THE COURT: So, one of the issues the Court should probably submit to the jury is a finding as to whether the nipple was there such that it could not be placed in automatic while it was in the possession of the defendant.
Appellant’s App. Vol. I at 160, 163-64, Tab J (emphasis added).
Staples, however, failed to pursue this argument at any point during the trial. Instead, he waited until the filing of his reply brief to attempt to argue that the government "did not establish when the stop was filed off.” Reply Br. at 3. As the court correctly observed in the above-quoted colloquy, that was a question of fact that Staples properly should have presented to the jury.
. This section makes it unlawful for any person "to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record." 28 U.S.C. § 5861.
. Staples uses these terms interchangeably in discussing what he perceives the mens rea requirement should be under the statute. Each envisions a specific intent type of standard to which a mistake of fact defense could be raised.
. Staples preserved this issue by timely objection and proffering the following instruction: "[a]n essential element of the offense of possessing a machine gun, is that the possessor knew that the gun would fire fully automatically and the burden is upon the Plaintiff to prove that specific knowledge.” Appellant's App. Vol. I at 42, Tab E.
.The jury instruction in Mittleider read: “The mere possession of a firearm which is required to be registered and has not been registered is a violation of the laws of the United States. It is not necessary for the government to prove that the defendant knew that the weapon in his possession was a machine gun within the meaning of the statute or that he knew that registration was required. It is sufficient if you find beyond a reasonable doubt that he knowingly possessed it.” 835 F.2d at 774. That instruction was based upon 2 E. Devitt and C. Blackmar, Federal Jury Practice and Instructions, § 59.04 (3d Ed. 1977).
. We note that the circuits have diverged on the issue of whether actual knowledge is an element under § 5861(d). Compare United. States v. Ross, 917 F.2d 997 (7th Cir.1990); United States v. Shilling, 826 F.2d 1365 (4th Cir. 1987) (knowledge not required that weapon is subject to NFA) with United States v. Anderson, 885 F.2d 1248 (5th Cir.1989) (en banc); United States v. Williams, 872 F.2d 773 (6th Cir.1989) (need "mens rea” or knowledge that weapon is covered by the NFA for § 5861 conviction). Even those circuits that diverge from Mittleider do so in light of different factual situations. In both Williams and Anderson, the weapons at issue had no external modifications.
. See Appellant's Reply Br. at 9; BATF Ruling 81-4; 27 C.F.R. § 179.11. But see United States v. Sullivan, 919 F.2d 1403, 1412 n. 8 (10th Cir. 1990) (court observed that an AR-15 could be modified to fire fully automatic even without an auto sear).
. Staples’ citation of Defendant’s Exhibit 4, a March 11, 1986 BATF memorandum is unhelpful. In the memorandum to the file, the author noted:
The proposed draft ruling would hold that an AR15 type rifle in combination with an M16 hammer, trigger, disconnector, selector and bolt carrier is a combination of parts from which a machine gun can be assembled and is a machine gun if such rifle and parts are in the possession or under control of a person. It would also hold that an AR15 type rifle in combination with any Ml6 part or parts (whether assembled or unassembled) which, when assembled, shoots automatically*616 by manipulation of the selector or removal of the disconnector is also a machine gun.
The Bureau has determined not to issue the ruling at this time....
Appellant's App. Vol. I at 45, Tab F.
Staples concludes that the non-issuance of an unpublished, internal BATF ruling implies that his weapon is exempt from the NFA. He cites no authority to support this novel proposition.
. The testimony by Agent McLaughlin, set out in n. 2, cited by Staples in support of the proposition that his weapon was unregisterable, neither stands for that proposition nor, more to the point, compelled the admission of the exhibits in question.