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United States v. Kurt

filed: March 8, 1993.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
WAYDE LYNN KURT, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Eastern District of Washington. D.C. Nos. CR-90-2126-AAM, CR-90-2127-AAM. Alan A. McDonald, District Judge, Presiding.

Before: Jerome Farris, Andrew J. Kleinfeld, Jr., Circuit Judges, and David Alan Ezra,*fn* District Judge. Opinion by Judge Ezra.

Author: Ezra

EZRA, District Judge:

Wayde Lynn Kurt brings this appeal from his conviction on consolidated charges of unlawful possession of an unregistered machine gun, in violation of 26 U.S.C. § 5861(d), and failure to appear, in violation of 18 U.S.C. § 3146(a), for which he was sentenced to consecutive imprisonment terms of sixteen and twenty-one months respectively. Kurt contends that the district court erred by denying his motion to suppress evidence obtained pursuant to a warrant defectively based on unsworn testimony, and, with respect to the unlawful possession charge, by convicting him in the absence of any evidence that the gun he owned could legally have been registered. We have jurisdiction under 28 U.S.C. § 1291 and AFFIRM the judgment of the district court.

I. Facts

In late December 1987, police officers in Snohomish County, Washington, were investigating the homicide of Zachary Smith. On the basis of an informant's tip, the officers obtained a valid warrant from a Snohomish County superior court Judge to search 413 West Sixth Street in Cle Elum, Washington, where they believed Kurt lived with his parents.

The officers executed the warrant on January 5, 1988. Kurt's mother told the officers that Kurt did not live there, and that his correct address was 401 1/2 Montgomery Street in Cle Elum. The officers contacted a different Snohomish County superior court Judge who permitted them to amend the warrant by penciling in the correct address. The officer who spoke with the second Judge was not placed under oath. The amended warrant was executed by several state police officers and a special agent of the U.S. Department of Treasury Bureau of Alcohol, Tobacco, and Firearms. A machine gun was found and Kurt was arrested.

On January 13, 1988, an indictment was returned against Kurt charging him with possession of an unregistered machine gun, in violation of 26 U.S.C. § 5861(d). That indictment was dismissed without prejudice. Kurt was reindicted on the same charge on October 16, 1990. Trial commenced on January 6, 1992. A jury returned a guilty verdict on both the possession charge and the bail jumping charge the next day.

Subsequently, Kurt challenged the constitutionality of his conviction in a motion to dismiss. 18 U.S.C. § 922(o), enacted in 1986, makes it illegal to possess a machine gun. Since section 5861(d) does not allow the registration of a firearm that it is illegal to possess, Kurt could not have registered his gun unless he owned it prior to May 19, 1986, when section 922(o) became effective. The record was devoid of any evidence as to when Kurt acquired the gun. The district court concluded that the burden was on the defendant to show that the gun was acquired at a time when it could not possibly be registered and on that basis denied Kurt's motion.

Kurt appealed from the district court's denial of his motion to dismiss and from its refusal to suppress the evidence obtained as a result of the unsworn testimony. On February 17, 1993, a separate panel of the Ninth Circuit affirmed the validity of the search of Kurt's home in a separate prosecution for counterfeiting and possession of counterfeiting paraphanelia. See U.S. v. Kurt, 986 F.2d 309 (9th Cir. 1993). Under the law of the case we affirm the district court's denial of the motion to suppress for this prosecution and consider only the propriety of his conviction.

II. Analysis

Kurt was found guilty of possessing an unregistered firearm in violation of the National Firearms Act, 26 U.S.C. § 5861(d) ("NFA"). It provides:

It shall be unlawful for any person to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record . . .

A separate criminal statute, 18 U.S.C. ยง 922(o), prohibits the possession of any machine gun made after that statute's effective ...


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