Friday, January 09, 2015

U.S. v. Rodman (9th Cir. - Jan. 9, 2015)

I empathize with the result.  The legal reasoning is coherent.

Yet there's still something about this opinion that just seems wrong.

I'm not a huge fan of unregulated machine guns floating around the United States, so I get why ATF wants to know when an existing machine gun -- created before they were banned -- gets transferred.  It also seems a bit sleazy, and permissibly illegal, for a guy to chop off the serial number of an old (legal) machine gun, slap it on a new machine gun, and then submit a form to the ATF saying that they just sold the "old" gun.

All that I'm down with.  I assume that's a crime, and rightly so.  (Maybe not the most serious crime of our generation, mind you.  It's not like you've made another machine gun.  You've just replaced an older one with a newer one.  Assuming that the guns are roughly the same apart from age, I'm not quaking in my boots or anything like that.  But still, it's a crime, and you should be punished.)

But exactly what crime is it?

Lying to the government, no doubt.  Submitting a false statement, sure.  I can think of a plethora of crimes that seem likely to apply.

But the dude here gets charged with conspiracy to defraud the United States.

Doesn't that seem weird?  It's not like he's trying to steal money from the US.  Or avoid taxes.  Or anything like that.  "Defraud" doesn't seem to apply.

Now, Judge Milan Smith tells me that the Supreme Court has said that to "defraud" means to do anything that obstructs any function of the government.  If that's true (and I have no reason to disbelieve him), then I guess, yeah, it's a fraud.

But it still seems funky.  And leaves a bad taste in my mouth.  Seems like we're just zooing up a crime -- and a punishment -- from a statute that wasn't intended to cover things like this.

But, as I said, I can't fault the legal reasoning.

While we're talking about precedent, however, there's another precedent that seems facially relevant.  The dude with whom Rodman allegedly "conspired" was a licensed firearms dealer, who allegedly told Rodman that it was legal to do what they were doing.  There are several cases out there that say that when a licensed firearms dealer tells you that X is legal, and you rely on that representation, you can assert that advice as a defense:  entrapment by estoppel, since the "government" (i.e., the licensed dealer) told you it was legal.

Whether or not that precedent makes total sense, it's the law, right?  So if we're willing to follow the whole (tenuous) "defraud" thing, seems like we need to follow this one too, and Rodman gets to at least argue to the jury that he relied on the other guy's representation that what he was doing was legal.  (Which, I might add, is a defense the jury might actually buy, since it's at least plausible that when someone tells you that it's one gun, and one serial number, it's okay to do what Rodman was doing.)

But Judge Smith say, nope, Rodman doesn't get to even argue that defense.  Because Rodman's also a licensed firearms dealer, so he's an "agent" of the government as well.  A defense that works for a regular buyer, Judge Smith says, doesn't work for a licensed buyer.

I can see that argument.  But we're talking about precedent here. What case supports this reasoning?  Well, let's look to the authorities that Judge Smith cites for that proposition.

Searching.  Searching.  Searching.

None.  Nada.  Zip.  He just says it.

Now, again, I don't fault the reasoning.  It definitely ain't lock solid, but it's also far from absurd.  It's just that, particularly when combined with all the other reasoning in the opinion (and don't even get me started on the "conspiracy" portion of the thing), it seems like every single break or argument or doctrinal move comes out against the criminal defendant here.  His argument on "defraud" makes total sense, but we ding him on precedent.  He's got a damn good argument on precedent, but we ding him on common sense.  It's like a moving target.

And for what?  Again, I feel pretty confident that we can ding this guy -- and rightly sentence him -- to a crime he actually and straightforwardly committed.  But we nonetheless do all these mental gymnastics just so we can (1) convict the guy of a conspiracy to defraud, and (2) stop him from even presenting a defense (and supporting jury instruction) to his peers.

It just seems a bit aggressive, that's all.

This is -- to reiterate -- not to say that Judge Smith's opinion is wrong.

Just that it doesn't totally sit right.