US v. Kuzma, No. 18-10042 (8-3-20)(Collins w/Paez & Choe-Groves). The 9th rejects an unconstitutional vagueness challenge to the statutory definition of “machinegun.” The machinegun here was just the receiver, and it was nonoperable.  However, it could be made operable; critically, the receiver was missing a blocking bar that stopped the automatic firing. The defendant, when questioned, did make unfortunate comments (e.g. “I have a machinegun”); however, the defendant argues that the bar would have been placed in if the receiver was sold. The argument on appeal was that the statutory language, 26 USC 5845, was vague since there was a subjective intent to whether the receiver could be made to shoot. The 9th looked to the objective features – whether it was designed, and could be readily adapted, to shooting. The 9th rejected the as-applied challenge and the sufficiency of evidence challenge.  Any evidentiary errors to the possession count, 5861, were deemed harmless. The 9th did vacate a lesser included conviction under 922(o)(possession of a machine gun) as the conviction under 5861(d) was possession of an unregistered machine gun.

Davina Chen, as CJA, fought hard on this appeal. 

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/03/18-10042.pdf