Sunday, January 11, 2015

Case o' The Week: Estoppel - well, estopped - Rodman and Entrapment by Estoppel

Hon. Judge Milan Smith
Licensed firearm agents should know better than giving bad advice that gets our clients arrested.
  Turns out, however, that “should know better” concept unfortunately cuts both ways.
 United States v. Rodman, Slip. Op. 13-10337, (9th Cir. Jan. 9, 2015), decision available here.

Players: Decision by Judge M. Smith, joined by Judges Wallace and Silverman.

Facts: Rodman and others were indicted with a conspiracy to unlawfully transfer machine guns by making false entries on ATF forms. Slip Op. at 4. To avoid restrictions on the transfer of these guns, Rodman and his codefendants built and sold guns that used serial numbers cut from pre-ban machine guns. Id. The ATF forms used to transfer were fraudulent. Id. at 6. Clark, who was licensed to sell these guns, told Rodman this was a legal method to transfer machineguns (Rodman claimed during trial). Id. At trial, Rodman asked for and was denied a jury instruction for entrapment by estoppel based on Clark’s alleged statements that this method of manufacturing machine guns was lawful. Id. at *7.

Issue(s): “Rodman argues that that the district court erred when it refused to give an entrapment by estoppel instruction based on his claim that Clark, a federal firearms licensee, told Rodman that the manner in which Clark manufactured and then transferred guns was legal.” Id. at *11.

Held: “Rodman is not some customer off the street inquiring about whether he can legally purchase a firearm. Rodman is himself a federal firearms licensee. . . . [W]e decline to extend the holdings of Tallmadge and Batterjee to apply when the firearm transaction is made between two federal firearms licensees. Therefore, the district court did not err by failing to give the requested entrapment by estoppel instruction as Clark was not acting as an authorized government official in this context.” Id. at 11.

Of Note: If you buy pot from a dealer, are the pair of you conspiring to distribute marijuana? No, thanks to the “buyer-seller relationship” theory, which requires the government in this situation to show “an agreement to commit a crime other than the crime that consists of the sale itself.” Id. at 12. Otherwise, every small drug sale would instantly turn into a narcotics conspiracy. Rodman tried that argument here, to no avail; he wasn’t charged with conspiring to sell guns, but conspiring to defraud the ATF. Id. at 12-13.

How to Use: Rodman’s estoppel didn’t work because he was a licensed firearms dealer – and the Court wasn’t sympathetic to the idea that he could rely on another dealer for erroneous advice about machine guns. Id. at 11. Would the outcome have been different, however, if Rodman had just been an ordinary customer? Maybe. Judge Milan Smith briefly discusses two cases where the Court has treated licensed firearm dealers as authorized government officials, in the context information about firearm purchases. Id. at 11 (discussing United States v. Tallmadge, 829 F.2d 767, 774 (9th Cir. 1987), and United States v. Batterjee, 361 F.3d 1210, 1217-19 (9th Cir. 2004). A defense to bear in mind, when a (usually prohibited) client relies on bad advice from a licensed firearms dealer, and ends up with gun he or she shouldn’t have.
For Further Reading: AFPD Kate Menendez argued the Johnson case before the Supreme Court in November of last year. The case deals with whether sawed-off shotguns are inherently “violent” for purposes of the ACCA. See generally SCOTUS blog here. 
  Last Friday, January 9th, the Court asked the parties to brief “"Whether the residual clause in the Armed Career Criminal Act of 1984, 18 U. S. C. §924(e)(2)(B)(ii), is unconstitutionally vague." See Order here. It will be put on the Court’s calendar for re-argument during the April 2015 session.
   Preserve the issue now – and take a close look at Prof. Rory Little’s prescient argument for this development in his blog, here.

Steven Kalar, Federal Public Defender ND Cal. Website at


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