Reply in Roh (The Lower Receiver Case)

Case 8:14-cr-00167-JVS Document 137 Filed 04/03/18 Page 1 of 44 Page ID #:2524
1 GREGORY NICOLAYSEN (CA 98544)

2 27240 Turnberry Lane, Suite 200
Valencia, CA 91355
3
P: (818) 970-7247
4 F: (661) 252-6023
5 E: gregnicolaysen@aol.com
Attorney For Defendant,
6
Joseph Roh
7
8
UNITED STATES DISTRICT COURT
9
10 CENTRAL DISTRICT OF CALIFORNIA
11
SOUTHERN DIVISION
12
13
UNITED STATES OF AMERICA, ) SA CR 14 - 167 – JVS
14 )
15 Plaintiff, ) REVISED
) REPLY BRIEF FILED BY
16
) DEFENDANT JOSEPH ROH
17 ) TO GOVERNMENT’S
18 v. ) OPPOSITION TO RULE 29
) MOTION FOR ACQUITTAL
19
) AND MOTION TO DISMISS
20 ) FOR VAGUENESS
21
)
JOSEPH ROH, ) DATE: [None]
22 ) TIME: [None]
23 Defendant ) CTRM: Hon James V. Selna
______________________________ )
24
25
26
27
28
1 TABLE OF CONTENTS
2
I.
3
THE GOVERNMENT’S OPPOSITION BLURS
4 KEY DISTINCTIONS THAT WEIGH
5 SIGNIFICANTLY ON THE ISSUES
BEFORE THIS COURT 1
6
7 II.
8
THE DEFENSE MOTION FOR A RULE 29
JUDGMENT OF ACQUITTAL SHOULD BE GRANTED 5
9
10 A. The Government Makes A Frivolous Argument
That The ATF’s Classification Merely Interprets
11
27 C.F.R. 478.11 5
12
13 1. At Trial, Agent Joshua Jackson Acknowledged
That A Machined AR-15 Blank Does Not Satisfy
14 Section 478 And That The ATF Classification Is
15 A Different Standard 5
16
2. The Preamble To Section 478.11 Does Not
17 Support The Government 6
18
3. The Serialization Requirement In 18 U.S.C. 923(i)
19
Has No Relationship Whatsoever To The Definition
20 Of Receiver Under Section 478.11 7
21
4. The Serialization Requirement Under Section 923(i)
22 Pertains Only To The ATF’s Administrative
23 Functions To Oversee The Firearms Industry, But
Has No Bearing On The Criteria For What
24
Constitutes A “Frame Or Receiver” Under
25 Section 478.11 7
26
27 i
28
1 5. The ATF’s Classification Of A Machined AR-15

2 Blank As A Receiver Is Not An “Interpretation”
Of Section 478.11, As The Government Contends,
3
But An Outright Repudiation Of The Regulation 9
4
5 B. If The Government Is Concerned That Applying
Section 478.11 Would Frustrate Enforcement Of
6
The Gun Control Act, The ATF Should Pursue Its
7 Option Under The APA To Amend Section 478.11
8
And Work With Congress To Enact New Firearm
Legislation 11
9
10 1. The ATF Engages In Rule-Making Under The
APA To Amend Existing CFR Regulations And
11
Could Have Done So Here To Resolve The
12 Conflict Between The Classification At Issue And
13 Section 478.11 12
14 2. The ATF Has Already Demonstrated A Willingness
15 To Amend Section 478.11 In Regard To Other
Definitions And Thus Should Have Done The Same
16
Here In Regard To The Definition Of “Firearm
17 Frame Or Receiver” To Resolve The Conflict With
18 The Classification At Issue 14
19
3. The ATF Has Enacted CFR Regulations That
20 Expressly Reference Classifications, And This Was
21
An Option Available To The ATF To Resolve The
Conflict Between The Classification At Issue And
22 Section 478.11 15
23
C. The Government Cannot Avoid Its Rule-Making
24
Obligation In This Case 15
25
26
27 ii.
28
1 D. The Court Should Allow The Defense Case To Be

2 Re-Opened (Or Conduct An Evidentiary Hearing)
To Have Testimony By ATF Legal Counsel, To Confirm
3
That ATF Has Known That Its Classification Is Not An
4 Interpretation Of Section 478.11 But Rather Is In Direct
5 Conflict With Section 478.11, And That An Amendment
To Section 478.11 Has Needed To Be Undertaken
6
(But Has Never Been Done) 18
7
8
E. The Government's Contention That ATF Classifications
Are Entitled To Deference Applies At Best To Civil -
9 Administrative, Not Criminal, Matters 19
10
F. The Government Has Failed To Prove Beyond A
11
Reasonable Doubt That The Mere Assembly Of Firearm
12 Parts Into A Completed Rifle Constitutes Either
13 Manufacturing Or Dealing In Firearms 25
14 1. The ATF Never Sought To Put Mr. Roh On Notice
15 That Assembly Constituted Either Manufacturing
Or Dealing 25
16
17 III.
18 ALTERNATIVELY, THIS COURT SHOULD DISMISS
THE INDICTMENT ON THE GROUND THAT THE
19
CHARGES IN THE INDICTMENT ARE
20 UNCONSTITUTIONALLY VAGUE AS APPLIED
21
TO MR. ROH 27
22 A. The ATF Repeatedly Deceived Mr. Roh In Regard To

23 The Legal Standard For Manufacturing 27
24
B. At Trial, The Government Admitted The Vagueness
25 In The Law In TestimonyThat The Only Way For The
26 Public To Learn About Compliance Is By Contacting
The ATF, By Which The ATF Will Deceive The Public
27 Through Letters That Refer Only To Its Classification 28
28 iii.
1 C. This Court Should Adopt The Analysis In

2 United States v. Jimenez And Dismiss The Indictment
On The Basis Of As-Applied Vagueness 31
3
4 D. The Case Opinions Cited By The Government Do Not
5 Resolve The Vagueness Issue 34
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27 iv.
28
1 TABLE OF AUTHORITIES
2
Case Authorities
3
4 Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or.,
5 515 U.S. 687 (1995) 19-20, 22
6
Chevron, U.S.A., Inc. v. NRDC, Inc.,
7 467 U.S. 837 (1984) 20, 22
8
Hoffman Estates v. Flipside,
9 455 U.S. 489 (1982) 34-35
10
Holder v. Humanitarian Law Project,
11
561 U.S. 1 (2010) 35
12
13 McFadden v. United States,
135 S. Ct. 2298 (2015) 35
14
15 United States v. Mead Corp.,
533 U.S. 218 (2001) 19-20, 22
16
17 Nat'l Rifle Ass'n v. Brady,
18 914 F.2d 475 (4th Cir. 1990) 21
19
United States v. Anaya-Acosta,
20 629 F.3d 1091 (9th Cir. 2011) 21-22
21
United States v. Nelson,
22 221 F.3d 1206 (11th Cir. 2000) 16-17
23
United States v. Wyatt,
24
408 F.3d 1257 (9th Cir. 2005) 36
25
26 United States v. Zhen Zhou Wu,
711 F.3d 1 (1st Cir. 2013) 35-36
27
28 v.
1 Modern Muzzleloading v. Magaw,

2 18 F. Supp. 2d 29 (D.D.C. 1998) 23
3
Sig Sauer, Inc. v. Jones,
4 133 F. Supp.3d 364 (D. N.H. 2015) 24
5
United States v. Jimenez,
6
191 F. Supp. 3d 1038 (N.D. Cal. 2016) 31-33
7
8
United States v. One TRW, Model M14, 7.62 Caliber Rifle,
294 F. Supp. 2d 896 (E.D. Ky. 2003) 22-23
9
10
Statutes
11
12 18 U.S.C. 921(a)(3)(B) 17, 32
13
18 U.S.C. 922(a)(1)(A) 35-37
14
15 18 U.S.C. 923(i) 7-9, 11, 16, 17
16
18 U.S.C. 924 (a)(1)(A) 16-17
17
18
Code Of Federal Regulations
19
20 27 C.F.R. 478.11 1-19, 21-23, 25, 27-30, 32-33, 37
21
27 CFR 478.118 15
22
23 27 C.F.R. 479.11 33
24
27 CFR 479.84 15
25
26 27 C.F.R. 555.11 15
27 vi.
28
1 MEMORANDUM OF POINTS AND AUTHORITIES

2
I.
3
4 THE GOVERNMENT’S OPPOSITION
5 BLURS KEY DISTINCTIONS THAT WEIGH

6 SIGNIFICANTLY ON THE ISSUES BEFORE THIS COURT
7
8 This prosecution raises issues of first impression in regard to the
9 legality of criminal charges brought by the U.S. Department of Justice
10 against an individual (defendant Joseph Roh in this case) for the violation of
11
a federal agency’s classification, which constitutes an administrative
12
determination made by law enforcement personnel at ATF’s Firearms And
13
Technology Branch (“FTB”) and, as such, has not undergone the rule-
14
making process under the Administrative Procedure Act (“APA”) to operate
15
as law. At trial, it became eminently clear that the criminal charge against
16
17
Mr. Roh for manufacturing firearms without a license was based on an
18 alleged violation of ATF’s administrative classification.

19 The significance of the issues presented is heightened by the
20 contradictory relationship between the classification and the applicable law
21 set forth in the Code of Federal Regulations, namely 27 C.F.R. 478.11
22 (“section 478.11"), which produces disparate outcomes when the trial
23 evidence regarding Mr. Roh’s conduct is applied to each. The classification
24
and section 478.11 represent two distinct and irreconcilable standards that
25
presented a tension permeating the trial. While the government seeks a
26
conviction on the claim that Roh acted in violation of the classification, Mr.
27
28
1
1 Roh is clearly innocent under section 478.11, which is the law.

2
In an obvious effort to obfuscate these novel and significant issues, the
3
government’s lengthy opposition to Mr. Roh’s combined Rule 29 motion for
4
a judgment of acquittal, and motion to dismiss for unconstitutional vagueness
5
as applied, raises irrelevant arguments and cites irrelevant case authority,
6
none of which support the government’s contention that a federal criminal
7
8
prosecution can be brought on the basis of an agency classification,
9 particularly where, as here, the classification directly conflicts with the

10 regulation embodied in section 478.11.
11 Hoping to distract this Court from this legal defect that drives a stake
12 into the heart of the prosecution, the government repeatedly blurs key
13 distinctions that weigh significantly on the analysis before this Court. Chief
14 among them is the government’s failure to distinguish between the ATF’s
15
administrative authority, on the one hand, to issue classifications in
16
connection with its regulatory function to oversee the firearms industry for
17
such purposes as ensuring serialization of firearms (Opp. at pages 12, 23-25),
18
in sharp contrast with the agency’s lack of authority to use such
19
classifications as the basis for bringing federal criminal charges. The
20
21
government would have this Court believe that in the same way the ATF
22 applies classifications in the administrative / regulatory context without

23 having to undergo the rule-making process under the APA, it may likewise
24 bypass the APA by issuing a classification that will be used as the basis of a
25 criminal prosecution.
26 In taking this position, the government presents the absurd contention
27 that an administrative classification can be used for all purposes, both civil
28
2
1 and criminal. Throughout its opposition, the government fails to recognize

2
that while ATF may not be required to undergo the rule-making process
3
under the APA to issue a classification for regulatory / administrative
4
purposes in overseeing the firearms industry, a classification is only an
5
administrative decision and as such, does not operate as law, in sharp
6
contrast to a statute and companion CFR regulation.
7
8
Thus, while conduct undertaken in violation of a classification standard
9 may serve as the basis for administrative penalties, such as the suspension or
10 revocation of a license issued by ATF, it may not serve as the basis for
11 criminal liability, which requires the violation of a federal criminal statute,
12 for which CFR regulations operate as law in providing interpretive guidance.
13 The government’s failure to appreciate such distinctions, or conversely its
14 deliberate tactic of obfuscating such distinctions to mislead this Court, shows
15
a disregard for the proper standards of criminal liability.
16
The government likewise blurs the distinction between the outcomes to
17
Mr. Roh when its agency classification is applied to the evidence in this case,
18
as compared when the actual law under section 478.11 is applied. Under the
19
ATF classification, a fully machined AR-15 blank is deemed a receiver and
20
21
thus a firearm; whereas, under section 478.11, a fully machined blank is not a
22 receiver and thus not a firearm. When the legal standard is applied, the
23 unavoidable conclusion is that Mr. Roh’s business practice of machining
24 AR-15 blanks did not constitute the manufacture of firearms and that Roh is
25 therefore not guilty. In an effort to distract the Court from this inescapable
26 right to an acquittal, the government avoids the critical distinction between
27 the outcome resulting when the law is applied under section 478.11, on the
28
3
1 one hand; and the outcome based on the administrative classification.

2
The government’s strategy of blurring distinctions is repeatedly
3
evident in the way it treats all classification authority the same, citing cases
4
indicating that the agency is entitled to a measure of deference in regard to its
5
classifications, as if to suggest that this Court should defer to the ATF’s
6
classification of the machined AR-15 blank as a receiver for criminal liability
7
8
purposes (Opp at pages 28-30). But the government fails to point out to this
9 Court that the cited case law all involve civil actions brought by private
10 litigants in the firearms industry who were challenging classifications; in
11 none of those cases was the agency seeking to use classifications for the
12 purpose of securing a criminal conviction. The distinction between the
13 agency’s authority to issue classifications in the civil context as part of its
14 administrative authority, compared with the government’s use of such
15
classifications in this case as a basis of criminal liability, is purposely
16
overlooked in the government’s opposition.
17
These and other critical distinctions, discussed herein, are blurred by
18
the government in a calculated effort to mask its underlying agenda of
19
bringing criminal charges against Mr. Roh based only on an in-house ATF
20
21
classification rather than on the law, as the government repeatedly
22 mischaracterizes the ATF classification as a mere interpretation of section

23 478.11 (Opp at pages 24-34); when in fact, the classification is nothing short
24 of a direct repudiation of section 478.11.
25 II.
26 THE DEFENSE MOTION FOR A RULE 29
27 JUDGMENT OF ACQUITTAL SHOULD BE GRANTED
28
4
1
2
A. The Government Makes A Frivolous Argument That The ATF’s
3
Classification Merely Interprets 27 C.F.R. 478.11
4
1. At Trial, Agent Joshua Jackson Acknowledged That A
5
Machined AR-15 Blank Does Not Satisfy Section 478 And
6
That The ATF Classification Is A Different Standard
7
8
For the government to argue that the ATF classification is merely an
9 interpretation of section 478 is not only wrong as a matter of law; it flies in

10 the face of the trial testimony by ATF agent Joshua Jackson, who is a law
11 school graduate and who was the lead investigating agent during the
12 undercover visits to Mr. Roh’s business that were videotaped.
13 At trial, when questioned by the Court on whether a machined AR-15
14 blank, referred to by ATF as a lower receiver as the term is commonly used
15
in the firearms community, constitutes a receiver, agent Jackson had to
16
admit that the machined blank does not meet the technical requirements of
17
section 478 but that he uses the ATF classification which treats a machined
18
blank as a receiver (RT 02-21-2018, page 111, line 17, to page 113, line 21).
19
From this admission, it is abundantly clear that the government’s
20
21
opposition contradicts the testimony of its lead investigating agent, in
22 suggesting that somehow the ATF classification can be regarded as a mere

23 interpretation of section 478.
24
25 2. The Preamble To Section 478.11 Does Not Support The
26 Government
27 In support of its prosecution theory that a machined/finished AR-15
28
5
1 blank constitutes a receiver and thus a firearm, the government argues that
2
this conclusion is reached when section 478.11 is read in the context of the
3
Preamble to section 478.11 (Opp at 23). This contention is preposterous.
4
There is nothing in this Preamble that supports the government’s
5
theory of prosecution. Section 478.11 requires a “Frame Or Receiver” to
6
possess specified technical features. The language in the Preamble does
7
8
nothing to support the government’s position that a fully machined AR-15
9 blank constitutes a receiver. While the Preamble speaks to the usage of

10 gender of terms and singular vs. plural, none of this has any bearing on the
11 reading of section 478.11, which is written in a simple and concise manner
12 listing specific technical features that a single part must possess in order to
13 qualify as a receiver.
14 In listing the technical features required for a “frame or receiver,”
15
section 478.11 is simple and straightforward. Either a single part has the
16
required features, or it doesn’t. The evidence at trial conclusively established
17
that a machined / finished AR-15 blank lacks “a bolt or breechblock” and is
18
not threaded at its forward portion to receive the barrel. Thus, the machined
19
/ finished AR-15 blank does not constitute a receiver under section 478.11.
20
21
Government witness James Palm, government expert Dan Hoffman, as well
22 as defense expert, Dan O’Kelly, all affirmed this conclusion. Nothing in the
23 Preamble leads to a different conclusion. In fact, the Preamble supports a
24 literal reading of the definition of “frame or receiver”: consistent with the
25 Preamble, either a single part possesses the required technical features, or it
26 doesn’t. Plain and simple. The government is simply trying to confuse the
27 issues by suggesting otherwise.
28
6
1
2
3. The Serialization Requirement In 18 U.S.C. 923(i) Has No
3
Relationship Whatsoever To The Definition Of Receiver
4
Under Section 478.11
5
In its continual effort to obfuscate the issues, the government makes the
6
argument that a literal reading of section 478.11 ignores 18 U.S.C. 923(i),
7
8
which requires licensed manufacturers and importers to serialize the receiver
9 of the firearm. Once again, the government is simply confusing the issues.
10 Nothing in section 478.11 cross-references to section 923(i). Nor is section
11 478.11 intended to coincide in any way with section 923(i). The government
12 fails to cite any law for the proposition that the interpretation of section
13 478.11 is subject to the requirements of section 923(i).
14
15
4. The Serialization Requirement Under Section 923(i)
16
Pertains Only To The ATF’s Administrative Functions To
17
Oversee The Firearms Industry, But Has No Bearing On
18
The Criteria For What Constitutes A “Frame Or Receiver”
19
Under Section 478.11
20
21
The government makes the argument that section 478.11 should be
22 interpreted in relation serialization requirement under section 923(i), and

23 that the agency’s classification of a machined AR-15 blank as a receiver is
24 merely an interpretation consistent with section 923(i). (Opp at 12, 23-25, 32,
25 36). This argument is not supported in any law.
26 Once again, the government blurs the distinction between the
27 administrative duties of the ATF to oversee the firearms industry, and the
28
7
1 legal standards for criminal liability. From an administrative standpoint, as

2
reflected in testimony at trial by government witnesses including Dan
3
Hoffman, the ATF considers it a high priority that firearms be serialized.
4
Under section 923(i), the serial number must be placed on the receiver. Rifles
5
such as the AR-15 that qualify as firearms under 18 U.S.C. 921(a)(3)(A)
6
because they “expel a projectile by the action of an explosive,” but do not
7
8
qualify as firearms under section 921(a)(3)(B) because they lack a receiver,
9 are not technically subject to the serialization requirement under section

10 923(i) simply because by its terms, section 923(i) requires the weapon to have
11 a receiver.
12 As explained by government witnesses at trial, including Dan Hoffman,
13 the ATF considers it a high priority to have firearms serialized in order to
14 enable them to be traced. This is a public policy consistent with the agency’s
15
regulatory function of overseeing the firearms industry. But rather than go
16
to Congress to amend section 923(i) to amend the overly restrictive language
17
that limits serialization to only those firearms that possess receivers, or
18
alternatively initiate the rule-making process under the APA to amend
19
section 478.11 – both of which are clearly options available to the ATF – the
20
21
agency instead elected to take matters into its own hands by unilaterally
22 issuing the classification at issue by which the agency has classified a

23 machined AR-15 blank as a receiver. By this classification, the agency of its
24 own unilateral fiat has now subjected AR-15 rifles to the serialization
25 requirement in section 923(i).
26 This decision by the ATF speaks directly to the agency’s administrative
27 functions; but it has nothing whatsoever to do with the legal standards for
28
8
1 criminal liability. While the issuance of the classification at issue may

2
support a legitimate administrative function that enables the agency to better
3
oversee the universe of firearms by subjecting more of them to serialization,
4
such administrative actions do not in themselves create a standard for
5
criminal liability. Only Congress by statute, or an agency through the rule-
6
making process in the Federal Register and ultimately the CFR, can do that.
7
8
Regrettably, throughout its opposition, the government blurs critical
9 distinctions such as this that weigh significantly on the issues before this
10 Court.
11 5. The ATF’s Classification Of A Machined AR-15 Blank As
12 A Receiver Is Not An “Interpretation” Of Section 478.11,
13 As The Government Contends; But An Outright
14 Repudiation Of The Regulation
15
The central theme of the government’s opposition is that, in issuing the
16
classification at issue, the ATF was merely interpreting section 478.11. This
17
makes no sense whatsoever. As discussed earlier, section 478.11 defines a
18
frame or receiver by listing technical features that a single part must possess.
19
If the single part possesses all of the required technical features, it is a
20
21
receiver. If it does not possess them, then it is not a receiver. Plain and
22 simple.
23 The classification at issue does not correlate in any way to section
24 478.11. Rather than address the technical features listed in section 478.11,
25 the classification operates by an entirely different standard, which looks not
26 to whether the part contains technical features, but rather to the degree of
27 machining that the part has undergone. This classification standard is
28
9
1 reflected in the ATF correspondence issued by FTB, as seen in Gov Exhibit

2
134, the controversial letter purportedly issued by the ATF to Mr. Roh in
3
November 2013, which refers to “machining operations” in regard to the
4
classification of a finished AR-15 blank as a receiver-firearm. This is likewise
5
reflected in the ATF’s letter to Mr. Roh in November 2012 (Gov Exhibit 132),
6
which expressly refers to the degree of “machining operations.” Both letters
7
8
use the term, “classify,” in reference to the degree of machining. Neither
9 letter references section 478.11, nor does either letter make any reference to
10 the technical features listed in section 478.11 in assessing whether a part
11 constitutes a firearm.
12 At trial, government expert Dan Hoffman confirmed that the ATF
13 classification is based entirely on the degree of machining, without any
14 reference whatsoever to the technical features listed in section 478.11. (RT
15
02-23-2018, page 53, line 20, to page 54, line 22).
16
By focusing entirely on the degree of machining, the ATF classification
17
constitutes a distinct and separate standard of evaluation that operates
18
independently of section 478.11. There is no relationship of any kind between
19
criteria based on degree of machining (ATF classification) and criteria based
20
21
on technical features (section 478.11). They are mutually exclusive
22 standards.
23 In repudiating section 478.11, the ATF has satisfied its objective of
24 having more flexibility in deciding what is and what is not a receiver. For
25 example, by looking exclusively to the degree of machining, the classification
26 allows the ATF to take the position that a machined AR-15 blank is a receiver
27 and thus a firearm, thereby subjecting the AR-15 rifle to the serialization
28
10
1 requirement under section 923(i), about which the government’s opposition

2
makes a big fuss. While the agency unilateral decision to rewrite the rules
3
may possibly be permitted at the administrative level, such as in telling
4
firearms makers to serialize rifles that do not have receivers under section
5
478.11 but do have receivers under the classification criteria, such unilateral
6
fiat by the agency does not create a standard of criminal liability.
7
8
9 B. If The Government Is Concerned That Applying Section 478.11
10 Would Frustrate Enforcement Of The Gun Control Act, The
11 ATF Should Pursue Its Option Under The APA To Amend
12 Section 478.11 And Work With Congress To Enact New Firearm
13 Legislation
14 The government contends that the defense position that applying the
15
legal standard under section 478.11, which necessarily results in an acquittal
16
for Mr. Roh, would frustrate enforcement of the Gun Control Act. (Opp at
17
25-27). This is preposterous, as the agency clearly has legislative options
18
available to it that would amply resolve any such frustrations without being
19
allowed to dictate standards of criminal liability through administrative
20
21
classifications.
22 1. The ATF Engages In Rule-Making Under The APA To

23 Amend Existing CFR Regulations And Could Have Done
24 So Here To Resolve The Conflict Between The
25 Classification At Issue And Section 478.11
26 At trial, defense counsel confirmed with government witnesses that
27 ATF has never initiated any rule-making procedures to amend section
28
11
1 478.11. Holding the agency’s hands to the fire on this is entirely appropriate,
2
as the agency has engaged in rule-making to amend existing regulations
3
generally. As an example, in year 2013 the ATF undertook the rule-making
4
process to amend existing regulations implementing the National Firearms
5
Act to require fingerprint-based background checks for trusts, corporations,
6
and other legal entities that have NFA firearms registered to them.1 The
7
8
Summary of the Notice of Proposed Ruling (“NPR”) makes clear that among
9 the ATF’s objectives in amending existing CFR regulations is to define,

10 clarify and modify standards and requirements.
11 Another example of amending existing regulations is the ATF’s rule-
12 making initiative in year 2014 to clarify when federal firearms licensees are
13 required to report thefts or losses of firearms lost in transit,2 one purpose of
14 which is to provide clarity in regard to compliance requirements imposed on
15
the general public.
16
The ATF has continued to engage in rule-making consistently up to
17
present time. In year 2016, the ATF initiated an amendment to a CFR
18
regulation pertaining to secure gun storage and safety devices.3 As recently
19
as March 29, 2018, the agency took action to amend a regulation in response
20
21
to the Las Vegas shooting. The ATF initiated rule-making to amend the
22
23 1
The Notice of Proposed Rulemaking is accessible online at:
24 https://www.gpo.gov/fdsys/pkg/FR-2013-09-09/pdf/2013-21661.pdf
2
25 Accessible online at:
https://www.gpo.gov/fdsys/pkg/FR-2014-08-12/pdf/2014-18874.pdf
26
3
Accessible online at:
27 https://www.gpo.gov/fdsys/pkg/FR-2016-05-26/pdf/2016-12364.pdf
28
12
1 definition of “machine gun”, specifically in regard to bump stocks, a subject

2
that received widespread media coverage.4
3
These illustrations of rule-making by the ATF to amend existing
4
regulations amply demonstrate that it was incumbent on the ATF here to
5
initiate an amendment to section 478.11 to resolve the conflict with the
6
classification at issue and thereby make the regulation and classification
7
8
consistent. Such action would have clarified and codified into law the
9 compliance standards for manufacturing AR-15 receivers. The agency’s

10 failure to take such action is inexcusable. Because it has never been
11 amended, the current section 478.11 applies; and Mr. Roh is not guilty.
12
13 2. The ATF Has Already Demonstrated A Willingness To
14 Amend Section 478.11 In Regard To Other Definitions And
15
Thus Should Have Done The Same Here In Regard To The
16
Definition Of “Firearm Frame Or Receiver” To Resolve
17
The Conflict With The Classification At Issue
18
When section 478.11 was originally enacted as a formal regulation, it
19
underwent the rule-making process pursuant to the APA, and the agency
20
21
likewise has always had the option of amending the regulation. Indeed,
22 within the past five years, ATF has formally proposed amending section
23 478.11 in regard to its definition of for “Adjudicated As A Mental Defective”
24
25
26 4
Accessible online at:
https://www.gpo.gov/fdsys/search/pagedetails.action?granuleId=2018-06292&packageId=FR-2018-03
27 -29&acCode=FR&collectionCode=FR
28
13
1 and “Committed To A Mental Institution.”5

2
The ATF could have undertaken the same rule-making procedure to
3
amend section 478.11 in regard to the definition of “frame or receiver” to
4
resolve the conflict with its administrative classification, such that a receiver
5
is defined not by its technical features but by the degree of machining, as
6
reflected in the ATF correspondence discussed above. But the agency has
7
8
failed to pursue any amendment to section 478.11 in regard to the definition
9 of “frame or receiver.” Therefore, the current version of section 478.11

10 remains the law, and under this legal standard, Mr. Roh was not
11 manufacturing firearms through the machining of AR-15 blanks; and he is
12 therefore innocent.
13 3. The ATF Has Enacted CFR Regulations That Expressly
14 Reference Classifications, And This Was An Option
15
Available To The ATF To Resolve The Conflict Between
16
The Classification At Issue And Section 478.11
17
The Code of Federal Regulations contains certain definitions that
18
expressly reference ATF classifications. Examples can be found in 27 C.F.R.
19
555.11 in the definitions of “Consumer fireworks” and “Display fireworks.”
20
21
Indeed, references to ATF classifications are not uncommon in 27
22 C.F.R., although the ATF has never taken the time to amend the definition of
23 “Firearm Frame Or Receiver” in section 478.11 to resolve the conflict with,
24
25 5
The ATF’s proposed rule-making to amend section 478.11 as to these
26 definitions can be accessed on the ATF web site at:
https://www.atf.gov/resource-center/docs/agorder0001pdf/download
27
28
14
1 and thereby make it consistent with, the classification at issue in this case.
2
Doing so would track prior history. Additional examples of regulations in 27
3
C.F.R. that contain language referencing ATF classifications can be found in
4
27 CFR 478.118 [“...classified by the Director..”]; 27 CFR 479.84 (b)(1) [“If
5
the firearm is other than one classified as ...”].
6
Here, the ATF could have, and should have, undertaken the rule-
7
8
making process to amend the definition of the term “Firearm Frame Or
9 Receiver” under section 478.11 so as to set forth a definition that directly

10 tracks the agency’s classification. Until such time that the ATF acts,
11 however, the law remains the current version of section 478.11, under which
12 Mr. Roh is not guilty.
13
14 C. The Government Cannot Avoid Its Rule-Making Obligation In
15
This Case
16
To the extent the government has sought to use the ATF classification
17
at issue in this case as the basis for federal criminal liability, then the
18
government is treating the classification as a substantive rule that must
19
undergo the rule-making process under the APA to be codified into law. This
20
21
is not necessary where the only purpose of the classification is to enable the
22 ATF to regulate the firearms industry, such as the use of the classification to
23 require gun makers to serialize AR-15 rifles in compliance with section 923(i)
24 because under the classification standard, the AR-15 has a receiver and must
25 therefore be serialized as required by section 923(i). In this administrative
26 context, the firearms industry is subject to the classification in question.
27 In arguing that the classification here need not undergo the rule-
28
15
1 making process to become codified into law, the government cites cases that
2
have no relevance. Among them is United States v. Nelson, 221 F.3d 1206
3
(11th Cir. 2000), in which the defendant appealed his conviction under 18
4
U.S.C. 924 (a)(1)(A) for making false statements with respect to information
5
required by law to be kept in the records of federally licensed firearms
6
dealers. The defendant had recruited individuals to purchase the firearms
7
8
from licensed firearms dealers, and provided them with funds. At the time of
9 purchase, these individuals would fill out ATF form 4473 and falsely state
10 that they were the “actual buyer,” when in fact they would hand the firearm
11 over to the defendant after completing the purchase. The indictment alleged
12 that defendant violated section 924(a)(1)(A) because these were “straw
13 purchases,” a term that is not found in the statute and was coined by ATF in
14 its unpublished manuals. The defendant contended that he was convicted of
15
violating the ATF's theory, which was not law.
16
In rejecting the defense argument, the Court reviewed several firearms
17
statutes that address the record-keeping requirements of licensed firearms
18
dealers and the type of information about the identity of individuals who buy
19
firearms. The Court concluded that the defendant's use of recruited
20
21
individuals to buy firearms and represent themselves on the Form 4473 as the
22 actual buyer was inconsistent with Congress’ intent under the record-keeping
23 statutes and that Congress intended section 924(a)(1)(A) to apply to the
24 defendant”s “straw buyer” arrangements. 221 F.3d at 1209.
25 The holding in Nelson made it clear that the standard on which
26 defendant was found criminally liable was based entirely on the Court’s
27 statutory analysis of section 924(a)(1)(A) in conjunction with related firearms
28
16
1 statutes, without regard to the ATF’s use of the term “straw buyer” in its
2
literature.
3
The Nelson opinion does not help the government here because it
4
directly supports Mr. Roh's position that federal criminal liability must be
5
based entirely on a statute. Here, a statutory analysis of 18 U.S.C.
6
921(a)(3)(B) in regard to whether Roh manufactured receivers must
7
8
necessarily cross-reference to the definition of receiver set forth in section
9 478.11, whose criteria make it abundantly clear that a machined AR-15 blank
10 is not a receiver. Congressional intent would likewise lead to the same
11 conclusion, as Congress delegates rule-making authority to federal agencies
12 to interpret statutes, and the ATF has spoken through its codification of
13 section 478.11, pursuant to which Mr. Roh is not guilty. The Nelson opinion
14 is consistent with Mr. Roh’s contention that a defendant must not be
15
criminally convicted on the basis of what the ATF says.
16
17
D. The Court Should Allow The Defense Case To Be Re-Opened (Or
18
Conduct An Evidentiary Hearing) To Have Testimony By ATF
19
Legal Counsel, To Confirm That ATF Has Known That Its
20
21
Classification Is Not An Interpretation Of Section 478.11 But
22 Rather Is In Direct Conflict With Section 478.11, And That An

23 Amendment To Section 478.11 Has Needed To Be Undertaken
24 (But Has Never Been Done)
25 Defense counsel respectfully suggests that this Court re-open the
26 defense case and reverse its ruling quashing the Touhy subpoenas issued by
27 the defense to ATF counsel Paul Ware and/or ATF Chief Counsel Charles
28
17
1 Gross, so that they can give testimony regarding the ATF’s awareness that
2
section 478.11 presented concerns warranting an amendment, in light of its
3
obvious conflict with the administrative classification on the subject of
4
“frame or receiver.”
5
Defense counsel believes that if called to testify, ATF counsel would
6
acknowledge that the classification is not at all an interpretation of section
7
8
478.11 and that within the agency there have been discussions about
9 amending section 478.11 in regard to what constitutes a receiver, to resolve

10 the conflict with the administrative classification. Instead of doing so, the
11 agency opted to simply use its internal classification as if it were the law and
12 proceed to prosecute individuals like Mr. Roh, ignoring all the while the
13 actual law in section 478.11. This is outrageous conduct on the part of the
14 government. It was incumbent on DOJ to disclose to the defense and to this
15
Court the ATF’s awareness that section 478.11 presented problems. Instead,
16
the government argues that the classification is a mere interpretation of
17
section 478.11 and thereby whitewash the legal defect in this prosecution.
18
There is no better rebuttal of the government’s unsustainable position than
19
testimony from ATF counsel.
20
21
22 E. The Government's Contention That ATF Classifications Are
23 Entitled To Deference Applies At Best To Civil - Administrative,
24 Not Criminal, Matters
25 The government contends that the ATF classification at issue should be
26 accorded deference and thus be allowed as the basis of criminal liability in
27 the indictment (Opp at 28-30). The government cites no authority to support
28
18
1 this proposition, as it is simply unsustainable as a matter of law to maintain

2
that an individual may be criminally convicted for violating an
3
administrative classification.
4
The government’s reliance on the U.S. Supreme Court decisions in
5
United States v. Mead Corp., 533 U.S. 218 (2001) and Babbitt v. Sweet Home
6
Chapter of Cmtys. for a Great Or., 515 U.S. 687 (1995) is misplaced. Mead
7
8
Corp. was a civil action under The Harmonized Tariff Schedule of the United
9 States in which the plaintiff challenged a classification issued by the U.S.

10 Customs Service in regard to the rate of duty on imports. The Court
11 addressed the issue of deference to a federal agency's administrative
12 implementation of a particular federal statutory provision and did so entirely
13 within the framework the agency’s regulatory authority. The opinion
14 discusses judicial deference within the context of the Court’s earlier ruling in
15
Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984), a civil action in
16
which the Court addressed a challenge to an EPA regulation interpreting the
17
Clean Air Act and held that the agency has authority to enact and interpret
18
its own implementing CFR regulation. See Mead Corp., 533 U.S. at 227-229.
19
Neither Mead Corp. nor Chevron addresses judicial deference in the context
20
21
of a classification issued by a federal agency that will be used as the basis of a
22 criminal prosecution.
23 Likewise, Babbitt was a civil action involving a challenge to an EPA
24 regulation defining an element of the Endangered Species Act of 1973,
25 wherein the Court held that the agency’s definition in the regulation was
26 reasonable. The opinion does not in any way address the subject of judicial
27 deference in the context of a classification issued by a federal agency that will
28
19
1 be used as the basis of a criminal prosecution.

2
It is troubling that the government would cite these opinions in its
3
opposition. Doing so conveys a complete misunderstanding of the distinction
4
between the agency's administrative authority, to which a certain measure of
5
deference is accorded to conduct the agency’s regulatory functions; and the
6
legal standards for criminal liability, which are based entirely on statute and
7
8
companion CFR regulations.
9 The government’s deference argument continues to show a lack of

10 understanding between administrative and criminal law, as the government
11 cites a string of case opinions that are entirely civil / administrative in nature
12 and have no bearing whatsoever to this case. (Opp at 28-29). In Nat'l Rifle
13 Ass'n v. Brady, 914 F.2d 475 (4th Cir. 1990), gun promoters filed a civil
14 action against the ATF challenging certain regulations in the CFR, including
15
a definitions in 27 C.F.R. 178.11, the predecessor version to the current
16
section 478.11. As the case was civil in nature and involved CFR regulations
17
that had undergone the rule-making process under the APA and did not
18
address internal ATF classifications, the opinion had nothing whatsoever to
19
do with this prosecution. In upholding the challenged CFR regulations, the
20
21
Court expressly recognized the “deference generally due an agency charged
22 by Congress with implementing its directives.” 914 F.2d at 479.

23 The Brady opinion supports the proposition that if ATF were to engage
24 in the rule-making process to amend section 478.11 so as to resolve the
25 existing conflict with the classification at issue, courts would give deference to
26 the amended regulation. But that is not before this Court here. What we
27 have is a federal criminal prosecution brought entirely on the basis of the
28
20
1 classification that does not operate as law, and which is in direct conflict with
2
the law (section 478.11). The Brady opinion does nothing to support the
3
government’s position.
4
The other opinions cited by the government likewise fail to support its
5
deference argument. For example, United States v. Anaya-Acosta, 629 F.3d
6
1091 (9th Cir. 2011) involved a federal prosecution of an alien for illegally
7
8
re-entry. On appeal, the defendant contended that because he was under a
9 departure control status, he was not in the country illegally. In affirming the
10 conviction, the Ninth Circuit gave deference to an ATF regulation and,
11 indeed, none other than section 478.11, specifically the definition in that
12 regulation for “Alien illegally or unlawfully in the United States.” Citing the
13 Supreme Court’s Chevron opinion, discussed above in connection with the
14 Mead Corp. and Babbitt opinions, the Ninth Circuit expressly recognized the
15
ATF’s authority to interpret statutes through its CFR regulations. 629 F.3d
16
at 1094.
17
The holding in Anaya-Acosta is directly in line with Mr. Roh's defense:
18
that the CFR regulations control in regard to the interpretation of a criminal
19
statute. In our case, section 478.11 is the controlling regulation, and Mr. Roh
20
21
is clearly innocent of the charges under that regulation. There is nothing in
22 the Anaya-Acosta opinion to support the government's prosecution theory

23 that an administrative classification that has not undergone the rule-making
24 process in the APA -- especially a classification that directly conflicts with the
25 CFR regulation -- may serve as the basis of criminal liability. Quite the
26 contrary. Anaya-Acosta directly supports the defense in this case. The ATF
27 should have amended section 478.11 to resolve the conflict with the
28
21
1 classification in regard to what constitutes a receiver; and if ATF had done

2
so, courts would defer to the agency. But until then, the classification at issue
3
in this case has no legal effect in a criminal prosecution.
4
The government cites United States v. One TRW, Model M14, 7.62
5
Caliber Rifle, 294 F. Supp. 2d 896 (E.D. Ky. 2003), which was an in rem civil
6
forfeiture proceeding involving the ATF’s motion for summary judgment to
7
8
take legal title to an M-14 rifle. At issue was the definition of “machine gun”
9 under the National Firearm Act (“NFA”), and the Court gave deference to
10 the ATF’s classification of the M-14 rifle as a machine gun. This was in the
11 context of a summary judgment motion in an in rem civil forfeiture action
12 where the only matter at stake is the forfeiture of a firearm. The opinion has
13 no relevance whatsoever to standards of criminal liability.
14 The government similarly misplaces reliance on Modern
15
Muzzleloading v. Magaw, 18 F. Supp. 2d 29 (D.D.C. 1998), a civil action in
16
which a manufacturer filed suit against the ATF, seeking declaratory relief
17
and an injunction in challenging the agency’s decision to classify one of the
18
company’s rifles as a firearm under the GCA, on the ground that the rifle is
19
an antique replica and thus exempt. The district court opinion addresses
20
21
summary motions filed by both parties. In granting summary judgment for
22 the ATF, the Court deferred to the ATF classification of the rifle as a
23 firearm. This holding is entirely consistent with Mr. Roh’s defense because it
24 directly tracks the regulatory function of the ATF to issue classifications
25 pursuant to its administrative authority to oversee the firearms industry. As
26 the Magaw opinion involved a civil action brought by a manufacturer that
27 challenged the classification applied to one of its rifles, the deference
28
22
1 accorded by the court to the ATF classifications was entirely appropriate.

2
But Magaw, like the other cases cited by the government, does not in any way
3
support the government’s contention that this court should defer to the ATF
4
classification in this case so as to ignore the law in section 478.11 and allow
5
that classification to serve as the basis for criminal liability.
6
The government’s related contention that its classifications are
7
8
reviewed under an arbitrary and capricious standard likewise applies only in
9 the civil / administrative context pertaining to the agency’s regulatory

10 functions. (Opp at 29). The government cites Sig Sauer, Inc. v. Jones, 133 F.
11 Supp.3d 364 (D. N.H. 2015), which — like other cited opinions– is a civil
12 action brought by a manufacturer challenging the ATF’s classification of a
13 certain feature of a rifle as a silencer under the NFA, thus subjecting the rifle
14 to the NFA’s registration requirements. In granting summary judgment for
15
the ATF, the court held that “[t]he ATF's classification of Sig Sauer's device
16
as a firearm silencer was not ‘arbitrary, capricious, . . . or otherwise not in
17
accordance with law.’ 5 U.S.C. § 706(2)(A).” Sig Sauer, 133 F. Supp. 3d at
18
372. As this is a civil action involving a dispute between a gun manufacturer
19
and the ATF, such deference to the ATF's classification and the standard of
20
21
review applied by the court are entirely appropriate. Mr. Roh does not
22 question the administrative authority of the ATF to issue classifications as

23 part of its regulatory function to oversee the firearms industry. But this
24 opinion has no bearing on the legality of using an ATF classification as the
25 basis for criminal liability, particularly where the classification is in direct
26 conflict with the applicable CFR regulation.
27 In citing opinions such as Sig Sauer and those discussed above, the
28
23
1 government once again blurs key distinctions that weigh significantly on the
2
issues before this Court. In this case, the ATF is not entitled to any deference
3
insofar as it seeks to use the classification at issue as the basis on which to
4
hold Mr. Roh criminally liable.
5
6
F. The Government Has Failed To Prove Beyond A Reasonable
7
8
Doubt That The Mere Assembly Of Firearm Parts Into A
9 Completed Rifle Constitutes Either Manufacturing Or Dealing In

10 Firearms
11 1. The ATF Never Sought To Put Mr. Roh On Notice That
12 Assembly Constituted Either Manufacturing Or Dealing
13 The government’s contention that assembly alone amounts to
14 manufacturing or dealing is a late-in-the-game trial theory that is nowhere
15
reflected in Mr. Roh’s dealings with the ATF.
16
Each and every communication between the ATF and Mr. Roh focused
17
exclusively on the subject of machining an AR-15 blank, which the ATF
18
referred to as a lower receiver, as it is commonly referred to in the firearms
19
community. For example, as established at trial, all of Roh’s dealings with
20
21
ATF specialist James Palm, both in person and by email, focused on
22 machining AR-15 blanks. [Defense Exhibit 1031 (emails between Roh and
23 Palm]; RT, 02-20-2018, at pages 18 - 84).
24 All correspondence from ATF to Roh also dealt exclusively with the
25 machining of AR-15 blanks, with an exclusive focus on manufacturing. No
26 correspondence addressed the subject of assembly ; nor did any
27 correspondence address whether Roh was engaged in dealing in firearms.
28
24
1 The ATF letter to Roh in November 2012, discussed earlier, discussed only
2
the machining of the AR-15 blank and whether the submitted sample had
3
reached the degree of machining under the ATF classification to constitute a
4
receiver (the letter paid no regard to section 478.11). The November 2012
5
letter did not address the assembly of complete pistols or rifles from
6
component parts. Nor did the November 2012 letter (Gov Exh 132) address
7
8
the subject of dealing in firearms.
9 The controversial letter of November 2013 (Gov Exh 134) likewise

10 focused only on machining of blanks and did not address the assembly of
11 complete pistols or rifles from component parts. Nor did the November 2013
12 letter address the subject of dealing in firearms.
13 Most notably, the Cease & Desist Letter of December 23, 2013 (“C&D
14 Letter”, Defense Exhibit 1016), which was the ATF’s official notice to Mr.
15
Roh, focused exclusively on the machining of blanks in regard to
16
manufacturing, and did not address either assembly or dealing. This is the
17
sole extent to which the ATF sought to put Mr. Roh on notice of any
18
violation, and such violation is based on the ATF classification.
19
Therefore, the government has failed at this trial to establish that the
20
21
ATF ever put Mr. Roh on notice that assembly of complete pistols and rifles
22 from components amounts to manufacturing or dealing.

23 Indeed, as quoted earlier in this brief, when asked by the Court
24 whether the assembly of the machined blank together with the upper
25 assembly constituted manufacturing, agent Joshua Jackson – who was the
26 lead investigating agent throughout the undercover operation in this case –
27 admitted that it did not. Thus, the government is hard-pressed to take the
28
25
1 position at this point in time that assembly constitutes manufacturing.

2
Based on the evidence presented by the government at trial, no
3
reasonable trier could convict Mr. Roh of manufacturing or dealing in
4
firearms. Therefore, Mr. Roh’s Rule 29 motion for judgment of acquittal
5
should be granted.
6
7
8
III.
9 ALTERNATIVELY, THIS COURT SHOULD DISMISS

10 THE INDICTMENT ON THE GROUND THAT THE
11 CHARGES IN THE INDICTMENT ARE
12 UNCONSTITUTIONALLY VAGUE AS APPLIED
13 TO MR. ROH
14
15
A. The ATF Repeatedly Deceived Mr. Roh In Regard To The Legal
16
Standard For Manufacturing
17
The government contends that it has satisfied a heightened mens rea
18
requirement that resolves the vagueness issue and that Mr. Roh himself even
19
conducted himself with knowledge that he was machining receivers and thus
20
21
knew that he was manufacturing firearms. (Opp. at 3, 8, 13-16, 27). This
22 argument is unsustainable, particularly in light of the ongoing deception

23 perpetrated by the ATF on Mr. Roh.
24 It cannot be emphasized enough that the ATF misled Mr. Roh
25 throughout its dealings with him. By representing him in repeated
26 correspondence — the November 2012 letter, the November 2013 letter, and
27 the C&D Letter – that the determination of whether a receiver is being
28
26
1 manufactured is based on the degree of machining, and by failing to inform

2
Mr. Roh of the criteria under section 478.11 and of the conflict between
3
section 478.11 and the ATF classification, the ATF was giving Mr. Roh false
4
information as to the legal standard to which he was required to comply. The
5
agency simply arrogated to itself the right to tell Mr. Roh that he had to
6
conform to the agency’s classification; and when he did not, he was subjected
7
8
to a criminal search warrant that wiped out his business, followed by an
9 Indictment. All because he did not conform to the ATF classification.

10 This is nothing short of a fraud scheme perpetrated by the ATF on Mr.
11 Roh. How dare the government now come before this Court in its opposition
12 and argue that it proved mens rea – i.e., that Roh acted with knowledge of his
13 own misconduct, when in reality the ATF had been conning Roh all along
14 with false representations that his conduct was illegal. These representations
15
in one letter after another were based entirely on the ATF classification, not
16
on the law in section 478.
17
How is a member of the public to know what the compliance
18
requirements under the law are when the federal agency misleads the public?
19
20
21
B. At Trial, The Government Admitted The Vagueness In The Law
22 In Testimony That The Only Way For The Public To Learn

23 About Compliance Is By Contacting The ATF, By Which The
24 ATF Will Deceive The Public Through Letters That Refer Only
25 To Its Classification
26 The ATF’s deceptive practices, which goes to the heart of the vagueness
27 issue in this case, was brought to light by the admission at trial by
28
27
1 government witness Max Kingery that the CFR regulation itself does not
2
provide adequate notice to the general public; and that the only way a
3
member of the public can learn whether s/he is manufacturing a receiver
4
under the law is to send a sample to the ATF and the agency will respond by
5
letter (and of course, the response will be based on the ATF classification, not
6
on section 478.11). (RT 02-22-2018, page 103, line 6, to page 104, line 7).
7
8
This admission puts the ATF’s scheme in full view by showing that the
9 ATF likewise wants the public to be entirely dependent on the agency for
10 feedback on whether they are manufacturing a receiver. The scheme is
11 simple: the agency creates an internal classification that is nowhere to be
12 found on the ATF web site; the agency requires the public to send in a sample
13 and the agency responds by letter based not on the law in section 478.11, but
14 rather on the basis of the agency’s classification, which is presented in the
15
letter as the law.
16
The secrecy underscoring this scheme was unwittingly conveyed by
17
government expert Dan Hoffman, who admitted that information about
18
ATF’s classification of the machined blank as a receiver is not available in
19
any library; and that if a member of the public came to the headquarters of
20
21
FTB in West Virginia and wanted to see documentation on this classification,
22 that person would not even be let inside the building. (RT 02-23-2018, page
23 55, line 17, to page 56, line 9).
24 As the public cannot independently learn about the classification
25 because it’s not accessible and is couched within the language of the response
26 letters sent by ATF, the public is easily duped by the ATF’s letters into
27 believing that the agency is correctly representing the law. It’s all about
28
28
1 keeping the public in the dark so that the agency can control the way they
2
think, and this allows the agency to manipulate the law in the way it has done
3
in this case and abuse its administrative power to write classifications that
4
end up operating as law simply because the public doesn’t know any better.
5
In the face of such deceptive practices by the ATF, it is only natural
6
that Mr. Roh would believe that the ATF’s representations in its letters to
7
8
him correctly stated the law, when in fact they did not; and the adjustments
9 to his business practices about which we heard a great deal of testimony at

10 trial – such as the customer pushing the button on the NC machine, and the
11 formation of the gun club – were in fact irrelevant because under section
12 478.11, the machining of AR-15 blanks at Roh’s business did not produce
13 receivers. Roh was simply producing a part, but not a receiver and thus not
14 a firearm. The ATF letters in fact misrepresented the law to Mr. Roh.
15
The government is completely wrong in arguing that by having the
16
customer participate in the machining process, and by forming the gun club,
17
Mr. Roh knew he was manufacturing firearms without a license and thus
18
acted with mens rea, thereby resolving the vagueness issue. How can Mr.
19
Roh act with mens rea when his conduct is not criminal in the first place;
20
21
when all he is doing with the machinery is manufacturing a part, not a
22 receiver? This entire prosecution has been based on ATF’s deceptive

23 practices.
24
25
26 C. This Court Should Adopt The Analysis In United States v.
27 Jimenez And Dismiss The Indictment On The Basis Of As-
28
29
1 Applied Vagueness
2
At least one court has addressed substantially similar circumstances
3
and dismissed an indictment on vagueness grounds.
4
In United States v. Jimenez, 191 F. Supp. 3d 1038 (N.D. Cal. 2016), the
5
district court dismissed a firearms indictment on as-applied vagueness
6
grounds, based on the lack of clarity in the law in regard to so-called “lower
7
8
receivers.” The analysis in Jimenez is directly on point here and should be
9 adopted by this Court.

10 The defendant in Jimenez was indicted on two separate charges of
11 unlawfully possessing a firearm. While Jimenez was not charged under the
12 same statute as Mr. Roh and the case did not involve allegations of
13 manufacturing without a license, the overlap between the two cases arises in
14 regard to Jimenez purchasing an AR-15 “lower receiver” from an
15
undercover agent which, as we know from Roh’s case, the ATF classifies as a
16
firearm. While Jimenez’s case involves charges of possession, rather than
17
manufacturing / dealing, the motion to dismiss is based on arguments that
18
are closely analogous here in addressing whether the so-called “lower
19
receiver” of the AR-15 qualifies as a receiver under the law. 191 F. Supp. 3d
20
21
at 1040-41.
22 The opinion sets forth the Ninth Circuit test for as-applied vagueness
23 which is instructive here:
24 The Ninth Circuit has set out a specific framework
25 for evaluating whether a criminal law is void for
26 vagueness. The “test is whether the text of the statute
27 and its implementing regulations, read together, give
28
30
1 ordinary citizens fair notice with respect to what the

2
statute and regulations forbid, and whether the
3
statute and regulations read together adequately
4
provide for principled enforcement by making clear
5
what conduct of the defendant violates the statutory
6
scheme.” United States v. Zhi Yong Guo, 634 F.3d
7
8
1119, 1122-23 (9th Cir. 2011). . . . “For statutes
9 involving criminal sanctions the requirement for

10 clarity is enhanced.” [quoting United States v.
11 Harris, 705 F.3d 929, 932 (9th Cir. 2013).
12 191 F. Supp. 3d at 1041.
13 In the case at bar, the above-quoted standards must be parsed out as
14 between manufacturing and dealing. With regard to manufacturing, when
15
18 U.S.C. 922(a)(1)(A) is read together with the definition of firearm in 18
16
U.S.C. 921(a)(3)(B) and 27 C.F.R. 478.11, the statutes and regulation do
17
provide fair notice because it is eminently clear that producing a machined /
18
finished AR-15 blank does not constitute manufacturing a receiver and
19
therefore does not constitute manufacturing a firearm. Verdict of not guilty.
20
21
However, if the ATF classification is being used as the standard of
22 criminal liability, then the statutes and regulation do NOT provide fair notice
23 because the classification directly conflicts with the regulation, thus creating
24 an as-applied vagueness problem.
25 Likewise, under the above-quoted standard, neither the statutes nor
26 any regulation provides fair notice that Mr. Roh’s business activity of
27 assembling component parts and accessories into completed pistols and rifles
28
31
1 would constitute dealing in firearms, thus creating an as-applied vagueness

2
problem.
3
In Jimenez, a key overlap with Mr. Roh’s case was Jimenez’s
4
argument, and the government’s concurrence, that the AR-15 “lower
5
receiver” did not fit the definition of “receiver” in the regulations, which in
6
that case was 27 C.F.R. 479.11, which contains an identical definition of
7
8
“Firearm Frame Or Receiver” to that contained in section 478.11.
9 In an unsuccessful effort to satisfy the fair notice requirement, the

10 government argued what we saw here at Mr. Roh’s trial: that the ATF’s
11 practice has consistently treated the lower portion of the AR-15 rifle as the
12 “receiver”, a position the Court rejected outright. 191 F. Supp. 3d at 1041-
13 1043. In so doing, the Court made it clear that “consistency alone does not
14 make a practice constitutional, reasonable or fair.” 191 F. Supp. 3d at 1045.
15
In the case at bar, Mr. Roh could not turn to any statute or regulation
16
to determine that producing a fully machined AR-15 blank constituted a
17
receiver, as the internal ATF classification maintains. Like Jimenez, Roh was
18
in the position of being charged on the basis of a standard that was nowhere to
19
be found in any statute or regulation. Moreover, the mere fact that ATF has
20
always treated a machined AR-15 blank as a receiver is of no legal
21
22 significance .
23 Mr. Roh’s case goes even further than Jimenez because here, the ATF
24 classification directly conflicts with the regulation, as discussed earlier in this
25 brief. Accordingly, Court should grant the motion to dismiss on as-applied
26 vagueness grounds.
27
28
32
1 D. The Case Opinions Cited By The Government Do Not Resolve

2
The Vagueness Issue
3
The government relies entirely on case opinions involving civil
4
litigation to support its argument that the heightened mens rea requirement
5
cures an vagueness issue. These cases have no bearing on the issues before
6
this Court.
7
8
For example, the government cites Hoffman Estates v. Flipside, 455
9 U.S. 489 (1982) [Opp at 13] for the proposition that any concern that a
10 statute fails to provide people of ordinary intelligence an understanding of
11 what conduct it prohibits is ameliorated when the statute contains a scienter
12 requirement. This is dicta, not the case holding, and it is limited to the civil
13 context. Hoffman involved a civil challenge to a drug paraphernalia
14 ordinance on the grounds that it was unconstitutionally vague and
15
overbroad. Because the case is civil, not criminal, it has no relevance here.
16
Indeed, the government appears to deliberately blur the civil - criminal
17
distinction by failing to quote the following language from the opinion:
18
The Court has also expressed greater tolerance of
19
enactments with civil rather than criminal penalties
20
21
because the consequences of imprecision are
22 qualitatively less severe.

23 Hoffman Estates, 455 U.S. at 498-99.
24 Similarly, Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) [Opp
25 at 13] is a civil action challenging a statute on free speech grounds. In
26 addition to being civil, not criminal, the scienter standard in that case was
27 only knowing, rather than willful.
28
33
1 The government’s reliance on McFadden v. United States, 135 S. Ct.

2
2298 (2015) [Opp at 13] is likewise misplaced. There, a defendant appealed a
3
conviction for distribution of controlled substance analogues, contending that
4
the statute did not provide notice that the bath salts he was distributing were
5
regulated as analogues. The government’s reference to McFadden is dicta, as
6
the Court held that the statute at issue was clear and unambiguous. Such is
7
8
not the case here with the statute charged in Mr. Roh’s indictment, 18 U.S.C.
9 922(a)(1)(A).
10 The government's citation to United States v. Zhen Zhou Wu, 711 F.3d
11 1 (1st Cir. 2013) [Opp at 13-14] is similarly inapposite. In Wu, the defendant
12 appealed a conviction for exporting defense articles without a license in
13 violation of the Arms Export Control Act. The Wu case is entirely
14 distinguishable because there, the Court observed that defense articles
15
subject to the export license requirements were specifically listed in the
16
regulations, thus resolving any vagueness issues. 711 F.3d at 22.
17
The government also cites Wu in regard to Mr. Roh's sophistication in
18
firearms laws, as the Wu court found the defendants to be experts on military
19
equipment and export compliance. But in the case at bar, Mr. Roh is not an
20
21
expert in federal firearms laws, never having held a license or obtaining
22 specialized training in this field. Moreover, it is rather ironic that the

23 government would seek to hold Roh to a high standard of knowledge when
24 the ATF was systematically engaged in a campaign of deceit in misleading
25 Roh (and the public generally) in regard to whether machined AR-15 blanks
26 constituted receivers. Rather than hold Roh to a standard of knowledge, the
27 better approach would be to hold the ATF to a standard of integrity.
28
34
1 Finally, the government’s reliance on United States v. Wyatt, 408 F.3d

2
1257 (9th Cir. 2005) [Opp at 13-14] fails to take note of language in the
3
opinion that directly supports Mr. Roh’s defense. In Wyatt, the defendant
4
appealed his conviction for using a hazardous device on federal land with the
5
intent to obstruct a timber harvest, arguing that the statute was
6
unconstitutionally vague as applied. In addressing the vagueness issue, the
7
8
Court observed:
9 In determining whether a statute is void for

10 vagueness, we also consider whether the statute
11 defines the offense “in such a manner that does not
12 encourage arbitrary and discriminatory
13 enforcement.” [Citation Omitted].
14 408 F.3d at 1261.
15
In the case at bar, there can be no greater example of arbitrary and
16
discriminatory enforcement of 18 U.S.C. 922(a)(1)(A) than the prosecution of
17
Mr. Roh. The ATF has proceeded to file criminal charges based on an
18
agency classification, rather than the law; and the agency misled Roh
19
continuously by misrepresenting the law in its correspondence.
20
21
Indeed, the execution of the search warrant at Mr. Roh’s business
22 highlights the arbitrary and discriminatory enforcement of the statute as to

23 Mr. Roh, as the ATF clearly used its classification, rather than section 478.11,
24 as the standard for representing to the issuing magistrate that Roh was
25 engaging in the manufacture of firearms, thereby misleading the Court. And
26 the result was the destruction of Roh’s business on February 6, 2014, when
27 the execution of the warrant resulted in the seizure of all inventory, leaving
28
35
1 Roh with nothing but empty shelves. All based on a classification that was
2
not the law. This is truly a case of arbitrary and discriminatory enforcement.
3
As applied to Mr. Roh, 18 U.S.C. 922(a)(1)(A) must be stricken down as
4
void for vagueness. The law in section 478.11 says one thing in regard to
5
what constitutes a receiver; but the ATF, which has the power to shut Roh
6
down, says the opposite in its classification and even goes to such lengths as to
7
8
misrepresent its classification as the law. How is Mr. Roh to know what the
9 true compliance standard is? How can our system of justice expect Mr. Roh
10 to properly comply when the only way Mr. Roh can know the agency’s
11 requirements is to submit samples for inspection and then, when a sample is
12 submitted, the responsive letter misrepresents the law by citing its
13 classification and fails to inform the public that the classification is in conflict
14 with the law? How can Mr. Roh properly comply when a C&D Letter
15
accuses him of manufacturing firearms when that accusation is based entirely
16
on the agency’s classification, and he is not manufacturing firearms under
17
the law? How is Mr. Roh placed on fair notice that he is dealing in firearms
18
when the statute is silent on the type of conduct that falls within its reach; the
19
CFRs are likewise unclear; and none of the ATF correspondence, including
20
21
the C&D Letter, fails to make any mention of Roh dealing in firearms?
22 And perhaps most compelling in the vagueness challenge is the ATF’s

23 acknowledgment that there was indeed a lack of clarity in the law as to
24 whether Roh’s business practices constituted manufacturing, as the agency
25 finally went to great lengths to issue ATF Ruling 2015-1 in January 2015 – a
26 year after shutting down Roh’s business – which is a publicly released
27 statement available on the ATF’s web site, setting forth a detailed analysis as
28
36
1 to the ATF’s position that business practices of the type engaged in by Roh’s
2
company constituted manufacturing – but based, once again, on the ATF
3
classification.
4
Accordingly, if this Court denies the Rule 29 motion, Mr. Roh
5
respectfully contends that the Court should grant his motion to dismiss the
6
Indictment on grounds of unconstitutional vagueness as applied.
7
8
9 DATED: April 03, 2018 Respectfully Submitted,
10
11 /S/_
GREGORY NICOLAYSEN
12
Counsel for Defendant,
13 Joseph Roh
14
15
16
17
18
19
20
21
22
23
24
25
26
27
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37

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Case 8:14-cr-00167-JVS Document 137 Filed 04/03/18 Page 1 of 44 Page ID #:2524

1 GREGORY NICOLAYSEN (CA 98544)

1 5. The ATF’s Classification Of A Machined AR-15

1 D. The Court Should Allow The Defense Case To Be

22 A. The ATF Repeatedly Deceived Mr. Roh In Regard To

1 C. This Court Should Adopt The Analysis In

1 Modern Muzzleloading v. Magaw,

1 MEMORANDUM OF POINTS AND AUTHORITIES

5 BLURS KEY DISTINCTIONS THAT WEIGH

18 alleged violation of ATF’s administrative classification.

1 Roh is clearly innocent under section 478.11, which is the law.

9 particularly where, as here, the classification directly conflicts with the

22 applies classifications in the administrative / regulatory context without

1 and criminal. Throughout its opposition, the government fails to recognize

1 one hand; and the outcome based on the administrative classification.

22 mischaracterizes the ATF classification as a mere interpretation of section

9 interpretation of section 478 is not only wrong as a matter of law; it flies in

22 suggesting that somehow the ATF classification can be regarded as a mere

9 blank constitutes a receiver. While the Preamble speaks to the usage of

22 interpreted in relation serialization requirement under section 923(i), and

1 legal standards for criminal liability. From an administrative standpoint, as

9 are not technically subject to the serialization requirement under section

22 issuing the classification at issue by which the agency has classified a

1 criminal liability. While the issuance of the classification at issue may

1 reflected in the ATF correspondence issued by FTB, as seen in Gov Exhibit

1 requirement under section 923(i), about which the government’s opposition

22 1. The ATF Engages In Rule-Making Under The APA To

9 the ATF’s objectives in amending existing CFR regulations is to define,

1 definition of “machine gun”, specifically in regard to bump stocks, a subject

9 compliance standards for manufacturing AR-15 receivers. The agency’s

1 and “Committed To A Mental Institution.”5

9 of “frame or receiver.” Therefore, the current version of section 478.11

9 Receiver” under section 478.11 so as to set forth a definition that directly

22 Rather Is In Direct Conflict With Section 478.11, And That An

9 amending section 478.11 in regard to what constitutes a receiver, to resolve

1 this proposition, as it is simply unsustainable as a matter of law to maintain

9 States in which the plaintiff challenged a classification issued by the U.S.

1 be used as the basis of a criminal prosecution.

9 The government’s deference argument continues to show a lack of

22 by Congress with implementing its directives.” 914 F.2d at 479.

22 the Anaya-Acosta opinion to support the government's prosecution theory

1 classification in regard to what constitutes a receiver; and if ATF had done

1 accorded by the court to the ATF classifications was entirely appropriate.

9 the civil / administrative context pertaining to the agency’s regulatory

22 question the administrative authority of the ATF to issue classifications as

9 Completed Rifle Constitutes Either Manufacturing Or Dealing In

9 The controversial letter of November 2013 (Gov Exh 134) likewise

22 from components amounts to manufacturing or dealing.

1 position at this point in time that assembly constitutes manufacturing.

9 ALTERNATIVELY, THIS COURT SHOULD DISMISS

22 argument is unsustainable, particularly in light of the ongoing deception

1 manufactured is based on the degree of machining, and by failing to inform

9 Indictment. All because he did not conform to the ATF classification.

22 In Testimony That The Only Way For The Public To Learn

9 to his business practices about which we heard a great deal of testimony at

22 receiver? This entire prosecution has been based on ATF’s deceptive

9 adopted by this Court.

1 ordinary citizens fair notice with respect to what the

9 involving criminal sanctions the requirement for

1 would constitute dealing in firearms, thus creating an as-applied vagueness

9 In an unsuccessful effort to satisfy the fair notice requirement, the

1 D. The Case Opinions Cited By The Government Do Not Resolve

22 qualitatively less severe.