from the United States District Court for the District of
Utah (D.C. No. 2:16-CR-00662-DB-1)
Jessica Stengel, Assistant Federal Public Defender (Scott
Keith Wilson, Interim Federal Public Defender, with her on
the briefs), Office of the Federal Public Defender for the
District of Utah, Salt Lake City, Utah, appearing for
D. Tenney, Assistant United States Attorney (John W. Huber,
United States Attorney, with him on the brief), Office of the
United States Attorney for the District of Utah, Salt Lake
City, Utah, appearing for Appellee.
BRISCOE, HOLMES, and McHUGH, Circuit Judges.
BRISCOE, Circuit Judge.
a direct criminal appeal from Defendant Scott Bishop's
convictions on one count of unlawfully manufacturing
machineguns, in violation of 26 U.S.C. § 5861(a), and
one count of unlawfully possessing or transferring
machineguns, in violation of 18 U.S.C. § 922(o). A
machinegun is "any weapon which shoots, is designed to
shoot, or can be readily restored to shoot, automatically
more than one shot, without manual reloading, by a single
function of the trigger." 26 U.S.C. § 5845(b).
"The term . . . also include[s] . . . any part designed
and intended solely and exclusively, or combination of parts
designed and intended, for use in converting a weapon into a
machinegun . . . ." Id. Defendant designed and
manufactured a device, referred to as a TCGTR, that he
intended his customers to install in their AR-15
semiautomatic rifles to increase the speed at which their
guns fired. The government offered evidence that the TCGTR
was a machinegun because it increased an AR-15's rate of
fire by causing the gun to fire multiple bullets per pull of
who proceeded pro se at trial, took the stand in his own
defense and testified that he did not intend the TCGTR to
convert an AR-15 into a machinegun. The district court
excluded portions of Defendant's testimony after finding
that it was expert testimony not properly disclosed to the
government. Defendant, now represented by counsel on appeal,
argues that the jury's verdict should be set aside
because the district court denied him his constitutional
right to present a defense, erred when instructing the jury
on the elements of a § 5861(a) offense, improperly
admitted hearsay testimony about the legality of the TCGTR,
and allowed unsupported expert testimony on an ultimate issue
of fact. Exercising jurisdiction pursuant to 28 U.S.C. §
1291, we affirm.
2015, the Bureau of Alcohol, Tobacco, Firearms and Explosives
recovered a "machine gun conversion device" while
executing a search warrant in an unrelated case. App. Vol.
III at 77. The device "had paperwork with it that
explained how it worked and it had pictures on it that showed
how [to] install th[e] device." Id. The
paperwork indicated that the device was sold by a company
called "TCGTR" through a website called
"arfakit.com." Id. Using state business
registration records, ATF linked the TCGTR business and
arfakit.com to Defendant.
TCGTR is a small piece of metal that, when
properly bent according to Defendant's instructions, fits
inside an AR-15.
[T]he "TCGTR" (trigger control group travel
reducer) was a custom-made metal device, approximately 2.4
inches in length, and approximately 1/2 inch at its major
width. As sold by [Defendant], the . . . device required one[
]final bend for the device to become operational as a
machinegun. The purchaser could . . . go back to
[Defendant's] website . . . and obtain the instructions
on how to complete the device. The device is premarked at the
bend location with a stencil. . . . [Defendant also] gave his
customers very detailed written instructions, including
photos, for making the final bend to their [TCGTRs].
[Defendant] also sold a "raw materials" variation
of his kit, which was the same kit, but a flat piece of metal
that required a total of four bends.
App. Vol. II at 18. As part of its investigation, ATF ordered
multiple TCGTRs from Defendant and, after following
Defendant's instructions for bending and installing a
TCGTR, tested the effect on an AR-15.
AR-15 is the civilian version of the military's M-16
rifle, and is, unless modified, a semiautomatic weapon."
Staples v. United States, 511 U.S. 600, 603 (1994).
A semiautomatic "weapon . . . fires only one shot with
each pull of the trigger." Id. at 602 n.1.
Conversely, an "automatic" or "fully
automatic" "weapon . . . fires repeatedly with a
single pull of the trigger. That is, once its trigger is
depressed, the weapon will automatically continue to fire
until its trigger is released or the ammunition is exhausted.
Such weapons are 'machineguns' within the meaning of
the [National Firearms] Act[, 26 U.S.C. §§
5801-5872]." Id. Based on its testing, ATF
concluded that the TCGTR was a machinegun because it caused
an AR-15 to "fire automatically more than one round
without manually reloading it with a single function of the
trigger." App. Vol. III at 468.
December 2016, Defendant was indicted for violating 26 U.S.C.
§ 5861(a) by "knowingly engag[ing] in the business
of manufacturing and dealing in firearms, to wit: machinegun
conversion devices for AR-15 style rifles, without having
paid the special occupational tax . . . and without having
registered" with the federal government. App. Vol. I at
14. Defendant was also indicted for violating 18 U.S.C.
§ 922(o) by "knowingly possess[ing] and
transferr[ing] machineguns, to wit: machinegun conversion
devices for AR-15 style rifles." Id. Defendant
represented himself at the jury trial with the assistance of
standby counsel. At the hearing held pursuant to Faretta
v. California, 422 U.S. 806 (1975), Defendant
acknowledged that he would "be required to comply with
all of the court rules and the Rules of Procedure and the
Rules of Evidence and all of the rules and procedures that
pertain in a jury trial." App. Vol. III at 4.
trial, the government called ATF Special Agent Michael Powell
to testify as an expert about why the TCGTR was a machinegun.
He explained that an AR-15 contains a part called a
disconnector that "prevent[s] the firearm from firing a
second shot without [the operator] releasing the trigger and
then pulling it a second time." Id. at 486.
Powell then explained that the TCGTR "overrides or
negates the function of the disconnector while the trigger is
pulled and the weapon is" firing. Id. He
testified that, by disabling the disconnector, the TCGTR
allows an AR-15 to "fire automatically."
Id. at 468. In Agent Powell's expert opinion,
this meant that the TCGTR met "the statutory definition
of a machinegun" in 26 U.S.C. § 5845(b).
Id. at 469.
was Defendant's turn to present his case, he testified
about his design for the TCGTR. Defendant acknowledged that
he designed the TCGTR "for an increased rate of
fire," but maintained that he "wanted to do it
legally." Id. at 553. Defendant then testified
that he designed the TCGTR "to contact the trigger group
assembly," though ostensibly without disabling the
disconnector. Id. at 554. When Defendant began to
testify about what part of the "trigger group
assembly" the TCGTR was designed to contact, he asked
the court whether he could "show the jury an animation
that is on YouTube showing how that trigger group
works." Id. at 555. Defendant also offered to
draw a diagram of the trigger group on a whiteboard.
government objected, arguing that the testimony
"presents both technical and specialized knowledge and
under Rule 702 it would be required to come in through a
qualified expert witness." Id. The district
court sustained the government's objection because it
found that Defendant's testimony concerned
"technical and specialized knowledge," id.
at 561, but had not been disclosed as required by Federal
Rule of Criminal Procedure 16. The court acknowledged that
Defendant had "the right to present a defense," but
noted that Defendant also had "an obligation to follow
the rules, the Rules of Criminal Procedure."
Id. at 564; accord id. at 572. Defendant
concluded his testimony and rested his case shortly
jury returned a guilty verdict on both counts. Defendant was
sentenced to 33 months' imprisonment, followed by 36
months' supervised release. Defendant timely appealed his
argues that the district court erred when it sustained the
government's objection to his testimony about how he
intended the TCGTR to interact with the AR-15 trigger
mechanism. The district court excluded this testimony after
finding that it was expert testimony subject to Federal Rule
of Evidence 702, but that Defendant had not timely disclosed
his expert testimony to the government, as required by
Federal Rule of Criminal Procedure 16. Defendant further
argues that the district court's limitation on his
testimony violated his Fifth and Sixth Amendment right to
present a defense.
defendant's right to present a defense is cabined by the
Federal Rules of Evidence and Criminal Procedure.
The Fifth and Sixth Amendments grant a defendant the
"right to testify, present witnesses in his own defense,
and cross-examine witnesses against him-often collectively
referred to as the right to present a defense."
United States v. Markey, 393 F.3d 1132, 1135 (10th
Cir. 2004). But this right is not absolute; a defendant must
still "abide the rules of evidence and ...