Memorandum Filed by Defendant Joseph Roh in Lower Receiver Case

Case 8:14-cr-00167-JVS Document 124 Filed 03/09/18 Page 1 of 39 Page ID #:1268
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 CENTRAL DISTRICT OF CALIFORNIA

10
SOUTHERN DIVISION
11
12
13 UNITED STATES OF AMERICA, )
SA CR 14 - 167 – JVS
)
14 Plaintiff, )
MEMORANDUM OF POINTS
15 )
AND AUTHORITIES IN
)
16 SUPPORT OF
v. )
17
(1) RULE 29 MOTION FOR
)
JUDGMENT OF ACQUITTAL;
18 )
(2) MOTION TO DISMISS FOR
)
19 UNCONSTITUTIONAL
JOSEPH ROH, )
VAGUENESS,
20 )
FILED BY DEFENDANT
Defendant )
21 JOSEPH ROH
______________________________ )
22
23 TO: THIS HONORABLE COURT AND THE U.S. GOVERNMENT,
THROUGH ITS COUNSEL OF RECORD, ASSISTANT U.S.
24
ATTORNEYS SHAWN J. NELSON AND BENJAMIN D.
25 LICHTMAN:
26
Defendant Joseph Roh submits his Memorandum of Points and
27
28 Authorities for:
1 1. Defendant Roh’s pending motion for

2
judgment of acquittal under Fed. R. Crim. P. 29,
3
4 which was made orally at the close of the
5
government’s case (Pacer docket #122);1
6
7 2. Defendant Roh’s motion to dismiss the
8
Indictment on the ground that the statute, 18 U.S.C.
9
10 922(a)(1)(A), is unconstitutionally vague as applied to
11
him. This motion was reserved by stipulation
12
13 between the parties to be litigated at the conclusion
14 of the evidence at trial. [Pacer docket #79]2
15
DATED: March 09, 2018 Respectfully Submitted,
16
17
18 /S/
GREGORY NICOLAYSEN
19
Counsel for Defendant,
20 Joseph Roh
21
22
1
23 Order filed on February 23, 2018 (Pacer 122) setting a briefing schedule for
post-trial filings.
24
2
25 Order filed on June 18, 2017 (Pacer 79-1) states in part as follows: “IT IS
FURTHER ORDERED THAT any defense motion challenging the charging statute, 18
26 U.S.C. 922(a)(1)(A) on the ground that it is unconstitutionally vague as applied to the facts of
this case, shall be made and heard by this Court at the conclusion of all the evidence at
27 trial.”
28
2
1 MEMORANDUM OF POINTS AND AUTHORITIES

2
I
3
4 INTRODUCTION
5
6 From its inception, this has been a prosecution in search of a standard.
7 Specifically, a standard of federal criminal liability.
8 At trial, the government’s evidence has raised the spectre of abuse by a
9 federal agency of its rule-making authority that has resulted in the filing of
10 an indictment against an innocent individual, defendant Joseph Roh, based
11
on conduct that, at most, violates the agency’s internal policy or practice, but
12
does not in any way violate any law – no statute or C.F.R. provision.
13
As such, the government’s case is legally flawed and should therefore
14
be rejected outright by the issuance of a judgment of acquittal under
15
Fed.R.Crim.P. 29.
16
17
In light of the filing of this criminal case based only on agency policy
18 alone, the defense further requests that this Court consider making a formal
19 recommendation to the U.S. Attorney General that an internal review be
20 conducted within the U.S. Department of Justice in regard to the internal
21 decision-making at the Bureau of Alcohol, Tobacco & Firearms (“ATF”) that
22 led up to this prosecution, and whether the filing of this case against Mr. Roh
23 is indicative of a wider practice at ATF to pursue federal criminal charges
24
based on violations of agency policies that have not undergone formal rule-
25
making procedures to achieve codification as law under the Code of Federal
26
Regulations. Such an internal review would include a determination as to
27
28
3
1 whether other similar ATF prosecutions are pending in federal courts

2
nationwide; and whether inmates are currently serving federal sentences for
3
convictions sustained on the basis of ATF policy, rather than law.
4
5
II.
6
A RULE 29 JUDGMENT OF ACQUITTAL
7
8
SHOULD BE GRANTED AS TO THE
9 ALLEGATION THAT MR. ROH ENGAGED

10 IN THE BUSINESS OF MANUFACTURING FIREARMS
11 BECAUSE THE GOVERNMENT’S EVIDENCE AT TRIAL
12 CONCLUSIVELY ESTABLISHED THAT MR. ROH IS
13 INNOCENT OF THE CHARGE UNDER 27 C.F.R. 478.11
14 AND THAT THE MANUFACTURING CHARGE IS BASED
15
SOLELY ON THE ATF’s INTERNAL “CLASSIFICATION”
16
OF A MACHINED AR-15 BLANK AS A FIREARM
17
18
A. General Standard Under Rule 29
19
20
21
Federal Rule of Criminal Procedure 29(a) states as follows:
22 (a) Before Submission to the Jury. After the

23 government closes its evidence or after the close of all
24 the evidence, the court on the defendant's motion
25 must enter a judgment of acquittal of any offense for
26 which the evidence is insufficient to sustain a
27 conviction. The court may on its own consider
28
4
1 whether the evidence is insufficient to sustain a

2
conviction. If the court denies a motion for a
3
judgment of acquittal at the close of the
4
government's evidence, the defendant may offer
5
evidence without having reserved the right to do so.
6
7
8
As quoted above, Rule 29(a) “requires the trial court to grant a motion
9 for judgment of acquittal ‘if the evidence is insufficient to sustain a

10 conviction.’” United States v. Hazeem, 679 F.2d 770, 772 (9th Cir. 1982).
11 “The district court's function in reviewing a defendant's motion for acquittal
12 is quite narrow. The court, after viewing the evidence in the light most
13 favorably to the government, must determine whether the jury could
14 reasonably find the defendant guilty beyond a reasonable doubt.” United
15
States v. Bernhardt, 840 F.2d 1441, 1448 (9th Cir. 1988).
16
17
B. The Government’s Prosecution Theory On Manufacturing
18
19
At trial, the government’s charge that Mr. Roh engaged in the
20
21
manufacture of firearms without a license was based on the following
22 analysis:
23 First, the use of the NC machine and manual drill press at Mr. Roh’s
24 business to machine an AR-15 blank into a finished blank constituted the
25 manufacture of a “receiver”;
26 Second, a receiver constitutes a “firearm” under 18 U.S.C. 921(a)(3),
27 which states in pertinent part:
28
5
1 The term “firearm” means . . . (B) the frame or

2
receiver of any such weapon(.)
3
4
Third, as the use of the NC machine / drill press to machine an AR-15
5
into a finished blank constituted the manufacture of a receiver, which is a
6
firearm, it follows that Roh was manufacturing firearms.
7
8
As discussed below, the government’s case against Mr. Roh is legally
9 flawed because under the applicable legal standard, a fully machined AR-15
10 blank does NOT constitute a receiver and therefore is not a firearm. On this
11 basis, the government’s prosecution theory is unsustainable as a matter of
12 law and is therefore the type of case wherein no jury could reasonably find
13 Mr. Roh guilty beyond a reasonable doubt.
14
15
C. 27 C.F.R. 478.11: The Legal Standard Applicable To The
16
Manufacturing Charge In The Indictment Under Which
17
Defendant Roh Is Innocent
18
19
On cross-examination, defense counsel confronted government
20
21
witnesses with the legal standard applicable to the manufacturing charge: 27
22 C.F.R. 478.11, which provides in pertinent part as follows:

23 Firearm frame or receiver. That part of a firearm
24 which provides housing for the hammer, bolt or
25 breechblock, and firing mechanism, and which is
26 usually threaded at its forward portion to receive the
27 barrel.
28
6
1 Multiple government witnesses – including James Palm, Joshua

2
Jackson and the government’s expert, Daniel Hoffman – all conceded that a
3
fully machined AR-15 blank does not satisfy the requirements of section
4
478.11 because the fully machined blank lacks a bolt and breechblock and is
5
not threaded at its forward position to receive the barrel. While the assembly
6
of the fully machined blank and the upper assembly of the rifle does provide
7
8
the bolt and is threaded to receive the barrel, the assembly fails the single
9 part requirement, as section 478.11 begins with the term, “[t]hat part,” thus
10 requiring that all of the required technical features be contained within a
11 single part, which a fully machined AR-15 blank lacks.
12 Therefore, it is a simple and clear conclusion to draw that a fully
13 machined blank does not qualify as a receiver under section 478.11. Plain
14 and simple. The government’s witnesses acknowledged this during the trial;
15
and the government cannot deny it in post-trial briefing.
16
For the simple reason that a fully machined blank does not qualify as a
17
receiver, it also does not constitute a firearm under 18 U.S.C. 921(a)(3).
18
Therefore, the machining of the AR-15 blank through the use of the NC
19
machine and drill press did NOT constitute the manufacture of a firearm.
20
21
As the remainder of Mr. Roh’s business, Rohg Industries, involved the
22 sale of parts and accessories, and the assembly of parts into a completed rifle,
23 there is nothing else about Rohg Industries that could arguably entail
24 manufacturing. Indeed, during questioning by the Court, agent Joshua
25 Jackson acknowledged that assembly does not constitute manufacturing.
26 Therefore, the inescapable conclusion is that Mr. Roh is innocent of the
27 manufacturing charge as a matter of law and should therefore be acquitted
28
7
1 by this Court pursuant to a Rule 29 judgment, without the need for closing
2
argument or a verdict.
3
4
D. The ATF’s Internal Policy That Masquerades As Law: The
5
“Classification” Of A Finished AR-15 Blank As A Receiver /
6
Firearm
7
8
9 Despite Mr. Roh’s innocence under the law, the government brought
10 this prosecution based on an entirely different standard that does not
11 constitute binding law, namely the ATF’s in-house policy of treating a fully
12 machined AR-15 blank as a receiver and thus a firearm. To sound official,
13 the ATF has given this in-house decision the fancy name of “classification.”
14 Throughout the government’s case-in-chief at trial, witness after
15
witness repeatedly referred to the AR-15 blank as a “lower receiver,” not
16
only in terms of its casual use in the firearms community but, more
17
importantly, in terms of how the ATF “classifies” the blank. Witnesses such
18
as James Palm, Joshua Jackson and the government’s expert, Daniel
19
Hoffman, all spoke of the ATF’s treatment of the fully machined blank as a
20
21
receiver for purposes of qualifying as a firearm under the law. In so doing,
22 the ATF witnesses repeatedly misled this Court.

23 During cross-examination of government witnesses, principally the
24 government’s expert, Daniel Hoffman, testimony was elicited regarding a so-
25 called “classification” process at the Firearms Technology Branch (FTB), of
26 which Mr. Hoffman is a member, whereby the staff at FTB – all of whom are
27 law enforcement officers – make in-house decisions on how to classify certain
28
8
1 items.3 Mr. Hoffman confirmed that such classification decisions are made
2
without consultation with ATF’s legal department. When pressed on the
3
subject, Mr. Hoffman could not articulate any specific criteria or standards
4
that define the so-called “classification” system at the ATF.
5
Of particular importance is Hoffman’s acknowledgment on cross-
6
examination that the ATF’s position in this case that Mr. Roh was engaged in
7
8
the manufacture of firearms was indeed based on the ATF’s classification of
9 a machined AR-15 blank as a receiver, and thus a firearm. Hoffman

10 conceded that this classification was the opinion of the ATF.
11 In light of the significance of the so-called “classification” system in the
12 ATF’s case against Mr. Roh, defense counsel pursued the subject at length
13 with Mr. Hoffman on cross-examination. When shown the ATF web site on
14 the computer monitor in the courtroom, Mr. Hoffman acknowledged that one
15
cannot search the web site and locate a classification manual, despite the fact
16
that the ATF web site contains numerous ATF Rulings and other agency
17
guidance which are deliberately placed on the web site for the benefit of the
18
general public, firearms community and firearms industry.
19
Moreover, when asked by defense counsel if counsel could stop by the
20
21
FATD office in West Virginia to pick up a hard copy of any classification
22
3
23 The term “classification” appears in quotations because at trial, government
witnesses, including the government’s expert, Daniel Hoffman, who is from the FTB branch,
24 failed to demonstrate that FTB, or the ATF as a whole, has developed a formal classification
25 system by which a fully machined AR-15 blank is deemed to be a receiver. The term
“classification” or “classify”, while implying a formal system of criteria, appears to be
26 synonymous with “treat” or “consider” – that is, the FTB treats or considers the machined
blank as a receiver, without having any formal criteria or standard by which this decision is
27 made.
28
9
1 manual or other documentation describing the classification that might exist,

2
Mr. Hoffman’s response was that counsel would not even be allowed inside
3
the building.
4
In short, Hoffman’s testimony confirmed that the ATF’s case against
5
Mr. Roh was based on an in-house classification decision made that is not
6
reflected or memorialized in any publicly available documentation and is, in
7
8
reality, a creature of secret, in-house decision-making by the law enforcement
9 personnel who staff the FTB office in West Virginia, including Mr. Hoffman.
10 Beyond the non-public nature of the so-called “classification” system is
11 the seemingly ad hoc nature of the decision-making process. During both
12 cross-examination and in response to the Court’s questions, Mr. Hoffman
13 acknowledged that the only way the general public would be able to know
14 how the classification system worked was to make a direct inquiry of the FTB
15
branch, typically by submitting a letter together with a sample (a firearm
16
part) seeking guidance from the ATF as how the item was classified; and the
17
ATF would send a responsive letter. Hoffman further acknowledged that
18
decisions would be made on a case by case basis as his department reviewing
19
incoming samples.
20
21
The government’s reliance on an in-house classification system to bring
22 this prosecution became readily apparent only as the case reached the trial
23 stage, nearly four years after being filed, as testimony from government
24 witnesses began to reveal how the ATF made internal decisions that were
25 completely contradictory of the legal standard in the C.F.R. and used their
26 in-house standard as the measure of noncompliance, even to the degree
27 where, as here, the in-house standard served as the basis for bringing a
28
10
1 criminal prosecution.
2
Perhaps the most important admission by the government witnesses,
3
and in particular by Hoffman himself, was the acknowledgment that the ATF
4
never initiated any procedure by which to amend 27 C.F.R. 478.11 to bring it
5
into conformity with its own in-house “classification” standard. Instead, the
6
agency disregarded the rule-making process available to a federal agency to
7
8
codify policy as law in the C.F.R., opting for more convenient – albeit illegal –
9 path of treating an in-house “classification” as the law and taking

10 enforcement action on this basis alone. In this case, that meant obtaining and
11 executing a federal search warrant pursuant to which the ATF cleaned out
12 Mr. Roh’s business on February 6, 2014 and obtained the indictment in this
13 case shortly thereafter. All on the basis of an internal “classification.”
14 Finding the distinction between the in-house “classification”, on the one
15
hand, and the actual legal standard in the C.F.R., on the other, was no easy
16
task during the pendency of this prosecution. The ATF clearly took pains to
17
disguise its designs, as illustrated by the way responsive letters were written
18
to general public. A good example can be seen in Gov Exhibit 132 in
19
evidence, which is a responsive letter from the ATF dated November 19, 2012
20
21
to Mr. Roh, stating that an unfinished AR-15 blank that Mr. Roh submitted
22 to FTB has not been “classified” as a firearm:

23
24 Overall, FTB found that each item, in its current
25 condition, has not reached a point in manufacturing
26 to be classified as a “firearm” per the GCA
27 definition, Section 921(a)(3). [emphasis in original]
28
11
1 Of importance is the phrase in the letter, “per the GCA definition,

2
Section 921(a)(3).” The letter could have, and should have, stated that an
3
unfinished AR-15 blank does not possess the technical characteristics to
4
qualify as a receiver under 27 C.F.R. 478.11 and as such, does not qualify as a
5
firearm under Section 921(a)(3). That would have been the correct way of
6
articulating a reference to Section 921(a)(3). But the letter is not so written.
7
8
While the conclusion in the letter is correct, namely that an unfinished
9 AR-15 blank is not a firearm, the letter as written is nonetheless misleading

10 because it expressly references the ATF’s classification, as if to suggest that
11 the classification system at FTB is based on a legal standard that corresponds
12 to the statute, which the C.F.R. does but the classification system does not.
13 As written, the letter disguises the incongruity between the in-house
14 classification process at FTB, on the one hand, and the legal standard under
15
the C.F.R., on the other.
16
The ATF’s reliance on its in-house “classification” process, as well as
17
its incongruity with the legal standard under 27 C.F.R. 478.11 was clearly
18
disguised in the Cease & Desist Letter (“C&D Letter”) served on Mr. Roh on
19
December 23, 2013,4 wherein the ATF avoids any and all references to the
20
21
term “classification” and boldly asserts that Mr. Roh is engaged in
22 manufacturing firearms without in any way allowing him to know that the
23 ATF’s conclusion is based entirely on an in-house classification and that the
24 opposite conclusion would be reached under the legal standard set forth in 27
25 C.F.R. 478.11. The C&D Letter is a clear-cut illustration of the ATF acting
26
27 4
Defense Exhibit 1016 in evidence.
28
12
1 solely on the basis of agency policy without any regard for the law and
2
essentially throwing its weight around as a federal agency to bully Mr. Roh
3
into discontinuing a business practice that is legal but which the agency
4
simply wants him to stop doing. And so the agency misrepresents to Roh that
5
his actions are illegal.
6
It would not be until the eve of trial that the ATF’s reliance on its
7
8
classification process as the basis for its actions in this case would be
9 revealed. It is quite ironic that the revelation of this “classification” system

10 was made possible by none other than Government Exhibit 134 in evidence,
11 the controversial letter dated November 15, 2013 that was ostensibly
12 approved by government witness Max Kingery and mailed to Mr. Roh, which
13 the government fought so hard to get into evidence. Government Exhibit
14 134, purporting to be a letter from ATF to Mr. Roh, states in pertinent part
15
on page 4:
16
In conclusion, if the machining operations engaged in
17
by your company involve the procedures and steps
18
we have described above and result in the creation of
19
a forging or casting, etc., which has reached the point
20
in the manufacturing process to be classified by our
21
22 Branch as a “firearm,” ROHG Industries would be
23 engaging in the manufacturing fireanns and would

24 be required at a minimum to obtain a Federal
25 Firearms License (FFL). [Italics and Underlining
26 Added]
27
28
13
1 Government counsel has acknowledged that this letter was produced to

2
the U.S. Attorney’s Office on February 08, 2018 – only two weeks before trial
3
– at which time defense counsel was provided with a copy.
4
Gov Exhibit 134 reveals, for the first time in this litigation, that the
5
ATF’s position as to Mr. Roh is based on its classification of a fully machined
6
AR-15 blank as a firearm. During cross-examination at trial, focusing with
7
8
government witnesses Max Kingery and Dan Hoffman, it was established
9 that the above-quoted excerpt from Exhibit 134 is a statement by the FTB
10 branch of the ATF that in its opinion, based on the agency’s classification
11 process, a fully machined blank is treated as a receiver and thus a firearm;
12 and that the ATF therefore views the manufacturing of fully machined
13 blanks as constituting the manufacturing of firearms.
14 In short, Gov Exhibit 134 is a blatant admission by the ATF that the
15
premise of the government’s case against Mr. Roh is based on its in-house
16
classification process, rather than the legal standard under 27 C.F.R. 478.11.
17
As such, the ATF has abused its authority as a federal agency in treating its
18
internal policy as a legal standard for purposes of pursuing a search warrant
19
to shut down Mr. Roh’s business and pursuing a criminal prosecution.
20
21
22 E. The ATF’s Treatment Of Its “Classification” Of A Finished AR-
23 15 Blank As A Firearm As Tantamount To Law, Without Having
24 Complied With The Rule-Making Process Under The
25 Administrative Procedure Act, Is An Abuse Of Its Authority As
26 A Federal Agency And Nullifies This Prosecution
27 Based on the authorities discussed below, the inescapable conclusion is
28
14
1 that the ATF's “classification” upon which Mr. Roh’s indictment was based
2
was made by the ATF in violation of the Administrative Procedure Act
3
(“APA”), 5 U.S.C. 551, et. seq., thus necessitating a judgment of acquittal and
4
dismissal of the Indictment.
5
In order to create law that is binding on the general public, a federal
6
agency must engage in the rule making process – that is, promulgate rules
7
8
pursuant to the APA. The terms “rule” and “rule making” are defined in
9 section 551 of the APA as follows:

10
11 (4) ‘rule’ means the whole or a part of an agency
12 statement of general or particular applicability and
13 future effect designed to implement, interpret, or
14 prescribe law or policy or describing the
15
organization, procedure, or practice requirements of
16
an agency and includes the approval or prescription
17
for the future of rates, wages, corporate or financial
18
structures or reorganizations thereof, prices,
19
facilities, appliances, services or allowances therefor
20
21
or of valuations, costs, or accounting, or practices
22 bearing on any of the foregoing;

23
24 (5) ‘rule making’ means agency process for
25 formulating, amending, or repealing a rule(.)
26 An essential component of the rule making process is notice to the
27 general public through formal publication. In this regard, Section 552(a)(1)
28
15
1 of the APA provides in pertinent part:

2
3
(a) Each agency shall make available to the public
4
information as follows:
5
(1) Each agency shall separately state and currently
6
publish in the Federal Register for the guidance of
7
8
the public--
9 * * *
10 (D) substantive rules of general applicability
11 adopted as authorized by law, and statements of
12 general policy or interpretations of general
13 applicability formulated and adopted by the agency;
14 and
15
(E) each amendment, revision, or repeal of the
16
foregoing.
17
Except to the extent that a person has actual and
18
timely notice of the terms thereof, a person may not
19
in any manner be required to resort to, or be
20
21
adversely affected by, a matter required to be
22 published in the Federal Register and not so

23 published. For the purpose of this paragraph, matter
24 reasonably available to the class of persons affected
25 thereby is deemed published in the Federal Register
26 when incorporated by reference therein with the
27 approval of the Director of the Federal Register.
28
16
1 The APA’s procedures for rule making likewise include the

2
requirement that “[g]eneral notice of rule making shall be published in the
3
Federal Register(.)” 5 U.S.C. 553(b). The rule making provisions are
4
designed to provide for public participation in the making of substantive
5
rules by federal agencies, as reflected in section 553 (c) which provides in part
6
as follows:
7
8
(c) After notice required by this section, the agency
9 shall give interested persons an opportunity to

10 participate in the rule making through submission of
11 written data, views, or arguments with or without
12 opportunity for oral presentation. After
13 consideration of the relevant matter presented, the
14 agency shall incorporate in the rules adopted a
15
concise general statement of their basis and purpose.
16
17
In short, federal agencies such as ATF seeking to make binding law
18
through substantive rules must comply with the rule-making procedures set
19
forth in the APA, including the notice-and-comment procedures referenced
20
21
above. Such compliance was clearly achieved in the promulgation of 27
22 C.F.R. 478.11, pursuant to which a full machined AR-15 blank does not
23 constitute a receiver. At trial, government witnesses acknowledged that to
24 the best of their knowledge, ATF has never undertaken the rule making
25 process to amend section 478.11.
26 A federal criminal conviction cannot be sustained on the basis of an
27 administrative rule that is substantive in nature, but which has not
28
17
1 undergone the rule making procedures set forth in the APA to become law.
2
A leading case on this subject is United States v. Picciotto, 875 F.2d 345
3
(D.C. Cir. 1989), in which the D.C. Circuit reversed a conviction for violating
4
a U.S. Park Service condition that was issued by the agency subsequent to the
5
enactment of 36 C.F.R. §7.96, a regulation pertaining to activity on national
6
parks that had undergone the formal rule making process and was therefore
7
8
properly enacted into law. This regulation contained a subsection, referenced
9 in the opinion as Clause 13, which authorized the Park Service to add
10 “reasonable conditions and additional time limitations” to permits for
11 specified activities in parks, such as demonstrations. After 36 C.F.R. §7.96
12 was enacted, the Park Service adopted several “additional conditions,” 875
13 F.2d at 346, one of which the defendant was criminal charged with violating.
14 In reversing the criminal conviction, the Circuit expressly recognized
15
that while the defendant had been given a copy of these additional conditions,
16
such notice was inconsequential because the agency had not complied with
17
the rule making process for notice and comment:
18
19
Appellant received a copy of these “additional
20
21
conditions” from Supervisory Park Ranger Philip
22 Walsh, but the Park Service did not publish a general

23 notice of proposed rule making in the Federal
24 Register and neither appellant nor the general public
25 was given an opportunity to comment.
26 875 F.2d at 346.
27 The Circuit in Picciotto emphasized that the Park Service had an
28
18
1 obligation to comply strictly with the APA’s rule making requirements,

2
particularly where a criminal prosecution has been brought:
3
4
The Park Service, like any other government agency,
5
must conform to the APA's notice and comment
6
requirements when engaging in any informal agency
7
8
rulemaking procedures, unless properly relying on
9 an exception. HN2 A rule which is subject to the

10 APA's procedural requirements, but was adopted
11 without them, is invalid. See Chamber of Commerce
12 v. Occupational Safety and Health Administration,
13 204 U.S. App. D.C. 192, 636 F.2d 464, 470-71
14 (D.C.Cir. 1980). Certainly, a criminal prosecution
15
founded on an agency rule should be held to the strict
16
letter of the APA. [Italics and Underlining Added]
17
18
Picciotto, 875 F.2d at 346, cited with approval in United States v. Reynolds,
19
710 F.3d 498, 511 (3d Cir. 2013); United States v. Cain, 583 F.3d 408, 422 (6th
20
Cir. 2009). Accord: United States v. Johnson, 632 F.3d 912, 930 (5th Cir.
21
22 2011).
23 The Circuit expressly rejected the government’s contention that

24 because the Park Service had previously undergone the notice - comment
25 procedure originally in the enactment of 36 C.F.R. §7.96, it was unnecessary
26 to undergo the rule making procedures again with regard to the additional
27 conditions. The opinion does not mince words in criticizing the agency's
28
19
1 assumption that it could unilaterally elect to issue rules and bypass the rule
2
making process:
3
4
The Park Service interprets clause 13 as granting it
5
the authority to impose new substantive restrictions
6
uniformly on all demonstrators in any national
7
8
capital region park, without engaging in notice and
9 comment procedures. It claims that since clause 13

10 went through notice and comment, the new
11 restrictions do not need to. In essence, the Park
12 Service is claiming that an agency can grant itself a
13 valid exemption to the APA for all future regulations,
14 and be free of APA's troublesome rulemaking
15
procedures forever after, simply by announcing its
16
independence in a general rule. That is not the law.
17
Such agency-generated exemptions would frustrate
18
Congress’ underlying policy in enacting the APA by
19
rendering compliance optional. The statute's direct
20
21
mandate requires notice and comment procedures
22 for any rule that does not fall within certain express
23 exceptions. See § 553 (b)-(e). The Park Service cannot
24 construct its own veto of Congressional directions.
25 See Federal Election Commission v. Democratic
26 Senatorial Campaign Committee, 454 U.S. 27, 32, 70
27 L. Ed. 2d 23, 102 S. Ct. 38 (1981).
28
20
1 Picciotto, 875 F.2d at 346-47.

2
The Circuit likewise rejected the contention by the Park Service that
3
the new conditions were merely interpretative, not substantive, and held that
4
the conditions did not fall within the exception to the notice-comment
5
requirement pertaining to “interpretative rules.” See 5 U.S.C. 553(b)(3)(A),
6
(d)(2). In concluding that the additional condition under which the
7
8
defendant had been prosecuted was an “independent substantive rule(,)” 875
9 F.2d at 348, the Court began its discussion of this issue by observing that “the
10 APA's notice and comment exemptions must be narrowly construed(,)” 875
11 F.2d at 346, and proceeded to note that “an interpretive rule explains an
12 existing requirement; it does not impose an ‘additional’ one;” that there was
13 no evidence that the agency intended the additional condition to merely serve
14 as a construction of 36 C.F.R. §7.96; and that the additional condition did not
15
even make reference to the CFR provision. 875 F.2d at 346.
16
The conclusion reached in Picciotto does not stand alone and has been
17
further addressed in depth by the body of case opinions vacating convictions
18
and dismissing indictments arising out of sex offender registration
19
prosecutions. A case in point is United States v. Cain, 583 F.3d 408 (6th Cir.
20
21
2009), in which the Sixth Circuit vacated the defendant's conviction under
22 the Sexual Offenders Registration and Notification Act (SORNA), 18 U.S.C. §

23 2250, where the defendant had been convicted of the sex offense prior to the
24 enactment of SORNA; the Attorney General subsequently issued an Interim
25 Rule specifying that the SORNA registration requirement is retroactive to
26 offenders convicted prior to SORNA’s enactment; and in issuing the
27 regulation, the Attorney General had failed to comply with the
28
21
1 Administrative Procedure Act.

2
In so holding, the Court explained that the Attorney General’s Interim
3
Rule constituted a substantive rule necessitating compliance with the APA’s
4
rule making procedures, noting in particular that this new rule would subject
5
violators to criminal liability:
6
7
8
Because the Attorney General’s specification puts
9 new criminal liability on the acts or omissions of

10 regulated persons, it is quintessentially legislative, as
11 compared with regulations that merely restate or
12 interpret statutory obligations. This contrasts with
13 interpretive rules, not subject to notice and comment
14 requirements. See 5 U.S.C. § 553(b)(A). The
15
Attorney General does not claim under § 553(b)(A)
16
to be merely “explicating Congress’[s] desires”
17
rather than “adding substantive content of [his]
18
own.” See Dismas Charities, 401 F.3d [666 (6th Cir.
19
2005)] at 680 (quotation omitted). Rather, the
20
21
regulation at issue is a substantive rule that
22 “make[s]” or “create[s] law.” See Id. at 679

23 (quotations omitted). And when an agency acts in
24 this legislative capacity, Congress generally requires
25 the agency to follow the quasi-legislative notice and
26 comment procedures of the APA.
27
28
22
1 Cain, 583 F.3d at 420.

2
Citing Picciotto with approval, the Court in Cain observed that
3
compliance with APA rule making procedures is of particular importance
4
where the agency’s action becomes the basis on which a criminal prosecution
5
is filed; and no amount of good cause can justify noncompliance with the
6
APA, thus rendering the conviction invalid:
7
8
9 The fact that the regulation imposes a new
10 obligation, on pain of severe criminal sanctions, only
11 reinforces the need for the statutory protections in
12 place when an agency engages in quasi-legislation.
13 We agree with the D.C. Circuit's statement, in the
14 course of reversing a conviction under a regulation,
15
that “[c]ertainly, a criminal prosecution founded on
16
an agency rule should be held to the strict letter of
17
the APA.” United States v. Picciotto, 875 F.2d 345,
18
346, 277 U.S. App. D.C. 312 (D.C. Cir. 1989). The
19
Attorney General has not provided reasons sufficient
20
21
to establish that he had good cause to disregard the
22 APA's notice and comment requirements, so Cain's

23 criminal conviction cannot stand.
24
25 583 F.3d at 422-423.
26 The Third Circuit adopted the same analysis in United States v.
27 Reynolds, 710 F.3d 498 (3d Cir. 2013), which involved facts substantially
28
23
1 similar to those in Cain, where the defendant had been convicted of a sex
2
offense prior to the enactment of SORNA but was being prosecuted for
3
violating the Attorney General's Interim Rule making the SORNA
4
registration requirement retroactive to pre-SORNA offenders.
5
In vacating the defendant’s conviction, the Court cited Picciotto and
6
Cain with approval, recognizing that strict adherence with the APA is
7
8
required, particularly where criminal penalties are involved:
9
10 . . . we agree with the D.C. Circuit that “a criminal
11 prosecution founded on an agency rule should be
12 held to the strict letter of the APA.” United States v.
13 Picciotto, 875 F.2d 345, 346, 277 U.S. App. D.C. 312
14 (D.C. Cir. 1989); accord Cain, 583 F.3d at 422;
15
Johnson, 632 F.3d [912 (5th Cir. (2011)], at 930. The
16
liberty interest at stake is greater than the ordinary
17
civil interests litigated in administrative cases. This
18
forecloses our adoption of the Government's position
19
that notice and comment are somehow less important
20
21
in criminal cases, and thus easier to waive for good
22 cause, because the procedural delay allows criminal

23 harm to continue during the time required to comply
24 with the APA.
25 710 F.3d at 511.
26 Addressing the same circumstances, and citing Cain with approval, the
27 Ninth Circuit joined the Sixth Circuit and other circuits holding that
28
24
1 indictments based on violations of the Attorney General’s retroactive

2
application of SORNA must be dismissed due to noncompliance with the
3
APA. In United States v. Valverde, 628 F.3d 1159 (9th Cir. 2010), the Court
4
held that:
5
6
the Attorney General committed a clear error of
7
8
judgment in failing to consider the factors relevant
9 for seeking to bypass the APA's notice and comment

10 requirement. [Citation Omitted]. Because neither
11 the asserted interest in clarifying SORNA's
12 applicability nor the asserted need to protect public
13 safety plausibly constituted good cause for bypassing
14 the APA's procedural requirements, we hold that the
15
interim rule failed to comply with the APA's notice
16
and comment procedures.
17
18
628 F.3d at 1168-1169.
19
The analyses in the above-cited cases apply equally to the case at bar
20
21
involving Mr. Roh. In fact, the SORNA cases all involve an actual regulation
22 issued by the Department of Justice which the circuits held to be subject to

23 APA compliance. Here, we are dealing with a decision far less formal and
24 thus clearly subject to APA compliance. The decision on which the
25 indictment is based is a mere “classification” issued by the law enforcement
26 staff at FTB which has no formal criteria or published guidelines – hardly
27 rising to the level of an Attorney General’s regulation. Where circuit courts
28
25
1 have strictly applied the APA’s rule making requirements to an

2
administrative rule promulgated by the Attorney General that carries
3
criminal penalties, it follows as a matter of course that strict adherence to the
4
APA necessarily applies to a so-called “classification” decision made by a
5
branch of the ATF staffed by law enforcement personnel who make decisions
6
on an ad hoc basis.
7
8
Applying the analysis in the above - cited to the facts here, the decision
9 by the FTB branch of ATF to “classify” a fully machined AR-15 blank as a

10 receiver and thus as a firearm constituted an independent substantive rule
11 that was subject to the rule making requirements of the APA. The agency
12 cannot arrogate to itself the right to bypass the APA for its own convenience
13 and then treat its internal “classification” as tantamount to law, particularly
14 where, as here, the ATF seeks to initiate criminal search warrants and
15
subsequent criminal prosecutions on the basis of this so-called
16
“classification.” Under these circumstances, the agency’s obligation to
17
comply with the APA is paramount.
18
It would be preposterous for the government here to take the position
19
that the “classification” of the machined AR-15 blank as a receiver is excused
20
21
from the rule making procedures of the APA because it is merely an
22 interpretative rule in regard to 27 C.F.R. 478.11. See 5 U.S.C. 553(b)(3)(A),

23 (d)(2). At trial, the government had ample opportunity to present evidence
24 that this so-called “classification” was intended as a construction of section
25 478.11, but failed to do so. Indeed, to suggest that the “classification” is
26 interpretive in nature is simply ridiculous because it conflicts directly with
27 section 478.11 by treating the fully machined blank as a receiver when section
28
26
1 478.11 does not. The two produce entirely antithetical outcomes: yes, the
2
finished blank is a receiver under the “classification”; no, it is not a receiver
3
under section 478.11. A contradictory relationship is not an interpretive one.
4
The testimony at trial by government expert Hoffman indicated that
5
the ATF’s decision to “classify” a machined blank as a receiver reflects an
6
intent on the part of ATF to repudiate section 478.11, an intention apparently
7
8
aimed at promoting the agency’s regulatory objective of expanding the
9 universe of firearms subject to the serialization requirement contained in 18

10 U.S.C. 923(i), which applies only to firearms that have receivers. During
11 cross-examination, Mr. Hoffman acknowledged that numerous firearms,
12 including the AR-15, escape the serialization requirement under the criteria
13 of section 478.11.
14 While from a regulatory perspective the agency may be promoting a
15
noble public policy by aiming to subject the AR-15 and other firearms that
16
lack receivers under the criteria of section 478.11 to the serialization
17
requirement, this regulatory objective does not permit the ATF to bypass the
18
rule making process, particularly where it seeks to hold someone criminally
19
liable. For criminal liability, a law must be violated, not simply an agency
20
21
“classification.” The appropriate solution to the agency’s regulatory
22 concerns would have been to amend section 478.11 pursuant to the agency’s
23 rule making authority under the APA – not to create a “classification” that
24 bypasses the APA requirements altogether and then use that “classification”
25 to pursue criminal charges as if it operates as law.
26 Nor can the government excuse noncompliance with the APA by
27 invoking the “good cause” exception under 5 U.S.C. § 553(b)(B), which allows
28
27
1 notice and comment to be waived "when the agency for good cause finds (and
2
incorporates the finding and a brief statement of reasons therefor in the rules
3
issued) that notice and public procedure thereon are impracticable,
4
unnecessary, or contrary to the public interest.”
5
In the case at bar, neither the FTB nor ATF as a whole has ever issued
6
any such statement. There has been no attempt by the ATF to even so much
7
8
as acknowledge the applicability of the APA’s rule making requirements by
9 issuing any type of statement that purports to invoke any of the exceptions set
10 forth in section 553.
11 What we have in this case, quite simply, is a law enforcement branch of
12 ATF that arrogates to itself the right to issue decisions that contradict the
13 C.F.R. and treats such unilateral decisions as binding law, without any
14 regard whatsoever to the APA, and thinking nothing of using their in-house
15
decision as the basis for criminal penalties against an individual such as Mr.
16
Roh, including the destruction of his business.
17
It would be equally absurd for the government to argue that the
18
“classification” of the fully machined AR-15 blank as a receiver is excused
19
from the APA’s rule making procedures under the “public interest” prong of
20
21
the other notice and comment exception set forth in 5 U.S.C. 553(b)(3)(B). As
22 stated in Cain, “the Government's burden to show that good cause exists is a
23 heavy one--the good cause exception is “‘narrowly construed and only
24 reluctantly countenanced.’” [Citations Omitted].” 583 F.3d at 420. The ATF
25 cannot meet this standard in regard to the “classification” at issue.
26 In conclusion, it is clear that the ATF's decision to “classify” a
27 machined AR-15 blank as a receiver and thus as a firearm constituted a
28
28
1 substantive rule that required compliance with the APA's rule making
2
requirements, which the ATF failed to do. Moreover, the ATF did not seek to
3
bypass those requirements by invoking the good cause exception. Nor does
4
any other exception to the notice - comment requirement apply under 5
5
U.S.C. 553. Accordingly, the "classification" does not constitute binding law
6
and therefore cannot serve as the basis for the Indictment in this case.
7
8
Inasmuch as the machining of an AR-15 blank does not produce a receiver
9 under the existing law contained in 27 C.F.R. 478.11, and thus does not
10 produce a firearm, the government's allegation that Mr. Roh engaged in the
11 business of manufacturing firearms is unsustainable. Accordingly, a Rule 29
12 motion for judgment of acquittal on the manufacturing charge should be
13 issued.
14
15
F. A Jury Cannot Reasonably Find That Mr. Roh Acted Willfully
16
Because He Cannot Know His Conduct Is Illegal When In Fact It
17
Is Not
18
In the context of firearms offenses, the government must prove beyond
19
a reasonable doubt that a defendant knew his conduct was unlawful. Bryan
20
21
v. U.S., 524 U.S. 184, 195 (1998). The government’s contention at trial was
22 that Mr. Roh knew his conduct was unlawful, and thus acted willfully,
23 because he had been put on notice by the ATF through the C&D letter and
24 also through the controversial letter dated November 15, 2013 (Gov Exh 134),
25 which was purportedly sent to Mr. Roh a month prior to the C&D letter. But
26 as discussed in this brief, the evidence at trial established that the only thing
27 the ATF put Mr. Roh on notice of was the ATF’s so-called “classification” of
28
29
1 a machined AR-15 blank as a receiver - firearm. As this “classification” did

2
not constitute binding law, Mr. Roh’s awareness was – at best – of the
3
agency’s position, which is not the same as an awareness of the law itself.
4
Moreover, the agency’s “classification” contradicted the law itself – 27 C.F.R.
5
478.11 – under which Roh was not manufacturing firearms. Therefore, a
6
jury could not reasonably find that Mr. Roh knew his conduct was unlawful.
7
8
Beyond this analysis is the evidence on the record from the undercover
9 videos, which are replete with Mr. Roh’s repeated statements to the agents
10 that he will not violate the law for anyone, and his repeated refusal to provide
11 services that he does know are illegal, such as the assembly of a short-
12 barreled rifle. The trial record establishes Roh’s good faith commitment to
13 the law and his genuine belief that his conduct which is the subject of this
14 prosecution is lawful.
15
16
III.
17
A RULE 29 JUDGMENT OF ACQUITTAL
18
SHOULD BE GRANTED AS TO THE
19
ALLEGATION THAT MR. ROH ENGAGED
20
21
IN THE BUSINESS OF DEALING IN FIREARMS
22 While the Indictment alleges dealing in firearms as an alternate theory

23 of liability, it must be emphasized that the gravamen of this prosecution —
24 the very reason this case was brought in the first place – is the manufacturing
25 theory, namely that the ATF was accusing Mr. Roh of engaging in the
26 business of manufacturing firearms.
27 The C&D letter focuses exclusively on the manufacturing allegation.
28
30
1 There is no language pertaining to dealing in the C&D letter.

2
Likewise, the letter marked as Gov Exh 134 focuses exclusively on
3
manufacturing, without any reference to dealing in firearms.
4
Indeed, the ATF never put Mr. Roh on notice that they were
5
contending he was dealing in firearms. This was an add-on by the U.S.
6
Attorney’s Office at the time the indictment was filed.
7
8
In short, this is a manufacturing prosecution. The throw-in allegation
9 of dealing is entirely subsidiary to the manufacturing allegation, and this was

10 borne out by the government’s case at trial, which focused entirely on the
11 ATF’s view that machining an AR-15 blank using an NC machine and drill
12 press constitutes the manufacture of a firearm, in the opinion of the ATF.
13 This contention was the gravamen of the government’s case at trial.
14 The government’s case did not present any evidence by which a jury
15
could reasonably find that Mr. Roh was dealing in firearms pursuant to the
16
standards set forth in 18 U.S.C. 921(a)(11) (definition of firearms “dealer”);
17
18 U.S.C. § 921(a)((21)(C) (definition of “engaged in the business” of dealing
18
in firearms); 27 C.F.R. 478.11 (definition of “dealer” as part of regulatory
19
definition of “engaged in the business”).
20
21
What the government’s evidence at trial showed is that through his
22 business, Rohg Industries, Mr. Roh provided a service by which customers

23 could build their own AR-15 at the shop: the business sold parts and
24 accessories to customers; the blank was machined using the NC machine and
25 drill press; and all the parts were assembled into a completed rifle, as Mr.
26 Hoffman demonstrated at trial. This is not dealing in firearms. Rifles are
27 not being sold over the counter.
28
31
1 An important fact that came out at trial is that the customers paid up
2
front. Agent Joshua Jackson acknowledged on cross-examination that he
3
was presented with an invoice for the cost of the entire service including the
4
parts and assembly, and this was paid prior to the blank being machined.
5
Thus, by the time the blank was being machined, the customer already owned
6
that blank; and by the time the parts were being assembled into a completed
7
8
rifle, the customer already owned all the parts. Therefore, before the rifle
9 was fully assembled, the customer had already paid and thus owned all the
10 parts at the time the blank was being machined and the parts were being
11 assembled into a completed rifle. Clearly, Mr. Roh did not sell completed
12 rifles as an licensed dealer would hand a customer a rifle over the counter
13 who had walked into the store to purchase a ready-made rifle.
14 Accordingly, a jury could not reasonably find that Mr. Roh engaged in
15
dealing in firearms.
16
17
For the reasons discussed above, this Court should grant Mr. Roh’s
18
Rule 29 motion and issue a judgment of acquittal on all charges in the
19
Indictment.
20
21
IV.
22 ALTERNATIVELY, THIS COURT SHOULD DISMISS

23 THE INDICTMENT ON THE GROUND THAT THE STATUTE,
24 18 U.S.C. 922(a)(1)(A), IS UNCONSTITUTIONALLY VAGUE
25 AS APPLIED TO MR. ROH
26
27
28
32
1 A. General Standards
2
A law that is void for vagueness violates the Fifth Amendment by
3
taking away someone’s “life, liberty, or property, without due process of
4
law.” U.S. Const. amend. V. The Due Process Clause “requires that a penal
5
statute define the criminal offense with sufficient definiteness that ordinary
6
people can understand what conduct is prohibited and in a manner that does
7
8
not encourage arbitrary and discriminatory enforcement.” Kolender v.
9 Lawson, 461 U.S. 352, 357 (1983). See, Johnson v. United States, 135 S.Ct.
10 2551, 2556 (2015).
11 There are two independent reasons for declaring a statute
12 impermissibly vague. City of Chicago v. Morales, 527 U.S. 41, 56 (1999).
13 First, the law may fail to “give the person of ordinary intelligence a
14 reasonable opportunity to know what is prohibited, so that he may act
15
accordingly.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).
16
Second, a law may be void for vagueness if it “authorize[s] and even
17
encourage[s] arbitrary and discriminatory enforcement.” Morales, 527 U.S.
18
at 56. While both factors are important, “the more important aspect of
19
vagueness doctrine is not actual notice, but . . . the requirement that a
20
21
legislature establish minimal guidelines to govern law enforcement.”
22 Kolender, 461 U.S. at 358 (quoting Smith v. Goguen, 415 U.S. 566, 574 (1974))
23 (internal quotation marks omitted).
24 “Vagueness challenges to statutes not threatening First Amendment
25 interests are examined in light of the facts of the case at hand; the statute is
26 judged on an as-applied basis.” Maynard v. Cartwright, 486 U.S. 356, 361
27 (1988). As-applied challenges ask whether the defendant “received fair
28
33
1 warning of the criminality of his own conduct from the statute in question”
2
because “[o]ne whose conduct a statute clearly applies may not successfully
3
challenge it for vagueness.” Parker v. Levy, 417 U.S. 733, 756 (1974).
4
In this case, section 922(a)(1)(A) of the GCA, codified in 18 U.S.C.
5
Chapter 44, is impermissibly vague as applied to Mr. Roh because it failed to
6
give fair notice of the prohibited conduct and it encouraged arbitrary and
7
8
discriminatory enforcement, particularly where the ATF applied the statute
9 to Mr. Roh based on an internal agency “classification” that directly

10 contradicted the legal standard embodied in 27 C.F.R. 478.11.
11
12 B. The Statute Should Be Analyzed Under A More Stringent
13 Vagueness Standard
14 “The degree of vagueness that the Constitution tolerates—as well as the
15
relative importance of fair notice and fair enforcement—depends in part on
16
the nature of the enactment.” Village of Hoffman Estates v. Flipside
17
Hoffman Estates, Inc., 455 U.S. 489, 498 (1982). A law that imposes criminal
18
penalties is less likely to be tolerated than one imposing only civil penalties,
19
where “the consequences of imprecision are qualitatively less severe.” Id. at
20
21
498–99. Furthermore, a law that “threatens to inhibit the exercise of
22 constitutionally protected rights” will require “a more stringent vagueness

23 test.” Id. at 499; McCormack v. Herzog, 788 F.3d 1017, 1031 (9th Cir. 2015)
24 (finding that a law threatening constitutionally protected rights “is even more
25 likely to be found unconstitutionally vague”).
26 Under these standards, the present case requires that a more stringent
27 vagueness standard be applied, for two equally compelling reasons:
28
34
1 First, the challenged law is a criminal statute. “For statutes . . .

2
involving criminal sanctions the requirement for clarity is enhanced.” United
3
States v. Kilbride, 584 F.3d 1240, 1257 (9th Cir. 2009) (quoting Info.
4
Providers’ Coal. for the Def. of the First Amendment v. F.C.C., 928 F.2d 866,
5
874 (9th Cir. 1991)) (internal quotation marks omitted). Under 18 U.S.C. §
6
924(a)(1)(D), whoever violates the challenged statute “shall be fined . . . ,
7
8
imprisoned not more than five years, or both.” Therefore, the statute at issue
9 should be analyzed under a more stringent vagueness standard.

10 Second, as applied to Mr. Roh by this prosecution, section 922(a)(1)(A)
11 inhibits the exercise of the Second Amendment by interfering with an
12 individual’s constitutionally protected right to keep and bear arms. See
13 McDonald v. City of Chicago, 561 U.S. 742, 778 (2010) (“[T]he right to keep
14 and bear arms [is] among those fundamental rights necessary to our system
15
of ordered liberty.”). The challenged statue implicates the right to keep and
16
bear arms by precluding individuals from making their own firearms at
17
Rohg Industries.
18
19
C. The Statute Failed to Give Mr. Roh Fair Notice That His
20
21
Conduct Was Illegal
22
23 When 18 U.S.C. § 922(a)(1)(A) is read in conjunction with 27 C.F.R.
24 478.11, there is no constitutional vagueness issue because section 478.11
25 makes it clear that a machined AR-15 blank is not a receiver and that Mr.
26 Roh therefore was not producing firearms through the use of the machinery
27 at his business. Under the reading of section 478.11, Mr. Roh is innocent of
28
35
1 any crime of manufacturing or dealing in firearms. However, when the

2
government filed the Indictment by applying the ATF's “classification” in
3
place of section 478.11, thereby treats the machining of the AR-15 blank as
4
tantamount to manufacturing firearms, the government caused a serious
5
constitutional vagueness issue to arise because under the “classification”
6
scenario, Mr. Roh was clearly denied fair notice that his conduct was illegal.
7
8
The standards discussed below directly support this conclusion.
9 “A fundamental principle in our legal system is that laws which

10 regulate persons or entities must give fair notice of conduct that is forbidden
11 or required.” F.C.C. v. Fox Television Stations, Inc., 132 S.Ct. 2307, 2317
12 (2012). It has been well-established through nearly a century of Supreme
13 Court jurisprudence that a statute violates due process if it “forbids . . . an
14 act in terms so vague that [people] of common intelligence must necessarily
15
guess at its meaning and differ as to its application.” Connally v. General
16
Const. Co., 269 U.S. 385, 391 (1926). “The vagueness may be from
17
uncertainty in regard to persons within the scope of the act.” Winters v. New
18
York, 333 U.S. 507, 515 (1948) (citing Lanzetta v. State of New Jersey, 306
19
U.S. 451 (1939)).
20
21
A statute can provide people of ordinary intelligence a reasonable
22 opportunity to know what is prohibited by “setting forth relatively clear

23 guidelines as to prohibited conduct and providing objective criteria to
24 evaluate whether a [person] has performed a prohibited [act].” Gonzales v.
25 Carhart, 550 U.S. 124, 126–27 (2007). “If a statute subjects violators to
26 criminal penalties, the need for clear definitions is even more exacting.”
27 McCormack v. Herzog, 788 F.3d 1017, 1031 (9th Cir. 2015) (quoting Forbes
28
36
1 v. Napolitano, 236 F.3d 1009, 1011 (9th Cir. 2000)) (internal quotation marks
2
omitted).
3
While 18 U.S.C. § 922(a)(1)(A) prohibits “any person except a licensed
4
importer, licensed manufacturer, or licensed dealer, to engage in the business
5
of importing, manufacturing or dealing in firearms . . . .”, the statute and its
6
related statutes cited earlier in this brief and also in the defendant’s trial
7
8
brief do not provide definitional guidance as to what it means to be a
9 “manufacturer” or “dealer”, or to be “engaged in the business of . . .

10 manufacturing or dealing in firearms,” particularly where the government’s
11 allegations are based on an agency “classification” that is not legally binding
12 and contradicts the legal standard in the C.F.R.
13 The unique circumstances before this Court compel an order
14 dismissing the indictment on vagueness-as-applied grounds. The statute did
15
not give Mr. Roh fair notice that his business practices were illegal, where his
16
practices were not illegal under the C.F.R. and to the extent he was put on
17
notice that his practices violated an agency “classification,” that classification
18
did not constitute binding law due to noncompliance with the APA, and the
19
classification represented an ad hoc decision-making process at ATF that
20
21
existed only in letter-correspondence from the ATF, not in any legal
22 publications.
23 Moreover, as to dealing, there is nothing in the statute or C.F.R.
24 provisions that speak to the illegality of the type of business operated by Mr.
25 Roh, where customers buy parts and accessories and assemble their own AR-
26 15 with assistance from Mr. Roh and his staff.
27 At trial and also in the course of pretrial motions, this Court has been
28
37
1 made aware of ATF Ruling 2015-1 that was issued in January 2015 - a year
2
after the ATF shut down Mr. Roh’s business. ATF Rul. 2015-1 addressed
3
with precision the specific business practice that Mr. Roh was engaged in. To
4
the extent agency guidance through formal rulings can suffice for purposes of
5
fair notice under the due process standard, no such guidance was provided
6
by the ATF to Mr. Roh prior to the execution of the search warrant in
7
8
February 2014.
9 But once again, even if the ATF had issued ATF Rul. 2015-1 back in the
10 period when Mr. Roh was operating, that ruling was defective in its analysis
11 because it was based on a false premise, namely that the machining of a blank
12 constitutes the manufacture of a receiver - firearm, which it clearly does not.
13 Thus, we have a classic due process violation here where the ATF did
14 not issue any formal agency guidance addressing the business practices until
15
a year after the business was shut down through ATF Rul 2015-1; but even if
16
such guidance had been issued in a timely manner while Roh was operation,
17
it is analytically defective, which means that ATF Rul 2015-1 could not have
18
been constitutionally sufficient as notice even if it had been issued back in
19
year 2013.
20
21
In short, the government’s case is a mess from a constitutional
22 vagueness standpoint. It simply cannot survive scrutiny under the standards

23 cited above. As a matter of law, he is innocent of the charges under the
24 criteria of 27 C.F.R. 478.11. And as a matter of constitutional analysis, he
25 could not possibly have had fair notice in year 2013 up to the February 2014
26 search warrant that his conduct was illegal.
27 Therefore, if this Court declines to acquit Mr. Roh under Rule 29, the
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1 Indictment should be dismissed on the basis that the charging statute is

2
unconstitutionally vague as applied to Mr. Roh.
3
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5
DATED: March 09, 2018 Respectfully Submitted,
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7
8
/S/_
GREGORY NICOLAYSEN
9 Counsel for Defendant,
10 Joseph Roh
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39

Memorandum Filed by Defendant Joseph Roh in Lower Receiver Case

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Memorandum Filed by Defendant Joseph Roh in Lower Receiver Case

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Case 8:14-cr-00167-JVS Document 124 Filed 03/09/18 Page 1 of 39 Page ID #:1268

1 GREGORY NICOLAYSEN (CA 98544)

9 CENTRAL DISTRICT OF CALIFORNIA

1 1. Defendant Roh’s pending motion for

1 MEMORANDUM OF POINTS AND AUTHORITIES

1 whether other similar ATF prosecutions are pending in federal courts

9 ALLEGATION THAT MR. ROH ENGAGED

22 (a) Before Submission to the Jury. After the

1 whether the evidence is insufficient to sustain a

9 for judgment of acquittal ‘if the evidence is insufficient to sustain a

1 The term “firearm” means . . . (B) the frame or

22 C.F.R. 478.11, which provides in pertinent part as follows:

1 Multiple government witnesses – including James Palm, Joshua

22 the ATF witnesses repeatedly misled this Court.

9 a machined AR-15 blank as a receiver, and thus a firearm. Hoffman

1 manual or other documentation describing the classification that might exist,

9 path of treating an in-house “classification” as the law and taking

22 to FTB has not been “classified” as a firearm:

1 Of importance is the phrase in the letter, “per the GCA definition,

9 AR-15 blank is not a firearm, the letter as written is nonetheless misleading

9 revealed. It is quite ironic that the revelation of this “classification” system

23 engaging in the manufacturing fireanns and would

1 Government counsel has acknowledged that this letter was produced to

9 section 551 of the APA as follows:

22 bearing on any of the foregoing;

1 of the APA provides in pertinent part:

22 published in the Federal Register and not so

1 The APA’s procedures for rule making likewise include the

9 shall give interested persons an opportunity to

22 Walsh, but the Park Service did not publish a general

1 obligation to comply strictly with the APA’s rule making requirements,

9 an exception. HN2 A rule which is subject to the

23 The Circuit expressly rejected the government’s contention that

9 comment procedures. It claims that since clause 13

1 Picciotto, 875 F.2d at 346-47.

22 the Sexual Offenders Registration and Notification Act (SORNA), 18 U.S.C. §

1 Administrative Procedure Act.

9 new criminal liability on the acts or omissions of

22 “make[s]” or “create[s] law.” See Id. at 679

1 Cain, 583 F.3d at 420.

22 APA's notice and comment requirements, so Cain's

22 cause, because the procedural delay allows criminal

1 indictments based on violations of the Attorney General’s retroactive

9 for seeking to bypass the APA's notice and comment

22 issued by the Department of Justice which the circuits held to be subject to

1 have strictly applied the APA’s rule making requirements to an

9 by the FTB branch of ATF to “classify” a fully machined AR-15 blank as a

22 interpretative rule in regard to 27 C.F.R. 478.11. See 5 U.S.C. 553(b)(3)(A),

9 universe of firearms subject to the serialization requirement contained in 18

1 a machined AR-15 blank as a receiver - firearm. As this “classification” did

22 While the Indictment alleges dealing in firearms as an alternate theory

1 There is no language pertaining to dealing in the C&D letter.

9 of dealing is entirely subsidiary to the manufacturing allegation, and this was

22 business, Rohg Industries, Mr. Roh provided a service by which customers

22 ALTERNATIVELY, THIS COURT SHOULD DISMISS

9 to Mr. Roh based on an internal agency “classification” that directly

22 constitutionally protected rights” will require “a more stringent vagueness

1 First, the challenged law is a criminal statute. “For statutes . . .

9 should be analyzed under a more stringent vagueness standard.

1 any crime of manufacturing or dealing in firearms. However, when the

9 “A fundamental principle in our legal system is that laws which

22 opportunity to know what is prohibited by “setting forth relatively clear

9 “manufacturer” or “dealer”, or to be “engaged in the business of . . .