Thanks for the reference! For the convenience of anyone else reading, the appeals docket is at
https://www.courtlistener.com/docket/67566242/united-states-.... Note that there are
two appeals briefs; it seems the defendant replaced their attorney at some point during the appeals process.
For what it's worth, I think this is the government's response to the argument you raise (on page 22 of the response brief, PDF page 30):
> Section 5845, captioned “[d]efinitions,” is a definitional provision, not a
criminal prohibition. As relevant here, § 5845(b) defines the term “machinegun,”
and § 5845(f) defines the term “destructive device.” These definitions do not create
additional elements of the offenses charged under §§ 5861(d) and 922(o). Therefore,
the government was not required to charge the applicable definition(s) in the
indictment. See, e.g., Robbins, 476 F.2d at 30 (holding that an indictment under
§ 5861(d) need not refer to the definitions in § 5845 to “fairly notify a defendant of
the charge against him”); United States v. Hoover, 635 F. Supp. 3d 1305, 1316
(M.D. Fla. 2022) (rejecting the argument that the government “was required to plead
the specific facts supporting its contention that the [firearms] at issue fall within the
definition of a machinegun”); cf. United States v. Pennington, 168 F.3d 1060, 1065
(8th Cir. 1999) (“The indictment’s failure to cite [18 U.S.C.] § 1346, a definitional
provision, and to use its specific term, ‘honest’ services, does not mean no crime
was charged.”).
And defendant's response, page 5:
> The question is whether the
indictment “fully, directly, and expressly, without any uncertainty or
ambiguity, set forth all the elements necessary to constitute the offence
intended to be punished” and whether the indictment complied “with the
necessity of alleging in the indictment all the facts necessary to bring
the case” within the intent of the statute. United States v. Carll, 105 U.S.
611 (1881) (emphasis added). The government’s failure to give any
specificity in the indictment cannot be remedied by wriggling as to
whether the missing information can be considered an “element” or not.
Even if the government were correct that the particular definition (or
definitions) the prosecution is proceeding under does not change
“elements,” it changes the “facts” underlying the scope of the statute.
I have no idea who is correct legally, and since oral arguments appear to have been held a few days ago I suppose I'll have to wait to see who is right.