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.

The appeals court did not seem very impressed.

The oral argument is here: https://www.ca4.uscourts.gov/OAarchive/mp3/23-4451-20250912....

The first question they asked is "why didn't you ask for a bill of particulars?".

Overall, they seemed very confused as to the argument made here - why is the indictment actually insufficient, and what words did you want them to use instead.

I don't think this will be a successful appeal at all - they seem to all agree this is not stuff that goes in an indictment, and to the degree that there was ambiguity, the correct answer was to request a bill of particulars.

At around 10 minutes, one of the judges asks counsel for the best case he has that says he's right, and he can't come up with one at all.

Which is probably the point at which he lost this appeal. :)

To be fair, i don't blame the lawyer, and i expect why the judges are being not too hard on him, is because he's doing his best to argue a losing case because of choices made at the district court level.