United States v. Kelly , 276 F. App'x 261 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4775
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL J. KELLY, SR.,
Defendant - Appellant.
No. 06-1421
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
M-K SPECIALTIES, Model M-14 Machinegun Serial
Numbers: 1447797, 21954, 1082375, 1394870,
539240, 680531, 1506762, 1335989, 1359769,
1020490, 49488, 1157650, 1181446, 1325123,
1392697, 1434500, 1478082, 1497879, 1560920,
1573826, 217140, 223003, 26268, 336512,
376163, 39524, 419875, 48678, 5175, 575495,
828590, 947264, 977294, 1331982,
Defendant,
and
MICHAEL J. KELLY, SR.; WILLIAM A. THOMAS; GARY
K. BEACH; ALLEN FEHLINGS; CECIL P. SMITH, JR.;
EUGENE GZSANKA; DONALD P. SASS,
Claimants - Appellants,
and
ANTHONY J. FABIAN; FRANK BLISS; MATHEW C.
HEALEY; RICHARD J. VIEIRA,
Claimants.
Appeals from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (CR-03-50; 1:04-cv-00041-IMK)
Submitted: August 2, 2007 Decided: August 14, 2007
Before WILLIAMS, Chief Judge, and MICHAEL and GREGORY, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Richard E. Gardiner, Fairfax, Virginia, for Appellants. Rita R.
Valdrini, Acting United States Attorney, Randolph J. Bernard,
Robert H. McWilliams, Jr., Michael D. Stein, Assistant United
States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Michael J. Kelly, Sr., a federally licensed firearms
dealer, was arrested after agents from the Bureau of Alcohol,
Tobacco, Firearms and Explosives (BATFE) seized numerous illegal
weapons from his residence and place of business, MKS Specialties,
Inc. (MKS). He was convicted for five violations of federal law
involving the transfer of firearms to a non-resident, the
possession of unregistered machineguns, and the possession of semi-
automatic assault weapons. The district court also ordered twenty-
eight firearms, possessed or transferred by MKS, forfeited to the
government. Kelly appeals his convictions, and he and six other
claimants appeal the forfeiture order. Finding no error, we affirm
the convictions and forfeiture order.
I.
Kelly owns the MKS gun dealership, located in Grafton,
West Virginia. At MKS, Kelly specializes in manufacturing and
distributing the MKS M-14A, a gun that he manufactures using
receivers from decommissioned M-14 machineguns. (The military
decommissions M-14 machineguns by torch-cutting the receiver, the
frame of the gun that contains the firing mechanism, into two
parts.) In June 2001 agents from the BATFE informed Kelly that the
M-14 receivers he was using to manufacture the MKS M-14A were
machineguns as defined in 26 U.S.C. § 5845(b). (The Firearm
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Owners’ Protection Act makes it a crime to possess a machinegun
that was not lawfully possessed before the Act went into effect on
May 19, 1986. See 18 U.S.C. § 922(o).) The BATFE served a cease
and desist letter on Kelly, but he continued to manufacture and
sell M-14 receivers and MKS M-14As.
On July 24, 2002, the BATFE executed a search warrant on
Kelly’s residence, which also served as his place of business. The
search warrant authorized the agents to seize “[a]ll MKS M-14
receivers and all MKS M14A1 receivers and/or firearms utilizing the
aforementioned receivers.” S.J.A. 41. In addition to the guns
listed in the warrant, the agents discovered an Uzi machinegun
receiver, a Maadi semi-automatic assault rifle, an FAL semi-
automatic assault rifle, and an AK-47 machinegun. The agents took
the guns to BATFE agent Richard Vasquez, who was on the premises
during the search, for identification. Agent Vasquez, an expert
gunsmith, immediately determined that the firearms were illegal and
instructed his fellow agents to seize the guns.
Kelly was indicted for 206 violations of federal law. He
filed a motion to dismiss and a motion to suppress the four guns
that were not listed in the search warrant. The district court
denied both motions. Kelly was convicted after a jury trial on six
counts: Counts 95-97 (unlawful transfer of firearms to a non-
resident in violation of 18 U.S.C. § 922(b)(3)); Counts 98-99
(unlawful possession of machineguns in violation of 26 U.S.C.
4
§ 5861(d)); and Count 205 (unlawful possession of semi-automatic
assault weapons in violation of 18 U.S.C. § 922(v)(1)). The
district court granted Kelly’s motion for acquittal on Count 99 and
denied his other post-trial motions. The court sentenced Kelly to
24 months’ imprisonment on each of the five counts to run
concurrently. Kelly appeals his convictions.
The government also filed a civil forfeiture action for
thirty-four MKS-M14A receivers that the BATFE recovered from
seventeen individuals throughout the United States. Eleven
individuals, including Kelly, filed claims to the seized guns in
the district court. The government alleged that the MKS M-14A
firearms were unlawful machineguns and requested that they be
forfeited to the government pursuant to 26 U.S.C. § 5872(a). The
district court granted the government’s motion for summary judgment
and ordered the guns forfeited. Kelly and six other claimants
appeal the forfeiture order, and this appeal has been consolidated
with Kelly’s appeal of his conviction.
II.
Kelly challenges his convictions on the five counts that
survived post-trial motions. First, he argues that his convictions
for Counts 98 and 205 should be vacated because the Uzi receiver
and two semi-automatic assault weapons were unlawfully seized from
his residence. Second, he argues that 18 U.S.C. § 922(v), the ban
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on semi-automatic assault weapons, exceeds Congress’s power under
the Commerce Clause and violates his Second Amendment right to bear
arms. Third, he argues that the convictions on Counts 95-97 should
be reversed because (a) the district court erred in instructing the
jury, (b) there was insufficient evidence to support the
convictions, and (c) the government’s expert witness testimony was
unreliable. We consider these arguments in turn.
A.
Kelly argues that the district court erred in denying his
motion to suppress the Uzi receiver (Count 98) and the two semi-
automatic assault weapons (Count 205). Specifically, he says that
the district court erred in holding that these weapons, which were
not identified in the search warrant, were lawfully seized under
the plain view exception to the warrant requirement.
Under the plain view doctrine law enforcement officers
may seize an object without a warrant if (1) the officers are
“lawfully in a position from which they view an object,” (2) the
object’s incriminating character is “immediately apparent,” and (3)
the officers have a “lawful right of access to the object.”
Minnesota v. Dickerson, 508 U.S. 366, 375 (1993). Kelly argues
that the plain view doctrine cannot justify the seizure because “it
was [not] ‘immediately apparent’ to the agents who brought the
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three firearms to [agent] Vasquez that there was anything
‘incriminating’ about the three firearms.” Appellant’s Br. at 15.
We have previously rejected the argument that an item’s
illegality must be apparent to the searching officer at the precise
moment that he spots it. See United States v. Jackson, 131 F.3d
1105 (4th Cir. 1997) (upholding seizure of drug paraphernalia even
though seizing officer did not recognize the paraphernalia’s
illegality until after he left the room where it was located). The
“immediately apparent” prong of the plain view doctrine only
requires that “the incriminating nature of the item . . . become
apparent, in the course of the search, without the benefit of
information from any unlawful search or seizure.” United States v.
Garces, 133 F.3d 70, 75 (D.C. Cir. 1998).
The BATFE agents did not unlawfully search or seize the
three weapons prior to the time Vasquez determined that they were
possessed unlawfully. The agents’ decision to take the guns to
Vasquez, who was located on the premises, was clearly “[]related to
the objectives of the authorized intrusion” and therefore not an
additional or unlawful search. Arizona v. Hicks, 480 U.S. 321, 325
(1987). Nor did this movement of the guns constitute an unlawful
seizure because the agents did not “meaningfully interfere” with
Kelly’s possessory interest in the guns. Id. at 324; cf. Garces,
133 F.3d at 74 (“[W]e find neither search nor seizure in [the
agents’] carrying the key about the house to determine its
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evidentiary value.”); United States v. Menon, 24 F.3d 550, 560 (3d
Cir. 1994) (stating that agent executing a search warrant did not
seize documents when she moved them to another room for a fellow
officer to inspect). Thus, we conclude that the agents’ seizure of
the three guns was lawful pursuant to the plain view doctrine.
B.
1.
Kelly argues that Congress exceeded its Commerce Clause
powers in enacting 18 U.S.C. § 922(v)(1), which prohibits the
possession of most semi-automatic assault weapons. Kelly argues
that Congress does not have the power to regulate what he describes
as intrastate, non-economic activity. This argument is meritless.
The Commerce Clause authorizes Congress to regulate “those
activities that substantially affect interstate commerce.” United
States v. Lopez, 514 U.S. 549, 559 (1995). The ban on the
possession of semi-automatic assault weapons was plainly intended
to reduce the flow of those weapons in interstate commerce. See
Navegar, Inc. v. United States, 192 F.3d 1050, 1058 (D.C. Cir.
1999). As the D.C. Circuit has noted, section 922(v) affects
commerce by “impos[ing] criminal liability for those activities
which fuel the supply and demand for such weapons.” Id.Regulations of intrastate activities that affect the supply or
demand of a commodity are well within Congress’s Commerce Clause
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powers. See Wickard v. Filburn, 317 U.S. 111, 128 (1942) (holding
that Congress had the power to regulate intrastate cultivation of
wheat because of its effect on the national market for that
commodity).
2.
Kelly also argues that the ban on semi-automatic assault
weapons in section 922(v) violates his Second Amendment right to
bear arms. The Second Amendment states that: “A well regulated
Militia, being necessary to the security of a free State, the right
of the people to keep and bear Arms, shall not be infringed.” We
held in Love v. Pepersack, 47 F.3d 120 (4th Cir. 1995), that the
Second Amendment does not confer an absolute individual right to
bear firearms. In that case we adopted the collective rights
theory, interpreting the Amendment to protect the states’ right to
organize and arm militias. Accordingly, a person challenging a
federal gun restriction must show that his possession of the gun
“bore a ‘reasonable relationship to the preservation or efficiency
of a well regulated militia.’” Id. at 124 (quoting United States
v. Miller, 307 U.S. 174, 178 (1939)). Kelly has not made any
showing that he possessed the semi-automatic assault weapons in
connection with membership in a state militia.
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C.
Kelly raises several challenges to his convictions under
Counts 95-97 for transferring firearms to an out-of-state resident
in violation of 18 U.S.C. § 922(b)(3).
1.
Kelly argues that the district court failed to instruct
the jury on Counts 95-97 that the government was required to prove
that he knew the transferee was not a federally licensed firearms
dealer. Section 922(b)(3) makes it unlawful for a licensed dealer
to “sell or deliver . . . any firearm to any person who the
licensee knows or has reasonable cause to believe does not reside
in . . . the State in which the licensee’s place of business is
located.” 18 U.S.C. § 922(b)(3). This section does “not apply to
transactions between licensed . . . dealers.” Id. § 922(b).
The district court’s instruction “taken as a whole . . .
fairly states the controlling law.” See United States v. Cobb, 905
F.2d 784, 789 (4th Cir. 1990) (stating standard of review for
challenges to jury instructions). The court told the jury that to
convict Kelly on Counts 95-97 it must find that (1) he “knowingly
and willfully sold or delivered firearms to persons who the
defendant knew . . . did not reside in West Virginia,” and (2) “the
person to whom the firearm was transferred was not a licensed . . .
dealer.” J.A. 164. The district court correctly instructed the
jury that the willfulness (and knowledge) requirement in section
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922(b)(3) applies to each of the elements of that offense,
specifically (1) the sale of a firearm (2) to an out-of-state
resident. The willfulness (and knowledge) requirement does not
apply to the “dealer to dealer” provision in section 922(b), which
is an exception to the statute’s application and not an element of
the offense. Accordingly, there was no error in the instruction
because the government was not required to prove that Kelly knew
that the transferee was not a federally licensed firearms dealer.
2.
Kelly’s other challenges to his conviction on Counts 95-
97 are meritless. After reviewing the record, we conclude that the
convictions on these counts were supported by sufficient evidence.
Furthermore, we conclude that the district court did not abuse its
discretion in admitting agent Vasquez’s expert testimony that the
M-14 receivers seized from Kelly’s residence could “readily be
converted” to fire ammunition. See 18 U.S.C. § 921(a)(3) (stating
the definition of “firearm”).*
*
We also affirm the district court’s order denying Kelly’s
motion for attorney’s fees with respect to Counts 1-84 and 127-204
because the government’s prosecution on these counts was not
“vexatious, frivolous, or in bad faith.” In re 1997 Grand Jury, 215
F.3d 430, 436 n.8 (4th Cir. 2000). Significantly, the BATFE
informed Kelly that it considered the receivers in his possession
to be machineguns well before the government initiated criminal
proceedings against him.
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III.
We next consider the appeal filed by Kelly and six other
claimants (collectively, “Kelly”) of the district court’s order
granting summary judgment to the government on its in rem
forfeiture claim. The central question is whether the MKS M-14A
guns seized by the BATFE agents are “machineguns” as defined in 26
U.S.C. § 5845(b). According to the definition, “The term
‘machinegun’ means 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.” In this civil forfeiture action the government has the
initial burden to establish probable cause to believe that the
seized items were unlawful machineguns. The burden then shifts to
the claimants to show by a preponderance of the evidence that the
guns were improperly seized. See United States v. One TRW, Model
M14, 7.62 Caliber Rifle, 441 F.3d 416, 419 (6th Cir. 2006).
It is undisputed that the defendant MKS M-14As could not
shoot automatically at the time of their seizure. In support of
its motion for summary judgment the government introduced a
videotaped deposition in which BATFE agent Vasquez made the MKS M-
14A shoot automatically in approximately fifty minutes. (The
parties stipulated that the MKS M-14A used in the deposition was
representative of the defendant firearms.) Vasquez used three
common tools to modify the weapon, including a Dremmel drill, a
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carbide burr, and a Tig welder. He also testified that the spare
parts used to restore the weapon could be purchased for
approximately $79.00.
Agent Vasquez’s restoration of the MKS M-14A established
probable cause to believe that the receivers were machineguns.
Indeed, two other circuit courts have held that the MKS M-14As sold
by Kelly were machineguns under the definition in § 5845(b). One
TRW, 441 F.3d 416; United States v. TRW Rifle 7.62X51MM Caliber,
447 F.3d 686 (9th Cir. 2006). In both cases the courts determined
that the MKS M-14As could be “readily restored,” even assuming
restoration times that significantly exceeded fifty minutes. One
TRW, 441 F.3d at 423 (four to six hours); TRW Rifle, 447 F.3d at
692 (two hours); see also United States v. Smith, 477 F.2d 399, 400
(8th Cir. 1973) (eight hours).
Kelly argues, however, that “the statute must be applied
not based upon the knowledge and skills of an expert and what an
expert may be able to accomplish, but upon the knowledge and skills
of an ordinary person.” Appellant’s Br. at 17. We reject Kelly’s
argument for two reasons. First, because semi-automatic weapons
are complex instruments, any restoration for automatic firing will
necessarily require some degree of experience or expertise.
Accordingly, it makes little sense to inquire whether a gun can be
readily restored by the ordinary person. Second, the level of
expertise required to restore the weapon is just one factor that we
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consider in determining whether a weapon may be readily restored to
shoot automatically. In addition to expertise, we consider the
time, equipment, and cost necessary to restore the weapon. See One
TRW, 441 F.3d at 422 (listing factors); United States v. Aguilar-
Espinosa, 57 F. Supp. 2d 1359, 1362 (M.D. Fla. 1999) (same). Thus,
a weapon that requires significant expertise to be restored may
nevertheless be considered a machinegun if the restoration can be
done quickly and with little expense.
In any event, Kelly has not offered evidence to rebut
agent Vasquez’s expert testimony that the MKS M-14A can be readily
restored to fire automatically. Kelly did not show that the
restoration process would require significant expertise,
specialized tools, or a great expenditure of time and money. Thus,
Kelly has not met his burden to prove by a preponderance of the
evidence that the receivers were seized unlawfully.
We have also carefully considered Kelly’s other arguments
for reversal of the summary judgment: (1) that the MKS M-14A
receiver was not designed to shoot automatically within the meaning
of 26 U.S.C. § 5845(b); (2) that § 5845(b) is unconstitutionally
vague; and (3) that no deference is owned to the government in the
interpretation of § 5845(b). We conclude that each of these
arguments is without merit.
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For these reasons, we affirm the district court’s order
granting summary judgment to the government in the forfeiture
action.
IV.
We affirm Kelly’s convictions, the district court’s order
denying Kelly’s motion for attorney’s fees, and the district
court’s forfeiture order.
AFFIRMED
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