U.S. v. One Trw, Model M14, 7.62 Caliber Rifle

Decision Date20 March 2006
Docket NumberNo. 04-5082.,04-5082.
Citation441 F.3d 416
PartiesUNITED STATES of America, Plaintiff-Appellee, v. ONE TRW, MODEL M14, 7.62 CALIBER RIFLE, Serial Number 1488973 from William K. Alverson, Defendant, William K. Alverson, Claimant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED: Richard E. Gardiner, Fairfax, Virginia, for Appellant. David Y. Olinger, Jr., Assistant United States Attorney, Lexington, Kentucky, for Appellee. ON BRIEF: Richard E. Gardiner, Fairfax, Virginia, for Appellant. David Y. Olinger, Jr., Assistant United States Attorney, Lexington, Kentucky, for Appellee.

Before: MOORE, GIBBONS, and GRIFFIN, Circuit Judges.

MOORE, J., delivered the opinion of the court, in which GIBBONS, J., joined.

GRIFFIN, J. (pp. 425-29), delivered a separate dissenting opinion.

OPINION

KAREN NELSON MOORE, Circuit Judge.

This case involves a forfeiture of the Defendant weapon pursuant to 26 U.S.C. § 5872(a) because the weapon was found to be a machinegun within the terms of the National Firearms Act ("NFA"), 26 U.S.C. § 5845(b), and was not registered to the Claimant-Appellant, William K. Alverson ("Alverson"), in violation of 26 U.S.C. § 5861(d). Alverson claims that the Government failed to satisfy the burden required to justify the forfeiture because it did not show that the Defendant firearm was "designed to shoot" automatically or could "be readily restored to shoot" automatically under the NFA's definition of a machinegun. 26 U.S.C. § 5845(b). For the reasons set forth below, we AFFIRM the district court's judgment granting the United States's motion for summary judgment.

I. BACKGROUND

In the fall of 2001, the Bureau of Alcohol, Tobacco, and Firearms ("ATF") Field Office in Lexington, Kentucky was informed that MK Specialties ("MKS") was selling firearms made from cut-up M-14 receivers marketed as the MKS M-14. The Lexington ATF Office determined that Alverson had purchased one of these weapons. In early January 2002, ATF Special Agents verified that Alverson was in possession of such a weapon, and on January 11, 2002, ATF Special Agents seized it from him. Subsequent to its seizure, ATF Firearms Enforcement Officer Richard Vasquez examined the weapon and issued a report, concluding that the Defendant weapon was a machinegun within the meaning of the NFA. ATF also conducted a search of the National Firearms Registration and Transfer Record and found that the Defendant weapon was not registered to Alverson or any other person.

Following the seizure, Alverson filed a claim of ownership of the Defendant weapon, contesting the forfeiture on the ground that it was not a machinegun under the NFA. On October 3, 2002, the United States filed a complaint for forfeiture in rem, claiming that the Defendant weapon was a "machinegun" under 26 U.S.C. § 5845(b) and was not registered to Alverson, in violation of 26 U.S.C. § 5861(d). The United States moved for summary judgment, and Alverson filed a motion to stay. The district court dismissed Alverson's motion to stay and granted the Government's motion for summary judgment. Alverson then timely filed an appeal of the district court's grant of summary judgment.

II. ANALYSIS
A. Standard of Review

We review a grant of summary judgment de novo. United States v. Any & All Radio Station Transmission Equip., 218 F.3d 543, 547 (6th Cir.2000) (citing EEOC v. Nw. Airlines, Inc., 188 F.3d 695, 701 (6th Cir.1999)). Summary judgment is appropriate where "there is no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

B. Burden of Proof

In 2001, Congress enacted the Civil Asset Forfeiture Reform Act ("CAFRA"), 18 U.S.C. § 983, which, among other reforms, placed on the Government the burden of proving by a preponderance of the evidence that the property is subject to forfeiture in most civil forfeiture proceedings. Id. § 983(c)(1). CAFRA states that "a suit or action brought under any civil forfeiture statute for the civil forfeiture of any property" shall be governed by CAFRA's burden of proof requirements. 18 U.S.C. § 983(c)(1). However, CAFRA later limits the application of this provision by stating that "'civil forfeiture statute'. . . (2) does not include—. . . (B) the Internal Revenue Code of 1986." Id. § 983(i); see also Deep Sea Fisheries, Inc. v. 144,774 Pounds of Blue King Crab, 410 F.3d 1131, 1134 (9th Cir.2005) (explaining that CAFRA applies to "all civil forfeitures under federal law unless the particular forfeiture statute is specifically exempted in 18 U.S.C. § 983(i)(2)"). The NFA provision under which this forfeiture was initiated, 26 U.S.C. § 5872(a), is contained in Title 26, which is the Internal Revenue Code of 1986.1 Therefore, CAFRA does not govern the burden of proof here. See United States v. One Harrington & Richardson Rifle, Model M-14, 7.62 Caliber Serial No. 85279, 378 F.3d 533 (6th Cir. 2004) (order) (applying the pre-CAFRA burden-of-proof standard to a forfeiture pursuant to the NFA).

We now turn to the law governing the burden of proof necessary to sustain this forfeiture pursuant to the NFA. The Treasury Fund Forfeiture Act of 1992 provided that

[e]xcept as provided in paragraph (2) and section 5872(b) of the Internal Revenue Code of 1986, the provisions of law relating to—(A) the seizure, summary and judicial forfeiture, and condemnation of property for violation of Customs laws, (B) the remission or mitigation of such forfeiture, and (C) the compromise of claims, shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under any applicable law enforced or administered by the Bureau of Alcohol, Tobacco and Firearms.

Pub.L. 102-393, Tit. VI, § 638(b)(1), 106 Stat. 1779 (formerly codified at 31 U.S.C. § 9703(o)(1)), repealed by Homeland Security Act of 2002, Pub.L. 107-296, Tit. XI, Subtit. B, § 1113, 116 Stat. 2279 (codified at 18 U.S.C. § 3051).2 The Customs laws governing forfeitures are found at 19 U.S.C. §§ 1602-1631. Under these provisions, where a person whose property has been seized for forfeiture wants to contest the seizure, that person must first file a claim of ownership of property. 19 U.S.C. § 1608. The Government must then initiate a civil judicial forfeiture action. Id. § 1604. Under the burden-shifting scheme set forth by 19 U.S.C. § 1615, the Government bears the burden of establishing probable cause to believe that the property was used in violation of the law, and the burden then shifts to the claimant to prove by a preponderance of the evidence that the item was improperly seized. Id. § 1615; Any & All Radio Station Transmission Equip., 218 F.3d at 548.

C. Statutory Interpretation

The NFA defines a machinegun as "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 statute does not define "designed to shoot" or "can be readily restored," and neither the Supreme Court nor the Sixth Circuit has defined these terms.

1. The ATF Rulings

The Government argues that we should rely on several ATF Rulings ("the Rulings") that define "designed to shoot" and "can be readily restored" and that classify various modified weapons as machineguns because they were "designed to shoot" automatically. Typically, where a statute is ambiguous and the implementing agency has interpreted the statute, a court will determine what, if any, level of deference the interpretation should be afforded and then defer accordingly. The Supreme Court has distinguished between the more deferential standard of Chevron, under which agency interpretations will control as long as they are "based on a permissible construction of the statute," Chevron U.S.A. Inc. v. Natural Res. Def. Council Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and the less deferential standard of Skidmore, under which the weight of an agency's interpretation "depend[s] upon . . . all those factors which give it power to persuade, if lacking power to control," Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944). See United States v. Mead Corp., 533 U.S. 218, 234-35, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001). Chevron deference will be afforded to agency interpretations, like the ATF Rulings, that were not made pursuant to notice-and-comment rulemaking or formal adjudication, only where the reviewing court determines that Congress intended such agency action to have the "force of law." Mead Corp., 533 U.S. at 231-32, 121 S.Ct. 2164; see also Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000).

The amount of deference that the Rulings merit is unsettled,3 and we need not decide this question in this case. The ATF Rulings, even if entitled to full Chevron deference, would provide little guidance, as their explanation of "can be readily restored to shoot" hardly helps to clarify the statutory definition of this provision.4 Moreover, the Rulings have little bearing on whether the Defendant weapon "can be readily restored to shoot[] automatically" because the weapons at issue in the Rulings were classified as machineguns based on the ATF's determination that they were "designed to shoot" automatically.5

2. Available Evidence

In support of its motion, the Government submitted a Firearms Technology Branch Report of Technical Examination ("FTB Report") written by ATF Officer Richard Vasquez after his investigation of the Defendant weapon that detailed its characteristics and the methods used to restore it to automatic shooting capacity.6 The Claimant objects to the admissibility of the FTB Report, as it was unsworn and not accompanied by an affidavit. See Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962, 968-69 (6th Cir.1991) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158 n. 17, 90 S.Ct. 1598, 26...

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