United States v. Berres
| Decision Date | 21 January 2015 |
| Docket Number | No. 14–7008.,14–7008. |
| Citation | 777 F.3d 1083 |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Bryan BERRES, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
OPINION TEXT STARTS HERE
Carl Folsom, III, Assistant Federal Public Defender (Julia L. O'Connell, Federal Public Defender; and Robert Ridenour, Assistant Federal Public Defender with him on the briefs), Office of the Federal Public Defender, Muskogee, OK, for the Defendant–Appellant.
Linda A. Epperley, Assistant United States Attorney (Mark F. Green, United States Attorney; and Kyle Evan Waters, Assistant United States Attorney with her on the brief), Muskogee, OK, for the Plaintiff–Appellee.
Before LUCERO, HOLMES, and PHILLIPS, Circuit Judges.
Bryan Berres appeals following his conditional guilty plea to three counts of possession of an unregistered firearm in violation of 26 U.S.C. § 5861(d). He raises several challenges to the validity of those counts. First, he argues that his conviction for possessing an unregistered flash bang device violates his due process rights because it was impossible for him, as a transferee of the device, to register it. However, our circuit jurisprudence distinguishes between firearms that may not be registered at all because their possession is banned, and those firearms that may be registered by a maker or a transferor, even if not by a transferee. Compare United States v. Dalton, 960 F.2d 121 (10th Cir.1992), with United States v. McCollom, 12 F.3d 968 (10th Cir.1993). Because the flash bang at issue falls into the latter category, Berres' argument fails.
Berres also challenges two § 5861(d) counts that were based on unassembled destructive devices. We are unpersuaded by his argument that the implementing regulations for § 5861(d) require registration only for completed devices. And we reject his contention that these charges were multiplicitous because he possessed only a single combination of parts. The statute permits separate prosecution for each firearm possessed, and the definition of firearm includes “any combination of parts either designed or intended for use in converting any device into a destructive device ... and from which a destructive device may be readily assembled.” 26 U.S.C. § 5845(f)(3) (emphasis added). Because Berres was properly charged with possessing two combinations designed or intended to create two destructive devices, we conclude the charges were not multiplicitous.
Lastly, Berres appeals the denial of his motion to suppress statements he made to a law enforcement officer while in a hospital. We agree with the district court that suppression was inappropriate because Berres was not in custody at the time he made the statements. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
On May 9, 2013, Berres walked into the AmeriGas Propane Company in Tahlequah, Oklahoma. As he entered the business, he placed a backpack near the front door. Berres first asked if he could use a phone to call his wife, then requested that employees call an ambulance to take him to the Veterans Administration (“VA”) Hospital in Muskogee, Oklahoma. Suspecting that Berres was in need of psychiatric treatment, the employees called for an ambulance.
Medical personnel arrived within minutes. When asked if he had any weapons, Berres handed over a knife and stated that he had a .38 pistol in his bag. The medics on scene then called for assistance from the Tahlequah Police Department. An officer responding to the call questioned Berres about the pistol. Berres stated that the gun was not loaded and that he had a license to carry it. He also told the officer that his bag contained a flash bang device, 8? leads, squibs, and electric matches. The AmeriGas facility was evacuated, and agents from the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) and the Oklahoma Highway Patrol Bomb Squad were called. Berres was transported by ambulance to the Muskogee VA Hospital.
ATF special agent Ashley Stephens contacted Matt Meredith, an agent with the District 27 Drug and Violent Crime Task Force, and asked him to meet with Berres at the VA Hospital. Meredith arrived at the hospital with two other officers, all dressed in plain clothes. Berres was seated in a room, eating, when Meredith reached him. Meredith introduced himself and asked if Berres would be willing to talk to him about the contents of his bag. Berres was “more than willing” to talk with Meredith. He stated that the bag contained a flash bang device, a .38 pistol, about 50 feet of Class C squib, about 70 feet of red paper fuse, two pounds of black powder, and night vision goggles. Berres also stated that he was taking these items to a wooded area to “get the government out of his body.”
Meredith's interview with Berres lasted approximately an hour, during which time Meredith repeatedly left the room to relay information to Stephens. Berres was seated in a chair near an open door throughout the interview, with Meredith seated on the far side of the room. Two other officers were positioned in the hallway outside the door for most of the interview. A doctor entered the room at the end of the interview and told Meredith that Berres was being placed on a 72–hour psychiatric hold. Hospital progress notes state that Berres was “voluntar[il]y here in the emergency department, but he is uncertain if he would want to stay in the hospital.” A subsequent notation states that staff were awaiting an evaluation from “mental health,” that police “plan[ ] emergency detention order,” and that “the patient does not want to stay.”
Following Meredith's interview, law enforcement safely opened Berres' backpack. It contained a flash bang device, two cans of black powder, six feet of cannon fuse, 36 electric matches, sixty feet of quick match fuse, a .38 pistol, nearly 300 rounds of .38 ammunition, and thirty rounds of .223 ammunition. Berres was charged with three counts of possession of an unregistered firearm. Count one relates to the flash bang device; counts two and three each charged possession of a combination of parts from which a destructive device may be readily assembled, specifically a black powder container, cannon fuse, and electric matches.
Berres filed a motion to dismiss, arguing that count one violated his due process rights because it was not legally possible for him to register the flash bang, that counts two and three failed to state an offense, and that counts two and three were multiplicitous. The district court denied the motion but stated that Berres could raise the multiplicity argument again after the government presented its case at trial. Berres also filed a motion to suppress the statements he made to Meredith, which the district court denied.
Berres then pled guilty to all three counts pursuant to a written plea agreement. He reserved the right to appeal the denials of his motion to dismiss and his motion to suppress. Berres was sentenced to sixty months' probation. He timely appealed.
Berres first contends that his conviction on count one violated his due process rights because it was legally impossible for him to register the flash bang device forming the basis of that charge. We review the constitutionality of a statute de novo. See United States v. Shavanaux, 647 F.3d 993, 996 (10th Cir.2011).
Under § 5861(d), no person may “receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.” For purposes of the statute, “firearm” refers to a specific list of devices, including sawed off shotguns, machineguns, and “destructive devices” such as grenades or flash bangs. § 5845. The “maker” or “transferor” of a firearm must register the firearm and pay a tax. See §§ 5812, 5822. Transferors must identify the transferee as part of the registration process. § 5812.
Berres argues that because he is not a maker or transferor of the flash bang, it was legally impossible for him to register the device. Although regulations implementing the statute require transferors to identify transferees, they do not allow an unregistered transferee to register. See27 C.F.R. § 479.101(b) ( ). And a registration application must be denied“if the making or possession of the firearm would place the person making the firearm in violation of law.” 26 U.S.C. § 5822.
In support of his due process argument, Berres relies heavily on United States v. Dalton, 960 F.2d 121 (10th Cir.1992). In that case, we concluded that a defendant may not be convicted of possessing an unregistered machinegun under § 5861(d). Because “[a] separate criminal statute prohibits the possession of any machinegun” and “the government will not permit the registration of machineguns,” we concluded that “compliance with the registration requirements referred to in sections 5861(d) and (e) is impossible with this weapon.” Dalton, 960 F.2d at 121. We also noted that “because the registration requirements of the National Firearms Act were passed pursuant to the taxing power, and because after the [ban on machinegun possession], the government will no longer register or tax machineguns,” the government lacked “the constitutional legitimacy of registration as an aid to taxation.” Id. at 124–25.1
Unlike the machineguns at issue in Dalton, however, the flash bang Berres was convicted of possessing can be registered by a transferor. Accordingly, his claim is controlled not by Dalton, but by United States v. McCollom, 12 F.3d 968 (10th Cir.1993). In McCollom, we rejected a due process challenge to a § 5861(d) conviction for possession of two unregistered sawed-off shotguns. 12 F.3d at 970. The defendant argued “his due process rights were...
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