Huver v. Commonwealth, Record No. 0276-08-4 (Va. App. 3/10/2009), Record No. 0276-08-4

Decision Date10 March 2009
Docket NumberRecord No. 0276-08-4
CourtVirginia Court of Appeals
PartiesLAWRENCE L. HUVER, III v. COMMONWEALTH OF VIRGINIA.

Appeal from the Circuit Court of Culpeper County, John R. Cullen, Judge

Kirk T. Milam (The Law Office of Kirk T. Milam, P.L.C., on briefs), for appellant.

Jennifer C. Williamson, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: Chief Judge Felton, Judges Elder and Petty.

MEMORANDUM OPINION*

JUDGE LARRY G. ELDER.

Lawrence L. Huver, III (appellant), appeals from his bench trial conviction for possessing a firearm silencer not registered to him in the National Firearms Registration and Transfer Record, a federal registry established by federal law, see 26 U.S.C. § 5841 (2006), in violation of Virginia's Code § 18.2-308.6. On appeal, he contends Code § 18.2-308.6 violates the Supremacy Clause. He also contends the evidence was insufficient as a matter of law to prove the silencer was not registered to him.1 We hold the appeal lacks merit, and we affirm.

I.

Code § 18.2-308.6 provides "It shall be unlawful for any person to possess any firearm muffler or firearm silencer which is not registered to him in the National Firearms Registration and Transfer Record [(NFRTR)]. A violation of this section shall be punishable as a Class 6 felony." See 1990 Va. Acts., ch. 413 (enacting Code § 18.2-308.6). The NFRTR was created in 1968 when Congress, through a series of amendments to the National Firearms Act of 1934, "set[] forth a comprehensive scheme [for] assessing taxes on importers, manufacturers, and dealers in firearms and provid[ed] a registration scheme for the same." Oefinger v. Zimmerman, 601 F. Supp. 405, 408 (W.D. Pa. 1984). The present federal statutory scheme, referred to as the National Firearms Act of 19682 (the Act), see 26 U.S.C. § 5849 (2006), requires registration of certain items defined as firearms, including firearm silencers, and payment of a tax thereon in certain circumstances, e.g. 26 U.S.C. §§ 5821, 5841, 5845 (2006), and it proscribes, inter alia, a person's (1) "mak[ing of] a firearm in violation of [the Act]," which requires advance registration, as well as (2) "possess[ion of] a firearm which is not registered to him in the [NFRTR]," 26 U.S.C. §§ 5822, 5861(d), (f) (2006).

A.

CODE § 18.2-308.6 & THE SUPREMACY CLAUSE

The Supremacy Clause

"provides Congress with the power to pre-empt state law. Pre-emption occurs when Congress, in enacting a federal statute, expresses a clear intent to pre-empt state law, when there is outright or actual conflict between federal and state law, where compliance with both federal and state law is in effect physically impossible, where there is implicit in federal law a barrier to state regulation, where Congress has legislated comprehensively, thus occupying an entire field of regulation and leaving no room for the States to supplement federal law, or where the state law stands as an obstacle to the accomplishment and execution of the full objectives of Congress."

Carter v. Commonwealth, 25 Va. App. 721, 723-24, 492 S.E.2d 480, 481 (1997) (quoting La. Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 368-69, 106 S. Ct. 1890, 1898, 90 L. Ed. 2d 369, 381-82 (1986) (citations omitted)).

Appellant does not argue that Congress's enactment of the National Firearms Act was intended to preempt all state regulation of firearms, only that it preempts "all matter regarding registration . . . and enforcement [under] the National Firearms Act," including the NFRTR. Appellant cites, inter alia, a provision of the Act "limit[ing] use of information from the [NFRTR] and applications for registration in criminal proceedings." See 26 U.S.C. § 5848 (2006). Appellant argues that the General Assembly would be free to establish a similar state registry and to punish possession of firearms not registered in accordance with state registry requirements but that it is not free to proscribe possession of firearms not registered in accordance with federal registration requirements. However,

in all pre-emption cases, and particularly in those in which Congress has "legislated . . . in a field which the States have traditionally occupied," we "start with the assumption that the historic police powers of the States were not superseded by the Federal Act unless that was the clear and manifest purpose of Congress."

Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S. Ct. 2240, 2250, 135 L. Ed. 2d 700, 715 (1996) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S. Ct. 1146, 1152, 91 L. Ed. 2d 1447, 1459 (1947)). The law at issue here, the National Firearms Act of 1934, as amended, was enacted to assist the states with the effort to deal with the "emergence of organized crime as a major national problem" and "[r]epresented the first major federal attempt to regulate firearms," Lomont v. O'Neill, 285 F.3d 9, 11 (D.C. Cir. 2002), an area traditionally falling under state police powers.

Appellant concedes federal law does not expressly preempt Code § 18.2-308.6, but he contends that code section conflicts with federal law because the penalties for violating the state and federal statutes are different. However, here, as in Carter, "[a]ppellant cites no authority, and we have found none," to support the claim that federal and state statutes conflict merely because they prescribe different penalties. Carter, 25 Va. App. at 725, 492 S.E.2d at 481. Thus, we conclude that no direct conflict exists between the federal and state law.

Further, the mere fact that Congress enacted legislation requiring the registration of certain firearms in the NFRTR and proscribed a penalty for possessing firearms not properly registered thereunder does not implicitly preempt any state laws also proscribing the possession of firearms not registered under the NFRTR. See Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 3.6(b), at 258 (2d ed. 2003) (noting it is not unusual for state and federal statutes to punish identical or substantially identical conduct under the theory that the statutes do not conflict and Congress did not intend to make federal law exclusive). California v. Zook, 336 U.S. 725, 69 S. Ct. 841, 93 L. Ed. 1005 (1949), for example, involved a challenge to a California statute that prohibited "the sale or arrangement of any transportation over the public highways of the State if the carrier ha[d] no permit from the Interstate Commerce Commission." The state statute had "substantially the same provision" as "[t]he federal Motor Carrier Act." Id. at 726-27, 69 S. Ct. at 842, 93 L. Ed. at 1008. In rejecting the Supremacy Clause challenge, the Court noted "there is no conflict in terms, and no possibility of conflict, for the state statute makes federal law its own in this particular." Id. at 735-38, 69 S. Ct. at 846-48, 93 L. Ed. at The existence of 26 U.S.C. § 5848 also does not implicitly preempt Code § 18.2-308.6. That federal statute, first enacted in 1968, provides as follows:

(a) General Rule. No information or evidence obtained from an application, registration, or records required to be submitted or retained by a natural person in order to comply with any provision of this chapter [establishing the NFRTR] or regulations issued thereunder, shall, except as provided in subsection (b) of this section, be used, directly or indirectly, as evidence against that person in a criminal proceeding with respect to a violation of law occurring prior to or concurrently with the filing of the application or registration, or the compiling of the records containing the information or evidence.

(b) Furnishing False Information. Subsection (a) of this section shall not preclude the use of any such information or evidence in a prosecution or other action under any applicable provision of law with respect to the furnishing of false information.

26 U.S.C. § 5848 (2006) (enacted by the Gun Control Act of 1968, Pub. L. No. 90-618, § 201, 82 Stat. 1227, 1232). The Supreme Court has further recognized that "as a matter of [administrative] practice," "[this] information in the hands of the Internal Revenue Service . . . is not available to state or other federal authorities." United States v. Freed, 401 U.S. 601, 605-06, 91 S. Ct. 1112, 1116, 28 L. Ed. 2d 356, 360 (1971).

Congress enacted 26 U.S.C. § 5848 as part of its effort to address the Court's earlier decision in Haynes v. United States, 390 U.S. 85, 100-01, 88 S. Ct. 722, 732, 19 L. Ed. 2d 923, 934-35 (1968), which had held that provisions of the Act allowing the sharing of registration information with state, local, and other federal officials violated the applicant's Fifth Amendment right against self-incrimination. Freed, 401 U.S. at 602-04 & n.1, 91 S. Ct. at 1115 & n.1, 28 L. Ed. 2d at 358-59 & n.1. Thus, Congress's enactment of 26 U.S.C. § 5848 does not indicate an intent by Congress to preempt state statutes proscribing the possession of firearms not registered under the NFRTR. Although, in practical effect, the provisions of § 5848 make it harder for a state to prove a failure to register under the NFRTR, see infra Part I.B., neither § 5848 nor the related administrative practice recognized in Freed prevents a state from offering evidence, as it did in appellant's case, to prove that an application was not filed, as long as the state does not seek to do so through an examination of the registration information actually contained in the NFRTR. Thus, given the events surrounding the passage of § 5848, we conclude its enactment does not constitute an implicit indication of federal preemption of the offense prescribed in Code § 18.2-308.6.

Finally, the federal regulations adopted pursuant to the Act have provided as follows since 1971:

Special tax stamps [provided to those who register under the Act] are merely receipts for the tax. Payment of tax under Federal law confers no privilege to act contrary to State law....

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