U.S. v. Carmel

• Decision Date: 24 November 2008
• Docket Number: No. 07-3906.,07-3906.
• Citation: 548 F.3d 571
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David R. CARMEL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

548 F.3d 571

UNITED STATES of America, Plaintiff-Appellee, v. David R. CARMEL, Defendant-Appellant.

No. 07-3906.

United States Court of Appeals, Seventh Circuit.

Argued September 17, 2008.

Decided November 24, 2008.

Laura A. Przybylinski (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

T. Christopher Kelly (argued), Kelly & Habermehl, Madison, WI, for Defendant-Appellant.

Before MANION, WOOD, and WILLIAMS, Circuit Judges.

MANION, Circuit Judge.

Defendant David Carmel pleaded guilty to one count of possessing an unregistered machine gun in violation of 26 U.S.C. § 5861, reserving his right to appeal from the district court's denial of his motion to suppress, its denial of his motion for a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and its denial of his challenge to the constitutionality of 26 U.S.C. § 5861. We AFFIRM.

I.

David Carmel was being investigated by Immigration and Customs Enforcement ("ICE") and Defense Criminal Investigative Service ("DCIS"), an arm of the Department of Defense. ICE and DCIS believed that Carmel had stolen and sold military supplies and weapons. During a phone conversation between Carmel and an undercover ICE agent, Carmel indicated that he had three firearms—a "Rheinmetall MG3, a MG 34, and a Heckler & Kock HK21." Carmel invited the agent to shoot with him at his home and added that whatever ammunition the agent would bring, he owned a weapon that would fire it.

On May 30, 2007, DCIS agents arrested Carmel in his car. A local sheriff's investigator, Chad Holum, was present during the arrest and found in Carmel's car two top handles that could potentially be used in an M-16 machine gun. Holum then applied in Wisconsin state court for a warrant to search Carmel's home. The application for the warrant contained an affidavit and an accompanying statement explaining why Holum believed probable cause existed to search Carmel's home. The statement first recounted the conversation between Carmel and the undercover agent. Next, the statement noted the discovery of the two top handles, which were described as "made for a M16 machine gun." Holum's statement further indicated that based on his experience in the Marine Corps and as a law enforcement officer, top handles were necessary to fire an M-16. The statement noted that in a post-arrest interview, Carmel had said that he possessed one machine gun, an "MG M-119," that was properly registered with the federal government. The statement continued: "When asked about other types of machine guns, Carmel refused to answer any questions in this area." Carmel also admitted possessing other machine gun barrels and parts. Finally, the statement noted that Carmel had told his father in a recorded telephone conversation that he had been arrested by federal authorities, and that "his father could guess what it is for." The affidavit in support of the search warrant identified the three weapons—the Rheinmetall MG3, the MG 34, and the Heckler & Koch HK2—as machine guns.

The state court issued the search warrant, permitting officers to search for the three identified weapons. When officers searched Carmel's home and property, they discovered several rifles and a rocket launcher, and the officers notified federal authorities. Field-testing of numerous other weapons revealed approximately thirty machine guns. The weapons were not seized immediately. Instead, officers sought to secure a warrant to seize the weapons as well as other parts and computers that could contain evidence of illegal weapon manufacturing and sales.

A federal search warrant was subsequently issued to seize the machine guns as well as other evidence of criminal activity. After more than sixty machine guns were recovered, Carmel was charged with violations of 18 U.S.C. § 922(o), which provides that "[e]xcept as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun." However, a subsequent grand jury indictment charged Carmel with violating 26 U.S.C. § 5861(d), which provides that "[i]t shall be unlawful for any person ... to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record."

Carmel moved to suppress the machine gun evidence seized at his home and requested a Franks hearing to determine whether Holum recklessly omitted material facts from his affidavit. Carmel also moved to dismiss the indictment, arguing that 26 U.S.C. § 5861(d) had been implicitly repealed by the enactment of 18 U.S.C. § 922(o), that Congress lacked a constitutional basis to enact 26 U.S.C. § 5861(d), and that § 5861(d) violated the Due Process Clause because it was impossible to comply with and was unconstitutionally vague.

The magistrate judge denied Carmel's motion for a Franks hearing. Then, the magistrate judge issued a report in which he recommended that the district court deny the motions to dismiss the indictment and suppress the evidence. Subsequently, Carmel and the government entered into a plea agreement under which Carmel would plead guilty to one count of violating 26 U.S.C. § 5861(d); however, Carmel reserved his right to withdraw the plea should the district court rule in his favor on the motions and to appeal should the district court rule against him. The district court then issued an order adopting the recommendation of the magistrate judge and denying the motions to dismiss the indictment and to suppress the machine guns. Carmel was sentenced to forty-six months in prison and thirty-six months of supervised release. Carmel appeals.

II.

A.

On appeal, Carmel first argues that the state search warrant was not supported by probable cause and that the resulting federal search warrant constitutes noxious "fruit of the poisonous tree." United States v. Grogg, 534 F.3d 807, 810 (7th Cir.2008). "A search warrant affidavit establishes probable cause when, based on the totality of the circumstances, it sets forth sufficient evidence to induce a reasonably prudent person to believe that a search will uncover evidence of a crime." United States v. Curry, 538 F.3d 718, 729 (7th Cir.2008). The judge issuing the warrant "need only conclude that it would be reasonable to seek the evidence in the place indicated in the affidavit," id., but the judge "may not rely solely upon conclusory allegations or a bare bones affidavit when issuing a warrant." Id. When reviewing a search that was conducted pursuant to a warrant, "we must afford great deference to the issuing judge's conclusion" that probable cause to search existed. United States v. Prideaux-Wentz, 543 F.3d 954, 958 (7th Cir.2008). "Judges may draw reasonable inferences from the totality of the circumstances in determining whether probable cause exists to issue a warrant." Id. at 961.

In this case, probable cause existed to search Carmel's home. Carmel claimed to have three machine guns at his home in a conversation with an undercover agent, but later told police that he possessed one properly licensed machine gun. Moreover, the single properly licensed machine gun was not identical to the three machine guns Carmel earlier claimed to possess. It is reasonable to infer from this evidence that Carmel possessed three unlicensed, illegal machine guns. Coupled with the top handles that could be used in an M-16 machine gun, as well as Carmel's admission that he possessed other machine gun parts, a reasonably prudent person could conclude that, if police searched Carmel's home, they would discover several illegal machine guns. Accordingly, the state search warrant was supported by probable cause.

Carmel attacks the affidavit piece by piece. First, he argues that the affidavit simply makes a "bald assertion" that the Rheinmetall MG3, MG 34, and Heckler & Kock HK21 were machine guns. Although Carmel acknowledges that the affidavit mentions Holum's experience in the Marine Corps and as a law enforcement officer, Carmel argues that this experience is "unexplained." Certainly, Holum could have more clearly set forth his experience with machine guns; however, perfection is not required for an affidavit to pass constitutional muster. Rather, the affidavit only must be sufficient to allow a reasonably prudent person to believe that evidence of a crime will be found. Curry, 538 F.3d at 729. A reasonably prudent person could believe that a police officer and former Marine would be able to identify a machine gun.

Carmel then argues that because there were various exceptions to the state law at issue (for instance, Carmel could have lawfully possessed a machine gun "not usable as a weapon and posessed as a curiosity, ornament or keepsake," WIS. STAT. § 941.27(2)), the affidavit should have indicated that Carmel's weapons did not fit into any of the specified categories. However, the existence of limited statutory exceptions to the general prohibition on machine guns does not prevent a reasonable person from inferring that Carmel's possession of the machine guns was illegal. See United States v. Decoteau, 932 F.2d 1205, 1207 n. 1 (7th Cir.1991) (noting that, despite the existence of a narrow statutory exception permitting legal possession, witnessing a person in possession of a sawed-off shotgun gives rise to probable cause to believe that the firearm is unregistered).

Similarly, Carmel notes that the top handles found in his car, although usable in an M-16, could also be used in an AR-15, a legal weapon. However, despite the term "probable," finding probable cause "demands even less than probability." Woods v. City of Chicago, 234 F.3d 979, 996 (7th Cir.2000). To show probable cause "requires more than bare suspicion but need not be based on evidence sufficient to support a conviction, nor even a showing that the officer's belief is more likely true than false." Id. The potential lawful use of the top handles does not negate the other incriminatory inference, and in...