Opinion
07-CR-97-S.
September 7, 2007
REPORT AND RECOMMENDATION
REPORT
The grand jury has charged defendant David R. Carmel with one count of unlawful possession of 60 unregistered machine guns in violation of 26 U.S.C. § 5861(d). Before the court for report and recommendation is Carmel's motion to dismiss the indictment, see dkt. 16, and motion to quash t to quash the state search warrant that led to the discovery of the charged machine guns, see dkt. 18. For the reasons stated below, I am recommending that this court deny both motions.
I. Motion to Dismiss
There are two federal statutes prohibiting possession of machine guns. The old warhorse, originally enacted in 1954 (with slightly different numbering) is 26 U.S.C. § 5861(d), which prohibits possession of machineguns that are not registered in the National Firearms Registry. This is the statute charged against Carmel in the indictment. On May 19, 1986, Congress enacted 18 U.S.C. § 922(o), which forbids civilian possession of any machinegun not lawfully possessed as of that date. (This was the statute charged against Carmel in the criminal complaint. It is not clear why the government switched statutes in the indictment). Therefore, as of 1986, it became impossible for ordinary citizens to register machine guns in the National Firearms Registry.
Carmel points out that he was 11 years old in 1986.
Carmel posits from this that § 922(o) has implicitly repealed § 5861(d) by making it impossible to comply with the latter statute. As a result, the tax rationale undergirding § 5861 has dissolved and Carmel's due process rights are being violated by his prosecution for failing to comply with a statute with which compliance is impossible. Carmel also argues that the statute is unconstitutionally vague as applied to him because "he cannot know what collection of parts, scattered about his parents' property, might be deemed a machine gun at trial." Memorandum in Support, dkt. 33, at 7.
Starting with the last point, the court has ordered the government to provide a bill of particulars, which apparently has been done. See Aug. 29, 2007 letter from AUSA Przybylinski Finn to Attorney Kelly, in the correspondence file. The government also reports that it will not be relying on a "combination of parts" theory, but has identified complete, functioning weapons as the charged contraband. See Brief in Opposition, dkt. 37, at 4. This should be sufficient information to allow Carmel to defend against the charge at trial and otherwise to protect his right to due process.
Which segues to Carmel's argument that it is unfair and paradoxical to charge him with violating a registration requirement with which it is impossible to comply. Carmel contends that this paradox must be resolved by deeming § 5861(d) implicitly repealed.
The case law on this issue goes in both directions. The Tenth Circuit in 1992 and a district court in Southern Ohio in 1996 found that § 922(o) rendered § 5861(d) meaningless and unenforceable. United States v. Dalton, 960 F.3d 121, 126 (10th Cir. 1992); United States v. Gambill, 912 F.Supp. 287, 289 (S.D. Oh. 1996). Six other circuit courts have reconciled the two statutes and rejected arguments similar to Carmel's in this case. See United States v. Elliot, 128 F.3d 671, 672 (8th Cir. 1997); Hunter v. United States, 73 F.3d 260, 261-62 (9th Cir. 1996); United States v. Rivera, 58 F.3d 600, 601-02 (11th Cir. 1995); United States v. Ardoin 19 F.3d 177, 179-80 (5th Cir. 1994); United States v. Ross, 9 F.3d 1182, 1193-94 (7th Cir. 1993), vacated on other grounds, 511 U.S. 1124 (1994); United States v. Jones, 976 F.2d 176, 182-83 (4th Cir. 1992).
The courts that have upheld § 5861 against such attacks — including the Seventh Circuit in its vacated opinion in Ross — take the unnuanced approach: all you have to do to comply with both statutes is not possess a machine gun. The court in Gambill dubbed this the "just say no" argument, and quoted the dissent in Ardoin that "such casual, dismissive responses are just not satisfactory when it comes to engaging in an activity, such as keeping and bearing arms, that arguably implicates the bill of rights." 912 F.Supp. At 290, quoting Ardoin, 19 F.3d at 186 (Weiner, J., dissenting).
Perhaps I'm missing an important principle here, but I don't see much substantive merit to either side's position in the instant case. First, I do not understand why the government, after charging Carmel with a § 922(o) violation in its criminal complaint, switched to § 5861(d) for the indictment, when sticking with the first statute would have short-circuited Carmel's dismissal motion. Both statutes carry a maximum penalty of ten years in prison; any concern that a jury might wonder whether Carmel obtained these weapons before 1986 seems chimeral. Indeed, I cannot fathom why any federal prosecutor ever would employ § 5861(d) except on a defendant born before 1968 whose acquisition of the machine gun could not be ascertained on a calendar.
On the other hand, I fail to see what actual harm Carmel suffers by being charged under § 5861(d). As a result of § 922(o), there is no possibility that Carmel could have possessed any not-yet-registered machine gun legally. For him to complain that he is being charged with violating a statute with which compliance is impossible is technically true but substantively academic. In the event this court were to dismiss the § 5861(d) charge against Carmel, the government would replace it with a § 922(o) charge that would subject him to the same penalty.
For what it's worth, in United States v. Lim, 444 F.3d 910 (7th Cir. 2006), the court upheld the constitutionality of § 5861(d) in a sawed-off shotgun case, concluding that the statute was applicable to the defendant even thought it was impossible for him to register the firearm charged against him. Id. at 913. Lim is not directly on point because the court, while seeming to endorse the reasoning of its vacated opinion in Ross, id. at 914, n. 2, nonetheless distinguished Dalton on the ground that there is no corollary to § 922(o) for short shotguns, id. at 914.
So, even though the Seventh Circuit's opinion in Ross has been vacated on other grounds, I agree with the court's "just say no" basis for concluding that § 5861(d) survived the enactment of 922(o). As just noted, I am not sure why the government would insist on traveling this path unnecessarily, but it is not unconstitutional for it to do so. Finally, even if I were to agree with Carmel's argument, Absent some new and compelling analysis, I see no upside in a hierarchical judiciary to bearding the lion and proclaiming that the circuit court got it wrong in Ross. If this case makes it that far, Carmel can renew his arguments to an appellate panel in Chicago.
In short, I am recommending that this court deny Carmel's motion to dismiss the indictment.
II. Motion To Quash the Search Warrant
A. The Warrant Application
On May 30, 2007, around 7:25 p.m., Chippewa County Sheriff's Investigator Chad Holum, working with federal agents, applied to the county court for a warrant to search David Carmel's house and outbuildings in Gilman, Wisconsin (about 45 miles northeast of Eau Claire). The court issued the warrant.
The affidavit and warrant are attached to Carmel's motion to suppress (dkt. 18) and speak for themselves. By way of synopsis, Investigator Holum began his sworn affidavit by stating that he had "reason to believe" that at Carmel's property,
There are now located and concealed certain things, to-wit:
Three machine guns identified as a Rheinmetall MG3, a MG 34 a Heckler Kock [ sic] HK21 as well as any machine gun parts or any items capable of use to modify a weapon into a machine gun.
Which things may constitute evidence of a crime, to-wit: Illegal Possession of Machine Gun contrary to sec. 941.26(1)(a), sec. 941.27(1)(a) (b) of the Wisconsin Statutes.See dkt. 18, Exh. 1.
In support of this belief, Investigator Holum provided a terse five paragraph overview of the investigation. Federal agents were investigating Carmel for theft sale and diversion of stolen military supplies, including weapons. During telephone conversations with an undercover agent (UC), Carmel had invited the UC to his property to shoot. When asked what weapons he possessed, Carmel stated that he had a Rheinmetall MG3, an MG 34, and a Heckler Koch HK21. Carmel stated that whatever ammunition the UC brought, Carmel would have a weapon to shoot it.
At about 1:30 p.m. on May 30, 2007, federal agents arrested Carmel on federal charges. A search of his vehicle recovered "two top handles made for a M16 machine gun." According to Investigator Holum, these handles contained a portion of the functional part of an M16 machine gun; based on Holum's training and experience in the Marine Corps and in law enforcement, without this part the M16 would be unable to function unless the weapon had been altered.
During post-arrest questioning, Carmel stated that he possessed one machine gun, an "MG M-119", for which he had a license from ATF. Investigator Holum stated that when they asked Carmel about other types of machine guns, Carmel refused to answer their questions. Carmel stated that he possessed machine gun barrels that he had bought from commercial sources, and that he kept in a storage shed "pieces of tanks, bullet shells, and machines." During the interview, agents let Carmel call his father. Carmel told his father that the feds had arrested him and that his father could guess what for.
B. Analysis
Carmel argues that the search warrant was unsupported by probable cause, and the good faith doctrine cannot save it. Investigator Holum's alarming terseness provides a toehold for Carmel's arguments, but Holum did provide enough information to ward off suppression.
1. Probable Cause
Carmel contends that there was no probable cause to support the state's warrant. His main point is that when Investigator Holum listed the three weapons that Carmel told the UC he owned, Investigator Holum did not establish that these weapons were machine guns. Carmel's second point is that even if we get past the first point, Holum did not address whether these weapons fell within the broad, vague statutory exception to Wisconsin's prohibition of machine guns.
Probable cause exists when, given all the circumstances known to the agents, there is a fair probability that contraband or evidence of a crime will be found in a particular place. United States v. Newsome, 402 F.3d 780, 782 (7th Cir. 2005). "So long as the totality of the circumstances, viewed in a common sense manner, reveals a probability or substantial chance of criminal activity on the suspect's part, probable cause exists." United States v. Parra, 402 F.3d 752, 763-64 (7th Cir. 2005). It is not appropriate to consider each piece of evidence individually in a "divide and conquer" approach; rather the focus must be on what the evidence shows as a whole. United States v. Caldwell, 423 F.3d 754, 760-61 (7th Cir. 2005); see also United States v. Olson, 408 F.3d 366, 371-72 (7th Cir. 2005) (small tidbits of corroborative evidence in a search warrant affidavit have little weight individually, but taken together can suffice to corroborate an informant's story).
A court's determination of probable cause should be given considerable weight and should be overruled only when the supporting affidavit, read as a whole in a realistic and common sense manner, does not allege specific facts and circumstances from which the court reasonably could have concluded that the items to be seized were associated with the crime and located in the place indicated. Newsom, 402 F.3d at 782. Doubtful cases should be resolved in favor of upholding the warrant. Olson, 408 F.3d at 372, citing United States v. Quintanilla, 218 F.3d 674, 677 (7th Cir. 2000)
Investigator Holum, in his sworn warrant application, characterized the three specified types of weapons as machine guns. He did not, however, actually provide any foundational support in his affidavit for this characterization. Carmel argues that this leaves open the possibility that the specified weapons were not really machine guns. It would have been highly preferable for Investigator Holum to have provided foundational information in the body of his affidavit, but his statement that these weapons are machine guns was made under oath as part of his warrant application. Later in his affidavit Investigator Holum speaks to his expertise in firearms, so this probably is enough sworn information to establish that these weapons were machine guns.
Apart from this, it is worth determining whether the court may have been sufficiently familiar with machine guns that it knew, without further explanation from Investigator Holum, that there were no legal variants of the weapons listed. Although this might be a fair inference to draw in certain situations, it ends up being a dead end in this case. In his suppression briefs, Carmel implies that the three weapons he mentioned to the UC and that Investigator Holum calls machine guns also might have legal cousins. Some quick and dirty research puts the lie to this implication: according to Wikipedia, the Rheinmetall MG3 is a four-foot long, 25 pound, belt-fed 7.65 mm. machine gun with an integral bipod that can be mounted on a tripod, taking the weight up to 60 pounds, and making it a "heavy machine gun." The MG34 is a WWII-era bipodal 7.92 mm. German machine gun weighing 26 pounds (42 pounds with a tripod), not quite four feet long. The Heckler Koch HK21 is a belt-fed general purpose bipodal 7.62 mm. machinegun/"squad automatic weapon" that also can be mounted on a tripod. According to hkpro.com, this weapon weighs about 20 pounds and is about 44 inches long.
Similar to Carmel's Wikipedia research on the AR-15, submitted in support of his request for a Franks hearing, see dkt. 18, Exh. 2
Obviously this court's review of the state court's probable cause determination must be limited to the information available to the state court at the time it issued the challenged warrant and it cannot be bolstered by facts adduced later. See Gower v. Verlcer, 377 F.3d 661, 668 (7th Cir. 2004) (arrest case); cf. United States v. Reed, 349 F.3d 457, 463 (7th Cir. 2003) (justification for arrest cannot be an ex post extrapolation of all crimes that might have been charged on the facts). My point in reporting the characteristics of the MG3, MG34 and HK21 is to show that each of these weapons is so obviously a large, powerful fully automatic weapon, that anybody who knew anything about machine guns would know the nature of these weapons and would know that there were no legal analogs for people like Carmel to possess and shoot. See Platteville Area Apt. Ass'n. v. City of Platteville, 179 F.3d 574, 580 (7th Cir. 1999) (if reviewing court understands the warrant applicant's shorthand, then there is little point in requiring additional explanation).
In Platteville, the court found the contested administrative inspection warrants unreasonable because the applications' oblique references to an entire chapter of the housing code could not have put courts on notice as to the breadth and depth of the requested searches. 179 F.3d at 580-81.
But those who live by jargon die by jargon. Investigator Holum also refers in his affidavit to an "MG M-119" machinegun that Carmel claims to own and which he claims is licensed by ATF. I have found no independent proof of the existence of any machine gun denominated "M-119;" rather, an M-119 is a two kiloton 105 mm. howitzer. If I had to guess, I would surmise that Holum meant to type "M11/9," which is the designation of SWD's 9 mm. submachine gun, a handheld weapon similar to a MAC-10. The point is that neither Investigator Holum nor the court caught or corrected this typographical error. Therefore, I am not prepared to conclude that the state court actually was sufficiently familiar with the weapons listed by Investigator Holum to have independent knowledge that they were machine guns.
So what else in the affidavit establishes probable cause? The government claims that Carmel's possession of machine guns in corroborated by his statement to the UC that "whatever ammunition the UC would bring, he would have a weapon to shoot it." Although I agree with Carmel that this statement cannot, by itself, be viewed as an admission that Carmel has machine guns, in the context of Carmel's other statements to the UC about his squad-level armament, it takes on the boastful implication that Carmel's arsenal can accommodate anything at all, even cartridge belts, drums and clips. It's a small brick in the wall of probable cause.
Investigator Holum reports that Carmel admitted to having purchased commercial machine gun barrels (which are not necessarily contraband,) and to storing pieces of tanks and bullet shells on his property (also not necessarily contraband). The tank parts and bullets don't advance the analysis, but Carmel's admission that he had purchased machine gun barrels strongly corroborated Investigator Holum's claim that Carmel possessed entire machine guns.
Next is Investigator Holum's report that Carmel possessed two top handles for an M16 machine gun, parts necessary for the M16 to function. Carmel tried to impeach the veracity and materiality of these assertions in his request for a Franks hearing, pointing out that the M16's legal, single-shot cousin, the AR-15, also could use these top handles. Even if this information had been known to the court, it might have lessened the impact of the top handles but in the context of everything else reported in the affidavit, would not have negated completely their relevance: all the bits and pieces of evidence were pointing toward Carmel as a guy who had a lot of machine guns and machine gun parts lying about the premises.
Of no use to the analysis is Carmel's post-arrest statement that he has a license for his "M-119," after which he declined to answer questions asking whether he had licenses for his other machine guns. While this might seem like a good situation in which to apply the doctrine of expressio unius est exclusio alterius, it isn't: "the implicit assurance contained in the Miranda warnings [is] that silence will carry no penalty." Wainwright v. Greenfield, 474 U.S. 284, 290 (1986). It would have been improper for the state court to infer from Carmel's invocation of his right to remain silent a tacit admission that his other machine guns were unlicensed. Therefore, this exchange between Carmel and the agents neither adds to nor detracts from the probable cause determination.
As discussed elsewwhere, the absence of a license is not an element of § 922(o), so this point is not important to the probable cause analysis.
Finally, agents heard Carmel telling his father that he had been arrested and his father could guess why. Given the totality of circumstances, this was virtually an admission by Carmel that he possessed illegal weapons: he was implicitly conceding that the grounds for his arrest were so obvious that even his father, who wasn't present on the scene, could deduce them.
The bottom line is that although Investigator Holum left a lot of holes and gaps in his scattershot affidavit, under the totality of circumstances, this amalgam of evidence likely established probable cause the Carmel unlawfully possessed machine guns.
This segues to Carmel's claim that Investigator Holum had not established that these firearms were not excepted from Wisconsin's machine gun prohibition. Wis. Stats. § 941.27(1)(b) states that Wisconsin's machine gun laws
"shall not prohibit . . . the possession of a machine gun for scientific purpose, or the possession of a machine gun not usable as a weapon and possessed as a curiosity, ornament or keepsake; or the possession of a machine gun other than one adapted to use pistol cartridges for a purpose manifestly not aggressive or offensive."
This widdershins statutory exception appears to have doubled-back on itself once too often: read literally, it purports to outlaw only machine guns adapted to use pistol cartridges for a purpose manifestly not aggressive or offensive. This suggests that Wisconsin does not outlaw machine guns that use their normal ammunition for a purpose that is aggressive or offensive. Such an interpretation might be literally defensible but it is patently ridiculous.
There is no need for this court to delve more deeply into this verbal morass. Notwithstanding the fact that state agents applied to a state court for a state search warrant under the auspices of a state statute, in this federal court, Carmel's challenge to the constitutional reasonableness of the warrant is measured objectively against federal standards. State law is virtually irrelevant to this determination. See United States v. Brack, 188 F.3d 748, 759 (7th Cir. 1999); cf. United States v. Reed, 349 F.3d 457, 462 (7th Cir. 2003) (arrest is legal if officers have probable cause to arrest for the actual charge cited, or a charge that is closely related to it); id. at 468 (Easterbrook, J., dissenting) (probable cause determination is objective; therefore, how police characterize their seizure is irrelevant to its reasonableness). Suppression is not warranted if there was probable cause that Carmel possessed machine guns in violation of federal statutes, which are closely related to the state charges cited in the application and warrant.
Although there is a licensing element to § 5861(d) (the statute charged in the indictment), there is no licensing requirement for § 922(o) (the statute charged in the criminal complaint), and the law enforcement exceptions to this latter statute clearly do not apply to Carmel. Therefore, however wobbly and improvable Investigator Holum's affidavit may have been, the search that resulted from it was not constitutionally unreasonable. This court should not result the evidence seized as a result of that search.
This recommendation is not an endorsement of the affidavit presented to the state court or that court's decision to issue the warrant without requiring a clearer showing from the state. This case presents another wobbly warrant from state court up north, a situation all the more perplexing given that this case started as a federal investigation and federal agents were involved at every step. Perhaps after Carmel's arrest everyone was in a hurry to move to the next phase of this investigation, but such haste and lack of meticulousness was unnecessarily perilous to the investigation. On the day of the search, there appears to have been enough time to present the evidence more carefully and thoroughly to the court. Investigator Holum could have explained in his affidavit what types of machine guns Carmel claimed to possess at his residence, and could have double-checked his representations regarding the "M-119." Someone could have checked whether Carmel had any federal machine gun licenses and if so for what types of weapons. (Carmel's arrest occurred during business hours on a week day and federal agents were actively involved). By proceeding as they did, the agents took what could have been an easy case and made it hard.
All this being said, the question is not whether this was an A+ warrant application, the question is whether it passes or fails. On the forgiving scale of post-hoc warrant review, this application probably passes muster. Even if there isn't probable cause to support this search warrant, it is close enough to the line to be rescued by the good faith doctrine.
2. The Good Faith Doctrine
In United States v. Leon, 468 U.S. 926 (1984) the Court held that:
In a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall.
* * *
We have . . . concluded that the preference for warrants is most appropriately effectuated by according great deference to a magistrate's determination. Deference to the magistrate, however, is not boundless.
Having so stated, the Court then held that
In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.Id. at 926.
Such determinations must be made on a case-by-case basis with suppression ordered "only in those unusual cases in which exclusion will further the purpose of the exclusionary rule." 468 U.S. at 918. When the officer's reliance on the warrant is objectively reasonable, excluding the evidence will not further the ends of the exclusionary rule because it is
painfully apparent that the officer is acting as a reasonable officer would and should act in similar circumstances. . . . This is particularly true . . . when an officer acting with objective good faith has obtained a search warrant from a judge . . . and acted within its scope. . . . Once the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law. Penalizing the officer for the [court's] error rather than his own cannot logically contribute to the deterrence of Fourth Amendment violations.Id. at 920-21, internal quotations omitted.
The Court noted the types of circumstances that would tend to show a lack of objective good faith reliance on a warrant, including reliance on a warrant based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable, or reliance on a warrant so facially deficient that the officer could not reasonably presume it to be valid. Id. at 923. The Court observed that "when officers have acted pursuant to a warrant, the prosecution should ordinarily be able to establish objective good faith without a substantial expenditure of judicial time." Id. at 924. See also Arizona v. Evans, 514 U.S. 1, 11-12 (1995) (reaffirming the Supreme Court's reluctance to suppress evidence obtained in good faith but in violation of a defendant's Fourth Amendment rights).
Put another way, an officer's decision to obtain a warrant is prima facie evidence that he was acting in good faith, and it is the defendant's burden to demonstrate rebut this presumption. United States v. Otero, ___ F.3d ___, 2007 WL 2050403 (7th Cir. 2007), at *3, citing United States v. Mykytiuk, 402 F.3d 773, 777 (7th Cir. 2005).
Carmel relies on the third prong of Leon, arguing that this warrant was so lacking in probable cause as to render the officers' reliance on the warrant entirely unreasonable. Despite the warrant's shortcomings, Carmel cannot establish that task force agents could not have held an objectively reasonable belief that their warrant was valid. The problem here was not a lack of incriminating information, it was the agents' failure thoroughly to convey all of their information in a cogent fashion. Investigator Holum clearly knew that MG3s, MG-34s and HK21s were fully automatic weapons because he swore to this in the cover page of his affidavit. What he neglected to do was include in his narrative the foundational basis for his knowledge. This was the lynchpin fact underlying this search and all the other facts were secondary. Even if the state court should not have issued the warrant on the basis of the information actually presented, Investigator Holum was justified in relying on this warrant and executing the search of Carmel's premises.
RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1)(B) and for the reasons stated above, I recommend that this court deny defendant David R. Carmel's motion to dismiss the indictment and deny his motion to suppress evidence.