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United States v. White

United States District Court, W.D. Missouri, Western Division

October 13, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
RONALD F. WHITE, JR., Defendant.

          REPORT AND RECOMMENDATION

          MATT J. WHITWORTH, UNITED STATES MAGISTRATE JUDGE.

         Before the Court is defendant Ronald F. White Jr.'s Motion to Dismiss the Second Superseding Indictment which he filed on September 7, 2017 (doc. 110). The Government has filed suggestions in opposition (doc. 111) and Defendant reply suggestions in support of the motion (doc. 120).

         In the Second Superseding Indictment which was filed in this case on September 20, 2017, defendant Ronald F. White is charged with possession of an unregistered firearm in violation of 26 U.S.C. § 5861(d). (Doc. 116). The Second Superseding Indictment states that defendant Ronald F. White “knowingly received and possessed a firearm not registered to him in the National Firearms Registration and Transfer Record, that is, a Street Sweeper 12 gauge shotgun, …, that will or which may be readily converted to expel projectile by the action of an explosive or other propellant, the barrel of which has a bore of more than one-half inch diameter and which the Attorney General and Secretary of the Treasury have found and determined is not generally recognized as a shotgun particularly suitable for sporting purpose because the weight, size, bulk, designed magazine capacity, configuration, and other factors indicate the Street Sweeper is a military-type shotgun, and is not a shotgun particularly suitable for hunting, skeet and trap shooting, and other similar purposes.”

         Defendant's motion to dismiss the Second Superseding Indictment challenges the constitutionality of 26 U.S.C. § 5861(d) under which he is charged with possession of an unregistered firearm. 26 U.S.C. § 5861(d) is a statute within the National Firearms Act.

         Background

         The National Firearms Act, 26 U.S.C. § 5801, et seq., establishes a statutory frame work to ensure that manufacturers, importers, and dealers of firearms pay a tax upon and properly register all firearms prior to transfer. See United States v. Lim, 444 F.3d 910, 912 (7th Cir. 2006). Section 5861 of the Act sets forth prohibited acts under the Act. Specifically, section 5861(d), which Defendant challenges as unconstitutional, 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.” What firearms are included under the National Firearms Act is set forth in section 5845(a) of the Act. This section specifically includes, as relevant here, any “destructive device” to be included under the Act. The definition of a “destructive device” is within section 5845(f)(2) of the Act and states that “any type of weapon … which may be readily converted to expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell which the Secretary finds is generally recognized as particularly suitable for sporting purposes, ” are held to be destructive devices. ATF Rul. 94-2 specifically held that the Striker-12/Streetsweeper shotgun, that Defendant is charged with possessing in this case, is a destructive device as the term is used in 26 U.S.C. § 5845(f)(2). Thus, the Street Sweeper, which Defendant is alleged to have possessed, must be registered as required by section 5861(d) of the National Firearms Act.

         Constitutionality of 26 U.S.C. 5861(d)

         Taxing Power

         Defendant contends that section 5861(d) of the National Firearms Act is unconstitutional because it is not a valid use of the taxing power of Congress. Defendant asserts that because the purpose of section 5861(d) is not to tax but instead is to prohibit the possession of certain firearms, it is outside the valid use of the taxing power of Congress.

         The Supreme Court has rejected the notion that the regulatory character of tax legislation renders the legislation an invalid exercise of the taxing power granted to Congress by Article I, § 8, cl. 1. See Sonzinsky v. United States, 300 U.S. 506 (1937). An act of Congress which on its face purports to be an exercise of the taxing power is not any less so because it tends to restrict or suppress the thing taxed. United States v. Lim, 444 F.3d 910, 912-913 (7th Cir. 2006) (citing Sonzinsky v. United States, 300 U.S. at 513). On this basis, Courts have tolerated companion provisions that are overtly regulatory so long as they have a plausible nexus to taxation. Id. at 913. Section 5861(d) is one of those companion provisions. Courts have determined that taken in context with the rest of the National Firearms Act, section 5861(d) can reasonably be construed as part of the web of regulation aiding enforcement of the transfer tax provision set forth in section 5811 of the National Firearms Act. Id. (citing United States v. Gresham, 118 F.3d 258, 262 (5th Cir. 1997)).

         Defendant's assertion that the government no longer collects taxes on the firearms regulated under 26 U.S.C. § 5861(d), specifically in this case the Street Sweeper, and therefore, the statute is not within Congress's power to tax is not persuasive. Though the ATF chooses not to allow tax payments or registration of Street Sweepers, [1] it still has the authority to do so. Thus, the basis for the ATF's authority to regulate-the taxing power-still exits; it is merely not exercised. See United States v. Grier, 354 F.3d 210, 215 (3rd Cir. 2003) (citing United States v. Ardoin, 19 F.3d 177, 180 (5th Cir. 1994) (finding that although ATF chooses not to allow tax payments or registration of machine guns it still has the authority to do so and thus retains the authority to regulate under Congress's taxing power)). Moreover, the Supreme Court has stated that “[a] statute does not cease to be a valid tax measure … because the revenue obtained is negligible, or because the activity is otherwise illegal.” Id. (citing Minor v. United States, 396 U.S. 87, 98, n. 13 (1969)).

         Based on the foregoing, Defendant's argument that section 5861(d) exceeds Congress's power to tax is without merit. The National Firearms Act, specifically section 5861(d), remains a proper exercise of the congressional taxing power under the Constitution.

         Due Process

         Defendant contends that it was impossible for him to register the firearm under the National Firearms Act regulations, and therefore, his constitutional due process rights were violated when he was charged with possession of an unregistered firearm. This argument has been rejected by the Eighth Circuit and other circuits. Although the transferee is not responsible for registering a firearm under the National Firearms Act, and in fact in this case is unable to do so under the Act, the Act imposes on the transferee the affirmative duty to ensure the weapon is properly registered before taking possession of it. See United States v. Lim, 444 F.3d at 913. The fact that the Street Sweeper shotgun is now prohibited from registration (see ATF ruling 2001-1)[2] and persons in possession of the an unregistered NFA firearm are subject to applicable penalties under 26 U.S.C. 5861(d), does not make it impossible for defendant to comply with section 5861(d) requiring registration. Defendant can comply with the statute by simply refusing to possess a Street Sweeper. See United States v. Elliott, 128 F.3d 671, 672 (8th Cir. 1997) ...


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