United States v. One Harrington

• Court: Court of Appeals for the Sixth Circuit
• Decided: August 4, 2004
• Docket: 03-2106
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. One Harrington No. 03-2106 ELECTRONIC CITATION: 2004 FED App. 0258P (6th Cir.) and Richardson Rifle File Name: 04a0258p.06 _________________ UNITED STATES COURT OF APPEALS ORDER _________________ FOR THE SIXTH CIRCUIT _________________ Michael F. Berney, a Michigan resident, appeals the district court order granting summary judgment to the United States UNITED STATES OF AMERICA , X in this forfeiture action filed pursuant to 26 U.S.C. § 5872(a). Plaintiff-Appellee, - The parties are represented by counsel and have waived oral - argument, and the panel unanimously agrees that oral - No. 03-2106 argument is not needed. Fed. R. App. P. 34(a). v. - > In January 2002, the Bureau of Alcohol, Tobacco, and , ONE HARRINGTON AND Firearms (ATF) seized an M-14 rifle owned by Berney. The - RICHARDSON RIFLE, MODEL ATF determined that the weapon qualified as a machine gun - under the National Firearms Act (NFA) and that it was not M-14, 7.62 CALIBER SERIAL - registered on the National Firearms Registration and Transfer NUMBER 85279, - Record (NFRTR). See 26 U.S.C. § 5861(d). In December Defendant, - 2002, the government filed a complaint for forfeiture in rem - and moved for summary judgment. Berney, proceeding pro - MICHAEL F. BERNEY , se, filed a response. The district court granted summary - Claimant-Appellant. - judgment to the United States. The court concluded that the government had established probable cause that Berney - possessed an unregistered machine gun and that Berney had N not carried his burden of showing that his possession of the weapon was legal. United States v. One Harrington and Filed: June 9, 2004* Richardson Rifle, 278 F. Supp. 2d 888, 891-92 (W.D. Mich. 2003). Before: SILER and GIBBONS, Circuit Judges; REEVES, District Judge.** On appeal, Berney argues that the district court erred by granting summary judgment to the United States because: (1) the United States’ motion was not based upon the pleadings, depositions, answers to interrogatories, admissions * This order was originally issued as an “unpublished order” filed on on file, or affidavits which complied with Rule 56(e); and June 9, 2004. On July 8, 2004, the court designated the order as one (2) Berney was not provided an opportunity for discovery. recommend ed for full-text publication.

** We review an order granting summary judgment de novo. The Honorable Danny C. Reeves, United States District Judge for Holloway v. Brush, 220 F.3d 767, 772 (6th Cir. 2000). the Eastern District of Kentucky, sitting by designation.

1 No. 03-2106 United States v. One Harrington and 3 4 United States v. One Harrington No. 03-2106 Richardson Rifle and Richardson Rifle

Summary judgment is proper “if the pleadings, depositions, qualified as a machine gun because it retained features answers to interrogatories, and admissions on file, together specific to the M-14 and could have been readily restored to with the affidavits, if any, show that there is no genuine issue fire automatically. The ATF’s analysis was thorough, its as to any material fact and that the moving party is entitled to reasoning was valid, and its decision was consistent with a judgment as a matter of law.” Fed. R. Civ. P. 56(c). earlier pronouncements. See Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). Because Berney did not rebut the Upon review, we conclude that the district court properly government’s showing of probable cause, the government granted summary judgment to the United States. Under was entitled to a judgment of forfeiture. See Any and All 26 U.S.C. § 5861(d), it is illegal for a person to possess a Radio Transmission Equip., 218 F.3d at 548. machine gun that is not registered to him in the NFRTR. Property involved in a violation of the NFA is subject to Berney’s argument that the United States’ motion for seizure and forfeiture to the United States. 26 U.S.C. summary judgment did not comply with Fed. R. Civ. P. 56(e) § 5872(a). In a civil forfeiture action, the government has the is without merit. Berney waived any objections to the initial burden to demonstrate probable cause to believe that materials submitted by the government when he failed to the property was used in violation of the law. 19 U.S.C. object in the district court. See Wiley v. United States, § 1615; United States v. Any and All Radio Station 20 F.3d 222, 226 (6th Cir. 1994). Transmission Equip., 218 F.3d 543, 548 (6th Cir. 2000). Once the government establishes probable cause, the burden Berney’s argument that he was not provided an opportunity shifts to the claimant to prove, by a preponderance of the for discovery is also without merit. He failed to preserve the evidence, that the property was not related to the violation of issue for appellate review because he did not file an affidavit federal law. 19 U.S.C. § 1615; United States v. 566 in the district court detailing the discovery needed and Hendrickson Blvd., 986 F.2d 990, 995 (6th Cir. 1993). “[T]he demonstrating specific reasons why he could not oppose the government is entitled to a judgment of forfeiture upon an government’s motion and how postponement of a ruling unrebutted showing of probable cause.” Any and All Radio would have enabled him to rebut the government’s showing Transmission Equip., 218 F.3d at 548 (quoting 566 of the absence of a genuine issue of fact. See Fed. R. Civ. P. Hendrickson Blvd., 986 F.2d at 995). 56(f); Emmons v. McLaughlin, 874 F.2d 351, 357 (6th Cir. 1989). We agree with the district court that the United States carried its burden of proof, and that Berney failed to carry his. For the foregoing reasons, we affirm the district court’s The ATF has classified M-14 rifles in general as machine decision. guns since 1958, and determined that Berney’s weapon in particular met the statutory and regulatory definitions of a ENTERED BY ORDER OF THE COURT machine gun. In response to the government’s well-supported motion for summary judgment, Berney offered only conclusory opinions and unauthenticated documents. See Fed. R. Civ. P. 56(e). Moreover, even if the rifle’s capacity /s/ Leonard Green to fire in full-automatic mode was destroyed as Berney __________________________________ maintains, that does not refute the ATF’s finding that the rifle Clerk