United States District Court, E.D. Wisconsin
ORDER ADOPTING MAGISTRATE JUDGE'S RECOMMENDATION
(DKT. NO. 103), OVERRULING DEFENDANT'S OBJECTION (DKT.
NO. 106), AND DENYING DEFENDANT'S MOTION TO DISMISS COUNT
TWO OF THE INDICTMENT (DKT. NO. 85)
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
January 6, 2018, the defendant filed a motion to dismiss
count two of the indictment, arguing that his temporary
handling of a gun did not trigger the tax and regulation
requirements that give rise to criminal liability under 26
U.S.C. §5861(d). Dkt. No. 85. Magistrate Judge William
E. Duffin issued a report, recommending that this court deny
the motion. Dkt. No. 103. The defendant objected to the
recommendation, dkt. no. 106, the government responded, dkt.
no. 108, and the defendant replied, dkt. no. 109. The court
will adopt the recommendation, overrule the objection, and
deny the motion to dismiss.
Parties' Arguments to Judge Duffin
indictment charges the defendant with two counts of knowingly
receiving and possessing guns not registered to him, and one
count of knowingly receiving and possessing a silencer not
registered to him, in violation of 28 U.S.C. §5861(d).
Dkt. No. 6. Count One charges the defendant with receiving
and possessing an H&K MP-5 S.D. 9mm machinegun with
serial number S93040. Id. at 1. Count Two charges
him with receiving and possessing an H&K MP-5 10mm
machinegun with serial number 68-3049. Id. at 2. The
defendant's motion to dismiss asked the court to dismiss
Count Two. Dkt. No. 85.
motion, the defendant phrased the underlying facts this way:
On January 25, 2016, Hamzeh and two confidential informants
drove to Pleasant Prairie to meet supposed gun sellers, who
were actually undercover FBI agents. The plan was that CI
Steve would buy one machine gun and Hamzeh would buy the
other. When the meet occurred in Pleasant Prairie, Steve,
Mike, and Hamzeh negotiated with the undercover agents and
arrived at a price of $570 for the two machine guns, one of
which had an attached silencer. The guns normally run upwards
of $20, 000 each. Hamzeh paid $270 for the gun (with
silencer) for himself and CI Steve paid $300 for the other
gun, for himself. The undercover FBI agents put both guns
into the same bag; and since everyone there was a government
agent of some sort, Hamzeh was given the bag to carry to the
informant's car. With CI Steve and CI Mike, Hamzeh then
walked back to the car and put the bag in the trunk. He was
Id. at 1-2.
defendant argued that Judge Duffin should conclude, from
those facts, that the defendant did not “possess”
the gun charged in Count Two of the indictment, because it
was someone else's gun (CI Steve's), and the
defendant just handled it temporarily. Id. He made
several arguments in support of that contention.
the defendant asked the court not to define possession under
§5861(d) in the same way that courts define possession
under 18 U.S.C. §922(g) (prohibited persons possessing
firearms). Id. at 3. He referenced cases that have
held that momentary possession is sufficient to convict
someone under §922(g). Id. He argued, however,
that because it prohibits a defendant from knowingly
receiving or possessing an unregistered firearm, a
§5861(d) offense was “more aptly characterized as
a form of tax evasion.” Id. at 3-4 (quoting
United States v. Moses, 513 F.3d 727, 732 (7th Cir.
2008)). The defendant argued that, under this
characterization, the court should define
“possession” for the purpose of §5861(d) to
be something more than temporary possession, because
“[m]omentary possession . . . would not be enough to
require a person to pay a tax . . . for just holding the gun,
while in the owner's presence.” Id. at 4.
the defendant argued that in order to lawfully possess the
kinds of guns covered by §5861(d), a person first must
register the gun and pay the $200 tax. Id. at 6.
Given this, the defendant reasoned, it is not illegal to
possess the gun; it is illegal to possess the gun if the
possessor has not registered it and paid the tax.
Id. The defendant argued that “[this] requires
that the receipt or possession of the gun be substantial
enough to give rise to a taxable obligation.”
Id. at 7.
defendant also argued that “[t]here are many reasons a
person might handle an NFA firearm that would not amount to
receipt or possession that subjects him or her to the
tax.” Id. at 8. For example, he argued that
one might try out a machine gun at a shooting range, or carry
someone else's machine gun for that person, and contended
that “[n]o one would reasonably contend that any of
these temporary handlings of a firearm, in the presence of an
owner, gives rise to a tax-and-regulation obligation.”
Id. The defendant asserted that his carrying CI
Steve's gun to the car was no different than those
examples, or than a “bell boy carrying a guest's
belongings to their room- which isn't
‘possession' of the belongings despite the bell
boy's temporary custody of the bags.” Id.
support of the defendant's argument that the court should
construe “possession” under §5861(d) to be
something more than “temporary” or
“momentary” possession, the defendant cited the
Eighth Circuit's 1982 decision in United States v.
Kiefer, 694 F.2d 1109 (8th Cir. 1982). The defendant
quoted the Eighth Circuit for the proposition that
“‘Congress, by requiring payment of a tax and
registration of the transfer, clearly intended to require
that a transferor have more of a proprietary interest in the
weapon than just the mere transitory physical possession of
it.'” Id. at 10 (quoting Kiefer,
694 F.2d at 1114).
conclusion, the defendant asked the court to find, ahead of
the trial date, that the defendant “is not guilty and
can never be guilty of Count Two, ” and to dismiss that
count. Id. at 11.
response, the government pointed to the Seventh Circuit's
decision in United States v. Taylor, 728 F.2d 864
(7th Cir. 1984). The Taylor court held that
“[p]ossession may be either actual or
constructive and it need not be exclusive but may be
joint.” Dkt. No. 92 at 2 (quoting Taylor, 728
F.2d at 868). The government also referred the court to the
Seventh Circuit's pattern jury instruction on possession,
noting that the definition was the same for any offense for
which possession was an element. Id. at 2-3.
noting that the Seventh Circuit had not directly addressed
the question of whether momentary possession could give rise
to liability under §5861(d), the government pointed to
several other courts that had answered that question in the
affirmative, including the Second, Fifth and Tenth Circuits.
Id. at 3. The government asserted that “direct
physical control over a firearm, even if momentary, is enough
to establish the knowing possession element of
§5861(d).” Id. at 4.
government also referenced the legislative history of
§5861(d), arguing that it did not support “reading
into the otherwise unambiguous statute additional
qualifications or modifications of the term
‘possession.'” Id. at 5. The
government asserted that, while Congress enacted
§5861(d) under its taxing authority, it was also
intended to protect public safety. Id.
as to the defendant's reference to the Eighth
Circuit's decision in Kiefer, the government
emphasized that Kiefer involved a different crime-
transferring a gun under §5861(e), rather than receiving
or possessing it under §5861(d). Id. at 6. The
government asserted that five years after Kiefer,
the Eight Circuit rejected the argument the defendant made
here, finding that the government satisfied the
“possession” element of §5861(d) “if
the defendant has ‘knowledge of presence plus
control['] . . . . It is possession, not ownership, that
is controlling on the issue of guilt.” Id. at
7 (quoting United States v. Zrust, 835 F.2d 192, 193
(8th Cir. 1987).
government concluded: “[w]hether the facts of this case
establish knowing possession is a question for the jury, and
the government asks that the defendant's motion to
dismiss be denied.” Id. at 7.
Judge Duffin's Recommendation
court noted above, Judge Duffin has recommended that this