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United States v. Hamzeh

United States District Court, E.D. Wisconsin

April 23, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
SAMY M. HAMZEH, Defendant.

          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)

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE

         On 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.

         I. Background

         A. Parties' Arguments to Judge Duffin

         The 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.

         In the 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 arrested immediately.

Id. at 1-2.

         The 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.

         First, 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.

         Next, 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.

         The 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.

         In 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).

         In 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.

         In 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.

         While 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.

         The 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.

         Finally, 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).

         The 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.

         B. Judge Duffin's Recommendation

         As the court noted above, Judge Duffin has recommended that this court ...


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