United States v. Kelly

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 05-4775

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MICHAEL J. KELLY, SR.,

Defendant - Appellant.

No. 06-1421

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

M-K SPECIALTIES, Model M-14 Machinegun Serial
Numbers: 1447797, 21954, 1082375, 1394870,
539240, 680531, 1506762, 1335989, 1359769,
1020490, 49488, 1157650, 1181446, 1325123,
1392697, 1434500, 1478082, 1497879, 1560920,
1573826, 217140, 223003, 26268, 336512,
376163, 39524, 419875, 48678, 5175, 575495,
828590, 947264, 977294, 1331982,

Defendant,

and
MICHAEL J. KELLY, SR.; WILLIAM A. THOMAS; GARY
K. BEACH; ALLEN FEHLINGS; CECIL P. SMITH, JR.;
EUGENE GZSANKA; DONALD P. SASS,

Claimants - Appellants,

and

ANTHONY J. FABIAN; FRANK BLISS; MATHEW C.
HEALEY; RICHARD J. VIEIRA,

Claimants.

Appeals from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (CR-03-50; 1:04-cv-00041-IMK)

Submitted: August 2, 2007 Decided: August 14, 2007

Before WILLIAMS, Chief Judge, and MICHAEL and GREGORY, Circuit
Judges.

Affirmed by unpublished per curiam opinion.

Richard E. Gardiner, Fairfax, Virginia, for Appellants. Rita R.
Valdrini, Acting United States Attorney, Randolph J. Bernard,
Robert H. McWilliams, Jr., Michael D. Stein, Assistant United
States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling,
West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Michael J. Kelly, Sr., a federally licensed firearms

dealer, was arrested after agents from the Bureau of Alcohol,

Tobacco, Firearms and Explosives (BATFE) seized numerous illegal

weapons from his residence and place of business, MKS Specialties,

Inc. (MKS). He was convicted for five violations of federal law

involving the transfer of firearms to a non-resident, the

possession of unregistered machineguns, and the possession of semi-

automatic assault weapons. The district court also ordered twenty-

eight firearms, possessed or transferred by MKS, forfeited to the

government. Kelly appeals his convictions, and he and six other

claimants appeal the forfeiture order. Finding no error, we affirm

the convictions and forfeiture order.

I.

Kelly owns the MKS gun dealership, located in Grafton,

West Virginia. At MKS, Kelly specializes in manufacturing and

distributing the MKS M-14A, a gun that he manufactures using

receivers from decommissioned M-14 machineguns. (The military

decommissions M-14 machineguns by torch-cutting the receiver, the

frame of the gun that contains the firing mechanism, into two

parts.) In June 2001 agents from the BATFE informed Kelly that the

M-14 receivers he was using to manufacture the MKS M-14A were

machineguns as defined in 26 U.S.C. § 5845(b). (The Firearm

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Owners’ Protection Act makes it a crime to possess a machinegun

that was not lawfully possessed before the Act went into effect on

May 19, 1986. See 18 U.S.C. § 922(o).) The BATFE served a cease

and desist letter on Kelly, but he continued to manufacture and

sell M-14 receivers and MKS M-14As.

On July 24, 2002, the BATFE executed a search warrant on

Kelly’s residence, which also served as his place of business. The

search warrant authorized the agents to seize “[a]ll MKS M-14

receivers and all MKS M14A1 receivers and/or firearms utilizing the

aforementioned receivers.” S.J.A. 41. In addition to the guns

listed in the warrant, the agents discovered an Uzi machinegun

receiver, a Maadi semi-automatic assault rifle, an FAL semi-

automatic assault rifle, and an AK-47 machinegun. The agents took

the guns to BATFE agent Richard Vasquez, who was on the premises

during the search, for identification. Agent Vasquez, an expert

gunsmith, immediately determined that the firearms were illegal and

instructed his fellow agents to seize the guns.

Kelly was indicted for 206 violations of federal law. He

filed a motion to dismiss and a motion to suppress the four guns

that were not listed in the search warrant. The district court

denied both motions. Kelly was convicted after a jury trial on six

counts: Counts 95-97 (unlawful transfer of firearms to a non-

resident in violation of 18 U.S.C. § 922(b)(3)); Counts 98-99

(unlawful possession of machineguns in violation of 26 U.S.C.

4
§ 5861(d)); and Count 205 (unlawful possession of semi-automatic

assault weapons in violation of 18 U.S.C. § 922(v)(1)). The

district court granted Kelly’s motion for acquittal on Count 99 and

denied his other post-trial motions. The court sentenced Kelly to

24 months’ imprisonment on each of the five counts to run

concurrently. Kelly appeals his convictions.

The government also filed a civil forfeiture action for

thirty-four MKS-M14A receivers that the BATFE recovered from

seventeen individuals throughout the United States. Eleven

individuals, including Kelly, filed claims to the seized guns in

the district court. The government alleged that the MKS M-14A

firearms were unlawful machineguns and requested that they be

forfeited to the government pursuant to 26 U.S.C. § 5872(a). The

district court granted the government’s motion for summary judgment

and ordered the guns forfeited. Kelly and six other claimants

appeal the forfeiture order, and this appeal has been consolidated

with Kelly’s appeal of his conviction.

II.

Kelly challenges his convictions on the five counts that

survived post-trial motions. First, he argues that his convictions

for Counts 98 and 205 should be vacated because the Uzi receiver

and two semi-automatic assault weapons were unlawfully seized from

his residence. Second, he argues that 18 U.S.C. § 922(v), the ban

5
on semi-automatic assault weapons, exceeds Congress’s power under

the Commerce Clause and violates his Second Amendment right to bear

arms. Third, he argues that the convictions on Counts 95-97 should

be reversed because (a) the district court erred in instructing the

jury, (b) there was insufficient evidence to support the

convictions, and (c) the government’s expert witness testimony was

unreliable. We consider these arguments in turn.

A.

Kelly argues that the district court erred in denying his

motion to suppress the Uzi receiver (Count 98) and the two semi-

automatic assault weapons (Count 205). Specifically, he says that

the district court erred in holding that these weapons, which were

not identified in the search warrant, were lawfully seized under

the plain view exception to the warrant requirement.

Under the plain view doctrine law enforcement officers

may seize an object without a warrant if (1) the officers are

“lawfully in a position from which they view an object,” (2) the

object’s incriminating character is “immediately apparent,” and (3)

the officers have a “lawful right of access to the object.”

Minnesota v. Dickerson, 508 U.S. 366, 375 (1993). Kelly argues

that the plain view doctrine cannot justify the seizure because “it

was [not] ‘immediately apparent’ to the agents who brought the

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three firearms to [agent] Vasquez that there was anything

‘incriminating’ about the three firearms.” Appellant’s Br. at 15.

We have previously rejected the argument that an item’s

illegality must be apparent to the searching officer at the precise

moment that he spots it. See United States v. Jackson, 131 F.3d

1105 (4th Cir. 1997) (upholding seizure of drug paraphernalia even

though seizing officer did not recognize the paraphernalia’s

illegality until after he left the room where it was located). The

“immediately apparent” prong of the plain view doctrine only

requires that “the incriminating nature of the item . . . become

apparent, in the course of the search, without the benefit of

information from any unlawful search or seizure.” United States v.

Garces, 133 F.3d 70, 75 (D.C. Cir. 1998).

The BATFE agents did not unlawfully search or seize the

three weapons prior to the time Vasquez determined that they were

possessed unlawfully. The agents’ decision to take the guns to

Vasquez, who was located on the premises, was clearly “[]related to

the objectives of the authorized intrusion” and therefore not an

additional or unlawful search. Arizona v. Hicks, 480 U.S. 321, 325

(1987). Nor did this movement of the guns constitute an unlawful

seizure because the agents did not “meaningfully interfere” with

Kelly’s possessory interest in the guns. Id. at 324; cf. Garces,

133 F.3d at 74 (“[W]e find neither search nor seizure in [the

agents’] carrying the key about the house to determine its

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evidentiary value.”); United States v. Menon, 24 F.3d 550, 560 (3d

Cir. 1994) (stating that agent executing a search warrant did not

seize documents when she moved them to another room for a fellow

officer to inspect). Thus, we conclude that the agents’ seizure of

the three guns was lawful pursuant to the plain view doctrine.

B.

1.

Kelly argues that Congress exceeded its Commerce Clause

powers in enacting 18 U.S.C. § 922(v)(1), which prohibits the

possession of most semi-automatic assault weapons. Kelly argues

that Congress does not have the power to regulate what he describes

as intrastate, non-economic activity. This argument is meritless.

The Commerce Clause authorizes Congress to regulate “those

activities that substantially affect interstate commerce.” United

States v. Lopez, 514 U.S. 549, 559 (1995). The ban on the

possession of semi-automatic assault weapons was plainly intended

to reduce the flow of those weapons in interstate commerce. See

Navegar, Inc. v. United States, 192 F.3d 1050, 1058 (D.C. Cir.

1999). As the D.C. Circuit has noted, section 922(v) affects

commerce by “impos[ing] criminal liability for those activities

which fuel the supply and demand for such weapons.” Id.

Regulations of intrastate activities that affect the supply or

demand of a commodity are well within Congress’s Commerce Clause

8
powers. See Wickard v. Filburn, 317 U.S. 111, 128 (1942) (holding

that Congress had the power to regulate intrastate cultivation of

wheat because of its effect on the national market for that

commodity).

2.

Kelly also argues that the ban on semi-automatic assault

weapons in section 922(v) violates his Second Amendment right to

bear arms. The Second Amendment states that: “A well regulated

Militia, being necessary to the security of a free State, the right

of the people to keep and bear Arms, shall not be infringed.” We

held in Love v. Pepersack, 47 F.3d 120 (4th Cir. 1995), that the

Second Amendment does not confer an absolute individual right to

bear firearms. In that case we adopted the collective rights

theory, interpreting the Amendment to protect the states’ right to

organize and arm militias. Accordingly, a person challenging a

federal gun restriction must show that his possession of the gun

“bore a ‘reasonable relationship to the preservation or efficiency

of a well regulated militia.’” Id. at 124 (quoting United States

v. Miller, 307 U.S. 174, 178 (1939)). Kelly has not made any

showing that he possessed the semi-automatic assault weapons in

connection with membership in a state militia.

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 C.

Kelly raises several challenges to his convictions under

Counts 95-97 for transferring firearms to an out-of-state resident

in violation of 18 U.S.C. § 922(b)(3).

1.

Kelly argues that the district court failed to instruct

the jury on Counts 95-97 that the government was required to prove

that he knew the transferee was not a federally licensed firearms

dealer. Section 922(b)(3) makes it unlawful for a licensed dealer

to “sell or deliver . . . any firearm to any person who the

licensee knows or has reasonable cause to believe does not reside

in . . . the State in which the licensee’s place of business is

located.” 18 U.S.C. § 922(b)(3). This section does “not apply to

transactions between licensed . . . dealers.” Id. § 922(b).

The district court’s instruction “taken as a whole . . .

fairly states the controlling law.” See United States v. Cobb, 905

F.2d 784, 789 (4th Cir. 1990) (stating standard of review for

challenges to jury instructions). The court told the jury that to

convict Kelly on Counts 95-97 it must find that (1) he “knowingly

and willfully sold or delivered firearms to persons who the

defendant knew . . . did not reside in West Virginia,” and (2) “the

person to whom the firearm was transferred was not a licensed . . .

dealer.” J.A. 164. The district court correctly instructed the

jury that the willfulness (and knowledge) requirement in section

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922(b)(3) applies to each of the elements of that offense,

specifically (1) the sale of a firearm (2) to an out-of-state

resident. The willfulness (and knowledge) requirement does not

apply to the “dealer to dealer” provision in section 922(b), which

is an exception to the statute’s application and not an element of

the offense. Accordingly, there was no error in the instruction

because the government was not required to prove that Kelly knew

that the transferee was not a federally licensed firearms dealer.

2.

Kelly’s other challenges to his conviction on Counts 95-

97 are meritless. After reviewing the record, we conclude that the

convictions on these counts were supported by sufficient evidence.

Furthermore, we conclude that the district court did not abuse its

discretion in admitting agent Vasquez’s expert testimony that the

M-14 receivers seized from Kelly’s residence could “readily be

converted” to fire ammunition. See 18 U.S.C. § 921(a)(3) (stating

the definition of “firearm”).*

*
We also affirm the district court’s order denying Kelly’s
motion for attorney’s fees with respect to Counts 1-84 and 127-204
because the government’s prosecution on these counts was not
“vexatious, frivolous, or in bad faith.” In re 1997 Grand Jury, 215
F.3d 430, 436 n.8 (4th Cir. 2000). Significantly, the BATFE
informed Kelly that it considered the receivers in his possession
to be machineguns well before the government initiated criminal
proceedings against him.

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 III.

We next consider the appeal filed by Kelly and six other

claimants (collectively, “Kelly”) of the district court’s order

granting summary judgment to the government on its in rem

forfeiture claim. The central question is whether the MKS M-14A

guns seized by the BATFE agents are “machineguns” as defined in 26

U.S.C. § 5845(b). According to the definition, “The term

‘machinegun’ means any weapon which shoots, is designed to shoot,

or can be readily restored to shoot, automatically more than one

shot, without manual reloading, by a single function of the

trigger.” In this civil forfeiture action the government has the

initial burden to establish probable cause to believe that the

seized items were unlawful machineguns. The burden then shifts to

the claimants to show by a preponderance of the evidence that the

guns were improperly seized. See United States v. One TRW, Model

M14, 7.62 Caliber Rifle, 441 F.3d 416, 419 (6th Cir. 2006).

It is undisputed that the defendant MKS M-14As could not

shoot automatically at the time of their seizure. In support of

its motion for summary judgment the government introduced a

videotaped deposition in which BATFE agent Vasquez made the MKS M-

14A shoot automatically in approximately fifty minutes. (The

parties stipulated that the MKS M-14A used in the deposition was

representative of the defendant firearms.) Vasquez used three

common tools to modify the weapon, including a Dremmel drill, a

12
carbide burr, and a Tig welder. He also testified that the spare

parts used to restore the weapon could be purchased for

approximately $79.00.

Agent Vasquez’s restoration of the MKS M-14A established

probable cause to believe that the receivers were machineguns.

Indeed, two other circuit courts have held that the MKS M-14As sold

by Kelly were machineguns under the definition in § 5845(b). One

TRW, 441 F.3d 416; United States v. TRW Rifle 7.62X51MM Caliber,

447 F.3d 686 (9th Cir. 2006). In both cases the courts determined

that the MKS M-14As could be “readily restored,” even assuming

restoration times that significantly exceeded fifty minutes. One

TRW, 441 F.3d at 423 (four to six hours); TRW Rifle, 447 F.3d at

692 (two hours); see also United States v. Smith, 477 F.2d 399, 400

(8th Cir. 1973) (eight hours).

Kelly argues, however, that “the statute must be applied

not based upon the knowledge and skills of an expert and what an

expert may be able to accomplish, but upon the knowledge and skills

of an ordinary person.” Appellant’s Br. at 17. We reject Kelly’s

argument for two reasons. First, because semi-automatic weapons

are complex instruments, any restoration for automatic firing will

necessarily require some degree of experience or expertise.

Accordingly, it makes little sense to inquire whether a gun can be

readily restored by the ordinary person. Second, the level of

expertise required to restore the weapon is just one factor that we

13
consider in determining whether a weapon may be readily restored to

shoot automatically. In addition to expertise, we consider the

time, equipment, and cost necessary to restore the weapon. See One

TRW, 441 F.3d at 422 (listing factors); United States v. Aguilar-

Espinosa, 57 F. Supp. 2d 1359, 1362 (M.D. Fla. 1999) (same). Thus,

a weapon that requires significant expertise to be restored may

nevertheless be considered a machinegun if the restoration can be

done quickly and with little expense.

In any event, Kelly has not offered evidence to rebut

agent Vasquez’s expert testimony that the MKS M-14A can be readily

restored to fire automatically. Kelly did not show that the

restoration process would require significant expertise,

specialized tools, or a great expenditure of time and money. Thus,

Kelly has not met his burden to prove by a preponderance of the

evidence that the receivers were seized unlawfully.

We have also carefully considered Kelly’s other arguments

for reversal of the summary judgment: (1) that the MKS M-14A

receiver was not designed to shoot automatically within the meaning

of 26 U.S.C. § 5845(b); (2) that § 5845(b) is unconstitutionally

vague; and (3) that no deference is owned to the government in the

interpretation of § 5845(b). We conclude that each of these

arguments is without merit.

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 For these reasons, we affirm the district court’s order

granting summary judgment to the government in the forfeiture

action.

IV.

We affirm Kelly’s convictions, the district court’s order

denying Kelly’s motion for attorney’s fees, and the district

court’s forfeiture order.

AFFIRMED

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