UNITED STATES of America, Plaintiff-Appellee, v. ONE TRW, MODEL M14, 7.62 CALIBER RIFLE, Serial Number 1488973 from William K. Alverson, Defendant, William K. Alverson, Claimant-Appellant.
No. 04-5082
United States Court of Appeals, Sixth Circuit
Argued: Oct. 5, 2005. Decided and Filed: March 20, 2006.
Broom‘s contention that the Ohio Supreme Court‘s application of Manson and Neil was unreasonable is without merit, and we affirm the district court‘s judgment denying relief as to this claim.
III. CONCLUSION
For the reasons discussed above, we AFFIRM the district court‘s judgment denying Broom habeas relief.
Before: MOORE, GIBBONS, and GRIFFIN, Circuit Judges.
MOORE, J., delivered the opinion of the court, in which GIBBONS, J., joined. GRIFFIN, J. (pp. 425-29), delivered a separate dissenting opinion.
OPINION
KAREN NELSON MOORE, Circuit Judge.
This case involves a forfeiture of the Defendant weapon pursuant to
I. BACKGROUND
In the fall of 2001, the Bureau of Alcohol, Tobacco, and Firearms (“ATF“) Field Office in Lexington, Kentucky was informed that MK Specialties (“MKS“) was selling firearms made from cut-up M-14 receivers marketed as the MKS M-14. The Lexington ATF Office determined that Alverson had purchased one of these weapons. In early January 2002, ATF Special
Following the seizure, Alverson filed a claim of ownership of the Defendant weapon, contesting the forfeiture on the ground that it was not a machinegun under the NFA. On October 3, 2002, the United States filed a complaint for forfeiture in rem, claiming that the Defendant weapon was a “machinegun” under
II. ANALYSIS
A. Standard of Review
We review a grant of summary judgment de novo. United States v. Any & All Radio Station Transmission Equip., 218 F.3d 543, 547 (6th Cir.2000) (citing EEOC v. Nw. Airlines, Inc., 188 F.3d 695, 701 (6th Cir.1999)). Summary judgment is appropriate where “there is no genuine issue as to any material fact” and “the moving party is entitled to a judgment as a matter of law.”
B. Burden of Proof
In 2001, Congress enacted the Civil Asset Forfeiture Reform Act (“CAFRA“),
[e]xcept as provided in paragraph (2) and section 5872(b) of the Internal Revenue Code of 1986, the provisions of law relating to—(A) the seizure, summary and judicial forfeiture, and condemnation of property for violation of Customs laws, (B) the remission or mitigation of such forfeiture, and (C) the compromise of claims, shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under any applicable law enforced or administered by the Bureau of Alcohol, Tobacco and Firearms.
Pub.L. 102-393, Tit. VI, § 638(b)(1), 106 Stat. 1779 (formerly codified at
C. Statutory Interpretation
The NFA defines a machinegun as “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.”
1. The ATF Rulings
The Government argues that we should rely on several ATF Rulings (“the Rulings“) that define “designed to shoot” and “can be readily restored” and that classify various modified weapons as machineguns because they were “designed to shoot” automatically. Typically, where a statute is ambiguous and the implementing agency has interpreted the statute, a court will determine what, if any, level of deference the interpretation should be afforded and then defer accordingly. The Supreme Court has distinguished between the more deferential standard of Chevron, under which agency interpretations will control as long as they are “based on a permissible construction of the statute,” Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and the less defer-
The amount of deference that the Rulings merit is unsettled,3 and we need not decide this question in this case. The ATF Rulings, even if entitled to full Chevron deference, would provide little guidance, as their explanation of “can be readily restored to shoot” hardly helps to clarify the statutory definition of this provision.4 Moreover, the Rulings have little bearing on whether the Defendant weapon “can be readily restored to shoot[] automatically” because the weapons at issue in the Rulings were classified as machineguns based on the ATF‘s determination that they were “designed to shoot” automatically.5
2. Available Evidence
In support of its motion, the Government submitted a Firearms Technology Branch Report of Technical Examination (“FTB Report“) written by ATF Officer Richard Vasquez after his investigation of the Defendant weapon that detailed its characteristics and the methods used to restore it to automatic shooting capacity.6
The Claimant objects to the admissibility of the FTB Report, as it was unsworn and not accompanied by an affidavit. See Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962, 968-69 (6th Cir.1991) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158 n. 17, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)) (holding that unsworn statements may not be considered on a motion for summary judgment). We need not resolve this dispute, however, as Claimant‘s expert witness, Robert Kraft, testified at his deposition that the Defendant weapon could be converted to fire automatically in four to six hours to manufacturer‘s specifications and in two to three hours with hand-manufactured parts. Because we view the evidence in the light most favorable to the nonmoving party in reviewing a grant of summary judgment, see Adickes, 398 U.S. at 157, 90 S.Ct. 1598, given the conflict between the FTB Report and the Claimant‘s expert-witness testimony, we are obliged to credit the Claimant‘s expert in any event, regardless of the admissibility of the FTB Report. As we must draw all reasonable inferences in favor of the party opposing the motion for summary judgment, Johnson v. Karnes, 398 F.3d 868, 873 (6th Cir.2005), we will assume that it would require six hours to restore the Defendant weapon to automatic shooting capacity.
3. “Can Be Readily Restored to Shoot[] Automatically”
We have not interpreted the phrase “readily restored” in a published opinion7 or in the context of a weapon like the Defendant.8 Webster‘s Third New International Dictionary defines “readily” to mean “with fairly quick efficiency,” “without needless loss of time,” “reasonably fast,” “speedily,” “with a fair degree of ease,” “without much difficulty,” “with facility,” and “easily.” Webster‘s Third New International Dictionary 1889 (1981). This definition identifies several components of “readily,” most notably, speed, ease, and efficiency. The inclusion of limiting modifiers, i.e., “with fairly quick efficiency,”
In the context of the NFA and its use as a modifier describing the manner of firearm restoration, “readily” has been read to encompass several elements of restoration: (1) time, i.e., how long it takes to restore the weapon; (2) ease, i.e., how difficult it is to restore the weapon; (3) expertise, i.e., what knowledge and skills are required to restore the weapon; (4) necessary equipment, i.e., what tools are required to restore the weapon; (5) availability, i.e., where additional parts are required, how easily they can be obtained; (6) expense, i.e., how much it costs to restore the weapon; (7) scope, i.e., the extent to which the weapon has to be changed to allow it to shoot automatically; (8) feasability, i.e., whether the restoration would damage or destroy the weapon or cause it to malfunction. See S.W. Daniel, Inc. v. United States, 831 F.2d 253, 254-55 (11th Cir. 1987) (ease and scope); United States v. Alverson, 666 F.2d 341, 345 (9th Cir.1982) (expertise,9 ease, and scope); United States v. Smith, 477 F.2d 399, 400 (8th Cir.1973) (time and equipment); United States v. Aguilar-Espinosa, 57 F.Supp.2d 1359, 1362 (M.D.Fla.1999) (time, ease, expertise, and equipment); United States v. Seven Misc. Firearms, 503 F.Supp. 565, 573-75 (D.D.C.1980) (time, ease, expertise, equipment, availability, expense, and feasibility); United States v. Cook, No. 92-1467, 1993 WL 243823, at *3-4 (6th Cir. July 6, 1993) (availability).
The statutory canon of construction noscitur a sociis, or “it is known by its associates,” instructs “that the meaning of an unclear word or phrase should be determined by the words immediately surrounding it.” Black‘s Law Dictionary 1087 (8th ed.2004); see also Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1014 (6th Cir. 1997). “[R]eadily restored,” therefore, must not be construed as an abstract phrase, but rather its contours should be determined in the context of what it means to be able to “readily restore[]” a machinegun as opposed to some other object. The sort of object being restored, primarily its complexity, helps to determine whether a given amount of time, money, expertise, and skill required to restore it is considered a “ready” restoration. For example, a car that could be restored in ten hours for $500 would likely be considered “readily restored,” whereas a skateboard that required the same inputs likely would not be considered “readily restored.” Although the dissent asserts, based on “common sense,” that “a process [of restoration] that takes in excess of four to six hours” could not be “ready,” Dissenting Opinion (“Dissent. Op.“) at 427-28, this contention lacks meaning because it is too abstract and fails to consider what “readily restored” means in the context of a highly complex firearm.
The decisions of several other courts make clear that the Defendant weapon, which would require, according to Alverson‘s own expert, a maximum of six
The Defendant weapon in the case at bar can be converted to fire automatically in even less time than the weapon that could be “readily restored” in Smith. Alverson‘s expert testified that the Defendant rifle could be restored to fully-automatic-shooting capacity to manufacturer‘s specifications in four to six hours with particular machinery or in two to three hours by hand manufacturing the parts.11
The two relevant cases finding that the weapons there considered were not readily restorable can be distinguished from the Defendant weapon. In Seven Misc. Firearms, the district court found that weapons forfeited from a museum collection were not readily restorable where conversion would require expert gunsmith
Alverson additionally argues that the Defendant weapon cannot be “readily restored” because “restore” means to bring back to an original condition, and the Defendant weapon was not brought back to an original condition as it was made from cut-up M-14s. This argument lacks force because the definition of “restore” does not preclude an object from being considered “restored” without returning it to a condition in which it previously existed. Webster‘s Third New International Dictionary provides several definitions of “restore,” one of which—“to bring back to or put back into a former or original state“—matches the definition Alverson cites, and others—“to put or bring back (as into existence or use)” and “to bring back from ... a changed condition“—that are broader and make clear that to be “restored” does not require return to a preexisting state. Webster‘s Third New International Dictionary 1936. Several courts have so interpreted “readily restored” to encompass weapons that were “originally legal semiautomatic rifles” and only later converted to shoot automatically. Shilling, 826 F.2d at 1367; accord Alverson, 666 F.2d at 345; see also S.W. Daniel, Inc., 831 F.2d at 254 (approving jury instruction explaining “readily restored” to include “weapons which have not previously functioned as machine guns but possess design features which facilitate full automatic fire by simple modification or elimination of existing component parts” (emphasis added)).13
Finally, we reiterate that the Government must only show probable cause to justify the forfeiture, and the Claimant then bears the burden of proving his case by a preponderance of the evidence. See Any & All Radio Station Transmission Equip., 218 F.3d at 548. Therefore, despite the minimal record available to us on review, the testimony by Alverson‘s own witness that the Defendant weapon could be converted into an automatic weapon in a matter of hours, which the United States submitted in support of its motion, suffices to meet the Government‘s burden. Alverson‘s proffered evidence, which consists solely of this same expert testimony and a letter from MKS describing some of the features of the MKS-modified M-14 receiver, fails to create a genuine issue of material fact, even without consideration of the FTB Report or the ATF Rulings. Based on the evidence presented and the legal definition of “readily restored,” no reasonable juror could conclude that the Defendant weapon was not a machinegun under
4. Designed to Shoot Automatically
As our conclusion that the Defendant firearm “can be readily restored to shoot[] automatically” is sufficient to classify it as a machinegun and to justify the forfeiture in this case, we decline to consider whether the firearm is also “designed to shoot” automatically.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court‘s judgment granting the Government‘s motion for summary judgment.
GRIFFIN, Circuit Judge, dissenting.
I respectfully dissent. I would hold that the MKS-M14A is not a “machinegun,” as defined by
I.
We review de novo the district court‘s grant of summary judgment. Holloway v. Brush, 220 F.3d 767, 772 (6th Cir.2000).1 Summary judgment is warranted when there is no genuine issue of material fact
Pursuant to Rule 56(e), an unauthenticated document like the Vasquez report may not be considered. Moore v. Holbrook, 2 F.3d 697, 699 (6th Cir.1993). Without the Vasquez report, we are left to rely on the deposition testimony of claimant‘s expert, who testified, in pertinent part, as follows:
Q In making that change [to convert the MKS-M14A to shoot automatically] do you have an estimate of how long it would take you to make that change if you could make that change?
A I‘ve thought about, you know, the equipment and stuff I would have, if I had the machines available to make the parts to what I would call OM, original manufacturer‘s specs. You‘re probably looking at a ballpark of about four to six hours.
This unrebutted evidence establishes that the MKS-M14A could be converted by an expert gunsmith with readily available equipment to shoot automatically in four to six hours. The issue therefore becomes whether the MKS-M14A, which could be converted by an expert gunsmith with readily available equipment to shoot automatically in four to six hours, is a weapon that, as a matter of law, can “be readily restored to shoot, automatically.”
The inquiry begins with the fundamental purpose of judicial construction of statutes, which is to ascertain and give effect to the original meaning of the words used by Congress:
[W]e begin with the understanding that Congress “says in a statute what it means and means in a statute what it says there,” Connecticut Nat. Bank v. Germain, 503 U.S. 249, 254, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992). As we have previously noted in construing another provision of § 506, when “the statute‘s language is plain, ‘the sole function of the courts’ “—at least where the disposition required by the text is not absurd—” ‘is to enforce it according to its terms.’ ” United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) (quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 61 L.Ed. 442 (1917)).
Where, as here, no statutory definitions exist, courts may refer to dictionary definitions for guidance in discerning the plain meaning of a statute‘s language. United States v. Edward Rose & Sons, 384 F.3d 258, 263 (6th Cir.2004); Cler v. Ill. Educ. Ass‘n, 423 F.3d 726 (7th Cir.2005); Cleveland v. City of L.A., 420 F.3d 981, 989 (9th Cir.2005). The ordinary, common meaning of the word “readily” is “[i]n a prompt, timely manner; promptly.” AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 222 (4th ed.2000). Other dictionaries are to the same effect:
“in a ready manner: as a: without hesitating: WILLINGLY <readily accepted advice> b: without much difficulty: EASILY <for reasons that anyone could readily understand>[,]” MERRIAM-WEBSTER ONLINE DICTIONARY, http://www.m-w.com (enter term “readily“);
“quickly, immediately, willingly or without any problem,” CAMBRIDGE ADVANCED LEARNER‘S DICTIONARY, http://dictionary.cambridge.org/ (enter term “readily“);
“[i]n a prompt, timely manner; promptly,” DICTIONARY.COM, http://dictionary.reference.com/ (enter term “readily“).
Correspondingly, “restorable” means “[a]dmitting of being restored; capable of being reclaimed; as, restorable land.” DICTIONARY.COM, http://dictionary.reference.com/ (enter term “restorable“).
Although the majority recites a variety of similar definitions for the term “readily,” it thereafter relies on the “modifiers” contained in those definitions to conclude that the term “encompass[es] several elements of restoration[.]” This approach clouds the issue and opens the door to future extensions of the word “readily” in
Moreover, the majority‘s analysis of whether the MKS-M14A could be restored to shoot automatically fails to adequately explain how the defendant weapon, which is a new and entirely separate weapon from the M14, could be “restored” in any fashion. “Restoration” acts to “return[] something to its earlier good condition or position.” CAMBRIDGE ADVANCED LEARNER‘S DICTIONARY, http://dictionary.cambridge.org/ (enter term “restoration“). Although no “earlier” version of the MKS-M14A exists, the majority relies on “broader” definitions for the term “restored” in an effort to explain that an item need not “return to a preexisting state[]” to render it “restored.” Like its efforts to define “readily,” the majority‘s approach to the term “restore” further clouds the issue and again assigns to the term a definition without boundaries. For example, pursuant to the majority‘s limitless definition of “restore,” even a single shot weapon is now conceivably subject to forfeiture. Indeed, the skilled technician who is somehow capable of converting a single shot weapon to fire automatically has “restored” the weapon to shoot automatically because, according to the majority, restoration “does not require return to a preexisting state.” Id.
Considering the dictionary definitions for the words “readily” and “restored,” I reject the conclusion reached in United States v. Smith, 477 F.2d 399, 400 (8th Cir.1973), that a firearm is readily restorable to shoot automatically when it takes eight hours to rebuild and reconstruct the rifle by an expert gunsmith in a machine shop. Similarly, I reject the majority‘s reliance on Smith to reach its conclusion that a somewhat lesser time frame satisfies the “readily restorable” language in § 5845(b).
III.
The conclusion reached in United States v. Smith that a rifle can be readily restored is contrary to the weight of recent authority. For example, the district court in United States v. Aguilar-Espinosa, 57 F.Supp.2d 1359 (M.D.Fla.1999), defined “readily restorable” as a “less than arduous assembly of manageable and available parts by a combination of (1) the ability of a reasonably skilled and informed but not necessarily expert or artistic worker and (2) tools commonly understood by and commonly available to such workers ... but excluding, for example, the resources available to a master machinist ...” id. at 1362. Accord United States v. Seven Misc. Firearms, 503 F.Supp. 565, 573-74 (D.D.C.1980) (finding weapon was not “readily restorable” because to accomplish such a procedure would require more than four hours in a shop with appropriate tools, expert gunsmith services, and the sum of roughly $65,000).
Other courts have likewise adopted similar tests for defining what constitutes “readily restorable.” See, e.g., United States v. Woodlan, 527 F.2d 608, 609 (6th Cir.1976) (finding weapon “readily restorable” because it was “capable of being modified in two minutes to fire automatically“); United States v. Woods, 560 F.2d 660, 664-65 (5th Cir.1977) (finding weapon was “readily restorable” because merely connecting two pieces with a “minimum of effort” rendered it operable); United States v. Catanzaro, 368 F.Supp. 450, 453 n. 3 (D.Conn.1973) (finding weapon “readily restorable” because it required only $15 worth of easily obtainable replacement parts and one hour of assembly); United States v. Alverson, 666 F.2d 341, 345 (9th Cir.1982) (finding sufficient evidence that
Applying the dictionary definitions of “readily restorable” in conjunction with the foregoing caselaw survey highlights the anomalous nature of the Eighth Circuit‘s decision in United States v. Smith, 477 F.2d at 400. Accord Aguilar-Espinosa, 57 F.Supp.2d at 1362 (noting Smith “presses the notion of ‘ready restoration’ near or beyond its distal boundary“).5 The majority‘s reliance on that decision is therefore misplaced.
IV.
Finally, I note that the available legislative history supports my position. Although I am mindful of the limited utility and reliability of legislative history, see Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 125 S.Ct. 2611, 2626, 162 L.Ed.2d 502 (2005), it nonetheless reveals that “readily restored to shoot” is intended to mean that only a simple mechanical operation is required to restore a weapon to a capacity of fully automatic fire.” Omnibus Crime Control and Safe Streets Act of 1967, H.R. 1097, 90th Cong. § 911(b)(1968) (emphasis added). Consistent with the dictionary definition of “readily,” this brief legislative history reflects the need for courts to focus on the expediency of the process involved to restore the weapon.
V.
For these reasons, I respectfully dissent. Viewing the evidence in the light most favorable to Alverson and drawing all reasonable inferences in his favor, see United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962), I would reverse and remand for further proceedings.