Cite as U.S. v. Davis, Cr. No. 8:93-106, Report of Magistrate, (D.S.C. June 21, 1993), and Order of Dismissal, September 24, 1993. IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA ANDERSON DIVISION UNITED STATES OF AMERICA CRIMINAL NO. 8:93-106 VS. REPORT OF MAGISTRATE GORDON DAVIS, SANDRA DAVIS, TAMMY SMITH, AND JERRY SMITH This matter is before the court on motion of defendants Gordon Davis and Sandra Davis to dismiss. To avoid needless duplication, the indictment is incorporated herein by reference. [footnote 1] The defendants contend that: (1) the air tool silencers which they are charged with manufacturing are not firearms pursuant to 26 U.S.C. section 5861; (2) the plastic handgrips are not firearms pursuant to 26 U.S.C. section 5861; and (3) possessing legal machine gun parts used solely for the repair or replacement of preexisting, preregistered machine guns does not constitute possession of a firearm pursuant to 26 U.S.C. section 5861(d). FINDINGS OF FACT AND CONCLUSIONS OF LAW After conducting a hearing on this motion on May 26, 1993, this court makes the following findings of fact and conclusions of law: 1. The defendants are accused of engaging in the business of making (26 U.S.C. section 5861(f)), possessing (26 U.S.C. section 5861(d)), dealing in (26 U.S.C. section 5861(a) and 18 U.S.C. section 922(a)(1)(A)), and transferring (26 U.S.C. section 5861(e)) firearms, and conspiracy to do same (18 U.S.C. section 371). 2. A silencer is a firearm pursuant to 26 U.S.C. section 5845 (a) (7). 3. A silencer is defined in 18 U.S.C. section 921(a) (24) as: ... [A]ny device for silencing, muffling, or diminishing the report of a portable firearm, including any combination of parts, designed or redesigned, and intended for use in assembling or fabricating a firearm silencer or firearm muffler, and any part-intended only for use in such assembly or fabrication. 4. The defendants contend that the phrase "designed or redesigned" modifies or relates to the preceding word "parts," rather than the preceding phrase "combination of parts." Because the parties agree that the defendants purchased these parts and placed them in kits for sale without physically modifying any of them, the defendants contend that they have not "designed or redesigned" parts and thus have not made silencers. The government contends that the phrase "designed or redesigned" modifies the previous phrase, and that when the defendants purchased these components and placed then in kits which they advertised and sold as silencers, they illegally made, possessed, and transferred silencers. 5. The defendants marketed a kit consisting of a pneumatic suppressor (which could be purchased at tool stores), an adapter piece which had to be drilled and threaded for the firearm, a rubber sleeve, and a plug (Transcript ["TR"] 36). 6. The government's expert witness (Doug Craze) testified that it took him (An expert) 30 minutes to assemble the silencer (TR 78-79). 7. The governments expert required a drill press, bench vise, and tap to assemble the silencer (TR 89). 8. The governments expert testified that, to his knowledge, this was the first time the Bureau of Alcohol, Tobacco and Firearms (ATF) had conducted a test on a kit containing an industrial muffler (TR 104). 9. After testing the kit, ATF determined on February 4, 1992, that the kit was a silencer (TR 105). 10. It was the opinion of the government's expert that the redesign occurred when the individual(s) "accumulated the parts and offered them as a silencer kit ... [A]t that point the design of the individual components changed". (TR 86). 11. Some of the parts in the kit could be used without assembling a silencer, but the likelihood of that is belied by the utter uselessness of placing the parts with the others in the kit except to make a silencer. See U..S. v. Thompson/Center Arms Co., - U.S. -, 112 S.Ct. 2102 (1992). 12. To lawfully sell a silencer, the defendants would have to obtain a special license from ATF (TR 108). 13. The instructions with each kit specifically provided: P/P Silencers. Instructions and Warnings. You have just received your brand new pneumatic plosion silencer in an unassembled state. You, the consumer, will be the maker of the final NFA silencer. Current federal laws allow any individual to construct and own a firearm silencer under specific guidelines. A few states do not allow the private ownership of a completed NFA silencer, so call your state attorney general to find out the law in, your state. Next, contact the nearest Bureau of Alcohol, Tobacco and Firearms office and ask them to send you an ATF Form Number 1. Complete this form and submit it along with the proper tax to the address in the instructions. once your approval comes back from the BATF, you may proceed with construction of your finished P/P silencer. Warning: Follow all federal and state guidelines. The civil and criminal penalties are very serious, not to mention the legal fees. Call or write your local BATF office if you need any help with your Form Number 1 or legal questions answered. They are there to help you do it legally. (TR 90-91) 14. The government's expert said the instructions were misleading because the kit, or combination of parts in the kit, was in fact a silencer (TR 91). 15. The government's expert admitted on cross examination that it was customary of ATF to enter into a dialogue with the sellers of firearm devices when there is a novel question (TR 106). 16. In this case, the government elected not to follow their custom of attempting to work out the problem. 17. The defendants' expert, Wayne Daniel, testified that defendant Gordon Davis conferred with him before marketing the kit and that Daniel advised him his kit was not a firearm suppressor. Daniel testified he based his opinion on the fact that the kit required machining and drills (TR 13). 18. The defendants openly sold the silencer kit and openly advertised the product in firearms publications. 19. "The definition of silencer was amended in 1986 to include any part designed or redesigned and intended to be used as a silencer for a firearm. This will help control the sale of incomplete silencer kits that now circumvent the prohibition of 2109 on selling complete kits." H.R. Rep. No. 99-4951, p. 21 (1986). Thompson/Center Arms, 112 S.Ct. 2102. 20. The defendants' kit was a silencer as defined in 18 U.S.C. section 921(a)(24). 21. The defendants' expert and the government's expert differ as to whether the KG9 bolt seized by ATF is a bolt that will cause automatic fire. 22. The government's theory is that the KG9 bolt "has been modified ... to convert a Tech-9 semi-automatic pistol into fully automatic, and that makes it, under the National Firearms Act, a piece that cannot be possessed by an individual without first being registered with the Bureau of Alcohol, Tobacco and Firearms." (TR 23). 23. The parties have agreed to have the KG9 bolt test fired to determine if the bolt can be used to convert a Tech-9 semi- automatic pistol into fully automatic. 24. The 9 millimeter and .22 caliber pistols seized by ATF were modified by adding an additional grip. 25. Title 26, United States Code Section 5845(e) defines "any other weapon" as: ... any weapon or device capable of being concealed from which a shot can be discharged through the energy of an explosion ... Such term shall not include a pistol or revolver having a rifled bore, or rifled bores, or weapons designed, made or intended to be fired from the shoulder and not capable of firing fixed ammunition. 26. A "pistol" is defined in Section 5845 as A weapon originally designed, made and intended to fire a projectile (bullet) from one or more barrels when held in one hand, and having (a) a chamber(s) as an integral part(s) of or permanently aligned with, the bore(s); and (b) a short stock designed to be gripped by one hand and at an angle to and extending below the line of the bore(s). 27 CFR 178.11 (emphasis added). 27. Even after being modified with grips, the pistols are still "pistols" as defined above and not "any other weapon" as defined by 26 U.S.C. section 5845(e). 28. The government has agreed to dismiss Count 13 of the indictment, concerning the possession of a shotgun with a barrel of less than 18 inches, in light of the Supreme Court's decision in Thompson/Center Arms, 112 S.Ct. 2102. CONCLUSIONS AND RECOMMENDATION Wherefore, it is recommended that Count 13 be dismissed upon motion of the government. As to the motion to dismiss concerning the silencer kit, this court concludes that the kit is a silencer as defined by the statute and that the motion to dismiss should be denied. As to the motion concerning the KG9 bolt, this court recommends that the motion be held in abeyance until the parties conduct the agreed upon test fire. As to the motion to dismiss concerning the two pistols, this court concludes that the weapons are "pistols" as defined and are not "any other weapons," and that the motion to dismiss as to the pistol counts should be granted. [signed] William M. Catoe, Jr. United States Magistrate Judge June 21, 1993 Greenville, South Carolina FOOTNOTES 1. The delay in filing this recommendation was due to problems in obtaining the transcript of the hearing, which was received by this court on June 16, 1993. IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA ANDERSON DIVISION UNITED STATES OF AMERICA Criminal Number: 8:93-106 v. ORDER GORDON T.DAVIS, and SANDA G. DAVIS And now, this 24 day of September, 1993, the within Motion is granted, and it is hereby ordered and decreed that Indictment and Superseding Indictment Number 8:93-106, against the Defendants, GORDON T. DAVIS, and SANDRA G. DAVIS, be and the same is hereby dismissed without prejudice. [signed] HONORABLE G. ROSS ANDERSON, JR UNITED STATES DISTRICT JUDGE Columbia, S.C.