IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA, ) ) Plaintiff ) ) v. ) CRIMINAL NO. 94-243 ) RAYMOND RYBAR, JR., ) JUDGE ALAN N. BLOCH ) Defendant. ) MOTION OF THE DEFENDANT TO DISMISS THE INDICTMENT Now comes the defendant, Raymond Rybar, Jr., by undersigned counsel, and moves to dismiss the indictment in this action on the following grounds: 1. Section 922(o) of Title 18, United States Code (charged in Counts 1 and 3 of the indictment), is unconstitutional because it is beyond the enumerated powers of Congress and contrary to the Second and Tenth Amendments to the United States Constitution. 2. Section 5861(e) of the Internal Revenue Code of 1986, Title 26, United States Code, (charged in Counts 2 and 4 of the indictment) has been held to have been repealed by implication or rendered unconstitutional by the enactment of 18 U.S.C. section 922(o) in May of 1986. In any event, after the enactment of Section 922(o), the United States officially, formally and publicly refused to accept registration of and tax payments on post-May-1986 machineguns. 3. During the period in which both statutes were purportedly in effect, and during which the United States has attempted to enforce both of them criminally (as in this case), a possessor or transferor of machineguns could not comply with the registration and taxation requirements of the National Firearms Act, 26 U.S.C. sections 5801-5872, because the United States officially and publicly refused to accept the tax payments and registration applications provided for and required by that act. Even had the United States not adamantly refused to permit compliance with the National Firearms Act, the threat of criminal prosecution under 18 U.S.C. section 922(o) would have made compliance by a taxpayer, such as the defendant, impossible without impermissibly requiring him to incriminate himself under the provisions of 18 U.S.C. section 922(o). Thus, even though 18 U.S.C section 922(o) has been constitutionally void from its passage in May of 1986, its presence in the United States Code and its continued enforcement by the United States, coupled with the refusal of the United States to permit a possessor or transferor of machineguns to comply with the taxing and registration provisions of the National Firearms Act, has rendered the National Firearms Act unconstitutional as applied to machineguns during this period. For these reasons the Court should dismiss all counts of the indictment with prejudice. We believe that oral argument on this motion would be of assistance to the Court. A memorandum of law accompanies this motion in compliance with Local Criminal Rule 12.1C. Respectfully submitted, JAMES H. JEFFRIES, III, Trial Counsel (North Carolina Bar No. 18502) 3019 Lake Forest Drive Greensboro, North Carolina 27408 Telephone: (910) 282-6024 VINCENT C. MUROVICH, JR. (Pennsylvania ID No. 01322) Murovich & Stump 100 Smithfield Street, Suites 104-106 Pittsburgh, Pennsylvania 15222 Telephone: (412) 281-7222 Counsel for Defendant MEMORANDUM OF LAW This memorandum is submitted in support of the defendant's motion to dismiss the indictment as required by Local Criminal Rule 12.1C. FACTS The defendant, Raymond Rybar, Jr., is a 45-year-old native born citizen of the United States and the Commonwealth of Pennsylvania, residing in Finleyville, Pennsylvania. He has never been arrested or charged with any crime, other than the present indictment. Mr. Rybar is a self-employed metalsmith engaged in the crafting and sale of high quality edged weapons and implements. He manufactures and finishes his own Damascus steel which he uses to produce replicas of Roman short swords, Bowie knives, regimental presentation swords, Native American tomahawks, and other such collectibles. Mr. Rybar has hunted, fished and trapped in western Pennsylvania since boyhood and has had a lifelong interest in firearms and the shooting sports. His introduction to machineguns, however, was at the hands of his government, which trained him in their care, maintenance and use, made him a paratrooper, sent him to Viet Nam for a year of ground combat, and awarded him the Bronze Star for heroism (as well as an Army Commendation Medal for exceptionally meritorious achievement). Sergeant Rybar was medically (honorably) discharged from the U.S. Army as disabled in 1970 following a severe leg injury from an accidental artillery explosion in Germany.[FN1] At all times pertinent to the indictment Mr. Rybar was a licensed federal firearms dealer and a special occupational taxpayer authorized to manufacture, possess, sell and transfer machineguns under the National Firearms Act of 1934, 26 U.S.C. section 5801, et seq.[FN2] Mr. Rybar is charged in a four-count indictment, returned on November 15, 1994, with illegally possessing two machineguns[FN3] on or about April 4 and 5, 1992, in violation of 18 U.S.C. section 922(o).[FN4] Indictment, Counts 1 and 3. He is further charged with illegally transferring the same two guns, on or about the same dates, in violation of 26 U.S.C. section 5861(e).[FN5] Indictment, Counts 2 and 4. Trial is scheduled to commence on January 9, 1995.[FN6] ISSUES 1. Whether Section 922(o) of Title 18 of the United States Code is unconstitutional because outside the enumerated powers of Congress and as violative of the Second and Tenth Amendments to the United States Constitution. 2. Whether the existence of 18 U.S.C. section 922(o) in the United States Code coupled with its enforcement by the United States and the United States' refusal to accept tax payments for and registrations of machineguns under the National Firearms Act of 1934 rendered the provisions of 26 U.S.C. section 5861(e) unconstitutional and unenforceable. ARGUMENT I. Section 922(o) of Title 18, United States Code, is unconstitutional. Although courts traditionally exercise a presumption in favor of the constitutionality of statutes, in the case of federal firearms statutes that exertion has become very feeble indeed. The United States Supreme Court has at least twice invalidated significant federal firearms provisions for offending the Constitution and presently has under consideration a likely third candidate.[FN7] In Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943) (two cases), the Court voided, as offensive to due process of law, a presumption in the Federal Firearms Act of 1938[FN8] that mere possession of a firearm by a convicted felon was evidence that the firearm had been shipped, transported or received in interstate or foreign commerce after the operative date of the act. The Court held that there must be some rational connection between the predicate of an evidentiary presumption and its conclusion and there was none in the case of the Federal Firearms Act. In Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968), the Court held the registration provisions of the National Firearms Act of 1934 violative of the Fifth Amendment prohibition against self-incrimination.[FN9] The Haynes result was predicated upon compelled disclosure of facts to the federal government which might incriminate the taxpayer under state or local law. In the present case the impermissible holding and hitting is created by two contradictory federal laws; otherwise the result obtained involved here is exactly the same as found unconstitutional in Haynes. In United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), the Court was forced to reject the government's expansive reading of a firearms statute[FN10] in order to avoid reaching the constitutionality of the act under the commerce clause. The question the Court ducked is the very one presented in this case: In light of our disposition of the case, we do not reach the question whether, upon appropriate findings, Congress can constitutionally punish the "mere possession" of firearms; thus we need not consider the relevance, in that connection, of our recent decision in Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971). Bass, 404 U.S. at 339, n. 4. The Court went on in Bass to discuss its constitutional concerns at greater length: There is a second principle supporting today's result: unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance. Congress has traditionally been reluctant to define as a federal crime conduct readily denounced as criminal by the States. This congressional policy is rooted in the same concepts of American federalism that have provided the basis for judge-made doctrines. See, e.g., Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). As this Court emphasized only last term in Rewis v. United States, supra [401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971)], we will not be quick to assume that Congress has meant to effect a significant change in the sensitive relation between federal and state criminal jurisdiction. In traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision. In Rewis, we declined to accept an expansive interpretation of the Travel Act. To do so, we said then, "would alter sensitive federal-state relationships [and] could overextend limited federal police resources." While we noted there that "[i]t is not for us to weigh the merits of these factors," we went on to conclude that "the fact that they are not even discussed in the legislative history ... strongly suggests that Congress did not intend that [the statute have the broad reach]." 401 U.S., at 812, 91 S.Ct., at 1059. In the instant case, the broad construction urged by the Government renders traditionally local criminal conduct a matter for federal enforcement and would also involve a substantial extension of federal police resources. Absent proof of some interstate commerce nexus in each case, section 1202(a) dramatically intrudes upon traditional state criminal jurisdiction. As in Rewis, the legislative history provides scanty basis for concluding that Congress faced these serious questions and meant to affect the federal-state balance in the way now claimed by the Government. Absent a clearer statement of intention from Congress than is present here, we do not interpret section 1202(a) to reach the "mere possession" of firearms. 404 U.S. at 349-350 (footnotes omitted). Three points should be made concerning 18 U.S.C. section 922(o) in connection with the Supreme Court's emphasis in Bass on clear legislative intent being a fundamental predicate for congressional intrusion into areas of traditional state authority. First, Section 922(o) purports to ban the "mere possession" of an entire class of firearms, for the first time in the history of the Republic.[FN11] Second, Pennsylvania, along with every other state, commonwealth and territory in the union, regulates firearms, including -- usually by name or function -- machineguns. See 18 Penna. Stat. Ann. (Purdon) section 908.[FN12] This regulation has traditionally and historically been an acknowledged exercise of the police power thought to have been reserved to the states by the Ninth and Tenth Amendments. The federal government's first venture into firearms regulation was the NFA in 1934, an exercise of the federal taxing authority. This was deemed necessary because, as United States Attorney General Homer S. Cummings acknowledged at the time, "we have no inherent police power to go into certain localities and deal with local crime. It is only when we can reach those things under ... the power of taxation, that we can act."[FN13] When Representative Harold Knutson asked "why should we permit the manufacture, that is, permit the sale of the machine guns to any one outside of the several branches of the Government?"[FN14] Representative Sumners suggested that "this is a revenue measure and you have to make it possible at least in theory for these things to move in order to get internal revenue?"[FN15] The Attorney General agreed: "That is the answer exactly."[FN16] The following dialogue then occurred: Attorney General CUMMINGS: ... If we made a statute absolutely forbidding any human being to have a machine gun, you might say there is some constitutional question involved. But when you say, "we will tax the machine gun," ... you are easily within the law. Mr. LEWIS. In other words, it does not amount to prohibition, but allows of regulation. Attorney General CUMMINGS: That is the idea. We have studied that very carefully.[FN17] Thus, at least in 1934, the executive branch of the government understood that Congress lacked the constitutional authority to ban firearms.[FN18] This understanding was also shared by the courts. See for example the analysis of Nigro v. United States, 276 U.S. 332, 48 S.Ct. 388, 72 L.Ed. 600 (1928), and other decisions, and their interaction with the NFA as described in United States v. Rock Island Armory, Inc., 773 F.Supp. 117 (C.D. Ill. 1991), gov't appeal dismissed on gov't motion, No. 91-2595, 1991 WL 224268 (7th Cir. Aug. 13, 1991). See also the dissenting opinion in United States v. Ardoin, 19 F.3d 177, 187-188 (5th Cir. 1994). Third, Section 922(o) has no legislative history. It appeared as an overnight floor amendment to the Firearm Owners' Protection Act of 1986 (hereafter "FOPA") with no floor debate, no committee report, and no congressional findings. Unlike many recent congressional enactments the title of FOPA does not violate truth-in-advertising principles. It is in large part a statute protecting firearm owners from a long list of enumerated abuses by the Bureau of Alcohol, Tobacco and Firearms (hereafter "BATF") and the Department of Justice.[FN19] Literally the only fingerprints left by the author of Section 922(o) consist of a remark by Representative Hughes that "I don't know why anyone would object to the banning of machineguns."[FN20] In United States v. Lopez, 2 F.3d 1342 (5th Cir. 1993), cert. granted, U.S. , 114 S.Ct. 1536, 128 L.Ed.2d 189 (1994), the Court of Appeals for the Fifth Circuit[FN21] declared unconstitutional the Gun-Free School Zones Act of 1990,[FN22] codified as 18 U.S.C. section 922(q). In a comprehensive decision the court of appeals examined the history of federal firearms legislation and determined that the act offended the Tenth Amendment by invading the province of the states' reserved police power. In reaching this decision the court expressly noted the similarity between Sections 922(q) and 922(o) as the only instances (to that date) where Congress has purported to ban firearms, as contrasted with merely taxing or regulating them. 2 F.2d at 1356. Lopez was argued before the Supreme Court on November 8, 1994, and decision is pending. The decision in Lopez was reaffirmed by the Fifth Circuit in United States v. Knowles, 29 F.3d 947 (5th Cir. 1994).[FN23] Coming finally to the case at hand, in United States v. Bownds, 860 F.Supp. 336 (S.D. Miss. 1994), the district court determined, on the basis of Lopez, that 18 U.S.C. section 922(o) is unconstitutional because it offends the Tenth Amendment.[FN24] Two circuits have upheld the constitutionality of Section 922(o), United States v. Hale, 978 F.2d 1016 (8th Cir. 1992), cert. denied, U.S. , 113 S.Ct. 1614, 123 L.Ed.2d 174 (1993), and United States v. Evans, 928 F.2d 858 (9th Cir. 1991). Chief Judge Barbour in Bownds correctly read Lopez as demolishing the shoddy "legislative history" analysis of those two decisions and rejected their conclusions. We will not further burden this argument because we cannot improve upon the scholarship and logic demonstrated in Bownds and Lopez. The defendant submits that Section 922(o) is unconstitutional because it is beyond the enumerated powers of Congress and violative of the Tenth Amendment. Section 922(o) is also unconstitutional because it squarely violates the Second Amendment right to keep and bear arms.[FN25] The provision does not purport to tax -- indeed it nullifies a tax statute. It does not purport to regulate -- it purports to destroy.[FN26] In Sonzinsky v. United States, 300 U.S. 506, 57 S.Ct. 554, 81 L.Ed. 772 (1937), the defendant challenged his conviction for possession of an unregistered sawed-off shotgun by arguing that the NFA was an unconstitutional prohibition or penalty thinly disguised as a tax. The Court responded Here the annual tax of $200 is productive of some revenue. We are not free to speculate as to the motives which moved Congress to impose it, or as to the extent to which it may operate to restrict the activities taxed. As it is not attended by an offensive regulation and since it operates as a tax it is within the national taxing power. 300 U.S. at 515 (footnote omitted; emphasis added). Necessarily implicit throughout Sonzinsky is the important rationale that if the statute was merely a prohibition or regulation (such as 18 U.S.C. section 922(o)) it would be unconstitutional. In United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939), the Court was again faced with a prosecution under the NFA for possession of an unregistered sawed-off shotgun. The defendants contended that the act was "not a revenue measure but an attempt to usurp police power reserved to the States" and that it also violated the Second Amendment. The district court declared the act unconstitutional under the Second Amendment. 26 F.Supp. 1002 (W.D. Ark. 1939). In a direct appeal to the Supreme Court where no appearance was made or brief filed on behalf of the defendants, the Court merely cited its Sonzinsky opinion in response to the tax contention. The Court dealt with the Second Amendment issue by stating: In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. 307 U.S. at 177. The case could therefore be said to be one of a failure of proof (and one where the defendants were not represented or before the Court).[FN27] One obvious conclusion to be drawn from Miller is that if the firearm had been a military-type firearm, the Court's sole basis for rejecting the Second Amendment argument would have been faulty. The machineguns described in this indictment are incontestably military-type firearms.[FN28] The Miller Court also went into a lengthy exposition on the history of the "militia" without explaining the pertinence of its discussion to the case before it. Perhaps the implication was that the defendants were not members of the militia (so far as appeared from the record) and therefore were ineligible to invoke the protection of the Second Amendment. Aside from the fact that this would be a singular interpretation of a right guaranteed by the Bill of Rights, it flies in the face of both history and the legal implications of 10 U.S.C. section 311. The "militia" at the time of the adoption of the Second Amendment was the entire male citizenry. This is reflected today in 10 U.S.C. section 311 which provides in pertinent part that [t]he militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are ... citizens of the United States.... In summary, there is nothing in Supreme Court jurisprudence to suggest that a flat ban or prohibition on firearms, or even a class of militarily useful firearms, can survive Second Amendment scrutiny, and much to suggest that it cannot. See Professor Sanford Levinson's article, "The Embarrassing Second Amendment," 99 Yale L.J. 637 (1989). II. Section 5861(e) of Title 26, United States Code, was nullified by enactment of 18 U.S.C. section 922(o) and the government's refusal to accept registrations and tax payments. In Counts 2 and 4 of the indictment the government has, in effect, charged the defendant with failing to walk on water or to turn lead into gold or to flap his wings and fly. The National Firearms Act of 1934 was enacted to control, through taxation and registration, a category of firearms thought to be particularly dangerous and susceptible to abuse. That the statute has proven effective is demonstrated by the continued inability of the BATF to point to any instance where any of the hundreds of thousands of registered NFA firearms has been used in a crime of violence. The statute creates two different categories of NFA owners or possessors: special occupational taxpayers such as the defendant, and all others. Special occupational taxpayers are licensed importers, manufacturers and dealers in NFA firearms who are excused from the individual transactional tax imposed on the making or transfer of each NFA firearm by virtue of a special occupational tax they pay each year.[FN29] Individuals who are not special occupational taxpayers, must pay the $200 making tax imposed by 26 U.S.C. section 5821[FN30] and file duplicate original BATF Forms 1, "Application to Make and Register a Firearm," along with two sets of their fingerprints, for each NFA firearm to be made.[FN31] The approval by BATF of the Form 1 both authorizes the creation of the particular firearm and registers it to the maker in the National Firearms Registration and Transfer Record. 26 U.S.C. section 5841. To receive an already registered NFA firearm, an individual must arrange to purchase it from a licensed importer, dealer or manufacturer, or from an individual owner. To obtain BATF authorization to transfer the firearm to the purchaser, the seller (the "transferor") must submit duplicate original Forms 4, "Application for Tax Paid Transfer and Registration of Firearm,"[FN32] pay a $200 transfer tax (or $5 for an AOW),[FN33] and forward two sets of fingerprints of the purchaser (the "transferee" or "applicant"). BATF Forms 1, 2, 3, 4 and 5 are federal tax returns required to be filed with the Director of the Bureau of Alcohol, Tobacco and Firearms in Washington, D.C., where they are processed by the National Firearms Act Branch of the Firearms and Explosives Division.[FN34] Processing of Forms 1 and 4 includes a criminal background check of the purchaser or maker, an FBI check of the purchaser's or maker's fingerprints, and physical comparison of the data on the forms with the predecessor forms for the same firearm, if any.[FN35] When approved, one duplicate original form is kept by BATF as a part of the National Firearms Registration and Transfer Record, and the second is returned to the Form 1 applicant, the Form 2 manufacturer, or the Form 3, 4 or 5 transferor who submitted it. The recipient is then authorized to make and possess the newly registered firearm, or to transfer the existing firearm to his purchaser. As noted in section I, above, the NFA has twice received the approval of the Supreme Court as a tax statute. Sonzinsky v. United States, supra; United States v. Miller, supra. Never has the Court approved a firearms ban or prohibition, and it expressly declined to reach that issue in Bass in 1971. Since May 19, 1986, the effective date of the 18 U.S.C. section 922(o) ban on machineguns, BATF has refused to accept or approve registration and transfer applications by or to non-government entities, nor the accompanying tax payments, on any post-May-1986 machineguns.[FN36] See Farmer v. Higgins, 907 F.2d 1041 (11th Cir. 1990), rehearing and rehearing en banc denied, 914 F.2d 1498 (11th Cir. 1990) (table); United States v. Ardoin, 19 F.3d 177 (5th Cir. 1994). As stated in United States v. Tepper, 793 F.Supp. 270, 271 (Colo. 1992): ... the government will not permit the registration of machineguns covered by section 922(o), and will not accept the tax which would otherwise be required by the registration requirements of the NFA. Three courts have held accordingly that Section 922(o) repealed the NFA machinegun registration provisions by implication or rendered them unconstitutional. See United States v. Rock Island Armory, Inc., 773 F.Supp. 117 (C.D. Ill. 1991), gov't appeal dismissed on gov't motion, No. 91-2595, 1991 WL 224268 (7th Cir. Aug. 13, 1991); and United States v. Dalton, 960 F.2d 121 (10th Cir. 1992); United States v. Ferguson, 788 F.Supp. 580 (D.D.C. 1992).[FN37] One or more of these cases has been cited with approval by United States v. Parker, 960 F.2d 498, 500 (5th Cir. 1992); United States v. Aiken, 787 F.Supp. 106, 107-108 (Md. 1992), aff'd, 974 F.2d 446, 448-450 (4th Cir. 1992); and United States v. Kurt, 988 F.2d 73, 75-76 (9th Cir. 1993).[FN38] Contra: United States v. Jones, 976 F.2d 176 (4th Cir. 1992), cert. denied, U.S. , 113 S.Ct. 2351, 124 L.Ed.2d 260 (1993). Oddly, the United States Department of Justice acknowledges this defect in the National Firearms Act created by the enactment of Section 922(o) in its guidance to United States Attorneys: The NFA continues to be applicable to any lawful transfer or possession of a machinegun lawfully possessed before May 19, 1986. However, the vitality of the NFA with respect to machineguns manufactured after that date is in question following United States v. Rock Island Armory, Inc., 773 F.Supp. 117 (C.D.Ill.1991). In Rock Island, the court held that the NFA's tax and registration provisions as applied to machineguns had been rendered unconstitutional, or had been repealed by implication, by the passage of 18 U.S.C. section 922(o) because, since its enactment, the Bureau of Alcohol, Tobacco and Firearms has refused to approve any application to register and pay the $200 tax on any machinegun made after May 19, 1986. The government did not appeal. In order to avoid dismissal of the indictment in any case involving the transfer or possession of a machinegun made after May 19, 1986, such counts should be charged pursuant to Section 922(o). United States Attorneys' Manual, Title 9, section 9-63.611, page 27 (July 1, 1992).[FN39] It is unclear why the United States Attorney has violated this directive in the present indictment. This disregard for the government's litigating position, however, demonstrates graphically the quandary of citizens who would comply with the NFA if it were possible to do so. We invite the government to demonstrate to the Court how it was legally or physically possible for Mr. Rybar, in April of 1992, to comply with the transfer provisions of the National Firearms Act with respect to the two firearms described in the indictment. And we submit that he cannot be prosecuted for failing to do the impossible. III. During the existence of both 18 U.S.C. section 922(o) and 26 U.S.C. section 5861(e), the defendant could not constitutionally be prosecuted under either. Although superficial analysis would suggest that where a constitutional statute (26 U.S.C. section 5861(e)) is seemingly nullified by an unconstitutional statute (18 U.S.C. section 922(o)) the former could still be validly enforced because of the invalidity of the latter. Such an analysis overlooks the fact that in federal criminal and constitutional law the sum of the parts is frequently greater than the whole. The two statutes charged in the indictment do not exist in a vacuum; they deal with the same subject matter in totally contradictory and inconsistent fashion. The net result is that even though Section 922(o) is unconstitutional, the government treats it otherwise and uses it as a reason to affirmatively prevent compliance with the National Firearms Act. So long as both statutes are on the books (and sought to be enforced by the United States), enforcement of neither can withstand constitutional scrutiny. Citizens in the shoes of the defendant, even those equipped to make their own assessment of the constitutionality of federal statutes, cannot comply with the NFA because the government perversely refuses to accept registrations and tax payments. The possessor or transferor of a machinegun is legally and physically unable to comply with the constitutional tax statute and cannot be prosecuted for a non-compliance which the government causes; conversely the defendant's failure to comply with an unconstitutional statute cannot be punished. Thus, he can be prosecuted under neither statute. SUMMARY AND CONCLUSION The indictment presents an apparent dilemma to the defendant: If the National Firearms Act is constitutional and Section 922(o) is not, then Counts 2 and 4 still survive. If Section 922(o) is constitutional, then even if it repealed the NFA provisions, Counts 1 and 3 still survive. This dilemma is more apparent than real, however. The "dilemma" of the indictment correlates exactly to the statutory dilemma confronting any machinegun owner by the existence and enforcement, since 1986, of two mutually inconsistent and contradictory statutes, neither of which can be complied with without transgressing the other, and the combination of which violate the defendant's Fifth Amendment rights to due process and non-self-incrimination and his Second Amendment right to keep and bear arms. In short, Congress has created a situation where -- until one or the other statute is repealed or judicially nullified -- a citizen cannot constitutionally be held to account under either. Circuit Judge Weiner in his compelling dissent in Ardoin analogized the situation to one where Congress both forbids payment of taxes and prosecutes citizens for non-payment: But I believe that it would violate due process for the government to continue to arrest citizens for failing to file tax returns and pay their federal income taxes if Congress were to pass a law prohibiting the government from accepting tax returns and tax payments. In other words, it is not the government's ban on machine gun possession that here violates due process; rather, it is the government's prosecution of citizens like Ardoin for failure to register and pay taxes on their machine guns -- when the government refuses to accept registration applications and tax-payments on such firearms -- that strikes me as violating due process. 19 F.3d at 186. The more exact analogy, and the one confronting this defendant, would be if Congress outlawed the receipt of income while still requiring it to be reported and taxed, and imposed criminal sanctions on the exercise of either alternative. To answer, as the government doubtless will, that the defendant had a third alternative -- not to possess or transfer machineguns -- is, in Judge Weiner's words, to voice Marie Antoinette's cavalier advice to the starving French peasants: "Let them eat cake." 18 F.3d at 186. The defendant is authorized by the National Firearms Act and by the licenses issued to him by his government to possess and transfer machineguns.[FN40] Simultaneously the same government refuses, because of Section 922(o) to accept the defendant's registration forms and tax payments. Then it prosecutes him under both statutes. In terms of our income tax analogy the government is saying, "The defendant shouldn't have earned any income." Let him eat cake indeed.[FN41] For all the foregoing reasons the Court should dismiss all counts of the indictment with prejudice. Respectfully submitted, JAMES H. JEFFRIES, III, Trial Counsel (North Carolina Bar No. 18502) 3019 Lake Forest Drive Greensboro, North Carolina 27408 Telephone: (910) 282-6024 VINCENT C. MUROVICH, JR. (Pennsylvania ID No. 01322) Murovich & Stump 100 Smithfield Street, Suites 104-106 Pittsburgh, Pennsylvania 15222 Telephone: (412) 281-7222 Counsel for Defendant CERTIFICATE OF SERVICE I, James H. Jeffries, III, counsel for the defendant Raymond Rybar, Jr., hereby certify that service of the foregoing Defendant's Motion to Dismiss the Indictment and Memorandum in Support has been made upon the United States this 19th day of December, 1994, by mailing true copies, postage prepaid, to Mary Beth Buchanan, Esquire, Assistant United States Attorney, 633 United States Post Office & Courthouse, 7th Avenue and Grant Street, Pittsburgh, Pennsylvania 15219. JAMES H. JEFFRIES, III (North Carolina Bar No. 18502) 3019 Lake Forest Drive Greensboro, North Carolina 27408 Telephone: (910) 282-6024 Counsel for Defendant FOOTNOTES [FN1]. All these facts are known to the government and not thought to be disputed. Substantiation will be provided the Court if the government should contest any of them or the Court should otherwise deem it appropriate. [FN2]. Public Law No. 474, 48 Stat. 1236-1240 (June 26, 1934), 26 U.S.C. sections 1132-1132q; as amended by Act of April 10, 1936, chap. 169, 49 Stat. 1192; as codified by chap. 736, Act of August 16, 1954 (Internal Revenue Code of 1954), 68A Stat. 721; as amended by Public Law No. 85-859, 72 Stat. 1427 (September 2, 1958); as amended by Public Law No. 86-478, 74 Stat. 149 (June 1, 1960); as amended by Public Law No. 90-618, 82 Stat. 1227 (October 22, 1968); as amended by Public Law No. 94-455, 90 Stat. 1834 (October 4, 1976); as amended by Public Law No. 99-308, 100 Stat. 449 (May 19, 1986); and as amended by Public Law No. 100-203, 101 Stat. 1330 (December 22, 1987); Internal Revenue Code of 1986, Title 26 United States Code, chap. 53, 26 U.S.C. sections 5801-5872 (Title II of the Gun Control Act of 1968), hereafter "NFA". [FN3]. "Machinegun" is defined by Section 5845(b) of the NFA as follows: (b) Machinegun.--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. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person. Section 921(a)(23) of Title 18, United States Code, provides that "[t]he term 'machinegun' has the meaning given such term in section 5845(b) of the National Firearms Act (26 U.S.C. 5845(b))." For purposes of this motion the defendant does not contest the government's allegation that the two firearms described by the indictment are machineguns as defined above. [FN4]. Section 922(o) provides: (o)(1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun (2) This subsection does not apply with respect to-- (A) a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or (B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect. The section was added to Title 18 by Section 102(9) of the Firearm Owners' Protection Act of 1986, Public Law No. 99-308, 100 Stat. 449-461 (May 19, 1986) (99th Congress, 2d Session), which became effective on May 19, 1986. Prior to that date, the only federal regulation of machineguns qua machineguns was found in the National Firearms Act, supra. [FN5]. Section 5841(e) of Title 26 provides that "[i]t shall be unlawful for any person ... to transfer a firearm in violation of the provisions of this chapter...." The provision of the NFA alleged by the indictment to have been violated by the transfers in issue is Section 5812(a) which provides: (a) Application.--A firearm shall not be transferred unless (1) the transferor of the firearm has filed with the Secretary a written application, in duplicate, for the transfer and registration of the firearm to the transferee on the application form prescribed by the Secretary; (2) any tax payable on the transfer is paid as evidenced by the proper stamp affixed to the original application form; (3) the transferee is identified in the application form in such manner as the Secretary may by regulations prescribe, except that if such person is an individual, the identification must include his fingerprints and his photograph; (4) the transferor of the firearm is identified in the application form in such manner as the Secretary may by regulations prescribe; (5) the firearm is identified in the application form in such manner as the Secretary may by regulations prescribe; and (6) the application form shows that the Secretary has approved the transfer and the registration of the firearm to the transferee. Applications shall be denied if the transfer, receipt, or possession of the firearm would place the transferee in violation of law. (b) Transfer of possession.--The transferee of a firearm shall not take possession of the firearm unless the Secretary has approved the transfer and registration of the firearm to the transferee as required by subsection (a) of this section. [FN6]. The Court has set a trial date of January 9, 1995, just 35 days after the defendant's arraignment, and has denied the defendant's unopposed motion for a 20-day extension of the motion cut-off date. We note that if the present motion is filed on December 20, 1994, as required by Local Criminal Rule 12.1B and Rule 45 of the Federal Rules of Criminal Procedure, the government's response will be due on January 2, 1995, and any reply by the defendant on January 10, 1995, the day after trial is scheduled to commence. [FN7]. Several other firearms statutes have had to be narrowly construed against the government in order to pass judicial scrutiny. See, e.g., Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978) (two cases) (defendants could not be given enhanced cumulative sentences under two different statutes for the same bank robbery); Busic v. United States, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980) (penalty enhancement could not be doubled where the defendant was convicted under a statute with its own firearms enhancement provision); United States v. Thompson/Center Arms Co., U.S. , 112 S.Ct. 2102, 119 L.Ed.2d 308 (1992) (government's interpretation of illegal "combination of parts" under the NFA rejected); United States v. Staples, U.S. , 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994) (government required to prove specific intent in machinegun prosecutions under the NFA). [FN8]. Chap. 850, 52 Stat. 1250-1252 (June 30, 1938), as amended by the Ammunition Act of August 6, 1939, chap. 500, 53 Stat. 1222 (amending 15 U.S.C. section 901(8), as amended by Act of March 10, 1947, 61 Stat. 11, as amended by Public Law No. 87-342, Act of October 3, 1961, 75 Stat. 757, 15 U.S.C. sections 901-910. The act was repealed by Title IV of Public Law 90-351 (sections 901-907), 82 Stat. 234 (the Gun Control Act of 1968). [FN9]. See also Forgett v. United States, 390 U.S. 203, 88 S.Ct. 898, 19 L.Ed.2d 1033 (1968) (petition for certiorari granted, judgment of the court of appeals vacated, and case remanded for further consideration in light of the Court's decision in Haynes), vacating the judgment in 349 F.2d 601 (6th Cir. 1965), which had held the presumption in the NFA that possession of an unregistered NFA firearm was sufficient for conviction absent an explanation -- was constitutional in the face of a Fifth Amendment self-incrimination claim. [FN10]. 18 U.S.C., Appendix, section 1202(a), prohibiting receipt, possession or transport of firearms "in commerce or affecting commerce" by five categories of individuals. The statute was subsequently repealed and its prohibitions incorporated into Section 922(g) of Title 18. [FN11]. The second time the Congress made such an attempt was the Brady Handgun Violence Prevention Act and Federal Firearms License Reform Act of 1993, Public Law No. 103-159, 107 Stat. 1539, 1541, 1545 (November 11, 1993; November 30, 1993), 103d Congress, 1st Session (1993). That statute has been declared unconstitutional in part by five different district courts. E.g., McGee v. United States, 863 F.Supp. 321 (S.D. Miss. 1994); Frank v. United States, 860 F.Supp. 1030 (Vt. 1994); Mack v. United States, 856 F.Supp. 1372 (Ariz. 1994); Printz v. United States, 854 F.Supp. 1503, 16 Mont.F.Rep. 469 (Mont. 1994); and last week by an as-yet unreported decision from Louisiana. Contra: Koog v. United States, 852 F.Supp. 1376 (W.D. Tex. 1994). [FN12]. See also Alaska Stats., section 11.61.200; American Samoa Territorial Law, tit. 46, section 46.4202(a)(2); Arizona Rev. Stat. Ann. section 13-3101; Arkansas Code Ann. sections 5-73-103, 104, 202-211; California Penal Code, section 12200, et seq.; Colorado Rev. Stat. section 18-12-102; Connecticut Gen. Stat. Ann., tit. 53, section 53-202; Delaware Code Ann., tit. 11, section 1444; District of Columbia Code Ann., tit. 6, chap. 23, tit. 22, chap. 32; Florida Stat. Ann., chap. 790; Georgia Code of 1981, Ann., tit. 16, chap. 11; Guam Territorial Law, tit. 10, section 60100, et seq.; Hawaii Rev. Stats., tit. 10, chap. 134; Idaho Code, chap. 33; Illinois Comp. Stat. Ann., chap. 430, Act 65, chap. 720, art. 24; Indiana Stat. Ann. (Burns), tit. 35, art. 47; Iowa Code Ann., chap. 724; Kansas Stat. Ann., chap. 21; Kentucky Rev. Stats., chaps. 237, 527; Louisiana Stat. Ann., tit. 14, chap. 1, sections 91, 95.1, chap. 9; Maine Rev. Stat. Ann., tit. 15, tit. 17-A, chaps. 1, 23, 43, 252-A; Maryland Ann. Code, art. 27; Massachusetts Ann. Laws, chap. 140, chap. 269, section 10, et seq.; Michigan Comp. Laws, Acts 372 of 1927, 319 of 1990, 328 of 1931; Minnesota Stat. Ann., chap. 471, section 471.633, et seq., chap. 609, section 609.11, et seq., chap. 624, section 624.71, et seq.; Mississippi Code, tit. 97, chap. 9; Missouri Ann. Stat. (Vernon's), chap. 571; Montana Code Ann., tit. 45, chap. 8, section 45-8-301, et seq.; Nebraska Rev. Stats., chap. 28, arts. 12, 24; Nevada Rev. Stats., tit. 16, chap. 202; New Hampshire Rev. Stat. Ann., tit. XII, chap. 159; New Jersey Stat. Ann., tit. 2C, chaps. 39, 58; New Mexico Stat. Ann., chap. 30, section 30-7-16, et seq.; New York Consol. Laws (McKinney's), Book 39, arts. 265, 400; North Carolina Gen. Stat., chap. 14, sections 14-288.8, 14-315, 14-402, et seq.; North Dakota Century Code, tit. 62.1; Northern Marianas Territorial Law, tit. 6, chap. 2; Ohio Rev. Code, tit. 29, chap. 2923; Oklahoma Stat. Ann., tit. 21, chap. 53; Oregon Rev. Stats., tit. 16, chap. 166; Puerto Rico Laws Ann., tit. 25, chaps. 51, 57; Rhode Island Gen. Laws, tit. 11, chap. 47; South Carolina Code, tit. 16, chaps. 23, 31; South Dakota Codified Laws, Titles 22, 23; Tennessee Code Ann. tit. 39, chap. 17, part 13; Texas Codes Ann. (Vernon's), tit. 10, chap. 46; Utah Code Ann., tit. 76, chap. 10, part 5; Vermont Stat. Ann., tit. 13, chap. 85; Virginia Code, tit. 18.2, section 18-2-85, et seq.; Virgin Islands Code, tit. 23, section 451, et seq; Washington Rev. Code Ann., tit. 9, chap. 9.41; West Virginia Code, chap. 61, art. 7; Wisconsin Stat. Ann., chap. 175, section 175.35, chap. 941, section 941.25, et seq.; Wyoming Stats., tit. 6, chap. 7. [FN13]. National Firearms Act: Hearings Before the House Committee on Ways and Means, 73d Cong., 2d Sess. 6-8 (1934), quoted in United States v. Rock Island Armory, Inc., 773 F.Supp. 117 (C.D. Ill. 1991), gov't appeal dismissed on gov't motion, No. 91-2595, 1991 WL 224268 (7th Cir. Aug. 13, 1991). [FN14]. Id. at 13-14. [FN15]. Ibid. [FN16]. Id. at 14. [FN17]. Id. at 19. [FN18]. This understanding apparently continued into 1967 when Treasury Department General Counsel Fred B. Smith advised Congress against a proposed amendment to the NFA which would make it unlawful for a person under 21 years of age to possess an NFA firearm: It seems doubtful that the ... provision can be justified under the taxing or commerce powers, or under any other power enumerated in the Constitution, for Federal enactment. Consequently, the Department questions the advisability of including in the bill a measure which could be construed as an usurpation of a [police] power reserved to the states by Article X of the United States Constitutional Amendments. Federal Firearms Act: Hearings Before the Subcommittee to Investigate Juvenile Delinquency, Judiciary Committee, U.S. Senate, 90th Cong., 1st Sess., 1088 (1967). A faint glimmer of this understanding is found in the testimony of BATF's Deputy Chief Counsel and its Chief of the Firearms Division in their testimony regarding the proposed Gun-Free School Zones Act (18 U.S.C. section 922(q): Finally, we would note that the source of constitutional authority to enact the legislation is not manifest on the face of the bill. By contrast, when Congress first enacted the prohibitions against possession of firearms by felons, mental incompetents and others, the legislation contained specific findings relating to the Commerce Clause and other constitutional bases, and the unlawful acts specifically included a commerce element. Gun-Free School Zones Act of 1990: Hearings on H.R. 3757 Before the Subcommittee on Crime of the House Committee on the Judiciary, 101st Cong., 2d Sess. 10 (1990) (statement of Bradley Buckles and Richard Cook). [FN19]. Section 102(9) of FOPA contains the following findings and declarations: The Congress finds that-- (1) the rights of citizens-- (A) to keep and bear arms under the second amendment to the United States Constitution; (B) to security against illegal and unreasonable searches and seizures under the fourth amendment; (C) against uncompensated taking of property, double jeopardy, and assurance of due process of law under the fifth amendment; (D) against unconstitutional exercise of authority under the ninth and tenth amendments; require additional legislation to correct existing firearms statutes and enforcement policies; and (2) additional legislation is required to reaffirm the intent of Congress, as expressed in section 101 of the Gun Control Act of 1968, that "it is not the purpose of this title to place any undue or unnecessary Federal restrictions or burdens on law-abiding citizens with respect to the acquisition, possession, or use of firearms appropriate to the purpose of hunting, trap-shooting, target shooting, personal protection, or any other lawful activity, and that this title is not intended to discourage or eliminate the private ownership or use of firearms by law-abiding citizens for lawful purposes." [FN20]. 132 Cong.Rec. H1750 (April 10, 1986). Some quarter-million private collectors and owners of legally registered machineguns, including a not inconsiderable number of lawyers and judges, could have answered Mr. Hughes' rhetorical question by pointing out that apparently the founding fathers objected when they adopted the Second Amendment. It could also be noted that the Brown Bess musket was the "assault rifle" of 1775. The hypocrisy of this kind of ill-informed "feel good" political posturing is revealed in the continued inability of the government to point to any violent crime committed with a registered machinegun since 1934. [FN21]. Which has often turned out to be a bellwether for the Supreme Court in firearms cases. See United States v. Anderson, 885 F.2d 1248 (5th Cir. 1989) (en banc), which correctly predicted the result in United States v. Staples, supra. See also United States v. Cruikshank, 92 U.S. (2 Otto) 542, 23 L.Ed. 588 (1875), aff'g 25 F.Cas. 707, No. 14,897, 1 Woods 308, 12 Amer.Law Reg. (N.S.) 630 (C.C.A. La. 1874). [FN22]. Public Law No. 101-647, 104 Stat. 4789, 4844-4845, 4857, 101st Cong., 2d Sess. (November 29, 1990). [FN23]. See also United States v. Cortner, 834 F.Supp. 242 (M.D. Tenn. 1993), holding the Anti Car Theft Act of 1992, 18 U.S.C. section 2119, unconstitutional because local car hijacking "lacks any rational connection to interstate commerce." Id. at 244. See generally, Gary Lawson, "The Rise and Rise of the Administrative State," 107 Harvard L. Rev. 1231 (1994). [FN24]. Because of doubts raised by Lopez, the district court rejected the decision in United States v. Ardoin, 19 F.2d 177 (5th Cir. 1994), petition for cert. pending. Ardoin adopted, albeit with some reservations, the Fourth Circuit's decision in United States v. Jones, 976 F.2d 176 (4th Cir. 1992), cert. denied, U.S. , 113 S.Ct. 2351, 124 L.Ed.2d 260 (1993), which held that Section 922(o) had not repealed the NFA provisions pertaining to machineguns. Contra: United States v. Rock Island Armory, Inc., 773 F.Supp. 117 (C.D. Ill. 1991), gov't appeal dismissed on gov't motion, No. 91-2595, 1991 WL 224268 (7th Cir. Aug. 13, 1991); United States v. Dalton, 960 F.2d 121 (10th Cir. 1992). [FN25]. It must be remembered that Statutes criminalizing the possession, transfer, and making of machine guns are merely malum prohibitum laws. In contrast to rape, murder, and robbery, such gun-related activities are not inherently bad; they are only technically or artificially illegal. United States v. Ardoin, 19 F.3d 177, 186 (5th Cir. 1994) (dissenting opinion) (emphasis in original). [FN26]. It has sometimes been argued that that which Congress can tax, it can abolish -- that the power to tax is the power to destroy. The short answer is the one given by Mr. Justice Holmes in Panhandle Oil Co. v. Mississippi, 277 U.S. 218, 48 S.Ct. 451 (1928): "The power to tax is not the power to destroy while this Court sits." Id at 223, 48 S.Ct. at 453. [FN27]. In fact, shotguns -- including short-barreled shotguns -- have been issued to and used by U.S. forces in every conflict since at least 1917. They are still carried in the U.S. military inventory. [FN28]. The standard U.S. infantry rifle currently issued to personnel of all services, including all reserve and national guard components, is the M16 rifle, a machinegun as defined by the NFA. [FN29]. 26 U.S.C. sections 5801, 5802 and 5851. [FN30]. Five dollars in the case of an "any other weapon" (hereafter "AOW"). [FN31]. A special occupational taxpayer files a BATF Form 2, "Notice of Firearms Manufactured or Imported." [FN32]. Transfers between special occupational taxpayers are accomplished by a BATF Form 3, "Application for Tax-Exempt Transfer of Firearm and Registration to Special (Occupational) Taxpayer," or by a BATF Form 5, "Application for Tax Exempt Transfer and Registration of a Firearm." [FN33]. 26 U.S.C. section 5811. [FN34]. 27 C.F.R. sections 179.62, 179.84. [FN35]. Form 2 registrations and Form 3 and 5 transfers between dealers do not require this procedure because dealers' photographs and fingerprints are already on file as part of the licensing process, as is their criminal background check. [FN36]. This refusal is in flat violation of Section 6301 of the Internal Revenue Code of 1986, Title 26, United States Code, which provides that "[t]he Secretary shall collect the taxes imposed by the internal revenue laws." See also 26 U.S.C. section 7601. Those accustomed to dealing with BATF might say that it would rather prosecute citizens criminally than collect taxes. [FN37]. 26 U.S.C. section 5861 was enacted as a revenue statute pursuant to Congress's taxing power. See Sonzinsky v. United States, 300 U.S. 506, 513, 57 S.Ct. 554, 555-56, 81 L.Ed.2d 772 (1937). It requires firearms to be registered so that taxes may be assessed on them. In that sense, the registration requirement is valid under the Constitution only because it is an integral part of Congress's revenue scheme. See id. In 1986, however, Congress in large part removed the revenue rationale for the registration requirement, at least as applied to machineguns, by enacting a subsequent statute, 18 U.S.C. section 922(o), that made it illegal, with certain exceptions, to possess a machinegun at all. Because possession of machineguns was no longer legal, the registration requirement was rendered meaningless, and no revenues could thereafter be derived from the registration of machineguns. To the extent section 922(o) applies, therefore, the registration requirement is now unconstitutional. See United States v. Rock Island Armory, Inc., 773 F.Supp. 117, 126 (C.D. Ill. 1991). Ferguson, 788 F.Supp. at 580-581. [FN38]. Another existing provision of law which was apparently unintentionally nullified by the 1986 enactment of Section 922(o) is (uncodified) Section 207(d) of Public Law 90-618 (the Gun Control Act of 1968) which provides: (d) The Secretary of the Treasury, after publication in the Federal Register of his intention to do so, is authorized to establish such periods of amnesty, not to exceed ninety days in the case of any single period, and immunity from liability during any such period, as the Secretary determines will contribute to the purposes of this title. [FN39]. The directive is mildly inaccurate in that the government did appeal but later dismissed its appeal, no doubt because the Solicitor General declined to authorize prosecution of the appeal. [FN40]. Also not to be overlooked in this equation is what the Lopez court characterized as the "brooding omnipresence" of the Second Amendment. 2 F.3d at 1364, n. 46. If, as we argue above, Section 922(o) also offends the Second Amendment, the government's invocation of Section 922(o) has violated the defendant's constitutional right to keep and bear arms. [FN41]. It is not even accurate to characterize the defendant's situation as a Hobson's Choice. The customers of Hobson's London stable had a "choice": the horse nearest the stable door. The defendant was given no legally unpunishable option by the government other than walking -- after it had sold him a saddle, a bridle, and a license to ride, and after it taught him to gallop in its Southeast Asia Derby.