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. ) DEFENDANT'S RESPONSE TO GOVERNMENT'S OBJECTIONS TO PRESENTENCE REPORT AND MEMORANDUM IN AID OF SENTENCING Now comes defendant Raymond Rybar, Jr., by undersigned counsel, and responds to the government's objections to the presentence report and submits a memorandum in aid of sentencing. THE PRESENTENCE REPORT Defendant had and has no objections to the presentence report as evidenced by his statement filed with the Court and served upon the government and the Probation Office, and consequently had no reason to confer with government counsel pursuant to Local Rule 32.1.[FN1] After undersigned counsel had mailed defendant's statement of no objection, he was contacted by government counsel, on Friday, March 10, 1995, who advised that she was objecting to two items in the presentence report.[FN2] Government counsel was advised that the information she had received from BATF was erroneous and that the presentence report was in fact completely correct in the two paragraphs objected to. The government nevertheless filed objections to the two items. Attached as Exhibit A is a true copy of defendant's current (1995) Special Tax Stamp showing "Type of operation conducted" as "(72) NFA FIREARMS MFGR (REDUCED)." This is the authorization, under 26 U.S.C. section 5801, by which federal firearms licensees are legally authorized to manufacture National Firearms Act firearms, including machineguns. Mr. Rybar also held such a special occupational taxpayer stamp during the period covered by the indictment. During that period he was also an authorized manufacturer of all other types of firearms except destructive devices, as reflected by the attached Exhibit B, a true copy of his federal firearms license for the period August 1, 1991, through August 1, 1994.[FN3] Thus the government is quite simply wrong when it asserts that "he is not authorized to manufacture machineguns." Gov't Memo at para. 2. With respect to the six machineguns[FN4] and one pen gun[FN5] objected to by the government (Gov't Memo at para. 3) the defendant duly obtained legal transfer approvals from the National Firearms Act Branch of the BATF, each dated January 13, 1995, because of his impending legal disability to possess firearms. All seven of those firearms have been physically delivered to the registered transferee. The defendant still owns those guns. What the government seems unable to grasp is that the National Firearms Act is a possession statute and not an ownership statute. Defendant stills owns the equitable interest in the value of the firearms and will convey that interest to whomever he chooses.[FN6] Who can possess the firearms is a matter of registration with the BATF. Who can own them is a matter of the defendant's choice and the principles of Pennsylvania law governing personal property. Thus the presentence report was exactly correct. MEMORANDUM IN AID OF SENTENCING Defendant submits two additional factors for the Court's consideration in sentencing which are not contained in the Presentence Report and which might influence the Court's determination of sentence in this matter. FAMILY CONSIDERATIONS It is true that Section 5H1.6 of the Sentencing Guidelines provides that "Family ties and responsibilities and community ties are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range." But by its very terms that provision has to mean that sometimes family and community ties are relevant. We urge that this is such a case. This is Mr. Rybar's only misstep in 46 years of peaceful and productive citizenship. He is a hard-working, religious individual with a stable, loving, committed family. He spends most of his waking hours working at his metalsmithing shop located on his parents' property. Mr. Rybar's elderly parents and sibling are all peaceable, productive, well-established members of their communities in western Pennsylvania. At the risk of sounding melodramatic, there is almost a "Norman Rockwell" or salt-of-the-earth quality to this picture of a small town American family. Given Mr. Rybar's honest and heart-felt contrition, his ready acceptance of personal responsibility, his rueful realization of the seriousness of his offense, and his great embarrassment at the predicament he has created for himself and his modestly situated family, no interest of the penal law would seem to be furthered by dislocating Mr. Rybar from his surroundings and family ties and placing him in custody with hardened criminals. MILITARY SERVICE As with family ties, military service is stated by Guidelines Section 5H1.11 to not ordinarily be relevant to a sentencing departure. But again, by its very terms this must mean that sometimes military service will be relevant. This again is such a case. Sergeant Rybar did not wait to be drafted when his country became involved in the war in Vietnam, or seek to avoid the draft as some others did; he enlisted. He did not simply wait for a duty assignment in the Army; he volunteered for the airborne and went through parachute school. He did not simply serve his time in the Army; he went to Vietnam and was engaged in ground combat for a year. He did not simply go through the motions in Vietnam; he received important personal decorations for his service there.[FN7] He did not walk away from his military service unscathed; he almost lost a leg in an artillery accident and will be partially disabled for the rest of his life.[FN8] But it is not the fact of Rybar's military service which commends itself to the Court's consideration, it is the nature of that service. As a United States Army paratrooper, Rybar's government issued him a machinegun.[FN9] His government taught him to shoot machineguns, to clean and care for machineguns, to drill with machineguns, to stand guard with machineguns, to employ machineguns in combat, to attach an almost mystical loyalty to his machinegun.[FN10] Machineguns in the defendant's military world were an ordinary and everyday fact of life, tools of the trade, objects of respect and affection. There were no sinister or illegal connotations. To the contrary Rybar received awards and shooting badges for his skills with machineguns. He was evaluated by his superiors on his ability to teach other soldiers the fundamentals of machineguns. If familiarity does not breed contempt, it certainly breeds familiarity. These weapons experiences -- the results of intense and honorable service to his country during his formative years -- could not but desensitize an individual to the ominous significance federal criminal law attaches to automatic weapons. Rybar simply did not appreciate until too late that federal criminal law places an entirely different set of values on the possession of machineguns. By this argument we are not suggesting ignorance of the law or diminished capacity. The defendant understood full well in the abstract that his acts were illegal; but it was just that: an unfocused abstraction of illegality. He had become desensitized to the legal/social implications attaching to machineguns in the civilian world.[FN11] He understood that his acts were wrong, but only technically and theoretically wrong, and not wrong in any evil sense. It is as if a rattlesnake were to be loosed in the courtroom. No doubt the court and counsel and spectators would be unable to take their eyes off it. But a trained herpetologist who worked with venomous serpents on a daily basis might give the snake only a passing glance and continue with whatever he was doing. It is not that the expert is indifferent to the danger; he is better able to assess it and gives it no more attention, perhaps even less, than it seems to require. In sum, Mr. Rybar's perceptions, necessary to a fine appreciation of the wrongness of his acts, had been blunted by his honorable military service. We believe that in these unusual circumstances the Court is warranted in making a downward departure from the sentencing range established by the Guidelines. CONCLUSION For all the foregoing reasons the Court is respectfully requested to consider a downward departure from the sentencing range established by the Sentencing Guidelines and the Presentence Report and to impose a sentence which would not require incarceration in a penal institution. 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 Response to Government's Objections to Presentence Report and Memorandum in Aid of Sentencing has been made upon all required parties this 25th day of March, 1995, 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; and Mr. Gerald R. Buban, U.S. Probation Officer, 2211 Federal Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania 15222-4176. 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]. Defendant's counsel express mailed this statement to the Clerk of the Court on Thursday, March 9, 1995, by Post Office Express Mail for next day delivery and filing. The Clerk's datestamp on counsel's returned cover letter reflects that the statement was not filed until Monday, March 13, 1995. Counsel cannot account for the delay in filing, if indeed, there was one. [FN2]. E.g., paragraph 40, stating that the defendant is authorized to manufacture machineguns, and paragraph 44(b), stating that defendant owns six machineguns and one "pin" (sic -- pen) gun. [FN3]. Federal firearms dealer licenses are issued for three-year periods. [FN4]. Actually unfinished receivers which are nevertheless classified as "machineguns" under the National Firearms Act. [FN5]. A "pen gun" is a small, single-shot pistol which resembles a fountain pen or air pressure gauge. It is classified as an "any other weapon" under the National Firearms Act because of its concealability and thus requires registration under the Act. [FN6]. There are many instances where NFA firearms are legally transferred to persons who do not own them, such as gunsmiths, potential buyers, or as here, on consignment to a dealer for sale or other disposition. BATF transfer authorization does not convey title, nor vice versa. It merely determines the lawful possessor. [FN7]. True copies of Mr. Rybar's certificates of award of the Bronze Star Medal and the Army Commendation Medal are attached hereto as Exhibits 3 and 4. [FN8]. It can be said literally that the United States Government has already had its pound of flesh from Raymond Rybar. [FN9]. Standard issue military rifles in the U.S. armed services since 1960 have all been "machineguns" as defined by the United States Code: the M-14, the M16, and currently the M16A2. In addition, all soldiers are trained in the more traditional, crew-served types of machineguns. [FN10]. Since before World War II all U.S. Marines have been officially exhorted by the words of Major General William H. Rupertus's "Rifleman's Creed": This is my rifle. There are many like it, but this one is mine. My rifle is my best friend. It is my life. I must master it as I must master my life. My rifle, without me, is useless. Without my rifle, I am useless. I must fire my rifle true. I must shoot straighter than my enemy who is trying to kill me. I must shoot him before he shoots me. I will... My rifle and myself know that what counts in this war is not the rounds we fire, the noise of our burst, nor the smoke we make. We know that it is the hits that count. We will hit... My rifle is human, even as I, because it is my life. Thus, I will learn it as a brother. I will learn its weaknesses, its strength, its parts, its accessories, its sights, and its barrel. I will ever guard it against the ravages of weather and damage as I will ever guard my legs, my arms, my eyes, and my heart against damage. I will keep my rifle clean and ready, even as I am clean and ready. We will become part of each other. We will... Before God I swear this creed. My rifle and myself are the defenders of my country. We are the masters of our enemy. We are the saviors of my life. So be it, until there is no enemy, but Peace! The only difference between United States Marines and U.S. Army paratroopers is that most Marines will not willingly jump out of a perfectly good aircraft. [FN11]. We respectfully remind the Court that the guns involved here were not used for any illegal purpose; they were sold to a collector and maintained as part of his collection.