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United States v. Barr

United States District Court, N.D. Georgia, Rome Division

July 18, 2019

United States of America,
v.
Michael Anthony Barr (1), Defendant.

          ORDER

          MICHAEL L. BROWN, UNITED STATES DISTRICT JUDGE

         The government charges Defendant Michael Anthony Barr with possessing firearms despite his status as a felon. Defendant, proceeding pro se, challenges the Superseding Indictment in five motions. (Dkts. 149, 150, 153, 163, 164.) The Magistrate Judge recommends denying each. (Dkts. 159, 161, 166, 168, 170.) Upon review, this Court agrees.

         I. Standard

         After reviewing the magistrate judge's findings, a district judge may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 59; Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). If a party objects, the district judge reviews the specific findings objected to de novo. See 28 U.S.C. § 636(b)(1). If a party does not object, the district judge reviews the magistrate judge's findings for plain error. See United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983).

         II. Defendant's Motions

         A. Motion to Dismiss Count 4 (Dkt. 157)

         Defendant moves to dismiss Count 4 of the Superseding Indictment (“the Indictment”), which charges him with possessing an unregistered firearm silencer, for several reasons. (Dkt. 157.) The Magistrate Judge recommends denying this motion, and Defendant objects to that recommendation. (Dkts. 159, 174.) The Court reviews the Magistrate Judge's recommendations de novo. See 28 U.S.C. § 636(b)(1).

         Defendant argues Count 4 should be dismissed for several reasons. First, he claims it should be dismissed because Congress can change the law. But, as the Magistrate Judge found, “whether those statutes may be amended in the future is irrelevant to [Defendant's] current prosecution.” (Dkt. 159 at 2.) This argument is frivolous.

         Second, Defendant argues the statutes at issue are void for vagueness. In relevant part, these statutes prohibit possessing an unregistered firearm, which is defined to include any silencer. See 18 U.S.C. § 5861(d) (“It shall be unlawful for any person . . . to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.”); 18 U.S.C § 5845(a)(7) (“[T]he term ‘firearm' means . . . any silencer (as defined in section 921 of title 18, United States Code).”); 18 U.S.C § 5871 (outlining the penalty for violations of those charges).

         A criminal statute is vague if it “fails to provide a person of ordinary intelligence fair warning or authorizes arbitrary and discriminatory enforcement.” United States v. Lebowitz, 676 F.3d 1000, 1012 (11th Cir. 2012). Statutes have a strong presumption of validity. See Id. Vagueness challenges fail when a defendant's actions clearly fall within the statute's intended reach. See United States v. McGarity, 669 F.3d 1218, 1234 (11th Cir. 2012). Such is the case here; Defendant's alleged actions clearly fell within the statutes' reach. A person of ordinary intelligence would know the meaning of silencer and understand the requirement of registering a firearm. See United States v. Bennett, 165 F.3d 36 (9th Cir. 1998) (unpublished opinion) (“Given the fact that [26 U.S.C.] § 5845 is unambiguous that a silencer is a ‘firearm' that must be registered pursuant to [ ] § 5861, construing ‘crime of violence' to include possession of an unregistered silencer does not render § 924(c) void for vagueness.”).

         Third, Defendant argues his device should not be considered a silencer because it does not - in fact - quiet guns. This is a factual argument proper for a jury to consider, not the Court in reviewing a motion to dismiss.

         Last, Defendant argues that § 5861(d) was intended to prevent the unregistered transfer or firearms. Since he allegedly made his silencer himself, he claims the law really does not apply to his conduct or was not intended to apply to it. Defendant is incorrect - the law prohibits the possession, and does not require a transfer. See § 5861(d) (“It shall be unlawful for any person . . . to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.” (emphasis added)).

         The Court overrules Defendant's objections, adopts the Magistrate Judge's recommendation, and denies this motion.

         B. Motion to Dismiss Counts ...


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