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United States v. Hasson

United States District Court, D. Maryland, Southern Division

September 20, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
CHRISTOPHER PAUL HASSON, Defendant.

          MEMORANDUM OPINION

          GEORGE J. HAZEL UNITED STATES DISTRICT JUDGE

         Defendant Christopher Paul Hasson has been charged with Unlawful Possession of Unregistered Firearm Silencers (“Count I”) and Unlawful Possession of Firearm Silencers Unidentified by Serial Numbers (“Count II”) in violation of the National Firearms Act (“NFA”), 26 U.S.C. § 5801 et seq.; Possession of Firearms by Unlawful User of and Addict to a Controlled Substance in violation of 18 U.S.C. § 922(g)(3) (“Count III”); and Possession of a Controlled Substance in violation of 21 U.S.C. § 844(a) (“Count IV”). ECF No. 71. Pending before the Court are Defendant’s Motion to Dismiss Counts I and II on Second Amendment Grounds, ECF No. 62, Defendant’s Motion to Dismiss Count III on Void-for-Vagueness Grounds, ECF No. 63, and Defendant’s Motion to Suppress Evidence Seized Pursuant to Search Warrants, ECF No. 66. A hearing was held on September 9, 2019. ECF No. 81. For the following reasons, Defendant’s motions are denied.

         I. BACKGROUND

         According to the Criminal Complaint, since at least October 2016, Defendant has regularly purchased 100 to 300 milligrams of Tramadol, a Schedule IV controlled substance, every two to three months. ECF No. 1 ¶¶ 16–17.[1] He kept and used that Tramadol at, among other locations, his place of employment in Washington, D.C., where he is employed by the United States Coast Guard. Id. ¶¶ 21–23. Since at least late 2017, Defendant has also possessed a number of firearms, including rifles, shotguns, handguns, and revolvers, id. ¶ 11; ECF No. 71 at 3, [2] and in February 2019, he also possessed one assembled firearm silencer and one disassembled firearm silencer, neither of which was registered to Defendant or identified by a serial number, id. at 1–2.

         On February 14, 2019, United States Magistrate Judge Gina L. Simms authorized a Criminal Complaint charging Defendant with Possession of Firearms by Unlawful User of and Addict to a Controlled Substance and Possession of a Controlled Substance. ECF No. 1. On February 27, 2019, a federal grand jury for the District of Maryland returned an indictment charging Defendant with Unlawful Possession of Unregistered Firearm Silencers (“Count I”) and Unlawful Possession of Firearm Silencers Unidentified by Serial Numbers (“Count II”), in addition to the counts previously charged by the Criminal Complaint (“Count III” and “Count IV, ” respectively). ECF No. 16. Defendant was arraigned on these charges on March 11, 2019, and he entered a plea of not guilty. ECF No. 19.[3]

         On June 24, 2019, Defendant filed three motions: a Motion to Dismiss Counts I and II on Second Amendment Grounds, ECF No. 62; a Motion to Dismiss Count III on Void-for-Vagueness Grounds, ECF No. 63; and a Motion to Suppress Evidence Seized Pursuant to Search Warrants, ECF No. 66. The Government filed a consolidated opposition to Defendant’s motions on August 5, 2019, ECF No. 70, and Defendant filed three separate replies on August 26, 2019, ECF Nos. 76, 77, 78.

         On September 9, 2019, the Court held an evidentiary hearing on the nature, benefits, and purposes of silencers, the application process for registering and serializing silencers, and the prevalence of silencers. ECF No. 81. Defendant offered expert testimony from Gary Schaible, a recently-retired agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”), and Daniel O’Kelly, a firearms consultant and former ATF agent. Mr. Schaible testified about the NFA and ATF’s administration of the NFA, and Mr. Kelly testified about the demand for and uses of NFA-firearms, including silencers.

         The Government offered expert testimony from Elizabeth A. Gillis, a firearms enforcement officer with ATF, and Ted Clutter, a legal instruments examiner supervisor with ATF. Ms. Gillis testified about the objective features of silencers and silencer parts, ATF’s testing of silencers, and her report regarding the silencers in the instant case. Mr. Clutter testified about the procedure for obtaining a silencer and how ATF processes applications to make and transfer NFA-firearms, including silencers.

         The evidence showed that a silencer, which is also referred to as a muffler or a suppressor, is a device that is attached to a firearm for the primary purpose of reducing the firearm’s sound signature. Ms. Gillis testified that, in general, silencers can reduce a firearm’s sound signature by anywhere between 2 to 35 decibels.[4] Mr. O’Kelly testified, however, that it is unlikely that a silencer will completely eliminate the sound of a gunshot unless the firearm is particularly small or the silencer is particularly large. Silencers can be commercially- manufactured or homemade from common household items such as soda bottles, magnesium light flashlights, or oil filters, but Ms. Gillis explained that commercial silencers typically cause a larger sound reduction than homemade silencers.

         Silencers generally have no use independent of their attachment to a gun. They do not fire bullets on their own and do not contain a slide, trigger, firing pin, cartridge case, barrel, primer, or gunpowder. Mr. O’Kelly testified that “you can’t hurt anybody with a silencer unless you hit them over the head with it.” Rather, based on his conversations with gun owners, Mr. O’Kelly testified that the primary reasons for owning a silencer are hearing protection and courtesy to others. Silencers also have an incidental effect of increasing the accuracy of a firearm because their weight prevents muzzle rise. Mr. O’Kelly also explained that when he was on the ATF shooting range as an instructor, he sometimes used firearms without silencers, but he always used earmuffs or earplugs for hearing protection. Finally, Mr. O’Kelly testified that in his thirty-four years as a law enforcement officer, he never saw a case in which a silencer was used in the commission of a violent crime.

         Silencers are regulated, in part, by the NFA, which requires that NFA-firearms be serialized and registered in the National Firearms Registry and Transfer Record (“NFRTR”) in order to be lawfully possessed. The NFA Division of ATF administers the NFA and maintains the NFRTR. Mr. O’Kelly testified that the NFRTR is helpful in criminal investigations because it can assist law enforcement officers in tracing the control or possession of any NFA-firearm that may have been used during the commission of a crime.

         Mr. Schaible testified that any individual, trust, legal entity, or government entity that wants to make or obtain an NFA-firearm, including a silencer, must apply for approval from ATF. The application process involves filling out the appropriate form, providing necessary supporting documentation, and submitting fingerprints for the purpose of an FBI criminal background check. Applicants who want to make and register an NFA-firearm must fill out “Form 1, ” which is available both as a paper form and as an electronic form (“eForm”). Applicants who want to transfer and register a firearm must fill out “Form 4, ” which, since January 2016, has only been available as a paper form. Mr. Schaible and Mr. O’Kelly both noted that demand for silencers has consistently increased over the past ten years, and Mr. Schaible testified that when he retired in September 2018, the most in-demand NFA-firearm registrations were for silencers and short-barrel rifles.

         Once an application is submitted, an ATF legal instruments examiner must process that application. Mr. Clutter testified that processing times for applications vary, but he estimated that the processing time is currently thirty days for eForm 1, seven months for paper Form 1, and eight to ten months for paper Form 4. He estimated that in February 2019, when Defendant was arrested, the processing time was less than thirty days for eForm 1 and eight months for paper Form 1. He did not have a February 2019 estimate for Form 4. Mr. Clutter also testified that making and registering an NFA-firearm pursuant to Form 4 is more popular today than it has been in ATF’s history; he stated that the increased demand may correlate with the lengthy delays in processing Form 4.

         After processing the application, the legal instruments examiner will determine whether to approve the application, deny the application, or ask for additional information. Mr. Schaible testified that the denial rate is low and there is little discretion as to approval or denial where a form is complete. Mr. Clutter testified that an application can be denied for a variety of reasons, including administrative error, incomplete application, failure to provide supporting documentation or fingerprints, failure to pass the criminal background check, state law violations, or disqualifying characteristics such as unlawful drug use.

         In general, the evidence demonstrated that the registration process for silencers does involve certain inefficiencies and redundancies that cause the process to take longer than certain purchasers would like.

         II. MOTION TO DISMISS COUNTS I AND II

         Counts I and II of the Superseding Indictment charge Defendant with possession of unregistered and unserialized silencers in violation of the NFA. Defendant contends that the NFA’s registration and serialization requirements unconstitutionally infringe upon his Second Amendment rights and that Counts I and II must be dismissed. Specifically, he contends that silencers are “arms” within the meaning of the Second Amendment, and the NFA’s requirements unconstitutionally burden the right of law-abiding citizens to possess silencers for lawful purposes. The Government responds that silencers are not arms ...


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