United States v. Rybar ( 1996 )

Opinions of the United
1996 Decisions States Court of Appeals
for the Third Circuit
12-27-1996
United States v. Rybar
Precedential or Non-Precedential:
Docket 95-3185
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Recommended Citation
"United States v. Rybar" (1996). 1996 Decisions. Paper 19.
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Filed December 30, 1996
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 95-3185
UNITED STATES OF AMERICA
v.
RAYMOND RYBAR, JR.,
Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Crim. No. 94-cr-00243)
Argued September 13, 1995
Before: SLOVITER, Chief Judge, and ALITO,
Circuit Judge, and RENDELL, District Judge *
(Opinion filed December 30, 1996)
James H. Jeffries, III (Argued)
Greensboro, NC 27408
Attorney for Appellant
Bonnie R. Schlueter
Mary Beth Buchanan (Argued)
Office of United States Attorney
Pittsburgh, PA 15219
Attorneys for Appellee
_________________________________________________________________
*Honorable Marjorie O. Rendell, United States District Judge for the
Easter District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
SLOVITER, Chief Judge.
Appellant Raymond Rybar, Jr. was convicted following a
conditional guilty plea to two counts of violating 18 U.S.C.
§ 922(o), which makes it "unlawful for any person to
transfer or possess a machinegun." On appeal, he argues
that the district court erred in rejecting his challenge to
that provision as beyond Congress' commerce power and as
violating the Second Amendment. Neither challenge is
persuasive. Every court of appeals that has considered a
challenge to § 922(o) under the Commerce Clause has
upheld the constitutionality of the provision. See United
States v. Beuckelaere, 91 F.3d 781 (6th Cir. 1996); United
States v. Kenney, 91 F.3d 884 (7th Cir. 1996); United States
v. Rambo, 74 F.3d 948 (9th Cir.), cert. denied, 117 S. Ct. 72
(1996); United States v. Kirk, 70 F.3d 791 (5th Cir. 1995)1;
United States v. Wilks, 58 F.3d 1518 (10th Cir. 1995);
United States v. Pearson, 8 F.3d 631 (8th Cir. 1993), cert.
denied, 114 S. Ct. 2132 (1994). Nor has Rybar presented
any authority in support of his Second Amendment
argument. We examine each claim in turn.
I.
FACTS AND PROCEDURAL HISTORY
On April 4, 1992, Rybar, a federally licensed firearms
dealer, attended a gun show in Monroeville, Pennsylvania,
and had in his possession a Chinese Type 54, 7.62-
millimeter submachine gun, serial number 2052272, which
he offered to sell to Thomas Baublitz, who paid him and to
whom he transferred possession. The next day, April 5,
1992, Rybar again visited the Monroeville gun show, this
time in possession of a U.S. Military M-3, .45 caliber
submachine gun, serial number 216831, which he offered
_________________________________________________________________
1. On March 5, 1996, the Fifth Circuit granted a rehearing en banc. See
United States v. Kirk, 78 F.3d 160 (5th Cir. 1996).
2
to sell to Baublitz, who paid him for it and to whom he
transferred possession.
A grand jury indicted Rybar on two counts of unlawful
possession of a machine gun in violation of 18 U.S.C.
§ 922(o)(1) (Counts I and III), and two counts of unlawful
transfer of an unregistered firearm in violation of 26 U.S.C.
§ 5861(e) (Counts II and IV). Rybar moved to dismiss the
indictment on the ground that both statutes were
unconstitutional. While the motion was pending, the court