United States v. TRW Rifle 7.62x51mm Caliber

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
MARK TRAVIS BROWN, No. 04-16049

Claimant-Appellant, D.C. No.
v. CV-02-00264-RCC
TRW RIFLE 7.62X51MM CALIBER, OPINION
One Model 14 Serial 593006,
Defendant.

Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding
Argued and Submitted
February 15, 2006—San Francisco, California
Filed May 5, 2006
Before: Procter Hug, Jr., Arthur L. Alarcón, and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge McKeown
5085
5088 UNITED STATES v. TRW RIFLE 7.62X51MM CALIBER
COUNSEL
Richard E. Gardiner, Fairfax, Virginia, for the appellant.
Paul K. Charlton, United States Attorney, Reese V. Bostwick
and Robert L. Miskell, Assistant United States Attorneys,
Tucson, Arizona, for the appellee.
OPINION
McKEOWN, Circuit Judge:
When is a rifle a machinegun? This appeal asks whether the
rifle seized by the Bureau of Alcohol, Tobacco, and Firearms
(“ATF”) from Mark Brown is a “machinegun” within the
meaning of the National Firearms Act, 26 U.S.C. § 5845(b).
The definition of a machinegun under § 5845(b) includes a
weapon that “can be readily restored to shoot, automatically
more than one shot . . . by a single function of the trigger.”
The classification is important because federal law requires
registration of machineguns. 26 U.S.C. § 5841. Although the
rifle was a modified M-14 machinegun and could not fire
automatically when purchased by Brown, it could be “readily
restored” to shoot automatically within the plain and unam-
biguous meaning of § 5845(b). We thus affirm the district
court’s order of forfeiture.
UNITED STATES v. TRW RIFLE 7.62X51MM CALIBER 5089
BACKGROUND
Brown purchased a rifle from MK Specialties (“MKS”), a
firearms dealer that remanufactures and sells decommissioned
military M-14 machineguns. The military decommissions the
M-14 by torch-cutting its receiver—the frame portion of the
rifle that contains the firing mechanisms, located between the
barrel and the stock—into two pieces. It is undisputed that
before it is decommissioned, the M-14 is a machinegun within
the meaning of § 5845(b).1 MKS takes these M-14 pieces and
remanufactures them by welding the two halves back together
and performing some other alterations such that the resulting
rifle, called an MKS M-14A, does not fire automatically—
i.e., “more than one shot, without manual reloading, by a sin-
gle function of the trigger.” § 5845(b).
Brown purchased an MKS M-14A and attempted to sell it
to a federal firearms licensee, West of Pecos, in Tucson, Ari-
zona. The manager of West of Pecos was hesitant to purchase
the rifle, and instead contacted the ATF to inquire about the
rifle’s classification. In response to the inquiry, ATF Special
Agent Robert Lowery contacted Brown and verified that he
was in possession of the rifle. Soon after, Special Agent Low-
ery learned from the ATF’s Firearms Technology Branch that,
after examination, other MKS M-14As were determined to be
machineguns within the meaning of § 5845(b).
Special Agent Lowery verified that the rifle was not regis-
tered to Brown or any other person, as required by § 5841,
and seized the rifle on May 8, 2001, under the authority of 26
U.S.C. § 5872(a). The United States then filed a civil forfei-
ture action on May 23, 2002, pursuant to § 5872(a). In prepa-
ration for the forfeiture action, ATF Special Agent Richard
Vasquez, through the ATF Firearms Technology Branch, pre-
1
The United States has classified the M-14 rifle as a machinegun since
1958. IRS Rev. Rul. 58-417. Brown does not dispute that the M-14 is a
machinegun.
5090 UNITED STATES v. TRW RIFLE 7.62X51MM CALIBER
pared a comprehensive report in which he concluded that the
rifle was a machinegun as defined in § 5845(b). The district
court agreed and ruled in favor of the United States on sum-
mary judgment.
ANALYSIS
[1] The central question in this appeal is whether the rifle
is a “machinegun” under § 5845(b), which provides:
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 parties dispute whether the rifle can be “readily restored”
within the meaning of § 5845(b).2
As a threshold matter, the parties also dispute the relative
burdens applicable in a forfeiture action. In an opinion issued
last month, the Sixth Circuit carefully analyzed the burden
question in a similar appeal and persuasively reasoned that the
customs laws, 19 U.S.C. §§ 1602-1631, dictate the relative
burdens of the parties in a forfeiture action under § 5872(a).
United States v. One TRW, Model M14, 7.62 Caliber Rifle,
441 F.3d 416, 418-19 (6th Cir. 2006).3 Section 1615 of the
2
In its present state, the rifle does not “shoot automatically.” We express
no opinion as to whether the rifle is “designed” to shoot automatically as
contemplated by § 5845(b). We note, however, that longstanding ATF rul-
ings dating to 1982 provide that “designed to shoot” under § 5845 includes
weapons that “possess design features which facilitate full automatic fire
by simple modification or elimination of existing component parts.” See
ATF Rul. 82-2, 1982-1 A.T.F.Q.B. 18 (1982); ATF Rul. 82-8, 1982-2
A.T.F.Q.B. 49 (1982); ATF Rul. 83-5, 1983-3 A.T.F.Q.B. 35 (1983).
3
Most civil forfeiture actions are governed by the Civil Asset Forfeiture
Reform Act of 2000, Pub. L. No. 106-185, 114 Stat. § 202 (codified in
part at 18 U.S.C. § 983). Section 983 is not applicable, however, to this
UNITED STATES v. TRW RIFLE 7.62X51MM CALIBER 5091
customs law provides that in forfeiture suits “where the prop-
erty is claimed by any person, the burden of proof shall lie
upon such claimant; . . . Provided, That probable cause shall
be first shown for the institution of such suit or action . . . .”
See also United States v. One 56-Foot Yacht Named Tahuna,
702 F.2d 1276, 1281 (9th Cir. 1983); One TRW, 441 F.3d at
419. Under § 1615, the claimant’s burden may be met in one
of two ways: “first, [the claimant] may refute the govern-
ment’s showing of probable cause, and second, [the claimant]
may come forward with affirmative evidence and prove, by a
preponderance of the evidence, that the [property subject to
the forfeiture proceeding] was not used for the illegal purpose
as alleged.” Tahuna, 702 F.2d at 1281. Brown does not dis-
pute that the ATF had probable cause to seize the rifle and
institute forfeiture proceedings. Nor has Brown proven by a
preponderance of the evidence that the rifle was not subject
to forfeiture. Regardless of the burden of proof issue, this case
turns on the construction of § 5845(b). Based on our construc-
tion of “readily restored” and the undisputed facts on the
record, we have no doubt that the rifle is subject to forfeiture
under § 5872(a).
[2] “Our analysis begins with the language of the statute.
. . . When interpreting a statute, we must give words their
‘ordinary or natural’ meaning.” Leocal v. Ashcroft, 543 U.S.
1, 8-9 (2004) (quoting Smith v. United States, 508 U.S. 223,
228 (1993)). Congress did not define what it meant by “readi-
ly” or “restored” in § 5845(b); “thus, we follow the common
practice of consulting dictionary definitions to clarify their
ordinary meaning[ ]” and look to how the terms were defined
ATF weapons forfeiture action commenced under § 5872(a) of the Internal
Revenue Code of 1986. § 983(i)(2)(B); see also 18 U.S.C. § 3051(c)(1)
(subject to certain exceptions, “the provisions of the Customs laws relating
to (A) the seizure, summary and judicial forfeiture . . . shall apply to sei-
zures and forfeitures incurred, or alleged to have been incurred, under any
applicable provision of law enforced or administered by the Bureau of
Alcohol, Tobacco, Firearms, and Explosives.”).
5092 UNITED STATES v. TRW RIFLE 7.62X51MM CALIBER
“at the time [the statute] was adopted.” United States v. Car-
ter, 421 F.3d 909, 911 (9th Cir. 2005); see MCI Telecomms.
Corp. v. AT&T Co., 512 U.S. 218, 228 (1994) (stating that
“the most relevant time for determining a statutory term’s
meaning” is when the statute became law, and relying on dic-
tionaries to ascertain the term’s meaning). Brown argues, and
we agree, that “readily” and “restored” both have plain and
unambiguous ordinary meanings as found in the Webster’s
dictionary that was in existence when Congress enacted
§ 5845(b) in 1968. Where we depart from Brown, however,
is in our conclusion that the uncontested facts of this appeal
fall within the scope of those ordinary meanings.4
We begin with the word “readily.” Webster’s Third, the
edition in print when § 5845(b) was enacted, gives three alter-
nate definitions for “readily”:
a: with prompt willingness: without hesitating, quib-
bling, or delaying: with alacrity: WILLINGLY . . .
b: with fairly quick efficiency: without needless loss
of time: reasonably fast: SPEEDILY . . .
c: with a fair degree of ease: without much diffi-
culty: with facility: EASILY . . .
Webster’s Third New Int’l Dictionary (1961). As with most
words, the dictionary gives multiple definitions. But we do
not ascertain ordinary meaning in the abstract. Rather, we
must decide which of these definitions, if any, is consistent
with the context of the statute. United States v. Turkette, 452
4
Although the district court deferred to the ATF’s definition of “ma-
chinegun,” we need not follow that route. Instead, because the statute is
unambiguous, we simply follow the standard course of applying the defi-
nition to the facts. See Reynolds v. Hartford Fin. Servs. Group, Inc., 435
F.3d 1081, 1092 (9th Cir. 2006) (“As the statute’s text is clear, we need
not resort to either the agency’s interpretations or the statute’s legislative
history.”).
UNITED STATES v. TRW RIFLE 7.62X51MM CALIBER 5093
U.S. 576, 581-83 (1981) (construing statutory text according
to the context of the language and the structure of the statute);
Carter, 421 F.3d at 912-13 & n.1 (excluding irrelevant alter-
native dictionary definitions in construing a term’s ordinary
meaning). As Chief Justice Traynor of the California Supreme
Court observed, words rarely have an objective meaning
divorced from the context of their usage. See Pacific Gas &
Elec. Co. v. G. W. Thomas Drayage & Rigging Co., 69 Cal.2d
33, 38 (1968) (“The meaning of particular words or groups of
words varies with the verbal context and surrounding circum-
stances . . . . A word has no meaning apart from these factors;
much less does it have an objective meaning, one true mean-
ing.”) (quotation marks and alterations omitted). We thus
agree with the Sixth Circuit that “readily restored . . . must not
be construed as an abstract phrase, but rather its contours
should be determined in the context of what it means to be
able to ‘readily restore’ a machinegun as opposed to some
other object.” One TRW, 441 F.3d at 422 (alterations omit-
ted).
[3] Regarding the term “readily,” we conclude that the last
two definitions in Webster’s Third—definition “b” relating to
a temporal component of speed and definition “c” relating to
a methodological component of ease—capture the ordinary
meaning of the term in the context of § 5845(b). The first def-
inition in Webster’s Third—relating to willingness—is
directed towards an actor’s mental disposition and is obvi-
ously inapposite. We conclude that, for purposes of § 5845(b),
the plain and unambiguous ordinary meaning of “readily”
may be defined by a temporal component (“with fairly quick
efficiency: without needless loss of time: reasonably fast”) or
a component related to a manner or methodology (“with a fair
degree of ease: without much difficulty: with facility).5 See
5
The Oxford English Dictionary describes both elements in its second
definition: “promptly, in respect of the time of action; quickly, without
delay; also, without difficulty, with ease or facility.” Http://www.oed.com/
(last visited April 28, 2006).
5094 UNITED STATES v. TRW RIFLE 7.62X51MM CALIBER
One TRW, 441 F.3d at 422 (“ ‘[R]eadily’ is a relative term,
one that describes a process that is fairly or reasonably effi-
cient, quick, and easy, but not necessarily the most efficient,
speedy, or easy process.”).
It does not matter whether the ordinary meaning requires
both the temporal and methodological components because,
as discussed below, each is present in this appeal. We note,
however, that alternative definitions are typically presented in
the disjunctive, lending credence to the proposition that only
one component need be met to be considered “readily.” In
addition, the ease of restoration does, at least, indirectly impli-
cate the time necessary for such restoration.6 We now turn to
the term “restored.”
[4] Webster’s Third lists multiple alternative definitions for
“restore[d]” with the only relevant definition providing: “3: to
bring back to or put back into a former or original state.”
Brown does not contest that this definition is the plain and
unambiguous ordinary meaning of “restored” as used in the
context of § 5845(b).7 Instead, the dispute lies in the applica-
tion of the undisputed facts to the ordinary meaning of “read-
ily restored.”8
6
In One TRW, the court laid out a list of several elements that have been
considered by courts in construing “readily,” including time, ease, and
equipment necessary for the restoration. 441 F.3d at 422.
7
The etymology of the word “restore” also provides support for this
plain meaning. The term derives from Latin restaurare, which means “to
renew, rebuild, alteration of.” Merriam-Webster online, http://www.m-
w.com (last visited April 28, 2006) (emphasis added).
8
We are not persuaded by Brown’s attempts to cast doubt upon the ordi-
nary meaning of “readily” by referring to snippets of legislative history
from failed legislative efforts that predate § 5845(b). See Whitfield v.
United States, 543 U.S. 209, 215 (2005) (“Because the meaning of [the
statute’s] text is plain and unambiguous, we need not accept petitioners’
invitation to consider the legislative history.”); US West, Inc. v. United
States, 48 F.3d 1092, 1101 (9th Cir. 1994) (stating that “failed legislative
proposals and [accompanying] recommendations in committee reports
UNITED STATES v. TRW RIFLE 7.62X51MM CALIBER 5095
To benchmark the question whether the rifle is “restored”
(or “restorable”), we must identify the “former or original
state” of the rifle. Brown claims that the “original state” of the
rifle, for purposes of this analysis, is as remanufactured by
MKS. Thus, according to Brown, the rifle in its “original
state” did not fire automatically and any changes to the rifle
that give it automatic capability are modifications from its
original state and not a restoration. Although Brown’s argu-
ment has some intuitive appeal, it is an effort to split semantic
hairs and ignores the reality that the rifle was put together
from two halves of what were undeniably automatic weapons
—namely M-14s. It would lead to an absurd consequence if
someone could escape the ordinary meaning of “restored” by
simply cutting a machinegun in half, modifying it, and
remanufacturing it into a functional firearm that is capable of
being made to fire automatically.
[5] The rifle need not be a duplicate of the original or even
meet the original specifications to qualify as being “restored.”
See One TRW, 441 F.3d at 424 (“[T]he definition of ‘restore’
does not preclude an object from being considered ‘restored’
without returning it to a condition in which it previously exist-
ed.”). The fact is that the rifle, when modified, is a rebuilt
machinegun.
[6] The United States argues, and we agree, that the “for-
mer or original state” of the rifle refers to the essential defini-
tion of a machinegun, that is whether it was ever capable of
firing automatically more than one shot, without manual
reloading, by a single function of the trigger. This condition
. . . . [are not] sufficient evidence to suggest that there is any relevant con-
gressional intent to which this court could defer.”), judgment vacated on
other grounds, 516 U.S. 1155 (1996). Nor is this a case where we might
deviate from the rule expressed in Whitfield as there is no “clearly
expressed legislative intent to the contrary” of the plain and unambiguous
statutory language. Turkette, 452 U.S. at 580 (quoting Consumer Prod.
Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)).
5096 UNITED STATES v. TRW RIFLE 7.62X51MM CALIBER
is met because it is undisputed that the rifle was manufactured
from two M-14 machinegun halves. Id. at 425 (“[T]he M-14
parts from which the [firearm] was manufactured had once
been part of an M-14 weapon that fired automatically. There-
fore, modifying the [firearm] to fire automatically would con-
stitute ‘restoration.’ ”). If the rifle is able to be “readily”
brought back into this “former or original state,” the rifle falls
within the ordinary meaning of “readily restored” as used in
§ 5845(b).
Although Brown’s rifle did not fire automatically when
remanufactured or seized, the ATF report shows that an iden-
tical firearm (another MKS M-14A) was made to shoot auto-
matically in forty-five minutes using common tools consisting
of a hand grinder (or dremel tool), a splitting disk, a drill
press, and hand files. After this procedure, the firearm was
test fired twice, both times firing “automatically 3 shots with
a single function of the trigger.” Brown’s expert, Michael
Kelly, Sr., who is also the owner of the remanufacturer, MKS,
does not materially disagree with the ATF’s conclusions.
Kelly testified in his deposition that the restoration process
described in the ATF report would restore the rifle to a fully
automatic function.9 Kelly’s only objection was that a weld
process step was missing, which could be done with a variety
9
Brown challenges consideration of the ATF report on summary judg-
ment claiming that it did not comport with Federal Rule of Civil Procedure
56(c). This argument has no traction. The government attached the report
to documents filed in support of its motion for summary judgment and
also filed a declaration authenticating the report. The court may consider
properly authenticated and admissible evidence on summary judgment.
See Orr v. Bank of America, NT & SA, 285 F.3d 764, 773-74, 778 n.24
(9th Cir. 2002). In any event, Brown’s admissions through the deposition
testimony of his expert Kelly are sufficient to establish the restoration pro-
cess for the rifle. United States v. One 1985 Cadillac Seville, 866 F.2d
1142, 1147 (9th Cir. 1989) (stating that the appellate court may affirm a
summary judgment grant of forfeiture “on any ground supported by the
record”); see also One TRW, 441 F.3d at 420-21 (deciding whether the
firearm was “readily restorable” based on the claimant’s expert testi-
mony).
UNITED STATES v. TRW RIFLE 7.62X51MM CALIBER 5097
of welding equipment (including a simple stick weld) and that
this additional step would only increase the total restoration
time from forty-five minutes to about two hours.
[7] For purposes of summary judgment, we accept the pro-
cess and time frame offered by Kelly in his deposition.10 A
two-hour restoration process using ordinary tools, including a
stick weld, is within the ordinary meaning of “readily
restored.” As to the temporal component, two hours, while not
an insignificant amount of time, is still within a range that
may properly be considered “with fairly quick efficiency,”
“without needless loss of time,” or “reasonably fast.” As to
the means of restoration, requiring the use of ordinary tools
and a stick weld, even by a skilled worker, is likewise within
what may properly be considered “with a fair degree of ease,”
“without much difficulty,” or “with facility.”11
10
Brown later submitted a declaration by Kelly, dated after the deposi-
tion, where Kelly lays out a complicated and technical process necessary
to return the rifle to its original military specifications, a process where
“[t]he total time required to make a modification to an MKS M-14A
receiver would be about 5 hours +/- 30 minutes.” This argument about the
original military specifications misses the point. Section 5845(b) does not
require complete or identical restoration; rather, it only requires that the
rifle be “readily restored” to a state where it can shoot “automatically
more than one shot, without manual reloading, by a single function of the
trigger.”
Significantly, Kelly’s declaration does not refute his earlier conclusion
about the two-hour period. Brown cannot create a genuine issue of mate-
rial fact by submitting a contradictory declaration, which appears to be
offered to avoid summary judgment. See, e.g., Silas v. Babbit, 96 F.3d
355, 358 (9th Cir. 1996) (“One cannot create an issue of fact by simply
contradicting one’s own previous statement.”).
11
To the extent Brown argues that there is some ambiguity in “readily
restored” because he can craft a narrower definition, we decline to hold
the terms ambiguous or apply the rule of lenity. As we stated in Lisbey v.
Gonzales, 420 F.3d 930, 933 (9th Cir. 2005):
Courts should not deem a statute ambiguous for purposes of len-
ity merely because it is possible to articulate a construction more
narrow than that urged by the Government. Instead, courts have
5098 UNITED STATES v. TRW RIFLE 7.62X51MM CALIBER
[8] Our interpretation of the statute is in accord with the
two other circuits that have considered the issue. See One
TRW, 441 F.3d at 421-25; United States v. Smith, 477 F.2d
399 (8th Cir. 1973).12 In the earlier case, the Eighth Circuit
held that a firearm could be “readily restored to shoot auto-
matically,” Smith, 477 F.2d at 401, notwithstanding that “[t]o
do so would take about an 8-hour working day in a properly
equipped machine shop,” id. at 400. In the recent Sixth Cir-
cuit case, the court undertook a careful statutory analysis and
concluded that a MKS remanufactured M-14 that “could be
restored to fully-automatic-shooting capacity to manufactur-
er’s specifications” in six hours was readily restorable under
§ 5845(b). One TRW, 441 F.3d at 422-23 & n.11.
[9] The statute encompasses firearms that can be readily
restored to shoot automatically. The unambiguous scope of
the statute is not limited to instantaneous or on-the-spot resto-
rations nor does it require restoration to original specifica-
reserved lenity for those situations in which a reasonable doubt
persists about a statute’s intended scope even after resort to the
language and structure, legislative history, and motivating poli-
cies of the statute.
(Citations and internal quotation marks omitted). There is no reasonable
doubt that the rifle falls within the intended scope and plain meaning of
“readily restored.”
12
We have not spoken directly on the meaning of “readily restorable.”
Instead, we have generically stated, without elaboration, that “[§ 5845(b)]
was specifically designed to reach a case where a converted machine gun
is missing a part that can easily be added to make it functional.” United
States v. Daychild, 357 F.3d 1082, 1102 n.28 (9th Cir. 2004). In another
case, we held that “a rational trier of fact could conclude, beyond a reason-
able doubt,” that a weapon was “readily restorable” based on testimony
“that a ‘shaved off’ disconnect, in conjunction with the polished interior
surfaces . . . ‘would convert it into fully automatic.’ ” United States v.
Alverson, 666 F.2d 341, 345 (9th Cir. 1982). Alverson is not helpful in this
appeal because the restoration was completely different and the opinion
offers no details as to the time or equipment required for such a restora-
tion.
UNITED STATES v. TRW RIFLE 7.62X51MM CALIBER 5099
tions. The key factor, which is satisfied here, is that the
firearm can be readily restored to shoot automatically. We
therefore affirm the district court’s grant of summary judg-
ment in favor of the United States.
AFFIRMED.