United States v. Barbeau, CASE NO. CR15-391RAJ

UNITED STATES OF AMERICA, Plaintiff, v. SCHUYLER P. BARBEAU, Defendant.

CASE NO. CR15-391RAJ

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

March 16, 2016

HONORABLE RICHARD A. JONES

ORDER

I. INTRODUCTION

THIS MATTER comes before the Court on Defendant Schuyler Barbeau's various pretrial motions. See Dkt. # 24-26. Defendant's three motions regard: (1) a justification defense (Dkt. # 24), (2) the Second Amendment and the Commerce Clause (Dkt. # 25), and (3) mistake of law defense (Dkt. # 26). Defendant requests an evidentiary hearing on his first two motions, but the Court finds that an evidentiary hearing is not necessary. For the following reasons, the Court DENIES Defendant's Motions.

II. BACKGROUND

The facts of this case are largely undisputed for purposes of these Motions. Defendant is charged with one count of Possession of an Unregistered Firearm in violation of 26 U.S.C. §§ 5861(d), 5845(a)(3) & (6) and one count of Possession of a Machine Gun in violation of 18 U.S.C. §§ 922(o) & 924(a)(2). See Dkt. # 27.

The Federal Bureau of Investigation ("FBI") received information from a confidential source regarding potential threats to law enforcement made by the Defendant. That source advised that Defendant frequently traveled with a short-barreled AR-15 rifle (the "SBR"), body armor, and a helmet in his vehicle. During the course of the investigation, Defendant also made threats to kill law enforcement officers.

Defendant later asked the confidential source to find a buyer for his SBR so that he could purchase another rifle capable of firing 7.62 millimeter rounds. Defendant informed the confidential source that he was willing to sell the SBR along with other accessories for $5,000. After further communications regarding a buyer for the SBR, Defendant dropped off the SBR with the confidential source and asked the source to obtain the money as soon as possible. The FBI took possession of the SBR soon after.

During the investigation, the confidential source also informed the FBI that Defendant had discussed manufacturing a "drop-in auto-sear" for the SBR, which would convert a weapon to shoot automatically more than one shot, without manual reloading, by a single function of the trigger. A firearms specialist later confirmed that the firearm was a short barreled rifle and a machine gun.¹ The specialist further confirmed that the firearm contained the auto-sear device, which allowed the firearm to fire fully automatically, and that the firearm could do so even without the auto-sear.

Defendant was arrested and was armed with a pistol at the time of his arrest.

III. ANALYSIS

a. Defendant's Motion for a Justification Instruction

Defendant's first motion requests that the Court to find that he is entitled to present a justification defense at trial. See Dkt. # 24. Specifically, Defendant argues that he needed "[a] fully automatic, short barreled rifle" in order "to meet the threats that he, and most citizens, face in this country." See id. at 2. These threats, Defendant contends, "come from criminals, terrorists, foreign forces, and sometimes domestic authorities." Id. at 2-3.

"A criminal defendant is entitled to jury instructions related to a defense theory so long as there is 'any foundation in the evidence.'" United States v. Doe, 705 F.3d 1134, 1144 (9th Cir. 2013) (quoting United States v. Burt, 410 F.3d 1100, 1103 (9th Cir. 2005)). A defendant may be entitled to a proposed instruction even if his evidence supporting his theory is "weak, insufficient, inconsistent, or of doubtful credibility," but "a mere scintilla of evidence supporting the defendant's theory is not sufficient to warrant a defense instruction." United States v. Thomas, 612 F.3d 1107, 1121 (9th Cir. 2010) (quoting United States v. Kayser, 488 F.3d 1070, 1073 (9th Cir. 2007)) (internal quotation marks omitted).

To be entitled to a justification instruction, the defendant bears the burden of showing: "(1) he was under unlawful and present threat of death or serious bodily injury; (2) he did not recklessly place himself in a situation where he would be forced to engage in criminal conduct; (3) he had no reasonable legal alternative; and (4) there was a direct causal relationship between the criminal action and the avoidance of the threatened harm." United States v. Wofford, 122 F.3d 787, 790 (9th Cir. 1997) (quoting United States v. Lemon, 824 F.2d 763, 764 (9th Cir. 1987)); United States v. Beasley, 346 F.3d 930, 934-35 (9th Cir. 2003) (holding that defendant bears the burden of proving the defense of justification). The defense of justification is "unavailable for one whose fears rise from involvement in illegal activities." United States v. Phillips, 149 F.3d 1026, 1030 (9th Cir. 1998) (citing United States v. Perez, 86 F.3d 735, 737 (7th Cir. 1996)). Moreover, the defense is ordinarily only available in "extraordinary circumstances." See United States v. Deleveaux, 205 F.3d 1292, 1297 (11th Cir. 2000) (collecting cases and noting consensus that the defense was available only in exceptional circumstances).

Defendant has not satisfied this showing. To begin, Defendant clearly has not shown that he was under any present threat of death or serious bodily injury. As for his claimed threats from criminals or terrorists, those are simply generalized threats faced by all citizens. Moreover, those threats certainly are not "present" threats for the purposes ofpossessing an illegal firearm. See Wofford, 122 F.3d at 790 (holding that threats were not immediate where "[t]he last specific threat against [defendant] was at least five months old"); Perez, 86 F.3d at 737 (suggesting that "[t]he defense of necessity will rarely lie in a felon-in-possession case unless the ex-felon, not being engaged in criminal activity, does nothing more than grab a gun with which he or another is being threatened"); United States v. Sahakian, 965 F.2d 740, 741 (9th Cir. 1992) (holding that assault occurring 36 days before firearm possession in question was not "present" threat); see also United States v. Parker, 566 F.2d 1304, 1305-06 (5th Cir. 1978) (holding that justification defense was not available where the defendant illegally possessed firearm for 30 minutes after he was attacked in his home). And with respect a purported robbery at the Aenk ranch, even Defendant admits that the incident occurred well before he arrived at the property, rendering any such threat remote and non-specific. See Dkt. # 24 (Barbeau Decl.) at 5.

In fact, Defendant's own actions undermine his claim that these threats were "present." Defendant possessed the firearm for over a year prior to the robbery, showing that his possession was not in response to an immediate threat. Indeed, Defendant later sold the SBR, showing that he did not, in fact, "need" the firearm because of an unlawful and present threat.

Finally, Defendant insists that he needed the SBR to protect himself from "domestic authorities" (see Dkt. # 24 at 3) or "law enforcement and government" (see Dkt. # 24-1 (Barbeau Decl.) at 5). It is hardly worth mentioning that if Defendant truly had a dispute with the Government, he clearly had a reasonable legal alternative to possessing the firearm - filing suit or petitioning his representatives. Furthermore, it is hard to fathom how some vague threat from "law enforcement and government" constitutes an "unlawful" threat.

Defendant's Motion is DENIED. Dkt. # 24. Defendant is not entitled to an instruction on a defense of justification.

b. Defendant's Motion to Dismiss

Defendant next argues that the charges in the Superseding Indictment violate the Second Amendment and the Commerce Clause. See Dkt. # 25. He claims that as a result of the Supreme Court's decision in Dist. of Columbia v. Heller ("Heller I"), 554 U.S. 570 (2008), he is entitled to possess an unregistered short barreled rifle and machine gun.

To begin, even Defendant acknowledges that Ninth Circuit authority forecloses his entitlement to possession of a homemade machine gun. See Dkt. # 25 at 5; Dkt. # 33 at 3. In United States v. Henry, the Ninth Circuit held that the Second Amendment does not protect the possession of homemade machine guns and that Congress could properly regulate such weapons under the Commerce Clause. 688 F.3d 637, 638 (9th Cir. 2012); see also United States v. Fincher, 538 F.3d 868, 874 (8th Cir. 2008); United States v. One Palmetto State Armory PA-15 Machinegun Receiver/Frame, Unknown Caliber, Serial No. LW001804, 115 F. Supp. 3d 544, 569 (E.D. Pa. 2015). As such, his arguments on these grounds are without merit.

Next, Defendant argues that the Second Amendment protects his right to possess a short-barreled rifle. See Dkt. # 25 at 2. The Court disagrees. Although Heller I does hold that that the Second Amendment confers "an individual right to keep and bear arms," it also cautions that "the right [is] not unlimited." 554 U.S. at 595. Other courts in the wake of Heller I have already held that restrictions upon the possession of short-barreled rifles are permissible. See e.g., United States v. Gilbert, 286 F. App'x 383, 386 (9th Cir. 2008) ("Under Heller, individuals still do not have the right to possess machineguns or short-barreled rifles"); United States v. Gonzales, No. 2:10-CR-00967 CW, 2011 WL 5288727, at *1 (D. Utah Nov. 2, 2011) (holding that "Defendant's .22 caliber short-barreled rifle is not a weapon protected by the Second Amendment").

The reasoning behind this is simple. Heller I dealt with a complete restriction on the possession of handguns, not a registration requirement for short-barreled rifles. See 554 U.S. at 574. And, as Heller made clear, the weapons protected under the SecondAmendment are limited to "those 'in common use at the time.'" Id. at 627 (quoting United States v. Miller, 307 U.S. 174, 179 (1939)). In other words, the Second Amendment has not been construed to protect "the carrying of 'dangerous and unusual weapons.'" Id. Indeed, the Court in Heller I...