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United States v. Carmel

November 24, 2008


Appeal from the United States District Court for the Western District of Wisconsin. No. 07 CR 97- John C. Shabaz, Judge.

The opinion of the court was delivered by: Manion, Circuit Judge.


Before MANION, WOOD, and WILLIAMS, Circuit Judges.

Defendant David Carmel pleaded guilty to one count of possessing an unregistered machine gun in violation of 26 U.S.C. § 5861, reserving his right to appeal from the district court's denial of his motion to suppress, its denial of his motion for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), and its denial of his challenge to the constitutionality of 26 U.S.C. § 5861. We AFFIRM.


David Carmel was being investigated by Immigration and Customs Enforcement ("ICE") and Defense Criminal Investigative Service ("DCIS"), an arm of the Department of Defense. ICE and DCIS believed that Carmel had stolen and sold military supplies and weapons. During a phone conversation between Carmel and an undercover ICE agent, Carmel indicated that he had three firearms-a "Rheinmetall MG3, a MG 34, and a Heckler & Kock HK21." Carmel invited the agent to shoot with him at his home and added that whatever ammunition the agent would bring, he owned a weapon that would fire it.

On May 30, 2007, DCIS agents arrested Carmel in his car. A local sheriff's investigator, Chad Holum, was present during the arrest and found in Carmel's car two top handles that could potentially be used in an M-16 machine gun. Holum then applied in Wisconsin state court for a warrant to search Carmel's home. The application for the warrant contained an affidavit and an accompanying statement explaining why Holum believed probable cause existed to search Carmel's home. The statement first recounted the conversation between Carmel and the undercover agent. Next, the statement noted the discovery of the two top handles, which were described as "made for a M16 machine gun." Holum's statement further indicated that based on his experience in the Marine Corps and as a law enforcement officer, top handles were necessary to fire an M-16. The statement noted that in a post-arrest interview, Carmel had said that he possessed one machine gun, an "MG M-119," that was properly registered with the federal government. The statement continued: "When asked about other types of machine guns, Carmel refused to answer any questions in this area." Carmel also admitted possessing other machine gun barrels and parts. Finally, the statement noted that Carmel had told his father in a recorded telephone conversation that he had been arrested by federal authorities, and that "his father could guess what it is for." The affidavit in support of the search warrant identified the three weapons-the Rheinmetall MG3, the MG 34, and the Heckler & Koch HK2-as machine guns.

The state court issued the search warrant, permitting officers to search for the three identified weapons. When officers searched Carmel's home and property, they discovered several rifles and a rocket launcher, and the officers notified federal authorities. Field-testing of numerous other weapons revealed approximately thirty machine guns. The weapons were not seized immediately. Instead, officers sought to secure a warrant to seize the weapons as well as other parts and computers that could contain evidence of illegal weapon manufacturing and sales.

A federal search warrant was subsequently issued to seize the machine guns as well as other evidence of criminal activity. After more than sixty machine guns were recovered, Carmel was charged with violations of 18 U.S.C. § 922(o), which provides that "[e]xcept as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun." However, a subsequent grand jury indictment charged Carmel with violating 26 U.S.C. § 5861(d), which provides that "[i]t 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."

Carmel moved to suppress the machine gun evidence seized at his home and requested a Franks hearing to determine whether Holum recklessly omitted material facts from his affidavit. Carmel also moved to dismiss the indictment, arguing that 26 U.S.C. § 5861(d) had been implicitly repealed by the enactment of 18 U.S.C. § 922(o), that Congress lacked a constitutional basis to enact 26 U.S.C. § 5861(d), and that § 5861(d) violated the Due Process Clause because it was impossible to comply with and was unconstitutionally vague.

The magistrate judge denied Carmel's motion for a Franks hearing. Then, the magistrate judge issued a report in which he recommended that the district court deny the motions to dismiss the indictment and suppress the evidence. Subsequently, Carmel and the government entered into a plea agreement under which Carmel would plead guilty to one count of violating 26 U.S.C. § 5861(d); however, Carmel reserved his right to withdraw the plea should the district court rule in his favor on the motions and to appeal should the district court rule against him. The district court then issued an order adopting the recommendation of the magistrate judge and denying the motions to dismiss the indictment and to suppress the machine guns. Carmel was sentenced to forty-six months in prison and thirty-six months of supervised release. Carmel appeals.



On appeal, Carmel first argues that the state search warrant was not supported by probable cause and that the resulting federal search warrant constitutes noxious "fruit of the poisonous tree." United States v. Grogg, 534 F.3d 807, 810 (7th Cir. 2008). "A search warrant affidavit establishes probable cause when, based on the totality of the circumstances, it sets forth sufficient evidence to induce a reasonably prudent person to believe that a search will uncover evidence of a crime." United States v. Curry, 538 F.3d 718, 729 (7th Cir. 2008). The judge issuing the warrant "need only conclude that it would be reasonable to seek the evidence in the place indicated in the affidavit," id., but the judge "may not rely solely upon conclusory allegations or a bare bones affidavit when issuing a warrant." Id. When reviewing a search that was conducted pursuant to a warrant, "we must afford great deference to the issuing judge's conclusion" that probable cause ...

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