Federal conviction overturned because an air-gun silencer is not a firearm

Walther PPK/s Airgun with silencer

Walther PPK/s

The conviction of defendant Crooker for transporting a firearm in interstate commerce was overturned because the device was specifically an “air-gun” silencer and therefore not covered under the federal statutory definition of a firearm. Under the federal definition of firearm, a silencer or “muffler” is considered a firearm. In the case decided by the First Circuit Court of Appeals, however, the device used to muffle the sound of a gun was in fact built as an “air-gun silencer” and therefore not covered under the statute. Even though the device could easily be adapted to muffle an actual firearm.

The entire text of United States v. Crooker can be found at: http://www.scribd.com/doc/33939121/United-States-of-America-v-Crooker

Facts:

In April 2004, Crooker–who had previously been convicted of a felony–was engaged in offering chemicals for sale, and a potential buyer in Wisconsin notified the Postal Inspection Service of a suspicious e-mail statement sent to the buyer by Crooker. The buyer had asked for a list of chemicals and inquired how they would be packaged. Crooker responded by stating:

“Most are repackaged. In fact, most come that way to me. Of course I combine shipping costs and I don’t fart around with regulations either. I usually just send them Parcel Post (even things like nitric acid that I just sold).”

An investigation led authorities to inspect a package deposited by Crooker at a Massachusetts post office for interstate shipment on June 7, 2004. The package proved to contain a large caliber airgun and a cylinder made of black metal with a hole running through it, threading that allowed attachment to the muzzle of the airgun and baffles inside.  Further inquiry revealed that the device had been made for Crooker by another individual.

The government arranged a controlled delivery of the package to its recipient in Ohio, and that day Crooker was arrested and his apartment searched. The search revealed explosives and chemicals which resulted in a separate indictment of Crooker. Also seized were books and other materials evidencing Crooker’s interest in firearms and airguns and a laptop containing relevant e-mail messages.

A separate search of Crooker’s brother’s residence resulted in the seizure of a number of firearms and an article titled “Federal Law Definition of a Silencer” that bore a name (mgmike) used by Crooker. The article noted that it might be argued that an airgun silencer, if it could be “put to use on a powder burning firearm . . . might be a silencer” under federal law; the article argued that such a device would not be a silencer because not intended for firearm use even though it “could probably be adapted for use as a silencer on a powder burner.”

Discussion:

Where a defendant was indicted, tried and convicted for transporting a firearm in interstate commerce as a convicted felon, the conviction must be reversed because the subject item – a device designed to muffle the sound of an airgun – was not a firearm.

“[U]nder the statute ‘firearm’ includes ‘any firearm muffler or firearm silencer,’ 18 U.S.C. §921(a)(3)(C), defined as follows: ‘The terms “firearm silencer” and “firearm muffler” mean any device for silencing, muffling, or diminishing the report of a portable firearm, including any combination of parts, designed or redesigned, and intended for use in assembling or fabricating a firearm silencer or firearm muffler, and any part intended only for use in such assembly or fabrication. …

“[G]iven [defendant Michael] Crooker’s demonstrated expertise and also documents showing that he knew that airgun silencers could in some instances be so adapted, the jury could rationally infer that he knew that an adapter – little more than a properly constructed cylinder adjusted for size and with threading at each end – could be built that would allow this device to muffle or silence a firearm.

“We conclude, however, that the statute by its terms requires something more than a potential for adaptation and knowledge of it. The statute does not refer either to capability or adaptation; it speaks of a device ‘for’ silencing or muffling. …

“… Crooker is entitled to an acquittal. …

In an interesting side note, the court appears so troubled by Crooker’s past legal trouble and attempts to skirt the current law that it sternly scolded Crooker and advised the government to rewrite the law if  it “is so minded.”

“Needless to say, Crooker is in the process of doing neither himself nor society any good. His attitude toward shipping chemicals shows an indifference to law, and (quite apart from silencers) even more disturbing is his professed interest as a convicted felon in airguns that could be as powerful as firearms. He deliberately skated close to the edge of the law and took his chances with a prosecution that the government was entitled to attempt. But, given the statute’s wording, the answer is not to stretch the present statute beyond its language but to amend it – if the government is so minded – to deal more effectively with home-made or adaptable devices.”

-Attorney John J. MacLaughlan

About Attorney John J. MacLaughlan

John MacLaughlan is Massachusetts licensed attorney as well as a Boston police officer. John is currently assigned to the Youth Violence Strike Force (Gang Unit). He is a graduate of the Massachusetts School of Law with a concentration in Labor Law. He holds a Master’s Degree in Criminal Justice from the University of Massachusetts at Lowell as well as a Bachelors Degree in Political Science from the University of Massachusetts at Amherst. John has taught Defensive Tactics, Firearms, Use of Force, Applied Patrol Procedures, and Police Response to Active Shooters to sworn police officers and police academy recruits. Prior to becoming a Boston Police Officer, John served for 9 years as a police officer in Lowell, where he was a member of the Police Dive Team and Patrol Rifle Team.
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