United States of America v. One Harrington and Richardson Rifle, Model M-14, 7.62 Caliber Serial Number 85279

*This order was originally issued as an “unpublished order” filed on
June 9, 2004. On July 8, 2004, the court designated the order as one
recommend ed for full-text publication.
**The Honorable Danny C. Reeves, United States District Judge for
the Eastern District of Kentucky, sitting by designation.
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0258P (6th Cir.)
File Name: 04a0258p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ONE HARRINGTON AND
RICHARDSON RIFLE, MODEL
M-14, 7.62 CALIBER SERIAL
NUMBER 85279,
Defendant,
MICHAEL F. BERNEY,
Claimant-Appellant.
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No. 03-2106
Filed: June 9, 2004*
Before: SILER and GIBBONS, Circuit Judges; REEVES,
District Judge.**
2 United States v. One Harrington
and Richardson Rifle
No. 03-2106
_________________
ORDER
_________________
Michael F. Berney, a Michigan resident, appeals the district
court order granting summary judgment to the United States
in this forfeiture action filed pursuant to 26 U.S.C. § 5872(a).
The parties are represented by counsel and have waived oral
argument, and the panel unanimously agrees that oral
argument is not needed. Fed. R. App. P. 34(a).
In January 2002, the Bureau of Alcohol, Tobacco, and
Firearms (ATF) seized an M-14 rifle owned by Berney. The
ATF determined that the weapon qualified as a machine gun
under the National Firearms Act (NFA) and that it was not
registered on the National Firearms Registration and Transfer
Record (NFRTR). See 26 U.S.C. § 5861(d). In December
2002, the government filed a complaint for forfeiture in rem
and moved for summary judgment. Berney, proceeding pro
se, filed a response. The district court granted summary
judgment to the United States. The court concluded that the
government had established probable cause that Berney
possessed an unregistered machine gun and that Berney had
not carried his burden of showing that his possession of the
weapon was legal. United States v. One Harrington and
Richardson Rifle, 278 F. Supp. 2d 888, 891-92 (W.D. Mich.
2003).
On appeal, Berney argues that the district court erred by
granting summary judgment to the United States because:
(1) the United States’ motion was not based upon the
pleadings, depositions, answers to interrogatories, admissions
on file, or affidavits which complied with Rule 56(e); and
(2) Berney was not provided an opportunity for discovery.
We review an order granting summary judgment de novo.
Holloway v. Brush, 220 F.3d 767, 772 (6th Cir. 2000).

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No. 03-2106 United States v. One Harrington and
Richardson Rifle
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Summary judgment is proper “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to
a judgment as a matter of law.” Fed. R. Civ. P. 56(c).
Upon review, we conclude that the district court properly
granted summary judgment to the United States. Under
26 U.S.C. § 5861(d), it is illegal for a person to possess a
machine gun that is not registered to him in the NFRTR.
Property involved in a violation of the NFA is subject to
seizure and forfeiture to the United States. 26 U.S.C.
§ 5872(a). In a civil forfeiture action, the government has the
initial burden to demonstrate probable cause to believe that
the property was used in violation of the law. 19 U.S.C.
§ 1615; United States v. Any and All Radio Station
Transmission Equip., 218 F.3d 543, 548 (6th Cir. 2000).
Once the government establishes probable cause, the burden
shifts to the claimant to prove, by a preponderance of the
evidence, that the property was not related to the violation of
federal law. 19 U.S.C. § 1615; United States v. 566
Hendrickson Blvd., 986 F.2d 990, 995 (6th Cir. 1993). “[T]he
government is entitled to a judgment of forfeiture upon an
unrebutted showing of probable cause.” Any and All Radio
Transmission Equip., 218 F.3d at 548 (quoting 566
Hendrickson Blvd., 986 F.2d at 995).
We agree with the district court that the United States
carried its burden of proof, and that Berney failed to carry his.
The ATF has classified M-14 rifles in general as machine
guns since 1958, and determined that Berney’s weapon in
particular met the statutory and regulatory definitions of a
machine gun. In response to the government’s well-supported
motion for summary judgment, Berney offered only
conclusory opinions and unauthenticated documents. See
Fed. R. Civ. P. 56(e). Moreover, even if the rifle’s capacity
to fire in full-automatic mode was destroyed as Berney
maintains, that does not refute the ATF’s finding that the rifle
4 United States v. One Harrington
and Richardson Rifle
No. 03-2106
qualified as a machine gun because it retained features
specific to the M-14 and could have been readily restored to
fire automatically. The ATF’s analysis was thorough, its
reasoning was valid, and its decision was consistent with
earlier pronouncements. See Skidmore v. Swift & Co., 323
U.S. 134, 140 (1944). Because Berney did not rebut the
government’s showing of probable cause, the government
was entitled to a judgment of forfeiture. See Any and All
Radio Transmission Equip., 218 F.3d at 548.
Berney’s argument that the United States’ motion for
summary judgment did not comply with Fed. R. Civ. P. 56(e)
is without merit. Berney waived any objections to the
materials submitted by the government when he failed to
object in the district court. See Wiley v. United States,
20 F.3d 222, 226 (6th Cir. 1994).
Berney’s argument that he was not provided an opportunity
for discovery is also without merit. He failed to preserve the
issue for appellate review because he did not file an affidavit
in the district court detailing the discovery needed and
demonstrating specific reasons why he could not oppose the
government’s motion and how postponement of a ruling
would have enabled him to rebut the government’s showing
of the absence of a genuine issue of fact. See Fed. R. Civ. P.
56(f); Emmons v. McLaughlin, 874 F.2d 351, 357 (6th Cir.
1989).
For the foregoing reasons, we affirm the district court’s
decision.
ENTERED BY ORDER OF THE COURT
/s/ Leonard Green
__________________________________
Clerk

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