United States of America v. Modina Lim

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2419
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
M ODINA L IM ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 04-CR-185-S-01—John C. Shabaz, Judge.
____________
A RGUED O CTOBER 28, 2005—D ECIDED A PRIL 14, 2006
____________
Before E ASTERBROOK , M ANION and R OVNER , Circuit
Judges.
R OVNER , Circuit Judge. Modina Lim was convicted of
knowingly and unlawfully possessing an unregistered
sawed-off shotgun in violation of 26 U.S.C. § 5861(d). Lim
appeals the district court’s rejection of his constitutional
challenges to this statute. We affirm.
I.
On September 13, 2004, Lim brought an unregistered 12
gauge, single-shot, sawed-off shotgun into a Madison,
Wisconsin gun shop for repair. The store notified police,
who then confronted Lim. The shotgun was a Brazilian

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2 No. 05-2419
manufactured E.R. Amantino shotgun with a barrel that
had been shortened to a length of 14½ inches; the overall
length of the shotgun was 24 inches.
The National Firearms Act, 26 U.S.C. § 5801, et seq. (the
“Act”), establishes a statutory framework to ensure that
manufacturers, importers, and dealers of firearms pay a tax
upon and properly register all firearms prior to transfer.
Section 5845(a)(2) defines the term “firearm” to include, as
relevant here, “a weapon made from a shotgun if such
weapon as modified has an overall length of less than 26
inches or a barrel or barrels of less than 18 inches in
length.” Section 5811 requires the transferor to pay a tax on
each firearm transferred. Section 5841(b) additionally
requires that each transferred firearm be registered to the
transferee by the transferor in the National Firearms
Registration and Transfer Record (the “Firearms Record”).
And section 5861(d) prohibits any individual from
“receiv[ing] or possess[ing] a firearm which is not registered
to him in the [Firearms Record].”
A grand jury in the Western District of Wisconsin charged
Lim in a single-count indictment with possession of a
firearm, made from a shotgun, with an overall length of less
than 26 inches and a barrel length of less than 18 inches,
which was not registered to him in the Firearms Record in
violation of section 5861(d). Lim filed a motion to dismiss
the indictment which asserted that section 5861(d) is
unconstitutional because it: 1) is not a legitimate exercise
of Congress’s taxing power, 2) violates Lim’s Fifth Amend-
ment right against compulsory self-incrimination, and 3) is
unconstitutionally vague because the statutory definition of
the pertinent “firearm” (i.e., a sawed-off shotgun) fails to
provide a definition of “barrel” or the specific means of
measuring a shotgun barrel. The magistrate judge recom-
mended that Lim’s motion be denied, and the district court
adopted the magistrate judge’s report and recommendation.
Lim subsequently pled guilty while reserving his right to

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No. 05-2419 3
appeal the denial of his motion to dismiss. He was sen-
tenced to a 27-month prison term.
II.
A.
The United States Constitution, Art. I, § 8, cl. 1, grants
Congress the power to lay and collect taxes. Inherent in the
power to tax is the prerogative to decide what to tax and
how large of a tax to impose. Those choices will have
regulatory effects in the sense that the more heavily a
particular activity is taxed, the more people will be deterred
from engaging in that activity. Yet, the Supreme Court has
rejected the notion that the regulatory character of tax
legislation renders the legislation an invalid exercise of the
taxing power:
Every tax is in some measure regulatory. To some
extent it interposes an economic impediment to the
activity taxed as compared with others not taxed. But
a tax is not any less a tax because it has a regulatory
effect, and it has long been established that an Act of
Congress which on its face purports to be an exercise of
the taxing power is not any the less so because the tax
is burdensome or tends to restrict or suppress the thing
taxed.
Sonzinsky v. United States, 300 U.S. 506, 513, 57 S. Ct. 554,
555-56 (1937) (citations omitted). The Court has
also evinced a willingness to tolerate companion pro-
visions that are overtly regulatory so long as they have
a plausible nexus to taxation. Thus, in Sonzinsky, the Court
cited the registration provisions of an earlier version of the
Act at issue here as a legitimate exercise of the taxing
power because, notwithstanding their regulatory character,
they were “obviously supportable as in aid of a revenue
purpose.” Id. at 513, 57 S. Ct. at 555.

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4 No. 05-2419
1 The Government does not alternatively defend this Act
under the Commerce Clause, see U.S. Const., Art. I, § 8, cl.3,
and therefore we do not consider whether the Act may be sus-
tained as an exercise of congressional Commerce Clause author-
ity.
Lim contends that section 5861(d) exceeds Congress’s
taxing power because the purpose of the statute is not to
tax, but instead to prohibit the possession of certain
firearms. 1 However, when taken in context with the rest
of the statute, section 5861(d) reasonably may be construed
as “part of the web of regulation aiding enforcement of the
transfer tax provision in section 5811.” United States v.
Ross, 458 F.2d 1144, 1145 (5th Cir. 1972). Congress legiti-
mately may target for punishment the recipient of an
unregistered firearm as a means of discouraging the
circumvention of the transfer tax: “ ‘Having required
payment of a transfer tax and registration as an aid in
collection of that tax, Congress under the taxing power may
reasonably impose a penalty on possession of an unregis-
tered firearm.’ ” United States v. Gresham, 118 F.3d 258,
262 (5th Cir. 1997) (quoting Ross at 1145). Although the
transferee is not responsible for registering the firearm (and
indeed cannot do so), the Act imposes on him “an affirma-
tive duty to ensure that the weapon is properly registered
before taking possession of it.” United States v. Khatib, 706
F.2d 213, 216 (7th Cir. 1983); see also United States v.
Freed, 401 U.S. 601, 91 S. Ct. 1112 (1971); United States v.
Brown, 548 F.2d 204, 209 (7th Cir. 1977). Indeed, unregis-
tered firearms are as likely (if not more likely) to come to
the attention of law enforcement in the hands of the
transferee. Attaching criminal consequences to the posses-
sion of an unregistered weapon is thus a rational way of
discouraging the transfer of untaxed firearms. Section
5861(d) in this way encourages registration and reinforces
the revenue-generating purpose of the Act. This is a
constitutional exercise of Congress’s taxing power.

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No. 05-2419 5
2 In United States v. Ross, this circuit joined a majority of our
sister circuits in rejecting the rationale of Dalton. 9 F.3d 1182,
1193-94 (7th Cir. 1993), vacated and remanded on other grounds,
511 U.S. 1124, 114 S. Ct. 2129 (1994); see United States v. Grier,
354 F.3d 210, 214 (3d Cir. 2003) (collecting cases disagreeing with
Dalton). Instead, we chose to adopt the reasoning of United States
v. Jones, 976 F.2d 176, 183 (4th Cir. 1992). Jones held that 26
U.S.C. § 5861 and 18 U.S.C. § 922(o) are not irreconcilable
because an individual can comply with both statutes simply by
refusing to deal in machine guns manufactured after the effective
date of section 922(o). In addition, the court held that section
922(o) does not undercut the constitutional basis for registration
because the government still taxes the making of illegal machine
guns, see 26 U.S.C. § 5821, and “clearly, knowing the chain of
possession and transfer assists in determining who made the
firearm and hence is ‘supportable as in aid of a revenue purpose.’”
Jones, 976 F.2d at 183-84 (quoting Sozinsky, 300 U.S. at 513, 57
(continued...)
Lim nonetheless contends that section 5861(d) is not a
valid use of the taxing power as applied to him because it
was impossible for him to register the particular weapon he
possessed. Lim relies on United States v. Dalton, 960 F.2d
121, 123-25 (10th Cir. 1992), which held that a provision
adopted under Congress’s taxing authority loses its consti-
tutional legitimacy when the subject of the provision can no
longer legally be possessed. In Dalton, the defendant had
received and possessed a machine gun created after 1986,
an act that was forbidden by 18 U.S.C. § 922(o). Because the
statute proscribed possession of the machine gun and
therefore made it impossible for the defendant to register
the firearm, the court held that section 922(o) “ ‘removed the
constitutional legitimacy of registration as an aid to tax
[collection].’ ” Id. at 125 (quoting United States v. Rock
Island Armory, Inc., 773 F.Supp. 117, 125 (C.D.Ill. 1991),
appeal dismissed, No. 91-2595, 1991 WL 224268 (7th Cir.
Aug. 13, 1991). 2

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6 No. 05-2419
(...continued)
S. Ct. at 555). See also United States v. Rogers, 270 F.3d 1076,
1079-80 (7th Cir. 2001).
3 Wisconsin Statute 941.28(4) allows for the possession of a short-
barreled shotgun by “any person who has complied with
the licensing and registration requirements under 26 U.S.C.
§ 5801 to § 5872.”
4 Even if possession of a sawed-off shotgun were banned outright
in Wisconsin, we would still reject Lim’s reliance on Dalton
because Lim could have complied with both the registration
requirement and the ban on possession by refraining from
possessing the gun in Wisconsin. See United States v. Rogers,
supra, 270 F.3d at 1079; see also supra n.2.
Dalton, however, readily may be distinguished, because
“ ‘there is no statutory ban on the registration of short-
barreled shotguns.’ ” United States v. McCollom, 12 F.3d
968, 971(10th Cir. 1993) (quoting United States v. Tepper,
793 F.Supp. 270, 272 (D. Colo. 1992)). The lawful possession
of a sawed-off shotgun is possible under both federal law
and Wisconsin law. 3 This case is therefore akin to United
States v. Copus, which held that the logic of Dalton does not
apply when there is “no provision comparable to § 922(o)
that bans outright the possession” of the weapon involved.
93 F.3d 269 (7th Cir. 1996) (distinguishing Dalton vis-à-vis
possession of silencers). In short, “the registration of [Lim’s
sawed-off shotgun] was not a legal impossibility.”
McCollom, 12 F.3d at 971. It does not matter that Lim could
not personally register or pay the tax on the shotgun.
Dalton’s holding is limited to instances where registration
of the firearm by anyone along the chain of possession
cannot legally occur. Because at some previous point Lim’s
sawed-off shotgun could have been registered, Lim’s
reliance on Dalton fails. 4 Section 5681(d), as applied to
Lim’s possession of the sawed-off shotgun, is a valid use of
Congress’s taxing power.

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No. 05-2419 7
B.
Lim also argues that section 5861(d) is unconstitutional
because it violates his Fifth Amendment right against
compulsory self-incrimination. 26 U.S.C. § 5848 generally
prohibits the use of information supplied in compliance with
the registration requirement in a criminal prosecution of
the registrant. Nonetheless, Lim posits that the registration
mandate violates the Fifth Amendment rights of any
individual who attempts to possess a sawed-off shotgun in
violation of state law, in that the data collected by the
Internal Revenue Service pursuant to the Act could lead
state authorities to other evidence that would enable them
to establish the individual’s unlawful possession of the
firearm. However, in United States v. Freed, supra, the
Supreme Court held that the registration requirement does
not violate the Self-Incrimination Clause of the Fifth
Amendment because “the Solicitor General has advised us
that the information in the hands of the Internal Revenue
Service, as a matter of practice, is not available to state or
other federal authorities, and, as a matter of law, cannot be
used as evidence in a criminal proceeding with respect to a
prior or concurrent violation of law.” 401 U.S. at 605-06, 91
S. Ct. at 1116 (emphasis added). Although Lim contends
that the Solicitor General’s representation as to the avail-
ability of registration data was an insufficient basis for the
Court to dismiss the concern he has articulated, we are
bound by the Supreme Court’s decision in Freed, which
disposes of Lim’s argument.
C.
Finally, Lim argues that section 5861(d)’s ban on the
possession of an unregistered firearm is unconstit-
utionally vague because, with respect to sawed-off shotguns,
the statute does not define the term “barrel” or explain how
to measure the barrel of such a gun. As we have noted,

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8 No. 05-2419
section 5861(d) makes it unlawful for any person to possess
a firearm that is not registered to him in the Firearms
Record. Section 5845(a)(2) explicitly defines “firearm” to
include a sawed-off shotgun with an overall length of less
than 26 inches or a barrel length of less than 18 inches.
Although the statute itself does not specify how to measure
the exact length of a shotgun’s barrel or the total length of
the gun, the Code of Federal Regulations, 27 C.F.R.
§ 479.11, provides clear instruction in that regard.
Vagueness challenges that do not involve First Amend-
ment freedoms must be analyzed as applied to the
specific facts of the case at hand. United States v. Mazurie,
419 U.S. 544, 550, 95 S. Ct. 710, 714 (1975). A statute
may operate in an unconstitutionally vague manner if it: 1)
does not provide a person of ordinary intelligence a reason-
able opportunity to know what is prohibited, or 2) fails to
provide explicit standards to prevent arbitrary
and discriminatory enforcement by those enforcing the
statute. Karlin v. Foust, 188 F.3d 446, 458-59 (7th Cir.
1999). Lim argues that section 5861(d) is unconstitutionally
vague in the first sense because it does not provide fair
warning of what is prohibited by specifically defining how
to measure the length of the shotgun barrel.
A challenge to a statute’s vagueness “rest[s] on the lack
of notice, and hence may be overcome in any specific case
where reasonable persons would know that their conduct is
at risk.” Maynard v. Cartwright, 486 U.S. 356, 361, 108 S.
Ct. 1853, 1857 (1988); see United States v. Pitt-Des Moines,
Inc., 168 F.3d 976, 987 (7th Cir. 1999). A criminal statute
must provide notice of the prohibited conduct to
“a reasonable degree of certainty,” but “the practical
necessities of discharging the business of government
inevitably limit the specificity with which legislators can
spell out prohibitions.” Boyce Motor Lines v. United States,
342 U.S. 337, 340, 72 S. Ct. 329, 331 (1952).

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No. 05-2419 9
In United States v. Powell, the Supreme Court held that
18 U.S.C. § 1715, which prohibits the mailing of firearms
“capable of being concealed on the person,” is not unconsti-
tutionally vague as applied to the mailing of a 22 inch-long
sawed-off shotgun. 423 U.S. 87, 93, 96 S. Ct. 316, 320
(1975). Although the statute provided no specific guidance
to identify a firearm capable of concealment, the Court
nonetheless found the statute sufficiently clear as to the
conduct it prohibited:
[The statute] intelligibly forbids a definite course of
conduct: the mailing of concealable firearms. While
doubts as to the applicability of the language in mar-
ginal situations may be conceived, we think that the
statute gave respondent adequate warning that her
mailing of a 22-inch-long sawed-off shotgun was
a criminal offense.
Ibid. The Court acknowledged that Congress might have
drafted the statute in more specific terms, as by delimit-
ing the size of the firearms that could not be mailed. Id.
at 93-94, 96 S. Ct. at 320. But the fact that Congress could
have employed “ ‘[c]learer and more precise language’
equally capable of achieving the end which it sought does
not mean that the statute which it in fact drafted” was
unconstitutionally vague. Id. at 94, 96 S. Ct. at 321 (quoting
United States v. Petrillo, 332 U.S. 1, 7, 67 S. Ct. 1538, 1541
(1947)).
In the present case, the statute gave Lim more than
adequate warning of what is prohibited by defining the
minimum length of both the overall shotgun and its barrel.
In contrast to the statute at issue in Powell, section 5845
supplies the specific measurements that will bring a
shotgun within the proscribed zone. Contrary to Lim’s
argument, “barrel” is not an inherently confusing term.
Although, as Lim suggests, there may be marginal situa-
tions in which the legality of a sawed-off shotgun will

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10 No. 05-2419
depend on the particular method used to measure the barrel
length, this is not one of them: Lim’s shotgun, with an
overall length of 24 inches and barrel length of 14½ inches,
fell well short of the published minimum lengths. Just as in
Powell, Lim “has been given clear notice that a reasonably
ascertainable standard of conduct is mandated; it is for him
to insure that his actions do not fall outside the legal
limits.” Id. at 92, 96 S. Ct. at 320. Furthermore, the perti-
nent regulation serves to dispel any doubt about the legality
of a shotgun in marginal cases where the length of the
barrel falls closer to the minimum. The Supreme Court has
held that “it is [not unfair] to require that one who deliber-
ately goes perilously close to an area of proscribed conduct
shall take risk that he may cross the line.” Boyce Motor
Lines, 342 U.S. at 340, 72 S. Ct. at 331. Because the statute
provides fair warning of the type of firearm that cannot be
possessed unless it is properly registered, and the statutory
definition and regulation prevent arbitrary application,
section 5861(d) is not unconstitutionally vague as applied
to Lim’s possession of the sawed-off shotgun.

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No. 05-2419 11
III.
For the reasons we have given, we reject Lim’s challenges
to the constitutionality of 26 U.S.C. § 5861(d) and A FFIRM
his conviction.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-14-06

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