USA v. Moore

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
UNITED STATES OF AMERICA 	PLAINTIFF
V. 	CASE NO. 5:25-CR-50058
ADRIAN SCOTT MOORE 	DEFENDANT
OPINION AND ORDER
Currently before the Court are Defendant Adrian Scott Moore’s Motion to Dismiss
Indictment and Brief in Support (Doc. 28), the Government’s Response in Opposition
(Doc. 31), and Mr. Moore’s Reply (Doc. 33). For the reasons stated below, the Motion is
DENIED.
Mr. Moore moves to dismiss the two-count Indictment charging him in Count 1 with
possession of a machinegun in violation of 18 U.S.C. §§ 922(o) and 924(a)(2) and in
Count 2 with possession of an unregistered machinegun in violation of 26 U.S.C. §§ 5841,
5861(d), and 5871. He contends that both charges are unconstitutional because the
Second Amendment to the United States Constitution presumptively permits him to
possess a machinegun. In addition, he maintains that prosecuting him for possessing an
unregistered machinegun in Count 2 violates his due process rights under the Fifth
Amendment. Lastly, he points out Counts 1 and 2 are multiplicitous, so charging them
both in the same indictment violates his right to be free from double jeopardy. The
Government responds that Mr. Moore’s Second Amendment and due process arguments
are foreclosed by binding Eighth Circuit precedent, and his double jeopardy argument is
premature and would only apply if he were convicted of both crimes.
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According to police reports, Mr. Moore went out to dinner with his wife at Pavilion
Buffet on February 20, 2025. He was armed with a handgun equipped with a “Glock
switch” that converted it from a standard pistol to a fully automatic machinegun. The
weapon 	was 	loaded with 	thirteen 	rounds of 	ammunition. After eating, 	Mr. 	Moore
inadvertently left the weapon behind at his table and did not realize it until the following
morning. When he returned to the restaurant, he learned that employees had already
called the police. He admitted to police that he had purchased the Glock-switch
attachment from an online store called AliExpress and produced his receipt. See Doc. 28,
p. 3. He is now perplexed as to how an “embarrassing oversight” has resulted in federal
charges. Id. at p. 2.
Mr. Moore’s first argument in favor of dismissing the Indictment is that he has a
Second Amendment right to possess a pistol equipped with a machinegun conversion
device. The Eighth Circuit has held otherwise. In United States v. Fincher, the Court of
Appeals determined that possessing a machinegun “is not protected by the Second
Amendment” as such weapons “are not in common use by law-abiding citizens for lawful
purposes and therefore fall within the category of dangerous and unusual weapons that
the government can prohibit for individual use.” 538 F.3d 868, 874 (8th Cir. 2008). Mr.
Moore argues that Fincher is no longer good law because the decision turned on whether
possession of a firearm is reasonably related to a well-regulated militia, and the Supreme
Court’s decision in New York State Rifle & Pistol Association, Inc. v. Bruen establishes
that the right to bear arms “does not depend on service in the militia.” 597 U.S. 1, 20
(2022). Rather, courts must follow a two-pronged analysis considering first, whether the
Amendment’s plain text covers possession of the challenged weapon, and second,
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whether regulating possession of the weapon “is consistent with this Nation’s historical
tradition of firearm regulation.” Id.
This Court is unpersuaded that Fincher’s holding has been called into question by
Bruen. Two years after Bruen was decided, the Eighth Circuit reaffirmed Fincher in a brief
per curiam opinion filed in United States v. Dolphin, a case where the defendant argued—
as Mr. Moore does here—that his conviction for machinegun possession violated the
Second Amendment. 2024 WL 4799546, at *1 (8th Cir. Nov. 15, 2024) (per curiam). The
Dolphin court affirmed the conviction, citing Fincher for the basic proposition that
possession of machineguns was “not protected by the Second Amendment.” Id. Then,
about six months ago, the Eighth Circuit issued a more fulsome explanation of its decision
in Fincher, reiterating that the case remained correctly decided—even after Bruen—
because its “holding relied on the plain text of the Second Amendment, which the
Supreme Court later characterized [in Bruen] as the ‘first step’ in a proper Second
Amendment analysis.” United States v. Charles, 159 F.4th 555, 546–47 (8th Cir. 2025)
(quoting Bruen, 597 U.S. at 24). Accordingly, Fincher remains good law,1 and district
courts like this one are “bound . . . to apply the precedent of this Circuit.” See Hood v.
United States, 342 F.3d 861, 864 (8th Cir. 2003).
Next, the Court turns to Mr. Moore’s contention that Count 2, which charges him
with possessing an unregistered machinegun, violates his due process rights. In support
1 Multiple other appellate courts are in lockstep with Fincher. See, e.g., United States v.
One (1) Palmetto State Armory PA-15 Machinegun Receiver/Frame, Unknown Caliber
Serial No. LW001804, 822 F.3d 136, 141–43 (3d Cir. 2016); United States v. Simmons,
143 F.4th 200, 207 (4th Cir. 2025); United States v. Bridges, 150 F.4th 517, 522–29 (6th
Cir. 2025); United States v. Henry, 688 F.3d 637, 639–40 (9th Cir. 2012); United States v.
Morgan, 150 F.4th 1339, 1345 (10th Cir. 2025).
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of this argument, he relies exclusively on a Tenth Circuit case from 1992 called United
States v. Dalton, 960 F.2d 121, 126 (10th Cir. 1992). The Dalton court overturned a
defendant’s conviction for possession of an unregistered machinegun, reasoning that it
would be impossible to comply with a legal obligation to register a machinegun when it is
illegal to even possess such a weapon. See id. Of course, Dalton is not an Eighth Circuit
opinion, and what’s more, the Eighth Circuit has expressly declined to follow it. See United
States v. Elliott, 128 F.3d 671, 672 (8th Cir. 1998) (finding a defendant can comply with
the registration requirement “by simply refusing to possess the machinegun”); United
States 	v. 	Walker, 	428 	F.3d 	1165, 	1172 	(8th 	Cir. 	2005) 	(“We 	have 	declined 	to
follow Dalton, reasoning that even if a firearm cannot be registered, an individual could
still comply with the law by not taking possession of it.”). Accordingly, the Court declines
to dismiss Count 2 as violative of Mr. Moore’s due process rights.
His final argument is that the Indictment violates the Double Jeopardy Clause of
the Fifth Amendment because Count 1 is a lesser-included offense of Count 2. However,
the Government “is free to prove a defendant's liability for one criminal offense using
multiple theories of guilt.” United States v. Platter, 514 F.3d 782, 786 (8th Cir. 2008). And
“[a]lthough the double jeopardy clause forbids prosecution for the greater offense after
conviction of the lesser offense, . . . it is not infringed by merely charging both offenses in
a single indictment where no multiple punishment results.” Arnold v. Wyrick, 646 F.2d
1225 (8th Cir. 1981) (emphasis added). The double jeopardy claim is premature and
therefore dismissed.
IT IS THEREFORE ORDERED that Defendant Adrian Scott Moore’s Motion to
Dismiss Indictment (Doc. 28) is DENIED.
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IT IS SO ORDERED on this 4 th day of May, 2026.
___________________
TIMOTHY L. BROOKS
CHIEF UNITED STATES DISTRICT JUDGE
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