1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-27-1996

United States v. Rybar

Precedential or Non-Precedential:

Docket 95-3185

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Recommended Citation

"United States v. Rybar" (1996). 1996 Decisions. Paper 19.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/19
Filed December 30, 1996 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 95-3185 

UNITED STATES OF AMERICA 

v. 

RAYMOND RYBAR, JR., 

 Appellant 

On Appeal from the United States District Court 

for the Western District of Pennsylvania 

(D.C. Crim. No. 94-cr-00243) 

Argued September 13, 1995 

Before: SLOVITER, Chief Judge, and ALITO, 

Circuit Judge, and RENDELL, District Judge * 

(Opinion filed December 30, 1996) 

James H. Jeffries, III (Argued) 

Greensboro, NC 27408 

 Attorney for Appellant 

Bonnie R. Schlueter 

Mary Beth Buchanan (Argued) 

Office of United States Attorney 

Pittsburgh, PA 15219 

 Attorneys for Appellee 

_________________________________________________________________ 

*Honorable Marjorie O. Rendell, United States District Judge for the 

Easter District of Pennsylvania, sitting by designation. 
OPINION OF THE COURT 

SLOVITER, Chief Judge. 

Appellant Raymond Rybar, Jr. was convicted following a 

conditional guilty plea to two counts of violating 18 U.S.C. 

§ 922(o), which makes it "unlawful for any person to 

transfer or possess a machinegun." On appeal, he argues 

that the district court erred in rejecting his challenge to 

that provision as beyond Congress' commerce power and as 

violating the Second Amendment. Neither challenge is 

persuasive. Every court of appeals that has considered a 

challenge to § 922(o) under the Commerce Clause has

upheld the constitutionality of the provision. See United 

States v. Beuckelaere, 91 F.3d 781 (6th Cir. 1996); United 

States v. Kenney, 91 F.3d 884 (7th Cir. 1996); United States 

v. Rambo, 74 F.3d 948 (9th Cir.), cert. denied, 117 S. Ct. 72 

(1996); United States v. Kirk, 70 F.3d 791 (5th Cir. 1995)1; 

United States v. Wilks, 58 F.3d 1518 (10th Cir. 1995); 

United States v. Pearson, 8 F.3d 631 (8th Cir. 1993), cert. 

denied, 114 S. Ct. 2132 (1994). Nor has Rybar presented 

any authority in support of his Second Amendment 

argument. We examine each claim in turn. 

I. 

FACTS AND PROCEDURAL HISTORY 

On April 4, 1992, Rybar, a federally licensed firearms 

dealer, attended a gun show in Monroeville, Pennsylvania, 

and had in his possession a Chinese Type 54, 7.62- 

millimeter submachine gun, serial number 2052272, which 

he offered to sell to Thomas Baublitz, who paid him and to 

whom he transferred possession. The next day, April 5, 

1992, Rybar again visited the Monroeville gun show, this 

time in possession of a U.S. Military M-3, .45 caliber 

submachine gun, serial number 216831, which he offered 

_________________________________________________________________ 

1. On March 5, 1996, the Fifth Circuit granted a rehearing en banc. See 

United States v. Kirk, 78 F.3d 160 (5th Cir. 1996).

 2 
to sell to Baublitz, who paid him for it and to whom he 

transferred possession. 

A grand jury indicted Rybar on two counts of unlawful 

possession of a machine gun in violation of 18 U.S.C. 

§ 922(o)(1) (Counts I and III), and two counts of unlawful 

transfer of an unregistered firearm in violation of 26 U.S.C. 

§ 5861(e) (Counts II and IV). Rybar moved to dismiss the 

indictment on the ground that both statutes were 

unconstitutional. While the motion was pending, the court