* This order was origi nall y is sued as an“unpu bli shed or der” f

il ed on June 9, 2004. On J uly8, 2004, the court designated the order as one recommend ed for full -text publication.

** The Honorable Danny C. Reeves , Unit ed States Dist ric t Ju dge f

or the Eastern Distri ct of Kentucky, si tting by designation. 1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206 ELECTRO NIC CIT

ATION: 2004 FED App . 0258P (6th C ir.) File Name: 04a02 58p.06


### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________ U NITED S TAT ES OF A MERICA ,

Plaintiff-Appellee,

v.
O NE H ARRI

NGTON AND R ICHA RDSON R IFLE , M ODEL M-14, 7.62 C ALIBER S ERI AL N UMBER 85279, Defenda nt,

M ICHAEL F. B ERNEY ,

Claimant-A

ppellant. X

- - - -> , - - - - - - - - - - N No. 03-2106

Filed: June 9, 2004 *
Befor e: SIL ER and GI

BBONS, Circuit Judges; REEVE S, District Judge. ** 2 United States v. One Harrington and Richa rdson Rifle No. 03-2106

_________________ ORDER

_________________ Michael F. Berney, a Michigan resident, appeals the district court or der gr anting s ummary judgmen t to the United States inthis forfeiture action filed pursuant to 26 U.S.C. § 5872(a). The parties are represented by counsel and have waived oral argume nt, an d th e panel unanimously ag rees that oral argument is not needed. Fed. R. App. P. 34(a).
InJanuary 2002, the Bur eau of Alcohol, Tobac c o, and Firear ms (ATF) s eized an M -14 rifle ow ne d b y Be rn ey. The ATF determined that

the wea pon qualif

ied as a machine gun under the Nationa l Fi r earms Act (NFA) and that it was not registered on the National Firearms Registration and Tra nsfer Record (NFRTR). See26 U.S.C. § 5861(d). In December 2002, the government filed a complaint for forfe iture in rem and moved for summary judg ment. B erney , proceeding pro se, filed a r esponse. The district court granted summary judgment to the United States. The court concluded that the government

had established probable cause t ha t Berney possessed an unregistered machi

ne gun and that Berney

had notcarri e d his burden of showing that his possession of the we apon was legal. United States v. One Harrington and Richardso n Rifle , 278 F. Supp. 2d 888, 891-92 (W.D. Mich. 2003). On app eal, Berney

argues that the district court erred by granting summary judgme

nt to the U nit ed States because: (1) the United States’ motionwas no t based upon the pleading s, dep ositions, answ ers to interrogatories, admissions onfile, or affidavits which complied w it h Rule 56(e); and (2 ) B er ne y wa s n ot pr ov id ed an op po rt un it y fo r d is co ve ry. We review an order granting summary judgme

nt de novo. H ollowayv. Brush , 220 F.3d 767, 772 (6th Cir. 2000).No. 03-2106 United States v. One Harrington and Richardso n Rifle 3

Su mmary judgmen

t is prope r “if the pleading s, deposit

ions, ans wers to interrogatories, and admissions on file, toget he r with the affidavits, if any , show that there is no genuine issue as to any material f

act and that the moving pa

rty is entitle d to a judgment as a matter of law.” Fe d. R. Civ. P. 56(c). Uponreview, we conc lude that the distri ct court

p ro perly granted summary

ju dgm ent to the United States. Under 26 U.S. C. § 5 861(d ), it i s ill ega l for a per son to posse ss a machine gun that is not registered to h im in the NF RTR. Property involved i

n a violat

ion of the

NFA is sub

ject t o seizure and forf

eitur e to the Un

ited State s. 26 U.S.C. § 5872(a). In a civil forfeiture a ction, the government has the init ial burden to

demonstr

ate prob able ca

use to bel ieve th a t the propert

y was used

in violation of the la

w. 19 U.S.C

. § 1615; United States v. Any and All Rad io Station Transmission Equip. , 218 F.3d 543, 548 (6th Cir. 2000). Once the gov ernment

establishes proba

ble cause, the burden shifts to t he clai mant to prove, by a pr eponderance of the evidence, that the property was not related to the violation of federallaw. 19 U.S.C. § 1615; United States v. 566 Hendrickson Blvd. , 986 F.2d 990, 995 ( 6th

Cir. 1993). “[T]he governmen

t is ent itled to a judgment of forfeiture upon an unrebutt eds howing of probable cause.” Any and Al l Radio Transmission Equip. , 218 F.3d a t 548 (quot ing 566 Hendrickson Blvd. , 986 F.2d at 995).
We agree with the di strict 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 gene ra l as machine guns si nce 1958 , and dete rmined tha

t Berne y’ s weapon

in particular m et the statutory and re gulatory definitions of a machine gun. I

n respons e to the g overnme nt’s w ell-suppo rted motion for summary judg ment, Berney

offe redonly conclusory

opinions a nd unauthenticated documents. See Fed. R. Civ. P . 56( e). More over, even if the rifle’s capaci ty to fire in full-automatic mode was de str oyed as B erney maintains , that does not refute the ATF’s finding that the r ifle 4 United States v. One Harrington and Richa rdson Rifle No. 03-2106

qualified as a machine gun because it re tained features specific to the M-14 and could have been readily restore d to f ire automatically. The AT F’s analy sis was thorou gh, it s reasoningwas valid , and its de cision wa s consiste nt with earlier pronouncements. See S kidmore v. Swift & Co. , 323 U.S. 134, 1 40 (1944). Because Ber ney did not rebut the gove rnme nt’s showing of probable cause, the g overnment was ent itled to a judgment of forfeiture. See Any and All Radio Transmission Equip. , 218 F.3d at 548. Berney ’s argume

nt t hat the United States’ motion for summary judgment did not comply with Fe d. R. Civ. P. 56(e) is wi thout me rit. Berney waived any

objections to the materia ls submitted by the gover nment when he failed t o 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 provid

ed an opp ortunity for discover y is also witho

ut merit. H e failed

to preserve the issue for appella te revie w becau se he did not f

ile an af fidavit inthe district court detai lin g the discovery needed and demonstratingspecific reasons why he could not oppose the government’s motion and h ow p ostponement of a ruling would have enabled

him to rebut the government’s showing of the absence of a genuine issue of fact. SeeFed. R. Civ. P. 56(f); Emmons v

. McLaugh lin , 874 F. 2d 351, 357 (6th Cir. 1989).
For the foregoing reas on s, we affirm the district court’s decision.
ENTERED B Y ORDER OF THE COURT

/s/ Leonard Green

__________________________________

Clerk