*

This order was originally issued as an “unpublished order” filed on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

recommended for full-text publication.

**The Honorable Danny C. Reeves, United States District Judge for

the Eastern District of Kentucky, sitting by designation.

1

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).
No. 03-2106 United States v. One Harrington and

Richardson Rifle

3

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