United States v. Berres, No. 14-7008 (10th Cir. 2015)
Annotate this CaseBryan Berres appealed following his conditional guilty plea to three counts of possession of an unregistered firearm in violation of 26 U.S.C. 5861(d). He raised several challenges to the validity of those counts: (1) his conviction for possessing an unregistered flash bang device violated his due process rights because it was impossible for him, as a transferee of the device, to register it; (2) two section 5861(d) counts that were based on unassembled destructive devices; (3) these charges were multiplicitous because he possessed only a single combination of parts; and (4) the trial court erred in denying his motion to suppress statements he made to a law enforcement officer while in a hospital. After review, the Tenth Circuit concluded: controlling case law distinguished between firearms that may not be registered at all because their possession is banned, and those firearms that may be registered by a maker or a transferor, even if not by a transferee. Because the flash bang at issue falls into the latter category, Berres’ argument fails. Furthermore, the Court was unpersuaded by his argument that the implementing regulations for section 5861(d) required registration only for completed devices. Because Berres was properly charged with possessing two combinations designed or intended to create two destructive devices, the Court concluded the charges were not multiplicitous. The Court also agreed with the district court that suppression was inappropriate because Berres was not in custody at the time he made the statements. The Tenth Circuit therefore affirmed the district court's judgment.
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