United States Court of Appeals
For the First Circuit
No. 23-1328
UNITED STATES OF AMERICA,
Appellee,
v.
COREY DONOVAN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Barron, Chief Judge,
Thompson and Montecalvo, Circuit Judges.
Michael G. Eaton, with whom Donna J. Brown and Wadleigh, Starr
& Peters, P.L.L.C. were on brief, for appellant.
Charles L. Rombeau, Assistant United States Attorney, with
whom Jane E. Young, United States Attorney, was on brief, for
appellee.
September 13, 2024
MONTECALVO, Circuit Judge. A jury convicted
Defendant-Appellant Corey Donovan of one count of being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and
the court sentenced Donovan to 110 months' imprisonment and three
years of supervised release. Donovan appeals both the conviction
and the sentence. On the conviction, he argues that the district
court erred by improperly allowing a witness, his girlfriend Kelley
Finnigan, to invoke a blanket Fifth Amendment privilege and by
failing to provide limiting instructions under Federal Rule of
Evidence 404(b) that he requested before trial. On the sentence,
he challenges the district court's application of a mandatory
sentencing enhancement based on its finding that two oil filters
were sufficiently modified to be considered homemade silencers.
For the following reasons, we affirm.
I. Background
On March 26, 2021, federal agents from the Bureau of
Alcohol, Tobacco, Firearms and Explosives ("ATF") executed a
search warrant of Donovan's residence, a large rural property in
Wilmot, New Hampshire.1 At the time of the search, there were
multiple cars on the property. Relevant to our discussion, the
1 While the search warrant is not at issue on appeal, it was
executed after an informant told law enforcement that Donovan was
in possession of multiple guns. When the search began, Special
Agent Forte saw ammunition in one of the vehicles on the property
and applied for and received a subsequent search warrant to search
the vehicles on the premises.
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agents searched a Jeep, which was registered to Donovan, and a
broken-down Hyundai. The agents also searched several structures
on the property, including "a large barn/woodshed."
From Donovan's Jeep, agents recovered a Mossberg model
500 20-gauge shotgun strapped to the ceiling rail of the vehicle
and twenty rounds of 20-gauge ammunition from the center console.
In the Hyundai, the agents found a box of ammunition and a gun
cleaning kit. Finally, inside the barn, the agents found a gun
case, two gauges of shotgun shells, a gun scope that had "JPM27J"
written on it, and a 20-gauge shotgun barrel. Near the gun case,
the agents found two oil filters that had been modified.
Noticeably, both oil filters had a hole drilled into them and one
had a metal plate attached to one end. The agents suspected these
modified oil filters in Donovan's possession were homemade
silencers. The agents also recovered various weapons including
knives, swords, machetes, compound bows, and crossbows throughout
the property.
Five days after the search, Finnigan, who also lives on
the property, called ATF Special Agent James Martin and claimed
that the shotgun that was seized belonged to her. The ATF later
learned that the shotgun had been stolen from its owner, Kevin
Kwiatkowski.
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II. Procedural History
As Donovan had a prior felony conviction, the government
charged him with a single count of being a felon in possession of
a firearm in violation of 18 U.S.C. § 922(g)(1).2 Prior to trial,
Donovan made a motion requesting that the court grant Finnigan
immunity for her testimony that the gun, which was stolen from its
legal owner, belonged to her. At a hearing on the motion, Donovan
argued that Finnigan's testimony was exculpatory but would expose
her to criminal liability and the prosecution's refusal to give
her immunity amounted to witness intimidation and prevented him
from mounting a defense. The district court disagreed, explaining
that it did not "see any evidence that the government attempted to
intimidate or harass a potential witness." And the court found
that the prosecution's refusal to give Finnigan immunity did not
constitute a due process violation because it did not prevent
Donovan from mounting a defense and calling other witnesses who
could testify about the ownership of the shotgun.
With regard to Finnigan's potential criminal liability,
the district court clarified that there was "evidence that
[Finnigan] ha[d] claimed the firearm as her own." The court then
2Under section 922 it is "unlawful for any person--who has
been convicted in any court of, a crime punishable by imprisonment
for a term exceeding one year[--]to . . . possess in or affecting
commerce, any firearm or ammunition. . . ." 18 U.S.C.
§ 922(g)(1).
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explained that the government and court identified "two potential
crimes" that Finnigan's testimony might unveil. First, that
Finnigan was possibly "culpab[le] . . . in connection with the
. . . theft of the firearm" and, alternatively, that she would be
criminally culpable for "providing a weapon to [Donovan,] a
convicted felon." The court noted that the appropriate question
was whether there was sufficient evidence that Finnigan would not
face "criminal exposure under [either] of the[se] theories."
During that hearing, the district court also heard
argument on Donovan's motions in limine. Donovan's counsel argued
that several pieces of evidence should be excluded under Federal
Rule of Evidence 404(b). First, the defense sought to exclude
evidence of a prior arrest where the police seized the same gun
scope that was recovered during the March 26, 2021 search. The
court allowed the prosecution to present this evidence but noted
that if Donovan wanted a limiting instruction, he "should draft it
in advance" and the court "would grant [the] limiting instruction."
The court clarified that it would be willing to give "a limiting
instruction" but the court "le[ft] it to the defense at the time
the evidence [was] offered to determine whether to request a
limiting instruction." Second, the defense sought to exclude
evidence regarding Donovan's possession of non-firearm weapons.
The district court deferred its ruling on this issue but noted
that, because the defendant was not charged with possession of
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these other weapons, the court would be willing to "give a limiting
instruction."
Before trial, Donovan filed proposed limiting
instructions for the gun cleaning kit, the bows, and a video of
him taking a routine drug test as part of his probation. The
government also filed a response with different proposed language
for the limiting instructions. Having stipulated to all other
elements of the offense, the parties proceeded to trial on a single
issue: whether Donovan possessed the shotgun.
During his testimony on October 13, 2021, Donovan's
probation officer Timothy Merna testified that Finnigan moved in
with Donovan in 2020 and Merna met Finnigan in January 2021. When
Finnigan was called to the stand, the next day, the district court
conducted the following colloquy:
THE COURT: So, Ms. Finnigan, I just want to
ask you a few questions here.
Mr. Kennedy has been appointed to represent
you. He's informed me that it is your
intention to invoke your Fifth Amendment right
to remain silent and not answer any questions
about the subject matter that's involved in
this case, that is, the charge against your
boyfriend of possession of a firearm and
ammunition by a convicted felon.
The defense has indicated that they would
intend to call you and ask you questions about
that, particularly focusing on issues like
ownership and use of the firearm and the
ammunition by you, by your boyfriend, and
other information about that particular
charge.
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And what I understand from talking to your
lawyer is that if you were asked questions
about that, your intention is to invoke your
Fifth Amendment right and not to answer any
questions about that subject matter. Is that
right?
THE WITNESS: Correct.
THE COURT: Okay. So -- so that we're clear
then, you intend to broadly invoke your Fifth
Amendment privilege as to any subject matter
involved in this case. Is that right?
THE WITNESS: Correct.
THE COURT: All right. Does counsel need to do
anything further or is that sufficient?
THE DEFENDANT: That's fine.
MR. STACHOWSKE: Your Honor, the defense is
satisfied.
On the second day of trial, the court noted that it was
preparing jury instructions using its "boilerplate instructions"
and had not "gotten any [instructions] from the parties that are
anything other than the usual set of instructions." At that time,
the government noted a proposed change to the instructions, but
the defense raised no concerns. The next day, the court gave the
parties an opportunity to review the draft jury instructions and
return "with any proposals to modify" or "supplement the
instructions." Following an off-the-record conference, the court
stated on the record that "[t]he government proposed some minor
changes to the instructions which [the court] agreed to make. [And
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defense counsel] made inquiries, which [the court] answered, about
the instructions and [the court] will make those changes and give
the instructions." The court then "advised the parties that[,] in
order to preserve any objection for purposes of appeal, they must
object at the appropriate time after [it] give[s] the instruction
before [it] send[s] the jury out to deliberate." Donovan did not
object to the jury instructions during or after the reading of the
instructions. The jury convicted Donovan.
In preparation for sentencing, United States Probation
and Pretrial Services ("Probation") prepared a Presentencing
Report ("PSR") that found that the oil filters in the barn were
homemade silencers because they had been modified from their
original design and could no longer function as automobile oil
filters. In a Report of Technical Examination, the ATF found, and
Probation later agreed, that the filters were "now designed to
function as [] firearm silencer[s] containing an expansion
chamber, a ported inner tube, and a filtering element that
functions as baffling material." Additionally, the ATF's analysis
of the filters uncovered that one contained debris, which it
explained was "indicative of fired ammunition." The ATF tested
one of the filters on a firearm, which was not the same make and
model as the gun found in Donovan's Jeep, and found that the filter
provided a decibel reduction of 4.02 decibels. Accordingly,
Probation calculated a base offense level of twenty-two and a
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two-level increase for possession of three firearms (the gun and
two silencers) pursuant to 18 U.S.C. § 921(a)(3) and U.S.S.G.
§ 2K2.1(b)(1)(A) (we will explain these sections in more detail
later on). (Citing 18 U.S.C § 921(a)(3) and U.S.S.G.
§ 2K2.1(b)(1)(A)). Donovan objected to the two-level increase.
At the sentencing hearing, the defense called firearms
expert Ralph Demicco while the prosecution called two experts from
the ATF who tested the oil filters: Gregory Stimmel, a branch
chief within the firearms ammunition technology division, and
Cynthia Wallace, a forensic chemist. After hearing testimony from
the three witnesses, the court found that the oil filters were
sufficiently modified to qualify as silencers and sentenced
Donovan to 110 months in prison, with three years of supervised
release. Donovan filed this timely appeal.
III. Discussion
Donovan lodges three challenges on appeal. He argues
that the district court erred in (1) allowing Finnigan to invoke
the Fifth Amendment, (2) failing to give his requested limiting
instructions, and (3) finding that there was sufficient evidence
to show that the oil filters were homemade silencers for the
purposes of sentencing. We consider each of these challenges in
turn below and conclude that Donovan fails to establish a basis to
disturb either the conviction or the sentence.
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A. Fifth Amendment
Donovan first argues that the district court erred by
allowing Finnigan to invoke a blanket Fifth Amendment privilege
after Donovan subpoenaed her to testify that she owned the shotgun
that Donovan was charged with possessing. He argues the court
failed to "inquire about whether [] Finnigan was invoking her Fifth
Amendment right based on concerns that she would incriminate
herself both as to the possession of the firearm and knowledge
that it was stolen." The government contends that this argument
is forfeited, as the defense did not request additional questioning
when given the opportunity or otherwise object to the district
court’s colloquy. The government insists that the colloquy was
sufficient for Finnigan to invoke her Fifth Amendment privilege
and would hold up against plain-error review.
We generally review "favorable rulings on th[e]
invocation of the Fifth Amendment privilege for abuse of
discretion." United States v. Ramos, 763 F.3d 45, 53 (1st Cir.
2014). "We will reverse a district court's determination that a
witness properly invoked the privilege only when it is 'perfectly
clear . . . that the answers [sought from the witness] cannot
possibly incriminate [the witness].'" United States v.
Acevedo-Hernández,
898 F.3d 150, 169 (1st Cir. 2018) (first
alteration in original) (quoting United States v. De La Cruz, 996
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F.2d 1307, 1312 (1st Cir. 1993)). However, our standard of review
here is impacted by an issue of preservation.
The parties dispute whether Donovan properly preserved
his challenge to Finnigan's blanket assertion of her Fifth
Amendment privilege. At the conclusion of the district court's
questioning here, the district court asked if counsel needed
"anything further" to confirm whether the colloquy was
"sufficient." The defense stated that it was "satisfied" with the
court's questioning of Finnigan before she invoked her Fifth
Amendment right. The government argues this constitutes
forfeiture; but during oral argument, the panel questioned whether
counsel's statement rose to the level of outright waiver. See
United States v. Mayendía-Blanco, 905 F.3d 26, 32 (1st Cir. 2018)
(noting that waiver occurs when a party "intentionally
relinquishe[d] or abandon[ed]" a right) (quoting United States v.
Rodriguez,
311 F.3d 435, 437 (1st Cir. 2002)); United States v.
Chen,
998 F.3d 1, 9 (1st Cir. 2021) (concluding that the defendant
waived any challenge to verdict form because "[n]ot only did
[defendant] not object to it, . . . counsel [told the court] 'We're
fine with it'" when asked if the form was acceptable); United
States v. Cezaire,
939 F.3d 336, 339 (1st Cir. 2019) (concluding
that the argument "was at least forfeited" where defense counsel
did not object and said "okay" to the court's proposed course of
action).
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"[W]e need not decide between waiver and forfeiture
because '[w]here a defendant's claim would fail even if reviewed
for plain error, we have often' simply proceeded to the merits."
United States v. Grullon, 996 F.3d 21, 32 (1st Cir. 2021) (second
alteration in original) (quoting United States v. Brake,
904 F.3d
97, 99 (1st Cir. 2018)). We do so now. Plain-error review requires
Donovan to show that "(1) an error occurred (2) which was clear or
obvious . . . (3) affected [his] substantial rights [and]
(4) seriously impaired the fairness, integrity, or public
reputation of the judicial proceedings." Universitas Educ., LLC
v. Granderson,
98 F.4th 357, 373 (1st Cir. 2024) (second alteration
in original) (quoting Nat'l Fed'n of the Blind v. The Container
Store, Inc.,
904 F.3d 70, 86 (1st Cir. 2018)).3
Donovan argues that the district court erred by allowing
Finnigan to invoke a blanket Fifth Amendment privilege based on
the colloquy the district court performed. Specifically, he
challenges whether the district court adequately inquired into
whether Finnigan faced a sufficient possibility that she would
incriminate herself. To invoke her Fifth Amendment privilege, a
witness need only show that there is a "reasonable possibility"
3 We acknowledge that Donovan waived plain error review in
failing to argue the four prongs of plain error in his opening
brief; nonetheless, we address the merits of his argument. See
Universitas Educ., LLC v. Granderson, 98 F.4th 357, 373 (1st Cir.
2024); United States v. Colón-De Jesús,
85 F.4th 15, 25 (1st Cir.
2023).
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that her testimony will expose her to potential prosecution.
United States v. Castro, 129 F.3d 226, 229 (1st Cir. 1997). The
potential for prosecution must be "substantial and 'real,' and not
merely trifling or imaginary." Marchetti v. United States,
390
U.S. 39, 53 (1968) (quoting Rogers v. United States,
340 U.S. 367,
374 (1951)).
"Assessing the danger that a witness faces 'is a
determination for the court, not the witness, to make, and [it] is
subject to the discretion of the district court.'" Ramos, 763
F.3d at 55 (quoting United States v. Pratt,
913 F.2d 982, 990 (1st
Cir. 1990)). In exercising this discretion, the judge must equally
focus on "personal perception of the peculiarities of the case"
and "the facts actually in evidence."
Id. (quoting Hoffman v.
United States,
341 U.S. 479, 487 (1951). While blanket assertions
of privilege are "extremely disfavored," United States v.
Cascella,
943 F.3d 1, 5-6 (1st Cir. 2019) (citation omitted), we
have previously allowed blanket assertions "when the district
court itself confirmed the witness's inability to offer any
relevant, non-privileged testimony."
Id. at 6. A district court
can sufficiently inform itself on the nature and extent of the
Fifth Amendment claim in "various ways." Ramos,
763 F.3d at 55.
"[I]t need only be evident from the implications of the question,
in the setting in which it is asked, that a responsive answer to
the question or an explanation of why it cannot be answered might
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be dangerous because injurious disclosure could result." Id.
(quoting Hoffman,
341 U.S. at 486-87).
Here, Donovan argues the district court erred in
allowing Finnigan's assertion because there was "no evidence that
either [Donovan] or Finnigan was involved in or knew of the theft
[of the firearm.]" While this is relevant to the question of
whether Finnigan's testimony would have exposed her to criminal
liability under 18 U.S.C. § 922(j), which criminalizes the
possession of a stolen firearm, it has no effect on her possible
liability under
18 U.S.C. § 922(d)(1).
Section 922(d)(1) makes it unlawful to knowingly furnish
a firearm to a person who has been previously convicted of a
felony. The record shows that even before the district court
conducted its colloquy, the court knew that Finnigan lived with
Donovan and had met Donovan's probation officer prior to the
execution of the March search warrant. And while Finnegan claimed
ownership of the shotgun, the shotgun was found attached to the
ceiling of Donovan's Jeep. See United States v. Sylvestre, 78
F.4th 28, 36 (1st Cir. 2023), cert. denied,
144 S. Ct. 370 (2023)
(noting "evidence was sufficient to establish constructive
possession of a gun found in car that defendant had regular access
to").
The record before us does not demonstrate that the
district court made a "clear or obvious" error in finding that
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there was a reasonable possibility Finnigan's testimony would have
exposed her to criminal liability. Universitas Educ., LLC, 98
F.4th at 373; see Acevedo-Hernández,
898 F.3d at 169. Even if we
accept Donovan's contention that the record was insufficient to
support a finding that Finnigan's testimony would have
incriminated her with respect to the possession of a stolen firearm
under
18 U.S.C. § 922(j), the record demonstrates that there was
a reasonable possibility that Finnigan's testimony would have
exposed Finnegan to potential prosecution for knowingly selling
"or otherwise dispos[ing] of" a firearm to a prohibited person
under
18 U.S.C. § 922(d)(1). When the district court made its
decision, the record showed that: Finnigan was the purported owner
of the shotgun; Finnegan lived with Donovan and was his girlfriend;
Donovan had been previously convicted of a felony; Finnigan likely
knew of his conviction, given that she met his probation officer
while Donovan was serving a sentence of supervised release; and
Finnigan's shotgun was in Donovan's constructive possession
because it was in his car.
On this record, there is a reasonable possibility that
Finnigan's "responsive answer[s]" to questions about her ownership
and possession of the shotgun and her relationship with Donovan
would have resulted in an "injurious disclosure" and "'real' . . .
hazard[] of incrimination," which is all the district court had to
ascertain before sustaining the privilege. Ramos, 763 F.3d at 55
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(first quoting Hoffman, 341 U.S. at 486-87; and then quoting
Marchetti,
390 U.S. at 53). Donovan's arguments on appeal do not
establish that the record and colloquy by the district court were
insufficient to inform the court of Finnigan's potential criminal
liability. Thus, we observe no clear or obvious error in the
district court's proceedings and decision to permit Finnegan to
invoke her Fifth Amendment privilege.
B. Limiting Instructions
Donovan next argues that the district court erred in
permitting the admission, without limiting instructions, of what
he claims is prejudicial evidence of his past conduct and the other
weapons he had in his possession at the time of the search. In
pressing this claim, Donovan assigns error to the district court's
failure to give limiting instructions both at the time the
assertedly prejudicial evidence was admitted and while the
district court was instructing the jury after the close of
evidence. Although defense counsel sought limiting instructions
during the pretrial motion hearing and filed proposed limiting
instructions before trial, defense counsel did not object to the
court's lack of "contemporaneous limiting instructions" when the
evidence was admitted. Donovan concedes that his counsel "did not
re-raise [his] requests during trial or lodge additional
objections to the jury instructions after they were given." The
government argues that Donovan's challenge to the lack of limiting
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instructions is waived because of defense counsel's failure to
contemporaneously object or submit proposed instructions during
trial. Donovan nonetheless argues that his pretrial actions
preserved his arguments on this issue.
As to Donovan's arguments on the lack of contemporaneous
limiting instructions and the inadequacy of the jury instructions,
our review here is for plain error because he failed to lodge an
objection when the evidence was admitted. See United States v.
Williams, 717 F.3d 35, 42 (1st Cir. 2013) (explaining that "[w]hen
a defendant does not interpose a contemporaneous objection to a
limiting instruction," or the lack of an instruction, we review
the unpreserved objection for plain error); United States v.
Karani,
984 F.3d 163, 174 (1st Cir. 2021) (noting that we review
unpreserved challenges to "[jury] instructions for plain error").
However, our review of the record shows more than a mere lack of
preservation. Rather, Donovan outright waived any ability to
challenge the lack of limiting instructions.
True, Donovan made objections to certain evidence and
filed proposed limiting instructions prior to trial. But Donovan
did not re-assert his objections or request or provide limiting
instructions at any point during the trial, even though the
district court had explained before trial that it would "leave it
to the defense at the time the evidence is offered to determine
whether to request a limiting instruction" because such a request
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would be "a tactical choice that counsel needs to make." Thus,
despite initially raising the issue, Donovan "relinquish[ed] or
abandon[ed]" his request for limiting instructions when he failed
to raise timely, contemporaneous objections at the time that the
assertedly problematic evidence was introduced. United States v.
Padilla-Galarza, 990 F.3d 60, 74 (1st Cir. 2021) (quoting
Rodriguez,
311 F.3d at 437). This means that Donovan's objection
to the lack of limiting instructions is waived and cannot be
resurrected now on appeal. United States v. Pelletier,
666 F.3d
1, 6 (1st Cir. 2011) (concluding that a challenge to a limiting
instruction was waived because "trial counsel was apprised of the
proposed language[ and] declined an opportunity to provide the
court with any changes, and again declined comment after the
instruction was read to the jury"). We therefore do not reach the
merits of this waived issue.
C. Sentencing Enhancement
Lastly, Donovan argues that the district court erred by
finding that the two oil filters were sufficiently modified to be
considered homemade silencers, triggering a compulsory sentencing
enhancement. We disagree. We review a sentencing judge's factual
findings for clear error and legal determinations de novo. United
States v. Ramos-Paulino, 488 F.3d 459, 463 (1st Cir. 2007). "A
question [of] whether the evidence is sufficient to support a
particular guideline determination is a question of law and,
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therefore, engenders de novo review." Id.; see also United States
v. Raiche, 50 F.4th 279, 283 (1st Cir. 2022), cert. denied,
143 S.
Ct. 835 (2023). The government must prove that a sentencing
enhancement applies to a defendant by a preponderance of the
evidence. United States v. Flete-Garcia,
925 F.3d 17, 26 (1st
Cir. 2019).
Section 2K2.1(b)(1)(A) of the United States Sentencing
Guidelines requires that a defendant receive a two-level increase
to their base offense level if there were three to seven firearms
involved in the offense. "When determining the number of firearms
involved in an offense, we consider all relevant conduct
attributable to the defendant." United States v. Ilarraza, 963
F.3d 1, 10 (1st Cir. 2020).
The term "firearm" includes "any firearm muffler or
firearm silencer." 18 U.S.C. § 921(a)(3)(C). A "firearm muffler"
or "firearm silencer," in turn, is defined as "any device for
silencing, muffling, or diminishing the report of a portable
firearm."
Id. § 921(a)(25). But the statute then also defines a
"firearm muffler" or "firearm silencer" to include not only any
"device" that can be used as-is for "silencing, muffling, or
diminishing the report of a portable firearm" that is intended to
be so used. Id. The statute also defines a "firearm muffler" or
"firearm silencer" to include "any combination of parts, designed
or redesigned, and intended for use in assembling or fabricating
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a firearm silencer or firearm muffler" as well as "any part
intended only for use in such assembly or fabrication." Id.
(emphasis added).
Donovan argues that there is insufficient evidence in
the record to support the court's finding by a preponderance of
the evidence, see Flete-Garcia, 925 F.3d at 26, that the oil
filters met the statutory definition of "firearm silencer" for the
purpose of applying the 2K2.1(b)(1)(A) sentencing enhancement.
Reviewing de novo, see Ramos-Paulino,
488 F.3d at 463, we disagree.
The two oil filters at issue were found on Donovan's
property among ammunition, the second shotgun barrel, and other
gun accessories. The oil filters were similar but had a few
physical differences. The first ("Oil Filter One") was a Fram
PH8A model oil filter that was 6-1/4 inches long and 3-1/2 inches
in diameter. Oil Filter One "ha[d] been modified from its original
manufactured design by the creation of a centrally located hole
which perforate[d] the entire . . . device." Oil Filter One was
further modified by the attachment of a piece of metal to the rear
of the filter, which the ATF expert concluded was "an improvised
adapter" that "facilitate[d] attaching [Oil Filter One] to a
portable firearm." The second oil filter ("Oil Filter Two") was
a Fram PH7317 model oil filter that was 3-3/8 inches long and 2-3/4
inches in diameter. Like Oil Filter One, Oil Filter Two had been
modified "by the creation of a centrally located hole which
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perforate[d] the entire . . . device." However, unlike Oil Filter
One, Oil Filter Two did not have any "improvised adapter" attached
to it.
At Donovan's sentencing hearing, an ATF firearms expert
testified to having personally inspected hundreds of homemade
firearm silencers and noted that individuals commonly modify oil
filters for use as firearm silencers. See also United States v.
Hay, 46 F.4th 746, 748 (8th Cir. 2022) (recounting that the ATF
had seen an increase in the sale of "'Inline Fuel Filters' that
are easily modified to be used as silencers"). The expert
testified that the holes that had been drilled through the middle
of Oil Filters One and Two would serve "no real purpose" were
either filter to be used as an oil filter, thus providing "a major
indicator" that they were intended, as modified, for use in
creating a firearm silencer.
The same expert testified to having prepared a report
summarizing analysis that he and other ATF agents had done on Oil
Filters One and Two. To test Oil Filter One's potential for use
in silencing or muffling a firearm, the expert had used a threaded
adapter to attach it to the muzzle of a pistol. While the expert
had used an adapter that was "made in-house" by the ATF, he
testified that similar adapters are available for purchase at
commercial retailers. A comparison of shots fired by the pistol
with and without Oil Filter One attached revealed that Oil Filter
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One, as modified and attached with the adapter, caused a
4.02-decibel reduction in the sound of the pistol shots -- a
significant reduction on the logarithmic scale on which firearm
decibels are measured. Thus, the ATF report concluded that Oil
Filter One was "capable of diminishing the sound report of a
portable firearm" and therefore was "a firearm silencer or firearm
muffler as defined" by 18 U.S.C. § 921(a)(25).
ATF agents did not test Oil Filter Two's potential for
use in silencing or muffling a firearm in the same way they had
tested Oil Filter One because "[t]he interior and exterior holes
[were] not lined up and testing [it] with live ammunition would
likely result in damage," and the agents wanted to preserve the
evidence. Nonetheless, based on the modifications that had been
made to Oil Filter Two -- which included the drilled hole and the
addition of "baffling material" inside the filter -- ATF agents
concluded that it was "no longer designed to function as an
automotive oil filter" and was "now designed to function as a
firearm silencer" as defined in § 921(a)(25).
A second ATF expert who testified at Donovan's
sentencing hearing explained that she had inspected Oil Filters
One and Two and found that the interior of Oil Filter One contained
residue of "suspected burned smokeless powder," lead particles,
antimony, and brass particles, which, taken together, the expert
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found indicative of ammunition having been fired into Oil Filter
One.
At oral argument, the parties discussed whether the oil
filters were identical. We recognize the importance of this
discussion because if even one of the oil filters at issue does
not qualify as a silencer, the sentencing enhancement cannot apply.
See U.S.S.G. § 2K2.1(b)(1)(A). We note that Oil Filters One and
Two are different models. And we acknowledge that while Oil Filter
One had a metal plate attached to it -- making it a "combination
of parts, designed or redesigned," which need only be "intended
for use in assembling or fabricating a firearm silencer or firearm
muffler" to meet the definition of a firearm silencer -- Oil Filter
Two did not, meaning that it, standing alone, must be a "part
intended only for use in such assembly or fabrication" to qualify
as a firearm silencer. 18 U.S.C. § 921(a)(25) (emphasis added).
In contending that the evidence was insufficient to
support a finding that either oil filter was a "firearm silencer"
as defined by § 921(a)(25), Donovan presented the testimony of his
own firearms expert. The expert testified that the oil filters,
as modified, could "not easily" be used as silencers. He also
testified that someone had drilled holes into the barrel of the
shotgun that Donovan had been convicted of illegally
possessing -- a modification which, in his opinion, was likely
made to reduce recoil and would have resulted in the shotgun making
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a "very, very loud and obnoxious" noise when it was fired. The
defense argued that the presence of the holes in the shotgun
barrel, coupled with the fact that Donovan lives on a remote
property, indicated that he would not have been concerned with
reducing the sound of the shotgun.
But this evidence does not undermine the ATF agent's
testimony that there was "no real purpose" to adding holes to the
oil filters except to use them in fabricating firearm silencers.
And that testimony, when combined with the other evidence
indicating that the oil filters were intended to facilitate the
assembly or fabrication of a firearm silencer, suffices to support
the district court's determination that a preponderance of the
evidence showed each oil filter to be a "firearm silencer" within
the meaning of § 921(a)(25). We therefore reject Donovan's
contention that the district court erred in applying the sentencing
enhancement for Donovan's possession of three to seven firearms
under § 2K2.1(b)(1)(A).
IV. Conclusion
For all these reasons, we affirm.
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