                               COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judges Elder and Petty
Argued at Charlottesville, Virginia


LAWRENCE L. HUVER, III
                                                             MEMORANDUM OPINION * BY
v.     Record No. 0276-08-4                                    JUDGE LARRY G. ELDER
                                                                  MARCH 10, 2009
COMMONWEALTH OF VIRGINIA


                     FROM THE CIRCUIT COURT OF CULPEPER COUNTY
                                  John R. Cullen, Judge

                 Kirk T. Milam (The Law Office of Kirk T. Milam, P.L.C., on briefs),
                 for appellant.

                 Jennifer C. Williamson, Assistant Attorney General (Robert F.
                 McDonnell, Attorney General, on brief), for appellee.


       Lawrence L. Huver, III (appellant), appeals from his bench trial conviction for possessing

a firearm silencer not registered to him in the National Firearms Registration and Transfer

Record, a federal registry established by federal law, see 26 U.S.C. § 5841 (2006), in violation of

Virginia’s Code § 18.2-308.6. On appeal, he contends Code § 18.2-308.6 violates the

Supremacy Clause. He also contends the evidence was insufficient as a matter of law to prove

the silencer was not registered to him. 1 We hold the appeal lacks merit, and we affirm.




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
          Appellant also argues on brief the evidence failed to prove the item was an operational
silencer or that appellant possessed the item. As the Commonwealth correctly points out,
however, this Court rejected both these aspects of the sufficiency claim at the petition stage.
Thus, in this appeal, we do not consider the sufficiency of the evidence to prove these elements
of the offense.
                                                  I.

       Code § 18.2-308.6 provides “It shall be unlawful for any person to possess any firearm

muffler or firearm silencer which is not registered to him in the National Firearms Registration

and Transfer Record [(NFRTR)]. A violation of this section shall be punishable as a Class 6

felony.” See 1990 Va. Acts., ch. 413 (enacting Code § 18.2-308.6). The NFRTR was created in

1968 when Congress, through a series of amendments to the National Firearms Act of 1934,

“set[] forth a comprehensive scheme [for] assessing taxes on importers, manufacturers, and

dealers in firearms and provid[ed] a registration scheme for the same.” Oefinger v. Zimmerman,

601 F. Supp. 405, 408 (W.D. Pa. 1984). The present federal statutory scheme, referred to as the

National Firearms Act of 1968 2 (the Act), see 26 U.S.C. § 5849 (2006), requires registration of

certain items defined as firearms, including firearm silencers, and payment of a tax thereon in

certain circumstances, e.g. 26 U.S.C. §§ 5821, 5841, 5845 (2006), and it proscribes, inter alia, a

person’s (1) “mak[ing of] a firearm in violation of [the Act],” which requires advance

registration, as well as (2) “possess[ion of] a firearm which is not registered to him in the

[NFRTR],” 26 U.S.C. §§ 5822, 5861(d), (f) (2006).

                                                 A.

                      CODE § 18.2-308.6 & THE SUPREMACY CLAUSE

       The Supremacy Clause

               “provides Congress with the power to pre-empt state law.
               Pre-emption occurs when Congress, in enacting a federal statute,
               expresses a clear intent to pre-empt state law, when there is
               outright or actual conflict between federal and state law, where
               compliance with both federal and state law is in effect physically
               impossible, where there is implicit in federal law a barrier to state

       2
         Except as noted, infra, the NFRTR and the National Firearms Act, see Gun Control Act
of 1968, Pub. L. No. 90-618, § 201, 82 Stat. 1227, have, in all parts relevant to this appeal,
remained unchanged since 1968. Appellant was born in 1979. The act of possession upon which
his conviction was based occurred on or about February 7, 2007.

                                                -2-
               regulation, where Congress has legislated comprehensively, thus
               occupying an entire field of regulation and leaving no room for the
               States to supplement federal law, or where the state law stands as
               an obstacle to the accomplishment and execution of the full
               objectives of Congress.”

Carter v. Commonwealth, 25 Va. App. 721, 723-24, 492 S.E.2d 480, 481 (1997) (quoting La.

Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 368-69, 106 S. Ct. 1890, 1898, 90 L. Ed. 2d 369,

381-82 (1986) (citations omitted)).

       Appellant does not argue that Congress’s enactment of the National Firearms Act was

intended to preempt all state regulation of firearms, only that it preempts “all matter regarding

registration . . . and enforcement [under] the National Firearms Act,” including the NFRTR.

Appellant cites, inter alia, a provision of the Act “limit[ing] use of information from the

[NFRTR] and applications for registration in criminal proceedings.” See 26 U.S.C. § 5848

(2006). Appellant argues that the General Assembly would be free to establish a similar state

registry and to punish possession of firearms not registered in accordance with state registry

requirements but that it is not free to proscribe possession of firearms not registered in

accordance with federal registration requirements. However,

               in all pre-emption cases, and particularly in those in which
               Congress has “legislated . . . in a field which the States have
               traditionally occupied,” we “start with the assumption that the
               historic police powers of the States were not superseded by the
               Federal Act unless that was the clear and manifest purpose of
               Congress.”

Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S. Ct. 2240, 2250, 135 L. Ed. 2d 700, 715

(1996) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S. Ct. 1146, 1152, 91

L. Ed. 2d 1447, 1459 (1947)). The law at issue here, the National Firearms Act of 1934, as

amended, was enacted to assist the states with the effort to deal with the “emergence of

organized crime as a major national problem” and “[r]epresented the first major federal attempt



                                                -3-
to regulate firearms,” Lomont v. O’Neill, 285 F.3d 9, 11 (D.C. Cir. 2002), an area traditionally

falling under state police powers.

       Appellant concedes federal law does not expressly preempt Code § 18.2-308.6, but he

contends that code section conflicts with federal law because the penalties for violating the state

and federal statutes are different. However, here, as in Carter, “[a]ppellant cites no authority,

and we have found none,” to support the claim that federal and state statutes conflict merely

because they prescribe different penalties. Carter, 25 Va. App. at 725, 492 S.E.2d at 481. Thus,

we conclude that no direct conflict exists between the federal and state law.

       Further, the mere fact that Congress enacted legislation requiring the registration of

certain firearms in the NFRTR and proscribed a penalty for possessing firearms not properly

registered thereunder does not implicitly preempt any state laws also proscribing the possession

of firearms not registered under the NFRTR. See Wayne R. LaFave & Austin W. Scott, Jr.,

Substantive Criminal Law § 3.6(b), at 258 (2d ed. 2003) (noting it is not unusual for state and

federal statutes to punish identical or substantially identical conduct under the theory that the

statutes do not conflict and Congress did not intend to make federal law exclusive). California v.

Zook, 336 U.S. 725, 69 S. Ct. 841, 93 L. Ed. 1005 (1949), for example, involved a challenge to a

California statute that prohibited “the sale or arrangement of any transportation over the public

highways of the State if the carrier ha[d] no permit from the Interstate Commerce Commission.”

The state statute had “substantially the same provision” as “[t]he federal Motor Carrier Act.” Id.

at 726-27, 69 S. Ct. at 842, 93 L. Ed. at 1008. In rejecting the Supremacy Clause challenge, the

Court noted “there is no conflict in terms, and no possibility of conflict, for the state statute

makes federal law its own in this particular.” Id. at 735-38, 69 S. Ct. at 846-48, 93 L. Ed. at

1012-14.




                                                 -4-
       The existence of 26 U.S.C. § 5848 also does not implicitly preempt Code § 18.2-308.6.

That federal statute, first enacted in 1968, provides as follows:

               (a) General Rule. No information or evidence obtained from an
               application, registration, or records required to be submitted or
               retained by a natural person in order to comply with any provision
               of this chapter [establishing the NFRTR] or regulations issued
               thereunder, shall, except as provided in subsection (b) of this
               section, be used, directly or indirectly, as evidence against that
               person in a criminal proceeding with respect to a violation of law
               occurring prior to or concurrently with the filing of the application
               or registration, or the compiling of the records containing the
               information or evidence.

               (b) Furnishing False Information. Subsection (a) of this section
               shall not preclude the use of any such information or evidence in a
               prosecution or other action under any applicable provision of law
               with respect to the furnishing of false information.

26 U.S.C. § 5848 (2006) (enacted by the Gun Control Act of 1968, Pub. L. No. 90-618, § 201, 82

Stat. 1227, 1232). The Supreme Court has further recognized that “as a matter of

[administrative] practice,” “[this] information in the hands of the Internal Revenue Service . . . is

not available to state or other federal authorities.” United States v. Freed, 401 U.S. 601, 605-06,

91 S. Ct. 1112, 1116, 28 L. Ed. 2d 356, 360 (1971).

       Congress enacted 26 U.S.C. § 5848 as part of its effort to address the Court’s earlier

decision in Haynes v. United States, 390 U.S. 85, 100-01, 88 S. Ct. 722, 732, 19 L. Ed. 2d 923,

934-35 (1968), which had held that provisions of the Act allowing the sharing of registration

information with state, local, and other federal officials violated the applicant’s Fifth

Amendment right against self-incrimination. Freed, 401 U.S. at 602-04 & n.1, 91 S. Ct. at 1115

& n.1, 28 L. Ed. 2d at 358-59 & n.1. Thus, Congress’s enactment of 26 U.S.C. § 5848 does not

indicate an intent by Congress to preempt state statutes proscribing the possession of firearms not

registered under the NFRTR. Although, in practical effect, the provisions of § 5848 make it

harder for a state to prove a failure to register under the NFRTR, see infra Part I.B., neither

                                                 -5-
§ 5848 nor the related administrative practice recognized in Freed prevents a state from offering

evidence, as it did in appellant’s case, to prove that an application was not filed, as long as the

state does not seek to do so through an examination of the registration information actually

contained in the NFRTR. Thus, given the events surrounding the passage of § 5848, we

conclude its enactment does not constitute an implicit indication of federal preemption of the

offense prescribed in Code § 18.2-308.6.

       Finally, the federal regulations adopted pursuant to the Act have provided as follows

since 1971:

                      Special tax stamps [provided to those who register under
               the Act] are merely receipts for the tax. Payment of tax under
               Federal law confers no privilege to act contrary to State law. One
               to whom a special tax stamp has been issued may still be
               punishable under a State law prohibiting or controlling the
               manufacture, possession or transfer of firearms.

36 Fed. Reg. 14,256 (Aug. 3, 1971) (codified at 27 C.F.R. § 179.52); 40 Fed. Reg. 16,835 (Apr.

15, 1975); 66 Fed. Reg. 3,752 (Jan. 24, 2003) (codified at 27 C.F.R. § 479.520). Although

Congress has amended various provisions in Chapter 53 of Title 26 on at least two occasions

since then, see Tax Reform Act of 1976, Pub. L. No. 94-455, § 1906(b), 90 Stat. 1520, 1834-35;

Firearms Owners’ Protection Act, Pub. L. No. 99-308, § 109, 100 Stat. 449, 460 (1986), it has

taken no steps to counteract the effects of this regulation. Cf. Weathers v. Commonwealth, 262

Va. 803, 805, 553 S.E.2d 729, 730 (2001) (“When the General Assembly acts in an area in which

one of its appellate courts already has spoken, it is presumed to know the law as the court has

stated it and to acquiesce therein, and if the legislature intends to countermand such appellate

decision it must do so explicitly.”).

       Thus, we conclude that nothing in the Act preempts the Commonwealth from also

proscribing possession of weapons not registered in the NFRTR in compliance with the Act.



                                                 -6-
                                                   B.

                               SUFFICIENCY OF THE EVIDENCE

        Appellant challenges both the trial court’s denial of his motion to strike at the close of the

Commonwealth’s case-in-chief and the sufficiency of all the evidence to support his conviction.

However, it is well settled that when a defendant chooses to present evidence after the denial of a

motion to strike the Commonwealth’s evidence, he thereby “waives his right to stand upon such

a motion.” Spangler v. Commonwealth, 186 Va. 436, 438, 50 S.E.2d 265, 266 (1948). As the

Supreme Court recognized in Spangler, a plaintiff’s case “may be strengthened by the

defendant’s evidence,” and when a defendant again challenges the sufficiency of the evidence

after presenting his own case, “the court must consider the entire record in reaching its

conclusion.” Id.; see also White v. Commonwealth, 3 Va. App. 231, 233, 348 S.E.2d 866, 867

(1986). Thus, when appellant chose to present evidence in his own behalf, he waived the right to

stand on his motion to strike the Commonwealth’s evidence, and we consider only his challenge

to the sufficiency of the evidence as a whole.

        In reviewing the sufficiency of the evidence as a whole on appeal, we view it in the light

most favorable to the Commonwealth, granting to the evidence all reasonable inferences fairly

deducible therefrom. E.g. Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418

(1987). “Circumstantial evidence is as competent and is entitled to as much weight as direct

evidence, provided it is sufficiently convincing to exclude every reasonable hypothesis except

that of guilt.” Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983). In its

role of judging witness credibility, the fact finder is entitled to disbelieve, in whole or in part, the

self-serving testimony of the accused and to conclude that the accused is lying to conceal his

guilt. Speight v. Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98 (1987) (en banc); see

Tarpley v. Commonwealth, 261 Va. 251, 256-57, 542 S.E.2d 761, 764 (2001) (noting the fact

                                                  -7-
that an accused lied provided a basis for rejecting the accused’s testimony but was not

substantive evidence of guilt).

       As Code § 18.2-308.6 implies, the requirement of the Act that specified firearms be

registered in the NFRTR expressly includes “any silencer” as defined in 18 U.S.C. § 921 (2006),

see 26 U.S.C. § 5845(a)(7) (2006), which is “any device for silencing, muffling, or diminishing

the report of a portable firearm, including any combination of parts, designed or redesigned, and

intended for use in assembling or fabricating a firearm silencer or firearm muffler, and any part

intended only for such use in such assembly or fabrication,” 18 U.S.C. § 921(a)(24). See Gun

Control Act of 1968, Pub. L. No. 90-618, § 201, 82 Stat. 1227, 1230 (including within the

NFRTR’s definition of “firearm” “a muffler or a silencer for any firearm whether or not such

firearm is included within this definition”); see also Firearms Owners’ Protection Act, Pub. L.

No. 99-308, § 101(6), 100 Stat. 449, 451 (1986) (amending 18 U.S.C. § 921(a) and 26 U.S.C.

§ 5845(a)(7) to add the current definition of “silencer” to Title 18 and incorporate it into the Act

in Title 26). “The term ‘make,’ and the various derivatives of such word,” as defined in the

NFRTR, “include[s] manufacturing (other than by one qualified to engage in such business under

this chapter), putting together, altering, any combination of these, or otherwise producing a

firearm.” 26 U.S.C. § 5845(i) (2006); 26 U.S.C. § 5845(i) (1976).

       With regard to registration, the Act provides as follows:

                       No person shall make a firearm unless he has (a) filed with
               the Secretary a written application, in duplicate, to make and
               register the firearm on the form prescribed by the Secretary;
               (b) paid any tax payable on the making and such payment is
               evidenced by the proper stamp affixed to the original application
               form; (c) identified the firearm to be made in the application form
               in such manner as the Secretary by regulations may prescribe;
               (d) identified himself in the application form in such manner as the
               Secretary by regulations may prescribe, except that, if such person
               is an individual, the identification must include his fingerprints and
               his photograph; and (e) obtained the approval of the Secretary to

                                                -8-
                make and register the firearm and the application form shows such
                approval.

26 U.S.C. § 5822 (2006); see 26 U.S.C. § 5822 (1970) (using identical language except that the

phrase “or his delegate” appeared after the word “Secretary” and was struck by the 1976

amendments, Tax Reform Act of 1976, Pub. L. No. 94-455, § 1906(b), 90 Stat. 1520, 1834).

The Act also requires that “anyone making a firearm shall identify each firearm . . . made by

serial number which may not be readily removed, obliterated or altered, the name of the . . .

maker, and such other identification as the Secretary may by regulations prescribe.” 26 U.S.C.

§ 5842(a) (2006); 26 U.S.C. § 5842(a) (1976).

        The regulations applicable since 1978 have required that one seeking to make a firearm

shall file with the Director of ATF “a written application on Form 1 (Firearms), Application to

Make and Register a Firearm.” 27 C.F.R. § 479.62 (2008); 27 C.F.R. § 179.62 (1978). In

keeping with the applicable statutes, if the applicant is an individual, that application must

include both a photograph of the applicant and his fingerprints on “two properly completed FBI

Forms FD-258 (Fingerprint Card).” 27 C.F.R. § 479.63 (2008); see 27 C.F.R. § 179.63 (1978)

(requiring only that fingerprints “must be clear for accurate classification and should be taken by

someone properly equipped to take them”); 53 Fed. Reg. 10,509 (Mar. 31, 1988) (Treasury

decision ATF-270 adding specific reference to FBI fingerprint forms). The application must

include the certification of “the local chief of police, sheriff of the county, head of the State

police, State or local district attorney or prosecutor, or such other person who in a particular case

[is] acceptable to the Director.” 27 C.F.R. § 479.63 (2008); see 27 C.F.R. § 179.63 (1978)

(listing United States Attorney and marshal and not listing state prosecutor). That official’s

certificate is required to “state that the certifying official is satisfied that the fingerprints and

photograph accompanying the application are those of the applicant and that the certifying

official has no information indicating that possession of the firearm by the maker would be in
                                                   -9-
violation of State or local law or that the maker will use the firearm for other than lawful

purposes.” 27 C.F.R. § 479.63 (2008); see 27 C.F.R. § 179.63 (1978). Once the firearm has

been authorized and made, the maker must “legibly identify” the item by “conspicuously”

placing on the item both a serial number and “the name” of the maker. 27 C.F.R. § 479.102(a)

(2008); see 27 C.F.R. § 179.102 (1978).

       Here, it is undisputed that appellant made the PVC item the trial court found to be a

silencer. When appellant was asked at trial if he “ever submitted an application to the ATF to

register [the item] as a silencer,” he responded, “In the state of Virginia, no.” Additional

evidence established that appellant moved to Virginia in late 2001 and had resided in Virginia

since that time. He met his wife, Ginger Huver, in 2002 after moving to Virginia and married

her in approximately 2003. The trial court relied on evidence that the rifle to which the silencer

was attached “was purchased when Ms. Huver was present,” and on that basis, the court

concluded the evidence went “well beyond what’s necessary to find [appellant] guilty beyond a

reasonable doubt” on the charge of possessing an unregistered silencer.

       Even assuming the evidence was sufficient to prove appellant made the silencer after

purchasing the rifle, the evidence was nevertheless insufficient to prove appellant acquired the

rifle after he married Mrs. Huver in 2003. Mrs. Huver testified she “[did not] remember when

[they] bought the gun” and she only “guess[ed] [it was their] gun” because they were married,

making the firearm “marital property.” She testified, “My children have shot the .22. . . . On a

farm at Cannes. . . . A couple of years ago.” Thus, Mrs. Huver’s testimony established appellant

had owned the gun two years prior to his October 2007 trial but did not establish whether he

acquired it before or after their meeting in 2002 and marriage in 2003, both of which took place

in Virginia.




                                               - 10 -
        Nevertheless, the evidence, viewed in the light most favorable to the Commonwealth,

was sufficient to prove appellant’s homemade PVC silencer was not registered in the NFRTR.

Both the applicable statutes and regulations and the testimony of several of the Commonwealth’s

witnesses established that, under the NFRTR, the maker of the firearm is responsible for

completing the application in duplicate, obtaining the signature of one of the law enforcement

officers listed in the regulations, and then submitting the application to the Director of ATF

himself. The applicant himself is required to attach to the application “two properly completed

FBI forms FD-258 (Fingerprint Card)” before submitting it to the Director. The applicant is also

required to display both a serial number and his name on the item after he has made it.

        Here, appellant testified evasively regarding whether he had ever registered the silencer

in the NFRTR, stating first, “I do believe I possibly have,” and then, “I don’t recall.”

When the prosecutor inquired, “[W]ere you ever fingerprinted and sent an application to the ATF

with your fingerprints?” he responded, “I was fingerprinted several times while working in the

capacity of the Fairfax and Culpeper County sheriff’s office and the department of corrections.”

The prosecutor then inquired, “Okay, did you ever send any of that to the ATF?” and appellant

responded, “Me, personally? I don’t believe so.” This evidence supports a finding that appellant

never submitted to ATF the necessary application and supporting documentation, including

fingerprints, to register the silencer.

        Appellant’s negative response to this question, coupled with his admission that he

personally made the silencer with PVC pipe that he may have had in his garage, the absence of

his name in a conspicuous location on the silencer as required by the federal Act, and the fact

that when he was taken before the magistrate on the felony charge of possessing an unregistered

firearm silencer, he claimed as a defense only that the firearm did not work and not that the




                                               - 11 -
silencer was registered, provided sufficient evidence to support his conviction for violating Code

§ 18.2-308.6.

                                                 II.

       For these reasons, we hold Code § 18.2-308.6 does not violate the Supremacy Clause and

that the evidence was sufficient as a matter of law to prove the silencer was not registered to

appellant as required by that code section. Thus, we affirm appellant’s conviction.

                                                                                          Affirmed.




                                               - 12 -
