                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAR 31 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


PAUL VIRIYAPANTHU,                               No.   14-55187

              Plaintiff-Appellant,               D.C. No.
                                                 8:13-cv-00527-CJC-JPR
 v.

THOMAS E. BRANDON, in his official               MEMORANDUM*
capacity as acting Director of the Bureau
of Alcohol, Tobacco, Firearms and
Explosives,

              Defendant-Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                    Cormac J. Carney, District Judge, Presiding

                       Argued and Submitted March 10, 2017
                               Pasadena, California

Before: PAEZ, BERZON, and CHRISTEN, Circuit Judges.

      Paul Viriyapanthu appeals the district court’s dismissal of his complaint for

declaratory and injunctive relief against the Acting Director of the Bureau of

Alcohol, Tobacco, Firearms and Explosives (“ATF”) for failure to state a claim


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
under Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the purpose of

resolving this appeal, we assume, without deciding, that the M-16 pieces here at

issue constitute one or more machine guns, as defined by the National Firearms

Act (“NFA”). See 26 U.S.C. § 5845(b); see also 18 U.S.C. § 921(a)(23)

(incorporating the NFA definition of “machinegun”).1

      1.     Viriyapanthu’s possession of the M-16 machine gun pieces depicted

in his 2013 letter to ATF does not fall within any of the statutory exceptions to 18

U.S.C. § 922(o). First, the government has never authorized Viriyapanthu’s

possession of a machine gun. See § 922(o)(2)(A). The transfers of the M-16 pieces

to Viriyapanthu never cleared the requirements set out in 26 U.S.C. § 5812 and 27

C.F.R. §§ 479.85, 479.90–479.91, and Viriyapanthu does not allege any alternative

manner in which the government authorized his receipt and possession of a


      1
        Viriyapanthu alleged that ATF threatened prosecution if he did not
surrender several M-16 pieces in his possession. He did not allege that ATF
specified any statute(s) under which he would be prosecuted. The government can
prosecute the same conduct—unregistered possession of a machine gun after
1986—under either 18 U.S.C. § 922(o) or 26 U.S.C. § 5861(d). United States v.
Hunter, 73 F.3d 260, 262 (9th Cir. 1996) (per curiam). The penalties available
under the statutes are substantially the same. See 18 U.S.C. § 924(a)(2), 924(d); 26
U.S.C. §§ 5871–72. Because we conclude that, assuming Viriyapanthu’s pieces are
a machine gun as defined under the NFA, the government may constitutionally
prosecute Viriyapanthu under at least one federal statute, 18 U.S.C. § 922(o), no
actual controversy regarding 26 U.S.C. § 5861(d) remains. See MedImmune, Inc. v.
Genentech, Inc., 549 U.S. 118, 126–129 (2007); Canatella v. California, 304 F.3d
843, 853 (9th Cir. 2002). We therefore do not reach that claim.
                                          2
machine gun. Further, the portion of § 922(o)(2)(A) relating to “transfers to or by”

the United States applies only to transfers, not to the machine guns so transferred.

It exempts such transfers from § 922(o)(1)’s ban on transfers of machine guns but

does not affect that paragraph’s separate ban on possession. 18 U.S.C. § 922(o)(2).

      Second, the grandfather exception does not apply because Viriyapanthu is

not in “lawful possession of a machinegun,” as the machine gun is not (and cannot

be) registered to him. See 18 U.S.C. § 922(o)(2)(B).

      2.     The application of § 922(o)(1) to Viriyapanthu’s possession of a

machine gun would fall within the Commerce Clause power. The machine gun

possession ban is part of a “detailed and comprehensive statutory regime” to

regulate interstate commerce in firearms. United States v. Stewart, 451 F.3d 1071,

1076 (9th Cir. 2006), overruled on another ground by Dist. of Columbia v. Heller,

554 U.S. 570, 594–95 (2008). In light of the “established and lucrative” interstate

market for machine guns, “Congress had a rational basis for concluding that[,] in

the aggregate,” the possession of M-16 pieces that can be reassembled into a full,

automatic machine gun receiver, “could substantially affect interstate commerce in

machineguns.” See id. at 1077–78; see also 26 U.S.C. § 5845(b).

      3.     We exercise our discretion to review Viriyapanthu’s Fifth

Amendment self-incrimination claim, which he raises for the first time on appeal,


                                          3
because it presents a purely legal issue and review at this stage does not prejudice

ATF. See Harris v. Maricopa Cty. Superior Court, 631 F.3d 963, 975 n.4 (9th Cir.

2011). Unlike the plaintiffs in Haynes v. United States, 390 U.S. 85 (1968), and

Leary v. United States, 395 U.S. 6 (1969), the statutes here at issue do not require

individuals to register contraband acquired via unregistered, and thus illegal,

transfers. Rather, the statutes here forbid registration of a machine gun that was

either acquired in an unregistered transfer or not lawfully possessed prior to 1986.

See Hunter, 73 F.3d at 261–62. Nor does the policy forwarded by ATF in the

district court proceedings impose a separate legal requirement that Viriyapanthu

submit his pieces or any information to ATF. As no legal obligation is imposed

upon Viriyapanthu to provide incriminating information to the government, the

privilege against self-incrimination does not apply. See Haynes, 390 U.S. at 94–96.

      4.     Viriyapanthu’s Motion to Take Judicial Notice (Docket No. 21) is

DENIED. The documents relate only to arguments raised for the first time in his

reply brief and are not relevant to the issues properly before the court. Cf. Holland

Am. Line Inc. v. Wartsila N. Am., Inc., 485 F.3d 450, 459 n.6 (9th Cir. 2007).

      AFFIRMED.




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