            RECOMMENDED FOR FULL-TEXT PUBLICATION
                 Pursuant to Sixth Circuit Rule 206                        2    United States v. One Harrington              No. 03-2106
         ELECTRONIC CITATION: 2004 FED App. 0258P (6th Cir.)                    and Richardson Rifle
                     File Name: 04a0258p.06
                                                                                               _________________
UNITED STATES COURT OF APPEALS                                                                      ORDER
                                                                                               _________________
                   FOR THE SIXTH CIRCUIT
                     _________________                                        Michael F. Berney, a Michigan resident, appeals the district
                                                                           court order granting summary judgment to the United States
 UNITED STATES OF AMERICA , X                                              in this forfeiture action filed pursuant to 26 U.S.C. § 5872(a).
            Plaintiff-Appellee, -                                          The parties are represented by counsel and have waived oral
                                 -                                         argument, and the panel unanimously agrees that oral
                                 -             No. 03-2106                 argument is not needed. Fed. R. App. P. 34(a).
           v.                    -
                                  >                                          In January 2002, the Bureau of Alcohol, Tobacco, and
                                 ,
 ONE HARRINGTON AND                                                        Firearms (ATF) seized an M-14 rifle owned by Berney. The
                                 -
 RICHARDSON RIFLE, MODEL                                                   ATF determined that the weapon qualified as a machine gun
                                 -
                                                                           under the National Firearms Act (NFA) and that it was not
 M-14, 7.62 CALIBER SERIAL       -
                                                                           registered on the National Firearms Registration and Transfer
 NUMBER 85279,                   -
                                                                           Record (NFRTR). See 26 U.S.C. § 5861(d). In December
                    Defendant, -                                           2002, the government filed a complaint for forfeiture in rem
                                 -
                                                                           and moved for summary judgment. Berney, proceeding pro
                                 -
 MICHAEL F. BERNEY ,                                                       se, filed a response. The district court granted summary
                                 -
          Claimant-Appellant. -                                            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
                                N
                                                                           not carried his burden of showing that his possession of the
                                                                           weapon was legal. United States v. One Harrington and
                       Filed: June 9, 2004*                                Richardson Rifle, 278 F. Supp. 2d 888, 891-92 (W.D. Mich.
                                                                           2003).
 Before: SILER and GIBBONS, Circuit Judges; REEVES,
                   District Judge.**                                         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
    *
     This order was originally issued as an “unpublished order” filed on   on file, or affidavits which complied with Rule 56(e); and
June 9, 2004. On July 8, 2004, the court designated the order as one       (2) Berney was not provided an opportunity for discovery.
recommend ed for full-text publication.

    **                                                                      We review an order granting summary judgment de novo.
      The Honorable Danny C. Reeves, United States District Judge for      Holloway v. Brush, 220 F.3d 767, 772 (6th Cir. 2000).
the Eastern District of Kentucky, sitting by designation.

                                   1
No. 03-2106       United States v. One Harrington and          3    4    United States v. One Harrington             No. 03-2106
                                      Richardson Rifle                   and Richardson Rifle

Summary judgment is proper “if the pleadings, depositions,          qualified as a machine gun because it retained features
answers to interrogatories, and admissions on file, together        specific to the M-14 and could have been readily restored to
with the affidavits, if any, show that there is no genuine issue    fire automatically. The ATF’s analysis was thorough, its
as to any material fact and that the moving party is entitled to    reasoning was valid, and its decision was consistent with
a judgment as a matter of law.” Fed. R. Civ. P. 56(c).              earlier pronouncements. See Skidmore v. Swift & Co., 323
                                                                    U.S. 134, 140 (1944). Because Berney did not rebut the
  Upon review, we conclude that the district court properly         government’s showing of probable cause, the government
granted summary judgment to the United States. Under                was entitled to a judgment of forfeiture. See Any and All
26 U.S.C. § 5861(d), it is illegal for a person to possess a        Radio Transmission Equip., 218 F.3d at 548.
machine gun that is not registered to him in the NFRTR.
Property involved in a violation of the NFA is subject to             Berney’s argument that the United States’ motion for
seizure and forfeiture to the United States. 26 U.S.C.              summary judgment did not comply with Fed. R. Civ. P. 56(e)
§ 5872(a). In a civil forfeiture action, the government has the     is without merit. Berney waived any objections to the
initial burden to demonstrate probable cause to believe that        materials submitted by the government when he failed to
the property was used in violation of the law. 19 U.S.C.            object in the district court. See Wiley v. United States,
§ 1615; United States v. Any and All Radio Station                  20 F.3d 222, 226 (6th Cir. 1994).
Transmission Equip., 218 F.3d 543, 548 (6th Cir. 2000).
Once the government establishes probable cause, the burden             Berney’s argument that he was not provided an opportunity
shifts to the claimant to prove, by a preponderance of the          for discovery is also without merit. He failed to preserve the
evidence, that the property was not related to the violation of     issue for appellate review because he did not file an affidavit
federal law. 19 U.S.C. § 1615; United States v. 566                 in the district court detailing the discovery needed and
Hendrickson Blvd., 986 F.2d 990, 995 (6th Cir. 1993). “[T]he        demonstrating specific reasons why he could not oppose the
government is entitled to a judgment of forfeiture upon an          government’s motion and how postponement of a ruling
unrebutted showing of probable cause.” Any and All Radio            would have enabled him to rebut the government’s showing
Transmission Equip., 218 F.3d at 548 (quoting 566                   of the absence of a genuine issue of fact. See Fed. R. Civ. P.
Hendrickson Blvd., 986 F.2d at 995).                                56(f); Emmons v. McLaughlin, 874 F.2d 351, 357 (6th Cir.
                                                                    1989).
  We agree with the district court that the United States
carried its burden of proof, and that Berney failed to carry his.     For the foregoing reasons, we affirm the district court’s
The ATF has classified M-14 rifles in general as machine            decision.
guns since 1958, and determined that Berney’s weapon in
particular met the statutory and regulatory definitions of a                        ENTERED BY ORDER OF THE COURT
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                              /s/ Leonard Green
to fire in full-automatic mode was destroyed as Berney                              __________________________________
maintains, that does not refute the ATF’s finding that the rifle                                Clerk
