Seventh Circuit Week in Review: Machine Guns and Cocaine (And What Thanksgiving Is Complete Without Those?)

The Seventh Circuit had three new opinions in criminal cases in this holiday-shortened work week, with the government winning on all of the major issues in each appeal. 

In the first, United States v. Carmel (No. 07-3906), the Seventh Circuit (per Judge Manion) affirmed the defendant’s conviction for possessing an unregistered machine gun in violation of 26 U.S.C. § 5861.  In addition to raising some case-specific issues relating to a search warrant, the defendant also argued that § 5861 was invalid in light of 18 U.S.C. § 922(o), which criminalizes possession of machine guns.  In essence, Carmel argued that § 5861, which punishes people for not registering their machine guns, makes no sense when § 922(o) effectively precludes registration.  The Tenth Circuit bought this argument in United States v. Dalton, 960 F.2d 121 (10th Cir. 1992), but it was subsequently rejected in seven other circuits.  And now the Seventh Circuit makes eight.  It’s not clear to me, though, why the government would ever charge a defendant like Carmel under § 5861 when § 922(o) is also applicable and carries the same maximum penalty — why not render the Dalton issue moot by using § 922(o) exclusively in these cases?

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Here’s to Peaceful Travels and Recombobulations

I had never noticed that our local airport has labeled the post-security-checkpoint area the “recombobulation area.”   I hope any of you traveling through airports over the holiday are discombobulated as little as possible, and recombobulated easily and peacefully.  Indeed, I wish everyone safe travels in general.  And, come to think of it, peaceful recombobulations in general; sometimes the holidays can be a bit discombobulating whether or not you are traveling.

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The Virtue of Gratitude

A few years ago, I wrote a Thanksgiving Day column for the Milwaukee Journal Sentinel. It got a good response. My favorite came from one of my former partners (now an adjunct here) who is a former naval officer. He told me that, on Thanksgiving, he orders his family to listen while he reads it to them.

I doubt that is true, but, if you know the man, the image is priceless and, for those of us who were litigators at Foley & Lardner during the eighties and nineties, evocative of many warm memories.

In any event, I reprise the column each Thanksgiving on my personal blog.  Think of it as my low rent version of “Yes, Virginia, there is a Santa Claus.”

The Virtue of Gratitude
By Rick Esenberg

Posted: Nov. 23, 2005

A bit over five years ago while shopping with my wife at Bayshore Mall, I suddenly felt as if I couldn’t breathe. My face lost significant color. For someone as white as I am, that is no mean feat. It must have been hard to tell.

I found myself, some 30 minutes later, in the emergency room. My wife (a registered nurse) and her brother (a radiologist) stood together, reading my EKG and looking as if Brett Favre had announced his retirement.

They tried to tell me everything was OK.

Obviously lying. I made a mental note that someday I would get each of them into a game of high-stakes poker.

I was having, as they say, “The Big One.” It turns out that I needed a quadruple bypass, a procedure that had to be done so urgently that I bumped an 89-year-old from the operating room because he was “more stable” than I was. That added insult to injury.

I came closer than most 44-year-olds to buying the farm, yet I remember one overriding thought during the ordeal.

It was “thank you.”

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