In the

United States Court of Appeals
              For the Seventh Circuit

No. 07-3906

U NITED S TATES OF A MERICA,
                                              Plaintiff-Appellee,
                               v.

D AVID R. C ARMEL,
                                          Defendant-Appellant.


         A ppeal from the U nited States District Court
            for the W estern District of W isconsin.
            N o. 07 CR 97— John C. Shabaz, Judge.



  A RGUED S EPTEMBER 17, 2008—D ECIDED N OVEMBER 24, 2008




 Before M ANION, W OOD , and W ILLIAMS, Circuit Judges.
   M ANION, Circuit Judge.     Defendant David Carmel
pleaded guilty to one count of possessing an unregistered
machine gun in violation of 26 U.S.C. § 5861, reserving
his right to appeal from the district court’s denial of his
motion to suppress, its denial of his motion for a hearing
pursuant to Franks v. Delaware, 

(1978), and
its denial of his challenge to the constitutionality of
26 U.S.C. § 5861. We A FFIRM .
2                                              No. 07-3906

                            I.
  David Carmel was being investigated by Immigration
and Customs Enforcement (“ICE”) and Defense Crim-
inal Investigative Service (“DCIS”), an arm of the De-
partment of Defense. ICE and DCIS believed that Carmel
had stolen and sold military supplies and weapons.
During a phone conversation between Carmel and an
undercover ICE agent, Carmel indicated that he had
three firearms—a “Rheinmetall MG3, a MG 34, and a
Heckler & Kock HK21.” Carmel invited the agent to
shoot with him at his home and added that whatever
ammunition the agent would bring, he owned a weapon
that would fire it.
  On May 30, 2007, DCIS agents arrested Carmel in his car.
A local sheriff’s investigator, Chad Holum, was present
during the arrest and found in Carmel’s car two top
handles that could potentially be used in an M-16 machine
gun. Holum then applied in Wisconsin state court for a
warrant to search Carmel’s home. The application for
the warrant contained an affidavit and an accompanying
statement explaining why Holum believed probable cause
existed to search Carmel’s home. The statement first
recounted the conversation between Carmel and the
undercover agent. Next, the statement noted the dis-
covery of the two top handles, which were described as
“made for a M16 machine gun.” Holum’s statement
further indicated that based on his experience in the
Marine Corps and as a law enforcement officer, top
handles were necessary to fire an M-16. The statement
noted that in a post-arrest interview, Carmel had said that
No. 07-3906                                              3

he possessed one machine gun, an “MG M-119,” that was
properly registered with the federal government. The
statement continued: “When asked about other types of
machine guns, Carmel refused to answer any questions
in this area.” Carmel also admitted possessing other
machine gun barrels and parts. Finally, the statement
noted that Carmel had told his father in a recorded tele-
phone conversation that he had been arrested by
federal authorities, and that “his father could guess what
it is for.” The affidavit in support of the search warrant
identified the three weapons—the Rheinmetall MG3, the
MG 34, and the Heckler & Koch HK2—as machine guns.
  The state court issued the search warrant, permitting
officers to search for the three identified weapons. When
officers searched Carmel’s home and property, they
discovered several rifles and a rocket launcher, and
the officers notified federal authorities. Field-testing of
numerous other weapons revealed approximately thirty
machine guns. The weapons were not seized immediately.
Instead, officers sought to secure a warrant to seize the
weapons as well as other parts and computers that could
contain evidence of illegal weapon manufacturing and
sales.
  A federal search warrant was subsequently issued to
seize the machine guns as well as other evidence of crimi-
nal activity. After more than sixty machine guns were
recovered, Carmel was charged with violations of
18 U.S.C. § 922(o), which provides that “[e]xcept as pro-
vided in paragraph (2), it shall be unlawful for any
person to transfer or possess a machinegun.” However, a
4                                               No. 07-3906

subsequent grand jury indictment charged Carmel with
violating 26 U.S.C. § 5861(d), which provides that “[i]t
shall be unlawful for any person . . . to receive or possess
a firearm which is not registered to him in the National
Firearms Registration and Transfer Record.”
  Carmel moved to suppress the machine gun evidence
seized at his home and requested a Franks hearing to
determine whether Holum recklessly omitted material
facts from his affidavit. Carmel also moved to dismiss
the indictment, arguing that 26 U.S.C. § 5861(d) had
been implicitly repealed by the enactment of 18 U.S.C.
§ 922(o), that Congress lacked a constitutional basis to
enact 26 U.S.C. § 5861(d), and that § 5861(d) violated
the Due Process Clause because it was impossible to
comply with and was unconstitutionally vague.
  The magistrate judge denied Carmel’s motion for a
Franks hearing. Then, the magistrate judge issued a
report in which he recommended that the district court
deny the motions to dismiss the indictment and
suppress the evidence. Subsequently, Carmel and the
government entered into a plea agreement under which
Carmel would plead guilty to one count of violating 26
U.S.C. § 5861(d); however, Carmel reserved his right to
withdraw the plea should the district court rule in his
favor on the motions and to appeal should the district
court rule against him. The district court then issued an
order adopting the recommendation of the magistrate
judge and denying the motions to dismiss the indictment
and to suppress the machine guns. Carmel was sentenced
to forty-six months in prison and thirty-six months of
supervised release. Carmel appeals.
No. 07-3906                                               5

                            II.
                            A.
  On appeal, Carmel first argues that the state search
warrant was not supported by probable cause and that
the resulting federal search warrant constitutes noxious
“fruit of the poisonous tree.” United States v. Grogg,

, 810 (7th Cir. 2008). “A search warrant affida-
vit establishes probable cause when, based on the totality
of the circumstances, it sets forth sufficient evidence to
induce a reasonably prudent person to believe that a
search will uncover evidence of a crime.” United States v.
Curry, 

, 729 (7th Cir. 2008). The judge
issuing the warrant “need only conclude that it would
be reasonable to seek the evidence in the place indicated
in the affidavit,” 

judge “may not rely solely
upon conclusory allegations or a bare bones affidavit
when issuing a warrant.” 

a search
that was conducted pursuant to a warrant, “we must
afford great deference to the issuing judge’s conclusion”
that probable cause to search existed. United States v.
Prideaux-Wentz, 

, ___ (7th Cir. 2008). “Judges
may draw reasonable inferences from the totality of the
circumstances in determining whether probable cause
exists to issue a warrant.” Id. at ___.
  In this case, probable cause existed to search Carmel’s
home. Carmel claimed to have three machine guns at his
home in a conversation with an undercover agent, but
later told police that he possessed one properly licensed
machine gun. Moreover, the single properly licensed
machine gun was not identical to the three machine guns
Carmel earlier claimed to possess. It is reasonable to
6                                               No. 07-3906

infer from this evidence that Carmel possessed three
unlicensed, illegal machine guns. Coupled with the top
handles that could be used in an M-16 machine gun, as
well as Carmel’s admission that he possessed other ma-
chine gun parts, a reasonably prudent person could
conclude that, if police searched Carmel’s home, they
would discover several illegal machine guns. Accordingly,
the state search warrant was supported by probable cause.
  Carmel attacks the affidavit piece by piece. First, he
argues that the affidavit simply makes a “bald assertion”
that the Rheinmetall MG3, MG 34, and Heckler &
Kock HK21 were machine guns. Although Carmel ac-
knowledges that the affidavit mentions Holum’s experi-
ence in the Marine Corps and as a law enforcement officer,
Carmel argues that this experience is “unexplained.”
Certainly, Holum could have more clearly set forth his
experience with machine guns; however, perfection is not
required for an affidavit to pass constitutional muster.
Rather, the affidavit only must be sufficient to allow a
reasonably prudent person to believe that evidence of
a crime will be found. 

. A reasonably
prudent person could believe that a police officer and
former Marine would be able to identify a machine gun.
  Carmel then argues that because there were various
exceptions to the state law at issue (for instance, Carmel
could have lawfully possessed a machine gun “not
usable as a weapon and posessed as a curiosity, ornament
or keepsake,” W IS. S TAT. § 941.27(2)), the affidavit should
have indicated that Carmel’s weapons did not fit into any
of the specified categories. However, the existence of
limited statutory exceptions to the general prohibition on
No. 07-3906                                                 7

machine guns does not prevent a reasonable person from
inferring that Carmel’s possession of the machine guns
was illegal. See United States v. Decoteau, 

,
1207 n.1 (7th Cir. 1991) (noting that, despite the existence
of a narrow statutory exception permitting legal posses-
sion, witnessing a person in possession of a sawed-off
shotgun gives rise to probable cause to believe that
the firearm is unregistered).
  Similarly, Carmel notes that the top handles found in his
car, although usable in an M-16, could also be used in an
AR-15, a legal weapon. However, despite the term “proba-
ble,” finding probable cause “demands even less than
probability.” Woods v. City of Chicago, 

, 996 (7th
Cir. 2000). To show probable cause “requires more than
bare suspicion but need not be based on evidence
sufficient to support a conviction, nor even a showing
that the officer’s belief is more likely true than false.” 

lawful use of the top handles does not
negate the other incriminatory inference, and in light of
the other evidence pointing toward illegal possession,
the top handles provide further support for a finding of
probable cause.
  Finally, Carmel argues that his statement that he pos-
sessed one machine gun legally cannot be used to infer
that he possessed other machine guns illegally, because
to do so would use his silence against him in violation of
Miranda v. Arizona, 

(1966). The magistrate
judge agreed with Carmel, concluding that “[i]t would
have been improper for the state court to infer from Car-
mel’s invocation of his right to remain silent a tacit ad-
mission that his other machine guns were unlicensed.” The
8                                                 No. 07-3906

government concedes that use of Carmel’s silence in the
probable cause calculus would be improper. However, it
is not Carmel’s silence that created an inference of
criminal activity, but his statements to the undercover
agent. From the statement that he possessed three
machine guns and his later statement that he legally
possessed one machine gun, a reasonable inference may be
drawn that some machine guns were unlawfully pos-
sessed. Neither the Fifth Amendment nor Miranda pre-
vents police officers from using two contradictory state-
ments by a defendant when determining probable cause.
See Anderson v. Charles, 

, 408 (1980) (holding
that inconsistent post-Miranda statements could be used
against a defendant despite prohibition on use of silence,
because regarding “the subject matter of his statements,
the defendant has not remained silent at all”); United
States v. Santiago, 

, 704 (7th Cir. 2004) (noting
that a prosecutor may comment upon inconsistencies in
a defendant’s post-Miranda statements without violating
Miranda).
  For these reasons, the affidavit and accompanying
statement gave rise to probable cause. Moreover, even
if probable cause did not exist, the evidence seized
should not be excluded. “[S]uppression of evidence
seized pursuant to a search warrant that is later declared
invalid is inappropriate if the officers who executed the
warrant relied in good faith on the issuing judge’s
finding of probable cause.” United States v. Watts, 

, 656-57 (7th Cir. 2008) (citing United States v. Leon,

, 924 (1984)). “A defendant can rebut the
presumption of good faith by showing, as relevant here,
that the supporting affidavit is so facially deficient that
No. 07-3906                                                 9

no reasonable officer could have relied upon it.” 

(citing 

). In light of the dis-
crepancy between Carmel’s statements that he had one
legally registered machine gun but possessed three,
Holum’s reference to his military and law enforcement
background to show knowledge of machine guns, and the
top handles found in Carmel’s car, a reasonable officer
could have relied on the magistrate’s finding that
probable cause existed. Accordingly, we affirm the
district court’s refusal to suppress the evidence.


                             B.
  Next, Carmel argues that the district court erred in
denying his motion for a Franks hearing. In Franks v.
Delaware, the United States Supreme Court held that
under limited circumstances a defendant may be
entitled to a hearing to challenge the truth of statements
made in a search warrant affidavit. United States v.
Souffront, 

, 822 (7th Cir. 2003). The defendant
must make a “substantial preliminary showing” that a
false statement was made either intentionally or reck-
lessly. 

438 U.S. at 155-56). A Franks
hearing is also required if a defendant shows that “the
affiant intentionally or recklessly omitted material infor-
mation.” United States v. Hoffman, 

, 675 (7th
Cir. 2008) (emphasis added). However, if probable cause
to issue the warrant would still exist even if the false
statement or material omission were corrected, then no
Franks hearing is required. 

(citing

). A district court’s decision to
10                                             No. 07-3906

grant or deny a Franks hearing is reviewed for clear
error. 

.
  In this case, Carmel sought a Franks hearing, contending
that Holum’s statement omitted two material facts. First,
he claims the statement should have indicated that the
top handles could be used legally in an AR-15, as well as
in an M-16. Second, Carmel complains that Holum failed
to note that he had registered a machine gun with the
Bureau of Alcohol, Tobacco, and Firearms (“ATF”), in
addition to possessing a license for the weapon. However,
Carmel has not shown that a Franks hearing is required.
With regard to the top handles, even if Holum had
noted that the top handles could be used in an AR-15, that
would not negate the fact that the top handles could
also be used in an M-16. In light of the other evidence in-
dicating that Carmel possessed illegal machine guns, the
potential alternate use of the top handles would not
have prevented the conclusion that probable cause to
search existed.
  Carmel’s argument regarding registration with the ATF
is also meritless. The statement submitted in support of
the search warrant implied that Carmel possessed one
machine gun legally. Adding that the gun was registered
with the ATF would have merely underscored the point
already made. Accordingly, even if that fact had been
included, the probable cause analysis would remain the
same. For these reasons, we find no clear error in the
district court’s denial of the motion for a Franks hearing.
No. 07-3906                                               11

                             C.
  Finally, Carmel attacks the constitutional and statutory
basis for the indictment under 26 U.S.C. § 5861(d).
That section provides that “[i]t shall be unlawful for
any person . . . to receive or possess a firearm which is not
registered to him in the National Firearms Registration
and Transfer Record.” 26 U.S.C. § 5861(d).1 Carmel
argues that this statute, which was enacted in 1968,
was implicitly repealed by the enactment of 18 U.S.C.
§ 922(o) in 1986. Section 922(o) states:
    (1) Except as provided in paragraph (2), it shall be
    unlawful for any person to transfer or possess a
    machinegun.
    (2) This subsection does not apply with respect to—
        (A) a transfer to or by, or possession by or
        under the authority of, the United States or any
        department or agency thereof or a State, or a
        department, agency, or political subdivision
        thereof; or
        (B) any lawful transfer or lawful possession of a
        machinegun that was lawfully possessed before
        the date this subsection takes effect.
Carmel argues that because he could not lawfully
possess the machine guns under § 922(o), compliance
with § 5861(d) was impossible. In other words, Carmel



1
 26 U.S.C. § 5845(a) limits the term “firearm” to a subset of
weapons, including “machinegun[s].” 26 U.S.C. § 5845(a)(6).
12                                               No. 07-3906

insists that he could not register the machine gun if
he could not legally possess it in the first place. Thus,
according to Carmel, because ownership of a machine
gun was made impossible by § 922(o), Congress must
have intended to repeal the registration requirement of
§ 5861(d). Furthermore, Carmel contends that his con-
viction for failing to take an action that by law he
is forbidden from doing violates due process.
  The circuits have split on this issue. The Tenth Circuit
has agreed with Carmel, finding that § 922(o) implicitly
repealed § 5861(d). See United States v. Dalton, 

(10th Cir. 1992). Dalton concluded that a conviction
under § 5861(d) violated fundamental fairness, stating:
“Because the crimes of which Dalton was convicted
thus have as an essential element his failure to do an
act that he is incapable of performing, his fundamental
fairness argument is persuasive.” 

Dalton
further held that § 5861(d) no longer had a constitutional
basis:
     [B]ecause the registration requirements of the
     National Firearms Act were passed pursuant to the
     taxing power . . . and because after the enactment of
     section 922(o) the government will no longer register or
     tax machineguns, . . . section 922(o) has “removed the
     constitutional legitimacy of registration as an aid to
     taxation[.]”

(citations omitted) (quoting United States v.
Rock Island Armory, 

, 125 (C.D. Ill. 1991)).
  The Fourth Circuit rejected Dalton in United States v.
Jones, 

(4th Cir. 1992). Jones stated, “[s]imply
No. 07-3906                                                     13

put, Jones can comply with both acts by refusing to deal
in newly-made machine guns.” 

The Jones
court further elaborated:
    What Jones is really complaining about is that the
    amendment to the Gun Control Act effectively ren-
    dered possession of certain guns automatic viola-
    tions of both the Gun Control Act and the National
    Firearms Act. Yet there is nothing either inconsistent
    or unconstitutionally unfair about Congress’ decision
    to do so. And, faced with two equally applicable
    penal statutes, there is nothing wrong with the gov-
    ernment’s decision to prosecute under one and not
    the other, so long as it does not discriminate against
    any class of defendants, which Jones does not allege.

concluded that a constitutional basis contin-
ues to exist for § 5861(d), because “[n]otwithstanding
the effective ban on machine guns made after 1986, the
making of even illegal machine guns continues to be
taxed.” 

the chain of possession
and transfer assists in determining who made the
firearm and hence is ‘supportable as in aid of a revenue
purpose.’ ” 

(quoting Sonzinsky v. United States,

, 513 (1937)).2



2
   Finally, it remains lawful to transfer or possess a machine gun
that was properly registered prior to the effective date of
18 U.S.C. § 922(o) in 1986. 18 U.S.C. § 922(o)(2)(B). The registra-
tion requirement of 26 U.S.C. § 5861(d) continues to apply
to such machine guns. Accordingly, the enactment of 18
U.S.C. § 922(o) did not implicitly repeal 26 U.S.C. § 5861(d).
14                                                  No. 07-3906

  The Third, Fifth, Sixth, Eighth, Ninth, and Eleventh
Circuits have all followed Jones. United States v. Grier,

, 214 (3d Cir. 2003); United States v. Bournes,

, 399 (6th Cir. 2003); United States v. Elliot,

, 672 (8th Cir. 1997); Hunter v. United States,

, 261-62 (9th Cir. 1996); United States v. Rivera,

, 601-02 (11th Cir. 1995); United States v. Ardoin,

, 179-80 (5th Cir. 1994). Indeed, we previously
adopted the reasoning in Jones in United States v. Ross,

, 1193-94 (7th Cir. 1993). However, Ross was
subsequently vacated on other grounds, 

(1994), and hence is no longer precedentially binding.
  We again adopt the reasoning of the majority of the
circuits as set forth in Jones. Section 922(o) is reconcilable
with § 5861(d): Carmel could have complied with both
statutes simply by declining to possess sixty illegal ma-
chine guns. Congress may lawfully punish the same
action under two separate statutes without running
afoul of the Due Process Clause. See United States v. Malik,

, 760 (7th Cir. 2004) (stating that “[w]hen
the same acts violate multiple laws, the prosecutor is
free to choose the one with the highest sentence”) (citing
United States v. Batchelder, 

, 123-24 (1979)).3
Moreover, Congress could lawfully require registration
under the taxing power, because illegally made machine
guns are still subject to taxation. 

3
  Carmel was not prejudiced by the decision to charge him
under 26 U.S.C. § 5861(d) instead of § 922(o), because both
implicated provisions carry the same maximum penalty of
ten years’ imprisonment. 18 U.S.C. § 924(a)(2); 26 U.S.C. § 5871.
No. 07-3906                                              15

(citing 26 U.S.C. § 5821). Accordingly, the district court
properly denied Carmel’s motion to dismiss the indict-
ment.


                            III.
  Because the state search warrant was supported by
probable cause, the district court properly denied Carmel's
motion to suppress. Moreover, because Carmel has not
shown the existence of an intentional or reckless omission
from the accompanying affidavit and statement, the
district court did not err in denying the motion for a
Franks hearing. Finally, we agree with the majority of our
sister circuits that 18 U.S.C. § 922(o) is reconcilable with
26 U.S.C. § 5861(d), and therefore conclude that the
district court properly denied Carmel’s motion to
dismiss the indictment. We A FFIRM .




                          11-24-08