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United States v. Barbisan

United States District Court, D. Montana, Butte Division

July 27, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
NOLAN DAVID BARBISAN, Defendant.

          ORDER

          DANA L. CHRISTENSEN, CHIEF DISTRICT JUDGE

         Before the Court is Defendant Nolan David Barbisan's (“Barbisan”) motions to dismiss the Indictment in the above-captioned case. Specifically, Barbisan's first motion seeks to dismiss Counts I, II, and III of the Indictment and the second motion requests dismissal of Count IV. The Government opposes the motions. For the reasons discussed below, the Court will deny Barbisan's motions.

         BACKGROUND

         A. The Indictment

         On May 18, 2017, a criminal indictment was issued charging Barbisan with four counts of alleged violations of federal law. Specifically, Count I alleged that on or about October 2014, and continuing until on or about June 21, 2016, Barbisan knowingly possessed approximately 46 firearms in violation of 18 U.S.C. § 922(g)(1) (Felon in Possession of Firarms). The Indictment alleges that Barbisan's possession of these firearms was unlawful due his conviction in the State of North Dakota of a crime punishable by imprisonment for a term exceeding one year. Similarly, Count II of the Indictment alleges that, on or about May 21, 2016, and on May 26, 2016, Barbisan knowingly made a false and fictitious written statement to a licenced firearms dealer, Gentry Custom LLC, in connection with the acquisition of a firearm. Specifically, Barbisan is accused of falsely representing on a Department of the Treasury, Bureau of Alcohol, Tobacco, Firearms and Explosives's (“ATF”) form (Firearms Transaction Record Form 4473) that he was never convicted of a felony offense. The Indictment states that this was a false statement due a previous felony conviction in the South Central Judicial Court of Burleigh County, North Dakota. See 18 U.S.C. § 922(a)(6). Count III is substantially similar to Count II except that it charges Barbisan with making a false statement and representation concerning his lawful status to Kelly Gentry, owner and operator of the above-mentioned Gentry Custom LLC. See 18 U.S.C. § 924(a)(1)(A).

         Finally, Count IV of the Indictment charges Barbisan with knowingly possessing a “silencer” that was not registered to him and had no markings or serial numbers. The Indictment states that Barbisan possessed the unregistered silencer on or about June 21, 2016, in Gallatin County, Montana, in violation of 26 U.S.C. §§ 5841, 5861(d). The Indictment lastly charges that upon conviction of any of the offenses brought against Barbisan, he is required to forfeit any real or personal property used to facilitate the offenses, including any firearms or ammunition.

         B. Defendant's Motions to Dismiss

         As discussed, Barbisan has moved through two separate motions to dismiss Counts I through IV of the Indictment. In his first motion, Barbisan does not dispute that he was convicted in North Dakota of two felonies related to the possession and distribution of marijuana. However, Barbisan stresses that the Government inadvertently caused him to believe that his gun ownership rights had been restored despite his felon status. Thus, as he argues, Counts I through III of the Indictment must be dismissed because of the Government's entrapment.

         Specifically, Barbisan states that upon pleading guilty to his felonies in 2012, he was sentenced to two years probation. Because he resides in Montana, Barbisan states that the State of Montana, Department of Corrections, Adult Probation and Parole took over his supervision when he returned to his home state. Apparently, the State of Montana continued to supervise Barbisan until his supervision was discharged on January 29, 2014. Critically, on the date of discharge, Barbisan maintains that the State of Montana, through his probation officer, presented him with a “FIREARM REGULATIONS” form. This form contains a section entitled “TO BE COMPLETED WHEN SUPERVISION EXPIRES, ” and states:

Pursuant to §46-23-1011(3) and §46-23-1021(4), MCA, this is a notice and not legal advice.
The Montana constitution and state law restore my civil and constitutional rights once I complete my sentence. I understand that the operation of state law may not affect the federal prohibition regarding the possession of firearm and ammunition by a person convicted of a felony crime.
The Office of the United States Attorney for the District of Montana has determined that federal law prohibits a person convicted of a felony or of a misdemeanor crime of domestic violence from purchasing, owning or possessing any firearm, even after completing his or her criminal sentence. [Title 18, United States Code, Section 922(g)]

(Doc. 12-7 at 1.)

         Based upon the language in this form, Barbisan maintains that he believed that his guns rights had been restored. However, because he was convicted under North Dakota law, and not Montana law, this belief was erroneous. See Mont. Const. art. II, § 28(2) (“Full rights are restored by termination of state supervision for any offense against the state.”) (emphasis added); see also Mont. Code Ann. § 46-18-801(2) (“[I]f a person has been deprived of a civil or constitutional right by reason of conviction . . . and the person's sentence has expired . . ., the person is restored to all civil rights and full citizenship, the same as if the conviction had not occurred.”).

         Nevertheless, acting upon this belief, Barbisan eventually acquired firearms, completed an application for a Federal Firearms License (“FFL), and sent it to the ATF's Federal Firearms Licensing Center in March of 2016. On this application Barbisan checked “NO” in a box which asked if he had “[b]een Convicted in any Court of a Felony, or any other crime for which the Judge Could Have Imprisoned You for More Than One Year, Even if You Received a Shorter Sentence, Including Probation?” (Doc. 12-1 at 4.) A footnote at the end of the question stated: “You may answer NO if (a) you have been pardoned for the crime or (b) the conviction has been expunged or set aside or (c) your civil rights have been restored AND you are not prohibited from possessing or receiving any firearms under the law where the conviction occurred.” (Id.) In an attempt to clarify his answer, Barbisan states that he disclosed his felony status in a letter attached to the back of the FFL application. This letter stated:

This is an outline explaining why I included my rights restoration sheet as well. In November of 2011 I was charged with conspiracy to deliver marijuana in the state of North Dakota. I was sentenced to 366 days suspended with two years of supervised probation. I have since served and completed my sentence. After probation I was advised to wait to apply for my FFL or to pursue a career in law enforcement. I have waited and paid my dues for my mistakes, firearms and hunting is a way of life and livelihood for myself and family. I hope this is everything you need and have spoken with Investigator Lukas about my predicament and ...

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