AutoKeyCard Case Appeal Says by ATF Standards Any AR-15 Could Be Considered A Machinegun

USCA11 Case: 23-13062 Document: 62 Date Filed: 09/15/2024 Page: 1 of 32
UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
____________________________________
Kristopher Justinboyer Ervin, et al.,
Appellants,
v.
№: 23-13062
United States of America,
Appellee.
____________________________________
APPEAL OF A CRIMINAL CASE FROM THE UNITED STATES
DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
DISTRICT COURT CASE NO. 3:21-CR-00022
SUPPLEMENTAL BRIEFING OF APPELLANT MATTHEW

RAYMOND HOOVER
Matthew Larosiere, Esq.

6964 Houlton Circle
Lake Worth, FL 33467
Email: [email protected]
Telephone: 561-452-7575
Counsel for Appellant
Matthew Raymond Hoover
USA v. Kristopher Ervin, et al, Appeal No. 23-13062
CERTIFICATE OF INTERESTED PERSONS AND CORPORATE

DISCLOSURE STATEMENT (CIP)
Pursuant to 11th Cir. R. 26.1-1(a), Appellant files this Certificate of
Interested Persons and Corporate Disclosure Statement. The following
are all trial judges, attorneys, persons, associations of persons, firms,
partnerships, or corporations that have an interest in the outcome of this
case or appeal, including subsidiaries, conglomerates, affiliates, parent
corporations, any publicly held corporation that owns 10% or more of the
party’s stock, and other identifiable legal entities related to a party
known to the undersigned.
1. Barksdale, Hon. Patricia D., United States Magistrate Judge
2. Call, Lisa, Federal Public Defender’s Office
3. Corrigan, Hon. Timothy J., United States District Judge
4. Ervin, Kristopher Justinboyer (Defendant)
5. Handberg, Roger B., United States Attorney
6. Hoover, Erica (Defendant’s Wife)
7. Hoover, Matthew Raymond (Defendant)
8. Hoppmann, Karin, former Acting United States Attorney
9. Howard, Marcia Morales (Trial Judge)
i
10. King, Alex, Esq.
11. Klindt, Hon. James R., United States Magistrate Judge
12. Larosiere, Matthew (Defendant-Appellant’s attorney)
13. Lopez, Maria Chapa, former United States Attorney
14. Mesrobian, David B., Assistant United States Attorney
15. Monroe, Daniel S., Esq.
16. Rhodes, David P., Assistant United States Attorney, Chief,
Appellate Division
17. Richardson, Montgomery (Magistrate)
18. Siekkinen, Sean, Assistant United States Attorney
19. Taylor, Laura Cofer, Assistant United States Attorney
20. Tran, Mai, Assistant United States Attorney
21. Zermay, Zachary (Defendant’s attorney)
22. Zermay-Larosiere Law Group
23. Linnen, Valarie, Esq. (Appellant’s attorney)
24. Jaffe, Erik S., Esq. ; and
25. Sherill, Miranda Cherkas, Esq.
No publicly traded company or corporation has an interest in the
outcome of this appeal to the undersigned’s knowledge.
ii
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS AND CORPORATE
DISCLOSURE STATEMENT (CIP) ........................................................... i
TABLE OF AUTHORITIES ............................................................................ iv
ARGUMENT ....................................................................................................... 1
I. THE DISTRICT COURT, AND THE GOVERNMENT, TREATED

“AUTOMATICALLY” AS SURPLUSAGE ................................................ 2
A. Cargill and “Automatically” as an Independent Element ........... 2
B. The Government’s Admitted Malfunction Was Not “Automatic” 5
C. The Government’s Logic Suggests Every Single AR15 in

America is a Machinegun Under §5845(b) ...................................... 18
II. THE DISTRICT COURT MISAPPLIED THIS CIRCUIT’S CASELAW

ON THE TAX AND SPEND CLAUSE ..................................................... 19
CERTIFICATE OF COMPLIANCE ............................................................. 25
CERTIFICATE OF SERVICE ....................................................................... 26
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Bond v. U.S., 572 U.S. 844 (2014) ........................................................... 19
Bronsozian v. United States, 140 S. Ct. 2663 (2020) .............................. 23
Cohens v. State of Virginia, 19 U.S. 264 (1821) ...................................... 19
Garland v. Cargill, 602 U.S. 406 (2024) ............................................... 2, 4
NFIB v. Sebelius, 567 U.S. 519 (2012) .................................................... 20
U.S. v. Bournes, 339 F.3d 396 (6th Cir. 2003) ........................................ 23
U.S. v. Gambill, 912 F. Supp. 287 (S.D. Ohio 1996), aff'd, 129 F.3d 1265
(6th Cir. 1997) ...................................................................................... 23
U.S. v. Jones, 976 F.2d 176 (4th Cir. 1992) ............................................ 22
U.S. v. Kirk, No. 91-8418 (5th Cir. April 28, 1992) ................................ 23
U.S. v. Spoerke, 568 F.3d 1236 (11th Cir. 2009)..................................... 21
United States v. Cox, 906 F.3d 1170 (10th Cir. 2018) ............................ 23
United States v. Rivera, 58 F.3d 600 (11th Cir. 1995)............................ 22
United States v. Staples, 971 F.2d 608 (10th Cir. 1992), rev'd, 511 U.S.
600 (1994), and vacated, 30 F.3d 108 (10th Cir. 1994) ......................... 4
Statutes
18 U.S.C. § 922(o) ........................................................................ 20, 22, 23
26 U.S.C. § 5845 .................................................................................. 3, 19
26 U.S.C. § 5861 ................................................................ 1, 20, 21, 22, 23
Other Authorities
9-63.516 Charging Machinegun Offenses Under 18 U.S.C.A. § 922(o),
Instead of Under the National Firearms Act,
United States Attorneys' Manual .................................................. 21, 23
iv
O’Neil, Aaron, “Annual Share of AR-15 assault rifles in the total

number of firearms manufactured in the United States from 1990 to
2020,” STATISTA, https://www.statista.com/statistics/1388010/
(Jul 4, 2024) .......................................................................................... 14
OXFORD ENGLISH DICTIONARY (1933).............................................. 3
Stevens, B. R. and Ezell, E. C., “The Black Rifle M16 Retrospective,”
Collector Grade Publications (2004) ...................................................... 5
Stoner, E. M.; Automatic trigger mechanism with three sears and a
rotatable control member. U.S. Patent 3,045,555A,
December 22, 1959 ................................................................................. 5
WEBSTER'S NEW INTERNATIONAL DICTIONARY (2d ed.1934) ...... 3
Regulations
27 C.F.R. § 479.11 ..................................................................................... 3
Constitutional Provisions
U.S. Const., Art. I, § 8, cl. 1 ..................................................................... 20
v
ARGUMENT
New Supreme Court precedent makes clear that the case made by
the government suggesting the Auto Key Card was a machinegun is
inconsistent with the statutory definition. It cannot be the case that a
malfunction, inherent in the design of one of the most common semi-
automatic rifles in America, results in a weapon that shoots
“automatically,” more than one shot. As explained infra, if the
government’s theory here can support a conviction, it must mean that
every single AR15 in America contains the receiver of a machinegun, and
that the possession of any post-1986 semiautomatic AR15 violates §
5861(b).
Review of the record inspired by new precedent also revealed an
issue in the district court’s holding with regard to its constitutional
analysis in denying the motion to dismiss the indictment for Due Process
concerns, which appellant briefly discusses infra-Part II.
1
I. THE DISTRICT COURT, AND THE GOVERNMENT,

TREATED “AUTOMATICALLY” AS SURPLUSAGE
The evidence relied upon most heavily by the district court in
denying the motion for judgment of acquittal was the testimony of ATF
Firearms Enforcement Officer Cody Toy. (Doc. 310) at 7-10. No evidence
was put forth that the device manufactured by FEO Toy caused a
semiautomatic firearm to fire “automatically” as opposed to simply “more
than one shot,” but FEO Toy admitted his creation induced a “hammer
follow” malfunction, a malfunction that would be identical if a single part
of any ordinary semiautomatic AR15 was removed, worn down, or
malfunctioned. (Doc. 283 at 185, 192-193).
A. Cargill and “Automatically” as an Independent Element
Garland v. Cargill, was a case of statutory interpretation much like
the instant one. 602 U.S. 406 (2024). Cargill examined the functional
language of § 5845(b): that a machinegun conversion device must
“automatically” cause a weapon to fire “more than one shot” through “a
single function of the trigger.” Cargill, 602 U.S. at 424. Giving due weight
to each word in the statute, Cargill held that it is not enough that a
weapon fire more than one shot by a single function of the trigger, it must
do so “automatically.” Id. at 424.

2
Based on dictionary definitions existing at the time of the NFA’s
passage, automatically, as an adverb, means “having a self-acting or self-
regulating mechanism.”1 Beyond that, the government’s own
interpretation, beginning March 26, 2019 defines “’automatically’ as it
modifies ‘shoots, is designed to shoot, or can be readily restored to shoot,’
[as] functioning as the result of a self-acting or self-regulating
mechanism[.]” 27 C.F.R. § 479.11.
Giving full effect to the words of the statute, the word
“automatically” must mean that a firearm that shoots more than one shot
by something other than a self-acting or self-regulating mechanism, or
which happens to or incidentally fires more than one shot as a result of a
malfunction, is not a “machinegun” as defined by § 5845(b).
Few cases have dealt with the bifurcate analysis of whether “more
than one shot” came “automatically,” but the common meaning of terms
1 A leading dictionary from 1934 tells us that "automatically" is the

adverbial form of "automatic." WEBSTER'S NEW INTERNATIONAL
DICTIONARY 187 (2d ed.1934). The adjectival form of "automatic" is
relevantly defined by that dictionary as "[h]aving a self-acting or self-
regulating mechanism that performs a required act at a predetermined
point in an operation[.]" Id. Another contemporaneous dictionary
similarly describes "automatic" as "[s]elf-acting under conditions fixed
for it, going of itself." OXFORD ENGLISH DICTIONARY 574 (1933).
3
and earlier cases provide insights. U.S. v. Staples ultimately resulted in
a landmark Supreme Court ruling on mens rea, but the courts below dealt
with an AR15 without an automatic sear, where the government was able
to induce hammer-follow. United States v. Staples, 971 F.2d 608, 609
(10th Cir. 1992), rev'd, 511 U.S. 600 (1994), and vacated, 30 F.3d 108
(10th Cir. 1994).
In Staples, the ATF oiled the firearm, changed its bolt carrier, and
loaded it with “soft-primer” ammunition to encourage the hammer-follow
malfunction to result in the discharge of multiple shots. Staples 971 F.2d
at 609. Additionally, the government rested on the firing of multiple
shots, without providing evidence of any automatic function, over
Defendant-Appellant’s objections. Id. at 613-14. The Tenth Circuit’s
analysis in Staples, later reversed by the Supreme Court, enabled it to
avoid “the broader question of whether a weapon that malfunctions can
constitute a firearm under the NFA.” Id. at 614. However, the Supreme
Court’s ultimate decision in Staples makes clear that actual knowledge
of the characteristics of a firearm making it subject to the Act is required
to sustain a conviction, and Cargill’s clarification that “automatically”
and “more than one shot” are not redundant, but are actually separate
4
elements, it is necessary that the government plead and prove that the
device induce more than one shot automatically by way of a single
function of the trigger. Here, the only evidence provided admits
something created by a government witness induced a malfunction. A
firearm which incidentally or accidentally fires more than one shot,
cannot rationally be said to be firing “automatically.”
B. The Government’s Admitted Malfunction Was Not “Automatic”
The malfunction caused by FEO Toy’s creation is best understood
against the backdrop of how an AR15 is designed to function
“automatically.”2
2 Stoner, E. M.; Automatic trigger mechanism with three sears and a

rotatable control member. U.S. Patent 3,045,555A, December 22, 1959.
This patent outlines the function of the fire control mechanism in
virtually every AR15, including the Colt AR15 model 604, ultimately
adopted as the U.S. M16 service rifle. Stevens, B. R. and Ezell, E. C., “The
Black Rifle M16 Retrospective,” collector grade publications (2004).
5
The below image reflects the fire control group components and
moving parts of the action of a fully automatic AR15, such as an M16, in
locked position3, ready to fire. These parts of the action and fire control
group are critical to the function of the rifle and are responsible for the
firing sequence.4
3 The AR15 fires from a locked breech, and the breech is locked when
the bolt carrier group is at its foremost position. If the AR15 fires when
the breech is unlocked, it carries the potential of the weapon exploding.
4 Appellant would be remiss not to remind this Honorable Court that this
entire discussion does not and cannot relate to the Auto Key Card as it
was sold, advertised, transferred, or possessed. Indeed, in its original
form, the Card could not even fit inside a gun. Rather, this analysis
explains the result of something alleged to be created from a Card by
“material alteration” by FEO Toy, and still didn’t work the way the
government asserted it would.
6
Pulling the trigger releases the hammer from the sear on the front
of the trigger, allowing the hammer to release its stored energy and strike
the firing pin.
As the ammunition cartridge fires, pressure causes the bolt carrier
group to travel rearward, unlocking the action. As the bolt carrier group
travels rearward, it releases pressure from the automatic sear and re-
cocks the hammer.
7
As the bolt carrier group nears the end of its rearward travel, the
automatic sear clips over the hammer, retaining the hammer and
preventing it from rotating forward, despite the user continuing to hold
the trigger to the rear.
Critically, the automatic sear restrains the hammer for the
duration of the bolt carrier group’s forward travel, such that the hammer
8
stays held to the rear and can only strike the firing pin when the action
returns to the locked position.
Once the carrier group has reached the end of its travel and the bolt
is locked, the tail of the bolt carrier group trips the automatic sear,
releasing the hammer and allowing it to strike the firing pin with its full
energy again, re-starting the cycle, and continuing until the trigger is
released or the weapon consumes all ammunition.
9
Drop-in-auto sears, such as those the government alleged the Auto
Key Card to “contain” or “depict,” imitate the function of an automatic
sear shown above. As the government’s witness testified, the timing of
the automatic sear with the tail of the bolt carrier group is “critical for [a
drop-in auto sear] to function the way the original designer intended it
to.” (Doc. 283 at 184). However, that was not what happened with Mr.
Toy’s creation. Rather, Mr. Toy induced “hammer follow.” (Doc. 283 at
163) (“It [firing more than one shot] was occasional…I was getting some
hammer follow…which caused some of the test fire not to work.”). Mr.
10
Toy further testified that the “hammer follow” he induced was identical
to how an ordinary semiautomatic AR15 would function if the
disconnector were removed or damaged. (Doc. 283 at 185).
To illustrate, the following depicts a typical semiautomatic AR15
functioning, beginning with the bolt locked and ready to fire.
11
As the bolt carrier group travels rearward, re-cocking the hammer,
the disconnector retains the hammer in its rearmost position until the
bolt is locked and the trigger is released, ready to fire another cartridge
when pulled again.
12
13
The above reflects the functionality of each of the 20-plus-million
semiautomatic AR15 rifles estimated to be in American hands.5
The “hammer-follow” induced by FEO Toy is the equivalent of
removing or disabling the AR15 disconnector, which would require either
the part’s failure or “drifting one pin” on any semiautomatic AR15, which
Toy testified “depending on skill level” would take “a matter of minutes.”
(Doc. 283 at 185). A “hammer follow” malfunction is depicted below:
5O’Neil, Aaron, “Annual Share of AR-15 assault rifles in the total number
of firearms manufactured in the United States from 1990 to 2020,”
STATISTA, https://www.statista.com/statistics/1388010/ (Jul 4, 2024).
14
Critically, and antithetically to function as either a semi-automatic
or automatic weapon, nothing retains the hammer while a firearm is
experiencing a “hammer follow” malfunction. As Mr. Toy testified, in a
“hammer follow situation,” as the bolt carrier group travels forward, the
hammer “follows” it, expending energy as the bolt closes and resting on
the firing pin while the bolt is still unlocked, rather than striking it after
15
the action locks, rendering an additional shot an unpredictable
malfunction, carrying with it the possibility of the firearm exploding.
(Doc 283 155; 185-189).6
6As Mr. Toy testified, firing a cartridge while the bolt is unlocked results
in an out-of-battery detonation, which could cause venting of hot gas into
the operator’s eyes, ejection of shrapnel into the surrounding area,
expulsion of the magazine, catastrophic failure to the surrounding metal
components resulting in a dangerous shrapnel explosion.
16
Appellant submits that it cannot be the case that a malfunction—
which FEO Toy testified would cause a weapon to fire more than one shot
“occasionally”—that is possible in the event of a failure of a small metal
part present on every single semiautomatic AR15 in this country, equates
to a weapon which shoots “more than one shot” “automatically.” (Doc. 283
at 163).
17
C. The Government’s Logic Suggests Every Single AR15 in America

is a Machinegun Under §5845(b)
As explained supra, the basis of the government’s theory is that a
hammer-follow malfunction results in a machinegun. As FEO Toy
testified, the device he created simply defeated the disconnector, it did
not function the way an auto sear or lightning link is designed to
function; (Doc. 283 at 188-189) was identical to the simple removal of the
disconnector (Id. at 185); and that removal of the disconnector would
“require [an AR15] to be regulated just like any other machinegun.” (Id.
at 186).
As discussed supra, Part-I(B), and as FEO Toy testified, a
disconnector failure requires only the drifting of a single pin, or the
breakage or wearing of a single part. In contrast to the actual functioning
of an auto-sear, drop-in-auto-sear, or other machinegun conversion
device for the AR15, a hammer-follow malfunction does not require any
additional part or “combination of parts” to exist. An ordinary AR15, with
the simple removal or failure of one part, without any modification to the
receiver, results in a hammer-follow malfunction. Thus, if the
government is correct that hammer-follow makes a machinegun, it
18
follows that every single semiautomatic AR15 ever made contains “the
frame or receiver” of a machinegun under § 5845(b).
Appellant submits that cannot possibly be the case. A weapon
which fires more than one shot “occasionally,” “sometimes,”
“accidentally,” or as a result of a malfunction, cannot rationally be said
to be shooting more than one shot “automatically.” Clearly, in drafting §
5845(b), Congress qualified “more than one shot, without manual
reloading” with the adverb “automatically” for a reason. It avoids the
application of gross criminal penalties to otherwise lawful, yet
malfunctioning firearms. This compounds with the vagueness and lenity
issues raised in Appellants’ and Amici’s principal briefs.
II. THE DISTRICT COURT MISAPPLIED THIS CIRCUIT’S

CASELAW ON THE TAX AND SPEND CLAUSE
“Congress cannot punish felonies generally.” Cohens v. State of
Virginia, 19 U.S. 264, 428 (1821). Accordingly, every criminal penalty it
enacts “must have some relation to the execution of a power of Congress”
(Bond v. U.S., 572 U.S. 844, 844 (2014)), like the “power to lay and collect
taxes, duties, imposts and excises, to pay the debts and provide for the
common defense and general welfare of the United States.” U.S. Const.,
19
Art. I, § 8, cl. 1. A law which attaches consequences “beyond requiring a
payment to the IRS” is a penalty—not a tax. NFIB v. Sebelius, 567 U.S.
519 at 567-68 (2012).
The National Firearms Act, through which §5861(e) came, was
passed and has been upheld by the Courts expressly under Congress’
taxing power. However, 18 U.S.C. § 922(o) prohibits the possession or
transfer of machineguns—however defined—not registered by May of
1986. As such, the United States refuses to register or accept tax
payments for the transfer of machineguns made after 1986. Necessarily,
as it relates to machineguns, §922(o) either implicitly repealed §5861(e),
or § 5861(e)’s application to the transfer of machineguns made after 1986
violates Due Process. Even the United States Attorneys’ Manual
recognizes this constitutional shortcoming:
Section 922(o) of Title 18 makes it unlawful to transfer or possess a

machinegun made after May 19, 1986. In addition, under the NFA,
it is unlawful to manufacture or possess a machinegun without first
registering it with the Secretary of the Treasury and paying
applicable taxes. 26 U.S.C.A. §§ 5822, 5861. As a result of the
enactment of 18 U.S.C.A. § 922(o), the Secretary of the Treasury no
longer will register or accept any tax payments to make or transfer
a machinegun made after May 19, 1986. Accordingly, because it is
impossible to comply with the registration and taxation
provisions in the NFA, prosecutors should charge the
20
unlawful possession or transfer of a machinegun made after

May 19, 1986 under § 922(o).
9-63.516 Charging Machinegun Offenses Under 18 U.S.C.A. § 922(o),
Instead of Under the National Firearms Act, United States Attorneys'
Manual. Despite this, the government here insisted on pursuing
Appellant under § 5861 (e).
Appellant Hoover moved to dismiss the indictment, among other
things, because his prosecution under 26 U.S.C. § 5861(e) was not a valid
exercise of the power of Congress to tax consistent with the Due Process
clause. (Doc. 277, 24-25). The district court denied this motion, citing U.S.
v. Spoerke as foreclosing the argument. (Doc. 141 at 28) (citing 568 F.3d
1236, 1246 (11th Cir. 2009)). But this was a misreading of Spoerke.
In Spoerke, Defendant-Appellant was charged with making and
possessing a pipe bomb without registration in violation of § 5861(f) and
(d). Spoerke, 568 F.3d at 1242. Spoerke argued that compliance with §
5861 was impossible, but this Court recognized this to be “based on a
false premise: ‘No federal statute completely outlaws the possession of
pipe bombs[]; therefore, their registration is not legally impossible.’”
Spoerke, 568 F.3d at 1246.
21
This case presents the opposite of the Spoerke situation: 18 U.S.C.
§ 922(o) does completely outlaw the private possession of a machinegun
made after 1986, and thus—regardless of whether or not an individual is
a felon—compliance with §5861 is actually impossible. This Court has
not squarely addressed the issue of § 5861(e) as an exercise of any
enumerated power as applied to a post-1986 machinegun. The 1995 case
of United States v. Rivera was the closest examination, but that was dicta
and concerned a question not before the court. 58 F.3d 600, 602 (11th Cir.
1995) (citing cases from the Fourth, Sixth, and Seventh circuits engaging
with this issue).
Circuits holding the application of §5861 to the possession or
transfer of post-1986 machineguns to be unconstitutional are in the
majority, and much more developed than the minority approach, whose
decisions are rooted in the Fourth Circuit case of U.S. v. Jones, 976 F.2d
176, 182–84 (4th Cir. 1992). Indeed, even the Department of Justice has
expressed agreement with the line of cases holding §5861 to be
unconstitutional as applied to post-1986 machineguns, and continues to
22
counsel away from its use in the United States Attorneys’ Manual.7
Additionally, substantial developments have occurred in taxing clause
analysis, which support Appellant’s argument. These are reflected in the
much more modern cases affirming §5861’s unconstitutionality as a tax
on machineguns made after 1986. Bronsozian v. United States, 140 S. Ct.
2663 (2020) (voluntarily dismissed after cert petition); United States v.
Cox, 906 F.3d 1170, 1182 (10th Cir. 2018); U.S. v. Bournes, 339 F.3d 396
(6th Cir. 2003)) (holding the NFA provisions no longer sustainable under
the tax power); U.S. v. Gambill, 912 F. Supp. 287, 289–90 (S.D. Ohio
1996), aff'd, 129 F.3d 1265 (6th Cir. 1997) (“It is hard to understand how
any circuit could find such a conviction permissible when the provisions
of the NFA have been totally eclipsed by section 922(o).”).
To the extent the government may argue § 5861 may be complied
with by completely avoiding machineguns, that does not save the
statute’s application here as a legitimate exercise of the taxing power.
The United States can instead choose to follow its own manual and
7“The United States agrees that [U.S. v. Dalton and U.S. v. Rock Island
Armory, Inc.] are persuasive and should control the disposition of this
appeal, and [defendant's] conviction under 26 U.S.C. § 5861(d) should be
vacated.” Joint Motion for Remand, U.S. v. Kirk, No. 91-8418, motion
granted (5th Cir. April 28, 1992).
23
charge under § 922(o) in cases concerning post-1986 machineguns.
Accordingly, the district court erred in denying the motion to dismiss and
this Honorable Court should reverse the judgment and sentences in this
case.
Dated September 15, 2024
Respectfully submitted,
/s/Matthew Larosiere
6964 Houlton Circle
Telephone: 561-452-7575
24
CERTIFICATE OF COMPLIANCE
The undersigned certifies, pursuant to 11th Cir. Rule 28-1, that this
brief complies with the type-volume limitation of the Federal Rule of
Appellate Procedure (32)(a) because it contains 3,022 words, excluding
the parts exempted by Rule 32(f). This brief complies with the typeface
requirements and type style requirements for Rule 32(a) because it has
been prepared with Microsoft Word 2023 in 14 point, Century Schoolbook
font.
/s/ Matthew Larosiere

6964 Houlton Circle
Telephone: 561-452-7575
Counsel for Appellant Matthew
Raymond Hoover
25
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing was sent by CM/ECF on
September 15, 2024, and notice of this filing was electronically served on
all parties there registered for service, including:
VALARIE LINNEN, ESQ.

Counsel for Kristopher Ervin
SEAN SIEKKINEN
Assistant United States Attorney
I further certify that four hard copies of the foregoing brief are being
furnished to the Clerk of this Court by mail.
/s/Matthew Larosiere
6964 Houlton Circle
Telephone: 561-452-7575
26

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USCA11 Case: 23-13062 Document: 62 Date Filed: 09/15/2024 Page: 1 of 32

UNITED STATES COURT OF APPEALS

SUPPLEMENTAL BRIEFING OF APPELLANT MATTHEW

Matthew Larosiere, Esq.

USA v. Kristopher Ervin, et al, Appeal No. 23-13062

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE

Pursuant to 11th Cir. R. 26.1-1(a), Appellant files this Certificate of

Interested Persons and Corporate Disclosure Statement. The following

are all trial judges, attorneys, persons, associations of persons, firms,

partnerships, or corporations that have an interest in the outcome of this

case or appeal, including subsidiaries, conglomerates, affiliates, parent

party’s stock, and other identifiable legal entities related to a party

known to the undersigned.

1. Barksdale, Hon. Patricia D., United States Magistrate Judge

2. Call, Lisa, Federal Public Defender’s Office

3. Corrigan, Hon. Timothy J., United States District Judge

4. Ervin, Kristopher Justinboyer (Defendant)

5. Handberg, Roger B., United States Attorney

6. Hoover, Erica (Defendant’s Wife)

7. Hoover, Matthew Raymond (Defendant)

8. Hoppmann, Karin, former Acting United States Attorney

9. Howard, Marcia Morales (Trial Judge)

10. King, Alex, Esq.

11. Klindt, Hon. James R., United States Magistrate Judge

12. Larosiere, Matthew (Defendant-Appellant’s attorney)

13. Lopez, Maria Chapa, former United States Attorney

14. Mesrobian, David B., Assistant United States Attorney

15. Monroe, Daniel S., Esq.

16. Rhodes, David P., Assistant United States Attorney, Chief,

17. Richardson, Montgomery (Magistrate)

18. Siekkinen, Sean, Assistant United States Attorney

19. Taylor, Laura Cofer, Assistant United States Attorney

20. Tran, Mai, Assistant United States Attorney

21. Zermay, Zachary (Defendant’s attorney)

22. Zermay-Larosiere Law Group

23. Linnen, Valarie, Esq. (Appellant’s attorney)

24. Jaffe, Erik S., Esq. ; and

25. Sherill, Miranda Cherkas, Esq.

No publicly traded company or corporation has an interest in the

outcome of this appeal to the undersigned’s knowledge.

TABLE OF AUTHORITIES ............................................................................ iv

I. THE DISTRICT COURT, AND THE GOVERNMENT, TREATED

A. Cargill and “Automatically” as an Independent Element ........... 2

B. The Government’s Admitted Malfunction Was Not “Automatic” 5

C. The Government’s Logic Suggests Every Single AR15 in

II. THE DISTRICT COURT MISAPPLIED THIS CIRCUIT’S CASELAW

CERTIFICATE OF COMPLIANCE ............................................................. 25

CERTIFICATE OF SERVICE ....................................................................... 26

O’Neil, Aaron, “Annual Share of AR-15 assault rifles in the total

the government suggesting the Auto Key Card was a machinegun is

inconsistent with the statutory definition. It cannot be the case that a

malfunction, inherent in the design of one of the most common semi-

automatic rifles in America, results in a weapon that shoots

“automatically,” more than one shot. As explained infra, if the

government’s theory here can support a conviction, it must mean that

every single AR15 in America contains the receiver of a machinegun, and

that the possession of any post-1986 semiautomatic AR15 violates §

Review of the record inspired by new precedent also revealed an

issue in the district court’s holding with regard to its constitutional