Background
James Morgan, a Wisconsin resident, spent years amassing a collection of homemade weapons—including acid sprayers, flamethrowers, and pipe bombs—while documenting his efforts and posting violent, antisemitic, and racist threats on social media platforms including Facebook and Gab. His online activity drew state, local, and federal law enforcement attention beginning in 2019, though early assessments concluded he did not pose an imminent threat. The FBI reopened its investigation in July 2022 based on escalating online activity, including a May 2023 message to his girlfriend describing plans to deploy chlorine gas against federal agents.
In December 2023, the FBI obtained a search warrant from a magistrate judge in the Eastern District of Wisconsin. The warrant affidavit included more than twenty screenshots and photos of Morgan’s posts showing weapons construction and explicit calls for violence. When agents executed the warrant on December 21, 2023, they searched Morgan’s travel trailer—then parked in Janesville in the Western District—and found six homemade pipe bombs in a safe, four of which had construction-grade nails glued to them. A Western District grand jury subsequently indicted Morgan on one count of possessing unregistered destructive devices in violation of 26 U.S.C. § 5861(d).
Morgan moved to suppress the pipe bombs, arguing the Eastern District magistrate judge lacked authority under Federal Rule of Criminal Procedure 41(b) to issue a warrant executed in the Western District. He also moved to dismiss the indictment, contending that the National Firearms Act exceeds Congress’s enumerated taxing authority. The district court denied both motions. Morgan entered a conditional guilty plea preserving his appellate rights, was sentenced to 24 months’ imprisonment and three years’ supervised release, and appealed.
The Court’s Holding
The Seventh Circuit affirmed on both issues. On the suppression question, the court addressed a matter of first impression in the circuit: what standard of proof governs a magistrate judge’s authority to issue an extra-district warrant under Rule 41(b)(3)’s domestic-terrorism exception. The court declined to resolve whether the standard is probable cause or the lesser “reason to believe” standard discussed in out-of-circuit authority, because the affidavit satisfied probable cause in any event. Reviewing the affidavit holistically against the statutory definition of domestic terrorism in 18 U.S.C. § 2331(5), the court found probable cause supporting all three intent prongs—intimidation of a civilian population, influencing government policy through intimidation, and affecting government conduct through mass destruction—based on Morgan’s documented weapons development and explicit threats against civilians and government officers.
The court also rejected Morgan’s Franks v. Delaware challenge. Although the warrant affidavit omitted certain exculpatory details—including a family member’s statement that Morgan’s rhetoric had declined after his father’s death, and prior law-enforcement assessments that he posed no imminent threat—the court found no clear error in the district court’s conclusion that these omissions were immaterial. Earlier threat assessments were inherently time-bound, and by December 2023 investigators had access to Morgan’s explicit threat to deploy chlorine gas against federal agents, making the earlier benign assessments of marginal relevance.
On the motion to dismiss, the court held that Morgan’s constitutional challenge to 26 U.S.C. § 5861(d) was squarely foreclosed by Sonzinsky v. United States, 300 U.S. 506 (1937), and the circuit’s own precedents in United States v. Lim and United States v. Copus. The court declined to reconsider those precedents based on NFIB v. Sebelius, noting that the Supreme Court does not overrule prior decisions by implication and that Sebelius itself favorably cited Sonzinsky.
Key Takeaways
- Rule 41(b)(3) authorizes a magistrate judge to issue a warrant for property outside the district when the affidavit establishes—at minimum, and likely under a probable-cause standard—that the investigation involves domestic terrorism as defined by 18 U.S.C. § 2331(5); the Seventh Circuit left the precise standard open for a future case.
- A Franks challenge based on omitted exculpatory information fails where the omitted facts are time-bound or marginal relative to more recent evidence of criminal intent; courts give special deference to issuing magistrate judges and the district courts that review their determinations.
- The National Firearms Act’s registration and transfer requirements, including 26 U.S.C. § 5861(d), remain a constitutional exercise of Congress’s taxing power under binding Supreme Court and Seventh Circuit precedent, and NFIB v. Sebelius does not disturb that conclusion.
- Online posts documenting homemade weapons construction and explicit threats against civilians and government officials can supply probable cause for the domestic-terrorism nexus required by Rule 41(b)(3), even where First Amendment-protected speech is interwoven with the evidentiary record.
Why It Matters
This decision is the Seventh Circuit’s first to address the standard of proof required to invoke Rule 41(b)(3)’s domestic-terrorism exception to the general rule that magistrate judges may only authorize searches within their own district. By confirming that the affidavit here met even the higher probable-cause threshold—while expressly reserving the question of whether a lesser standard applies—the court signals that the exception is meaningful but not self-executing: the government must present specific, articulable facts tying the investigation to the statutory definition of domestic terrorism. Practitioners seeking extra-district warrants in terrorism investigations should carefully document the intent elements of § 2331(5), not merely the dangerousness of the alleged conduct.
The decision also reinforces the durability of the National Firearms Act’s registration scheme against post-Sebelius taxing-power challenges, joining every other circuit to have considered the question. Defense attorneys hoping to leverage Sebelius‘s functional penalty analysis against NFA prosecutions will find the Seventh Circuit, like its sister circuits, unwilling to treat that decision as an implicit overruling of Sonzinsky.