U.S. v. Camacho
| Decision Date | 05 January 1976 |
| Docket Number | Nos. 75--1557,75--1447,s. 75--1557 |
| Citation | 528 F.2d 464 |
| Parties | The UNITED STATES of America, Plaintiff-Appellee, v. Hector G. CAMACHO, Defendant-Appellant. The UNITED STATES of America, Plaintiff-Appellee, v. Jose Dolores RAYGOZA, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before CHAMBERS and HUFSTEDLER, Circuit Judges, and JAMESON, * District Judge.
In a consolidated jury trial appellants were convicted of violations of the Gun Control Act of 1968--on one count of conspiracy, in violation of 18 U.S.C. § 371, and three substantive counts of the sale and delivery of firearms to non-residents by appellant Camacho, aided and abetted by appellant Raygoza, 1 and violation of 18 U.S.C. § 922(b)(3) and 2. 2 We affirm both convictions.
Camacho is a federally licensed firearms dealer who has a small store in Somerton, Arizona near the Mexican border. On August 21, 1974 Lieutenant Pena, a Mexican Army officer on assignment with the Alcohol, Tobacco, and Firearms Division of the U.S. Department of the Treasury, went to Camacho's store and told Camacho that he was from Mexico and was interested in purchasing firearms. Camacho asked Pena if he had someone to sign the registration forms required by the Gun Control Act. Pena stated that he did not. At about that time Raygoza came into the store. Camacho suggested that Pena should ask Raygoza to sign the form. Raygoza declined, explaining that he had done so on too many previous occasions. At Camacho's suggestion Pena left with Raygoza to find someone else to sign. Raygoza drove Pena to find Gonzalo Quintero. Quintero agreed to sign the forms after Raygoza vouched for Pena. At the store Camacho had Quintero sign for two weapons. Pena paid Camacho for the guns and gave Quintero twenty dollars for his signature.
The next day Pena went to Camacho's store to purchase an additional gun. Within a short time Raygoza arrived with Pedro Rivas. Raygoza had approached Rivas earlier that day about signing registration forms for Pena. Rivas signed the form, and Pena paid Camacho for the gun and Rivas for his signature.
On October 8, Pena, accompanied by a federal agent named Cabrerra, returned to Camacho's store. Pena introduced Cabrerra as a resident of Peru. Pena then purchased another weapon which Camacho offered to hold until Pena could find someone to sign the registration form. Pena and Cabrerra went to Raygoza's house, where Raygoza agreed to get someone to sign the forms and suggested that Pena buy more than one weapon. They agreed to meet the next afternoon at Camacho's store.
On October 9 the two agents, after first visiting the store and selecting the weapons to be purchased went to Raygoza's house. The three then picked up Chavez and Rivas, both of whom agreed to sign for Pena. The men went back to the store where Pena purchased a total of ten weapons, Rivas and Chavez signing for five guns each. Camacho told Chavez and Rivas to have Pena sign on the back of the forms that Pena had received the guns as gifts. Pena told Camacho he would not sign anything, and Camacho replied that he would hold the forms for a while so that it would not seem that Chavez and Rivas had purchased so many weapons. Camacho, Raygoza, Quintero, Chavez and Rivas were then placed under arrest.
Camacho contends that 18 U.S.C § 922(b)(3) does not prohibit a licensed dealer from selling firearms to non-resident aliens, but only to persons who are residents of another state within the United States. Appellant's argument is based in large part on cases construing other sections of the Omnibus Crime Control and Safe Streets Act of 1968 and amendments thereto contained in the Gun Control Act of 1968 relating to the sale and possession of firearms, where the statutes were held to be ambiguous. These cases are distinguishable. 3 Section 922(b)(3) is clear and unambiguous. It provides that it shall be unlawful for a licensed dealer to sell or deliver any firearm to any person who the licensee knows or has reasonable cause to believe does not reside in the state in which the licensee's place of business is located.
Following the definition of 'state' in 26 C.F.R. Section 178.11, the trial court instructed the jury:
'The term 'state of residence' is defined as follows:
Camacho's place of business was in the State of Arizona. Pena, when he purchased the guns, was a resident of Mexico. He was an alien who had not established residence in Arizona. Camacho had reason to believe that Pena did not reside in Arizona. Under the clear wording of the statute, the sales were prohibited.
It is clear from the legislative history of the Gun Control Act of 1968 that Congress intended comprehensive federal control over interstate and foreign commerce in firearms to assist the states to cope with firearms traffic. The Senate Report reads in pertinent part:
S.R. 1097, 90th Cong., 2d Sess. (1968), 2 U.S.Code. Cong. & Admin.News p. 2114.
With this stated legislative purpose in mind, we turn to the cases which Camacho contends lend support to his position that § 922(b)(3) applies only to residents of another state. In United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971) the Court construed § 1202(a)(1) of the Omnibus Crime Control and Safe Streets Act, providing that a person convicted of a felony 'who receives, possesses . . . or transports in commerce or affecting commerce . . . any firearm' shall be punished as therein provided. The Court held that the ambiguity of the Section (as to whether receipt or possession of a firearm must be shown in an individual prosecution to have been connected with interstate commerce) must be resolved in favor of the narrow reading requiring that nexus with interstate commerce be shown with respect to all three offenses embraced by the provision. In the 'absence of a clearer direction from Congress', the Court refused to adopt the broader meaning, which 'would mark a major inroad into a domain traditionally left to the States'. 404 U.S. at 339, 92 S.Ct. at 518. Camacho argues that since the State of Arizona does not restrict firearm sales, § 922(b)(3) must also be narrowly construed. However, as this court held in Redus, supra, 469 F.2d at 187, in construing § 922(a)(1), Bass is distinguishable because the 'statute before the court, unlike the one considered in Bass, is unambiguous'. The same is true here with respect to § 922(b)(3). The direction from Congress is clear.
Camacho's reliance on United States v. Kraase, 484 F.2d 549 (7 Cir. 1973) is also misplaced. In Kraase the court construed § 922(a)(5), which provides in pertinent part that any person who is not a licensed dealer may not sell any firearm to any person (other than one who is licensed) 'who the transferor knows or has reasonable cause to believe resides in any state other than that in which the transferor resides . . .' The purchaser represented himself to be a resident of another state, but was in fact a resident of the same state as the seller. Noting that § 922(a)(5) was ambiguous, the court held that an unlicensed seller could not be convicted where both the purchaser and seller are residents of the same state, even though the 'seller has reasonable cause to believe otherwise.' 4 Section 922(b)(3), relating to licensed dealers, prohibits a sale to any person not residing in the licensee's state and does not require, as does § 922(a)(5), that the purchaser be a resident of another state before the sale is illegal.
An alien who has not established residence in the state where the licensed dealer is located falls within the class of persons to whom the dealer is not permitted to sell firearms under § 922(b)(3). Under appellant's construction of the section aliens would be permitted to purchase firearms in any state, whereas United States citizens could do so only when they resided in the same state as the dealer. Here Camacho knew that Pena was a resident of Mexico and that the sales were illegal under the Gun Control Act. At the time of each sale Camacho insisted that a resident of Arizona sign the registration forms before completing the sale and delivery to Pena. We reject the contention that the sales were not prohibited by § 922(b)(3).
Raygoza contends that (1) there is insufficient evidence to support the judgment that Raygoza aided and abetted Camacho; (2) the court abused its discretion in failing to dismiss Count I of the indictment, charging conspiracy; (3) there is insufficient evidence to support the judgment that Raygoza conspired with Camacho; and (4) the court abused its discretion in...
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...interests, or failure to properly instruct the jury on the admissibility of evidence as to each defendant. See United States v. Camacho, 528 F.2d 464, 470(9th Cir 1976), cert. denied, 429 U.S. 995, 96 S.Ct. 2208, 48 L.Ed.2d 819 (1976); United States v. Fernandez, 388 F.3d 1199, 1241(9th Cir......
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