528 F.2d 464 (9th Cir. 1976), 75--1557, United States v. Camacho

Docket Nº:75--1557, 75--1447.
Citation:528 F.2d 464
Party Name: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.
Case Date:January 05, 1976
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 464

528 F.2d 464 (9th Cir. 1976)

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.

Nos. 75--1557, 75--1447.

United States Court of Appeals, Ninth Circuit

January 5, 1976

Rehearing Denied Feb. 9, 1976.

Certiorari Denied May 24, 1976.

See 96 S.Ct. 2208.

Page 465

Stephen Lewis Parker (argued), Phoenix, Ariz., for Raygoza.

Atmore Baggot (argued), Phoenix, Ariz., for Camacho.

Ron Jennings, Asst. U.S. Atty. (argued), Phoenix, Ariz., for the United States.

OPINION

Before CHAMBERS and HUFSTEDLER, Circuit Judges, and JAMESON, [*] District Judge.

Page 466

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.

Factual Background

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 Appeal

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

Page 467

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:

'The State in which an individual regularly resides, or maintains his home, or if such person is on active duty as a member of the United States Armed Forces, the State in which his permanent duty station is located: Provided, That an alien who is legally in the United States shall be considered to be a resident of the State in which (a) he is residing...

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