U.S. v. Mowad, 460
| Decision Date | 17 February 1981 |
| Docket Number | D,No. 460,460 |
| Parties | UNITED STATES of America, Appellee, v. Antoine MOWAD, Appellant. ocket 80-1197. |
| Court | U.S. Court of Appeals — Second Circuit |
Harold James Pickerstein, Chief Asst. U. S. Atty., Richard Blumenthal, U. S. Atty., D. Connecticut, Thomas S. Luby, Asst. U. S. Atty., Bridgeport, Conn., Daiga Osis, Law Student Intern, on brief, for appellee.
Douglas Gilmore, Westport, Conn., Raymond W. Ganim, Stratford, Conn., for appellant.
Before WATERMAN, MANSFIELD and VAN GRAAFEILAND, Circuit Judges.
Defendant Antoine Mowad appeals from a judgment of conviction entered on May 12, 1980 in the United States District Court for the District of Connecticut (Ellen Burns, Judge) after a jury trial resulting in verdicts of guilty on April 7, 1980. Mowad was convicted of dealing in firearms without a license, in violation of 18 U.S.C. § 922(a)(1), of attempting to export firearms without an export license, in violation of 22 U.S.C. § 2778(c) and 22 C.F.R. §§ 123.01 and 127.03, and of conspiracy to commit the two foregoing offenses in violation of 18 U.S.C. § 371. Mowad was sentenced to two years imprisonment on each of Counts One ("illegal dealing") and Two ("attempted illegal export"), the sentences to run concurrently, and to a five year term of probation on Count Three ("conspiracy"), to run consecutively to the sentences imposed on Counts One and Two.
On this appeal, Mowad raises a variety of challenges to the propriety of his conviction. First, he contends that the evidence adduced at trial was insufficient to provide support for the jury's verdict of guilty on each of the three charged violations of law. He also challenges the legal sufficiency of Count One of the indictment, and Count Three as well, for he maintains that he was a lawfully registered exporter of firearms at the time of his alleged violation of 18 U.S.C. § 922(a)(1) and therefore the trial court committed clear error by construing that statute so that he could be considered to be an unlicensed "dealer" in firearms.
For the reasons set forth below, we find no material error in the district court's rulings and the jury's verdict with reference to the attempted illegal export and conspiracy charges, and accordingly we affirm Mowad's conviction of these offenses. However, we conclude that the charge, Count 1, for dealing in firearms without having a license to do so should not have been submitted to the jury, and so we reverse Mowad's conviction for this offense and remand the case to the district court with directions to dismiss the illegal dealing charge and to vacate the sentence imposed therefor.
This case was commenced as a result of an investigation conducted by agents of the Bureau of Alcohol, Tobacco and Firearms (AT&F). In early November, 1978, AT&F agents began an investigation upon receiving information from a confidential source that certain individuals from Waterbury, Connecticut (later determined to be defendant Mowad and several companions) were attempting to purchase from the Sportsman's Rendezvous, a licensed federal firearms dealer located in Milford, Connecticut, a large quantity of firearms which they wished to export to Lebanon. AT&F agents thereupon made contact with one Vince Ciulla, an employee of the Sportsman's Rendezvous, who confirmed the information the agents had received. Ciulla and a friend, Robert Berger, the owner of the Yankee Gun Shop, a nearby licensed federal firearms dealer, agreed to cooperate with the AT&F agents in the investigation.
With Ciulla's consent, AT&F agents set up electronic monitoring and recording equipment in the Sportsman's Rendezvous. During the period between November 3, 1978 and April 6, 1979, Mowad and various of his companions made numerous visits to the Sportsman's Rendezvous and engaged in conversations with Ciulla, most of which were electronically recorded. During the course of these recorded conversations, a number of topics were discussed, including Mowad's desire to arrange a regular source of supply for periodic purchases of large quantities of firearms, "shop talk" concerning the prices and performance characteristics of various types of firearms, and preliminary negotiations arranged by Ciulla between Mowad and an undercover AT&F agent, posing as a private pilot, relating to the latter's proposal to smuggle a shipment of firearms, to be purchased by Mowad, out of the country.
Throughout the relevant period, Mowad repeatedly indicated to Ciulla his interest in acquiring large quantities of firearms for shipment to Lebanon, but the proposed deals frequently fell through, ostensibly because Mowad and his companions had been advised at various times by their contacts in Lebanon that passing a large shipment of firearms undetected through Lebanon customs would be too difficult. 1 Finally, however, Mowad and his companions apparently received word from their contacts in Lebanon that the difficulties with Lebanese customs had been removed, and, being advised by Berger of the continued availability of a supply of stolen firearms, they, following a series of late March 1979 visits to the Sportsman's Rendezvous, gave Ciulla a down payment of $3,000 and placed a definite order for an assortment of 110 handguns.
On April 6, 1979, Mowad and his companions arrived at the Yankee Gun Shop, where they met Ciulla and Berger. From there, the entire group proceeded to an abandoned warehouse building in New Haven, where the firearms were being stored. Mowad and his companions packed the weapons into two large wooden crates, which they had brought along for this purpose, using empty handgun boxes as filling material to balance out the load. After the weapons were crated, Berger was given $13,750 in cash, the remainder of the purchase price. Mowad and his companions then were arrested as they were removing the crates from the warehouse. 2
Mowad was, as we have stated earlier, a lawfully registered exporter of firearms, and, at trial, his principal defense revolved around the contention that he, as such, had not engaged in any unlawful activity up to the time of his arrest. Mowad contended that he and his companions, had they not been arrested, would have transported the crated handguns to Mowad's home in Waterbury, Connecticut, and stored them there until Mowad could procure the necessary export license to ship the weapons legally to Lebanon.
On this appeal, Mowad, in attacking the validity of his conviction, continues to rely primarily upon his status as a lawfully registered exporter of firearms. With reference to the illegal dealing charge, Mowad maintains, as he did in the trial court below, that, absent a showing of some conduct inconsistent with a professed intent to export firearms, one who has lawfully registered as an exporter of firearms with the State Department under the Arms Export Control Act, 22 U.S.C. §§ 2751-2794, cannot as a matter of law be found to be a "dealer" under the Gun Control Act, 18 U.S.C. §§ 921-928.
In response, the Government does not contest Mowad's status as a legally registered exporter of firearms and does not challenge Mowad's assertion that the shipment of firearms in question was destined for export to Lebanon, and not for domestic sale. Rather, the Government maintains that the relevant statutory language 3 is literally applicable to Mowad's conduct. The Government reasons that Mowad, who is not a "licensed dealer" under the Gun Control Act, by his own admission intended to export firearms in his possession to Lebanon, conduct which logically is encompassed by the language "to engage in the business of ... dealing in firearms ... or in the course of such business to ship ... any firearm ... in interstate or foreign commerce," and thus is guilty of the charged statutory violation.
We agree with the Government's observation that "the starting point for interpreting a statute is the language of the statute itself." Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). However, we do not share the Government's belief that the clear meaning of the statutory language here unequivocally encompasses Mowad's conduct. Our doubts are raised initially by the fact that although the terms "importer" and "importing" are specifically mentioned in the statute, the terms "exporter" and "exporting" are conspicuously absent. Accordingly, because the express language of the statute does not clearly delineate the intended scope of its coverage, we shall turn to an examination of the legislative history of the statute, and to other related materials, for aid in ascertaining the intended sweep of this statutory prohibition.
Such an examination produces strong support for Mowad's position on this appeal. To begin with, the Gun Control Act was part of a comprehensive congressional legislative effort aimed at dealing with the rising tide of violent crime within the United States. 4 This congressional intent is clearly revealed by the preamble to the Gun Control Act:
The Congress hereby declares that the purpose of this title is to provide support to Federal, State, and local law enforcement officials in their fight against crime and violence, and it is not the purpose of this title ... (to) provide for the imposition by Federal regulations of any procedures or requirements other than those reasonably necessary to implement and effectuate the provisions of this title.
(1968) U.S.Code Cong. & Ad.News 1397. 5 This declaration of congressional purpose was further amplified and detailed in the legislative history relating to the enactment of the Omnibus Crime Control and Safe Streets Act of 1968 and the Gun Control Act. 6 Once again, it is worthy of note that although the problems posed by imported firearms were recognized and discussed, 7 no mention is made of exported firearms. This omission is consistent with Mowad's...
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