United States v. Johnson

• Decision Date: 29 May 2012
• Docket Number: No. 11–10290.,11–10290.
• Citation: 12 Cal. Daily Op. Serv. 5794,680 F.3d 1140,2012 Daily Journal D.A.R. 7023
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Timothy Russell JOHNSON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

680 F.3d 1140

12 Cal. Daily Op. Serv. 5794

2012 Daily Journal D.A.R. 7023

UNITED STATES of America, Plaintiff–Appellee,

v.Timothy Russell JOHNSON, Defendant–Appellant.

No. 11–10290.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 16, 2012.

Filed May 29, 2012.

Thomas M. Hoidal, Law Office of Thomas M. Hoidal, P.L.C., Phoenix, AZ, for the defendant-appellant.

Tracy Van Buskirk, Assistant United States Attorney, Phoenix, AZ, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona, Susan R. Bolton, District Judge, Presiding. D.C. No. 2:10–cr–00379–SRB–1.

Before: MARY M. SCHROEDER, DIARMUID F. O'SCANNLAIN, and SUSAN P. GRABER, Circuit Judges.

OPINION

GRABER, Circuit Judge:

Defendant Timothy Russell Johnson appeals his jury conviction on two counts of making a false statement with respect to information required to be kept by a federally licensed firearms dealer, in violation of 18 U.S.C. § 924(a)(1)(A). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In a series of transactions, Defendant bought firearms and, almost immediately, delivered those firearms to Miguel Pedroza. Defendant did not possess a license to manufacture or deal in firearms.

On September 28, 2006, Defendant went to a store named “Shooters Supply Company,” which was a federally licensed firearms dealer. There, Defendant arranged to purchase 25 Polish AK–47 rifles. As part of the transaction, Defendant filled out ATF ¹ Form 4473. Question 11.a on Form 4473 reads:

Are you the actual buyer of the firearm(s) listed on this form? Warning: You are not the actual buyer if you are acquiring the firearm(s) on behalf of another person. If you are not the actual buyer, the dealer cannot transfer the firearm(s) to you. (See Important Notice 1 for actual buyer definition and examples.)

Important Notice 1 states:

Actual Buyer: For the purposes of this form, you are the actual buyer if you are purchasing the firearm for yourself or otherwise acquiring the firearm for yourself (for example, redeeming the firearm from pawn/retrieving it from consignment, firearm raffle winner). You are also the actual buyer if you are legitimately acquiring the firearm as a gift for a third party. ACTUAL BUYER EXAMPLES: Mr. Smith asks Mr. Jones to purchase a firearm for Mr. Smith. Mr. Smith gives Mr. Jones money for the firearm. Mr. Jones is NOT the actual buyer of the firearm and must answer “no” to question 11.a. The licensee may not transfer the firearm to Mr. Jones. However, if Mr. Brown goes to buy a firearm with his own money to give to Mr. Black as a present, Mr. Brown is the actual buyer of the firearm and should answer “yes” to question 11.a. Please note, if you are picking up a repaired firearm for another person, you should answer “n/a” to question 11.a.

Defendant answered “yes” to Question 11.a, declaring that he was the “actual buyer” of the firearms as defined on the form. Defendant then left Shooters Supply with the rifles and promptly delivered them to Pedroza, who gave him $4,500 as a partial payment.

On October 6, 2006, Defendant returned to Shooters Supply. He completed another Form 4473, again declaring himself to be the “actual buyer,” for the purchase of 34 firearms: 14 Polish AK–47 rifles and 20 Yugoslavian AK–47 rifles. Not all of the rifles were ready immediately, so Defendant arranged to pick them up at a gun show in Mesa, Arizona.

The next day, Defendant went to the gun show in Mesa. He walked almost directly to the Shooters Supply table and left pushing a cart stacked with seven cardboard boxes containing two rifles each. He put the boxes into his truck, which already contained several similar boxes. Defendant then drove directly from the gun show to the parking lot of a grocery store, where he met Pedroza. They transferred the firearms from Defendant's truck to Pedroza's truck. Defendant and Pedroza spoke for a few minutes, and Pedroza gave Defendant another $4,500. Pedroza departed with the firearms, returned home, and transferred the boxes to a gold minivan. He left, driving the minivan, and, at the direction of the ATF, was apprehended by Phoenix Police. Police found 59 firearms in Pedroza's vehicle, which matched the firearms listed on the two Form 4473s that Defendant had completed on September 28 and October 6.

Pedroza agreed to cooperate with the ATF. As part of that assistance, Pedroza recorded conversations with Defendant. Pedroza also paid Defendant the remaining money that he owed for the firearms, using cash provided by an ATF agent.

Thereafter, ATF agents executed search warrants at Defendant's home, business, and vehicle. Defendant agreed to speak with the agents. When asked about the firearms, Defendant admitted that he “got hooked up with a guy that, that's been buying them.” He identified that “guy” as Miguel Pedroza. Defendant said that he had sold firearms to Pedroza several times and that he would “hold those weapons for 5–6 hours, sometimes 12 hours, overnight, and then, then [he'd] deliver them.” Defendant stated that he never opened the boxes that he had acquired at the Mesa gun show before delivering them to Pedroza.

The government indicted Defendant on two counts of knowingly making a false statement with respect to information required under federal law to be kept in the records of Shooters Supply Company, in violation of 18 U.S.C. § 924(a)(1)(A).² The first count stemmed from Defendant's September 28, 2006 representation on Form 4473 that he was the actual buyer of the firearms, and the second count related to the similar representation made on the Form 4473 that Defendant completed on October 6, 2006.

A jury convicted Defendant on both counts, and the district court imposed a sentence of 30 months' imprisonment. Defendant timely appeals.

DISCUSSION

A. The district court correctly instructed the jury on the elements of the offense.

1. Section 924(a)(1)(A) does not require the government to prove that the falsehood related to the lawfulness of the sale.

Defendant first argues that we should read § 924(a)(1)(A) to contain an element requiring the government to show that the falsehood pertains to the lawfulness of the sale to the ultimate recipient. We review de novo questions of statutory interpretation. United States v. Havelock, 664 F.3d 1284, 1289 (9th Cir.2012) (en banc).

Relying on case law addressing convictions under 18 U.S.C. § 922(a)(6), Defendant argues that the government was required, under the “straw man doctrine,” ³ to prove that the actual purchaser, Pedroza, was ineligible to buy firearms. Only then, Defendant reasons, would his false claims to be the actual buyer of the firearms be “material” to the lawfulness of the sales.

Section 922(a)(6), on which Defendant relies by analogy, and § 924(a)(1)(A) describe separate statutory offenses. United States v. Buck, 548 F.2d 871, 876–77 (9th Cir.1977). Section 924(a)(1)(A) establishes a criminal penalty for anyone who “knowingly makes any false statement or representation with respect to the information required by this chapter to be kept in the records of a person licensed under this chapter.” Section 922(a)(6), by contrast, makes it unlawful

for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter[.]

(Emphasis added.) Section 922(a)(6) contains an explicit materiality requirement; § 924(a)(1)(A) does not. Instead, § 924(a)(1)(A) requires only that false statements be made with respect to information that is required to be kept by federally licensed firearms dealers.

“Statutory interpretation begins with the plain language of the statute.” United States v. Rosales, 516 F.3d 749, 758 (9th Cir.2008) (internal quotation marks and alteration omitted). “If the plain meaning of the statute is unambiguous, that meaning is controlling....” United States v. Williams, 659 F.3d 1223, 1225 (9th Cir.2011), cert. denied,––– U.S. ––––, 132 S.Ct. 1951, 182 L.Ed.2d 804 (2012). Here, the text of § 924(a)(1)(A) unambiguously describes which false statements and representations it prohibits—simply those that are made with respect to information that is required to be kept by federally licensed firearms dealers.

Furthermore, “where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Kucana v. Holder, ––– U.S. ––––, 130 S.Ct. 827, 838, 175 L.Ed.2d 694 (2010) (internal quotation marks and alteration omitted). Thus, under ordinary rules of statutory construction, we presume that Congress acted intentionally when it chose to include the word “material” in § 922(a)(6) but to omit it from § 924(a)(1)(A), which is part of the same Act. We should give meaning to that difference in congressional intent.

Our sister circuits are in accord. In United States v. Sullivan, 459 F.2d 993, 994 (8th Cir.1972) (per curiam), the Eighth Circuit held:

Appellant contends that an element of materiality should be read into the language concerning false statements made for the dealer's records. We disagree. While a violation of 18 U.S.C.A. § 922(a)(6) expressly requires a showing of materiality no such expression is found in § 924(a). Section 924(a) is in no way ambiguous and appellant fails to convince us that § 924(a) suffers any constitutional infirmity by not requiring an element of materiality.

Other circuits, although they have not explored the issue...