721 F.2d 967 (4th Cir. 1983), 83-5002, United States v. Wilson

Docket Nº:83-5002.
Citation:721 F.2d 967
Party Name:UNITED STATES of America, Appellee, v. Edwin Paul WILSON, Appellant.
Case Date:November 04, 1983
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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721 F.2d 967 (4th Cir. 1983)

UNITED STATES of America, Appellee,

v.

Edwin Paul WILSON, Appellant.

No. 83-5002.

United States Court of Appeals, Fourth Circuit

November 4, 1983

Argued June 10, 1983.

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Herald Price Fahringer, New York City, for appellant.

Theodore S. Greenberg, Asst. U.S. Atty., Alexandria, Va. (Elsie L. Munsell, U.S. Atty., Alexandria, Va., on brief) and Kim E. Rosenfield (William C. Hendricks, III, Jo Ann Farrington, William Otis, Dept. of Justice, Washington, D.C., on brief), for appellee.

Before RUSSELL and MURNAGHAN, Circuit Judges, and BULLOCK, District Judge, United States District Court for the Middle District of North Carolina, sitting by designation.

DONALD RUSSELL, Circuit Judge:

Appellant Edwin P. Wilson was convicted, following a jury trial, of seven federal criminal offenses involving the export of a M-16 rifle and four revolvers. In summary, these offenses are: 1) conspiracy, under 18 U.S.C. Sec. 371, to export firearms illegally in violation of 18 U.S.C. Secs. 922(a)(3), 922(e), 924(b) and 22 U.S.C. Sec. 2778 (Count 1); 2) export of firearms without a license, 22 U.S.C. Sec. 2778(b)(2), (c) (Counts 2 and 6); 3) delivery of firearms to a common carrier for shipment in foreign commerce without written notice to the carrier, 18 U.S.C. Sec. 922(e) (Counts 4 and 7); and 4) transport of firearms in foreign commerce with intent to commit a felony, i.e., the export of firearms without a license, 18 U.S.C. Sec. 924(b) (Counts 5 and 8). 1 Wilson challenges these convictions on numerous grounds. We vacate the sentences imposed and remand for resentencing on the 18 U.S.C. Sec. 924(b) and 22 U.S.C. Sec. 2778 convictions, and otherwise affirm.

I.

Edwin Wilson served in the Central Intelligence Agency between 1955 and 1970, and then worked with United States naval intelligence until 1975. After his resignation, he started his own firm and embarked upon commercial dealings with the government of Libya. By late 1978 or early 1979, Wilson began negotiating for the sale of weapons to the Libyans, and in 1979 he commenced a scheme to procure sample weapons through his employees. The government argued at trial that Wilson's motivation was the prospect of lucrative arms contracts with Libya, worth millions of dollars; Wilson maintains that his actions were intended to secure the confidence of the Libyans and enable him to obtain secret information for United States intelligence agencies. Wilson's employees were unable to acquire the desired weapons in Europe, and Wilson then turned to the United States, although he knew that he could not obtain the required export licenses.

In March of 1979, Wallace Klink, an employee of Wilson's in the United States, acting on Wilson's instructions bought four revolvers and turned them over to Reginald Slocombe, another Wilson associate. Slocombe concealed the handguns in a toolbox, and checked the toolbox on a flight from Dulles International Airport to London, England and Rotterdam, Holland. Ultimately Wilson's employees, following his instructions, delivered the weapons to a Libyan named Ezzidine Monseur in Bonn, West Germany.

In May of 1979, Wilson telephoned a close associate in the United States, Paul Cyr, and asked Cyr to obtain for him a sample M-16 automatic rifle, offering to pay $10,000. Cyr had acquired a M-16 several

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years before while serving in the Army; the weapon had formerly been a display piece possessed by a General Anderson. Cyr gave the M-16 to Slocombe, who concealed it in a footlocker, and acting on Wilson's instructions, checked it on a flight from New York City to Amsterdam, Holland. On neither this nor the previous occasion had Slocombe given notice that he was transporting firearms to the carrier. In Amsterdam, Wilson personally took possession of the M-16, and from there it was placed on a chartered jet and flown to Libya.

Some three months later, the Libyan government entered into a contract with Wilson for 5000 M-16 rifles and other arms and ammunition. Wilson proved unable to perform on this contract.

II.

The most serious issue presented by this appeal is Wilson's contention that his convictions under both 18 U.S.C.A. Sec. 924(b) and 22 U.S.C.A. Sec. 2778 are multiplicitous. 22 U.S.C.A. Sec. 2778(a)(1) authorizes the President to control the import and export of designated defense articles and defense services. Among the regulated items are automatic and nonautomatic firearms. Section 2778(b)(2) prohibits unlicensed export or import of these items, while Sec. 2778(c) authorizes imprisonment of up to two years and a maximum fine of $100,000 for willful violations. 2 18 U.S.C.A. Sec. 924(b) authorizes imprisonment of up to ten years and a maximum fine of $10,000 for anyone who ships, transports or receives a firearm or ammunition in interstate or foreign commerce "with intent to commit therewith" an offense punishable by imprisonment exceeding one year. 3 In this case, Wilson's Sec. 2778 violations furnished the predicate felonies for his Sec. 924(b) convictions. He received fifteen years' imprisonment on the Sec. 924(b) counts, with four years' concurrent imprisonment and a $200,000 fine on the Sec. 2778 counts. We believe that Congress did not intend Sec. 2778 and Sec. 924(b) offenses to be punished more severely in combination than either could be punished separately, absent any additional proof of wrongdoing. Indeed, imposing sentences under both statutes would violate the appellant's Fifth Amendment protection against double jeopardy.

Our starting point is the Supreme Court's double jeopardy analysis articulated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), which declares that "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Id. at 304, 52 S.Ct. at 182. Subsequent Supreme Court decisions have

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made it clear that the crucial inquiry is whether proof of all statutory elements of either offense would automatically entail proof of all the elements of the other. See Illinois v. Vitale, 447 U.S. 410, 416, 100 S.Ct. 2260, 2265, 65 L.Ed.2d 228 (1980); Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1293 n. 17, 43 L.Ed.2d 616 (1975). Here, it is evident that proof of all the elements of Sec. 2778 automatically proves a Sec. 924(b) violation. The controlled defense articles under Sec. 2778 include the firearms regulated by Sec. 924(b), while export under Sec. 2778 and transport in foreign commerce under Sec. 924(b) are practical equivalents. Finally, we recognize that the term "willfully," the mens rea element of Sec. 2778, connotes a specific intent requirement. Other circuits have so held in interpreting Sec. 2778 or its predecessor provision. See United States v. Hernandez, 662 F.2d 289, 292 (5th Cir.1981); United States v. Wieschenberg, 604 F.2d 326, 331 (5th Cir.1979); United States v. Davis, 583 F.2d 190, 193 (5th Cir.1978); United States v. Lizarraga-Lizarraga, 541 F.2d 826, 828 (9th Cir.1976). Proof of specific intent to commit a Sec. 2778 violation thus necessarily subsumes the intent to commit the predicate felony required by Sec. 924(b). Because we cannot assume, absent an explicit statement of Congressional intent, that the Blockburger rule is to be superseded, see Whalen v. United States, 445 U.S. 684, 692, 100 S.Ct. 1432, 1438, 63 L.Ed.2d 715 (1980), we must vacate the sentences on appellant's Sec. 924(b) and Sec. 2778 convictions, and remand to the District Court for resentencing under either statute but not both.

We do not believe that the Supreme Court's recent decision in Missouri v. Hunter, --- U.S. ----, 103 S.Ct. 673, 74 L.Ed. 535 (1983), compels a different result. There, the Court determined that a legislature may specifically authorize cumulative punishment under two statutes which proscribe the same offense according to the Blockburger test, notwithstanding the constitutional prohibition on double jeopardy. --- U.S. at ----, 103 S.Ct. at 679, 74 L.Ed. at 544. In Hunter, however, the very language of the statute at issue stipulated that punishment should be "in addition to" any punishment prescribed by other statutes for the same acts. Here, Sec. 924(b) is at best ambiguous, and the legislative history is silent. We have previously recognized that where ambiguity exists in such a situation, doubts should be resolved in favor of lenity. See, e.g. United States v. Barrington, 662 F.2d 1046, 1054 (4th Cir.1981). Furthermore, we note that in 1971, Pub.L. No. 91-644, Congress amended subsection (c) of Sec. 924, the companion provision of Sec. 924(b), by authorizing cumulative punishment with the phrase "in addition to"; had Congress wished to make Sec. 924(b) a cumulative punishment statute, it could easily have inserted a similar amendment simultaneously. That Congress has not done so is persuasive evidence of legislative intent. 4

Our holding that appellant may not be punished for both his Sec. 924(b) and Sec. 2778 offenses does not mandate a new trial. Given the duplication of elements in the Sec. 2778 and Sec. 924(b) counts, no irrelevant and possibly prejudicial evidence was before the jury. Nor do we believe that the mere inclusion of the multiplicitous counts in the indictment resulted in any undue prejudice. We therefore decline to order a new trial.

III.

Appellant raises several other less substantial claims of error, which we reject.

A. Initially, Wilson contends that the District Court's jurisdiction over his person was improperly acquired by fraud on the part of the government. The...

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