U.S. v. Faurote

• Decision Date: 20 November 1984
• Docket Number: No. 83-1597,83-1597
• Citation: 749 F.2d 40
• Parties: 16 Fed. R. Evid. Serv. 1171 UNITED STATES of America, Plaintiff-Appellee, v. Thomas A. FAUROTE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 40

749 F.2d 40

16 Fed. R. Evid. Serv. 1171

UNITED STATES of America, Plaintiff-Appellee, v. Thomas A. FAUROTE, Defendant-Appellant.

No. 83-1597.

United States Court of Appeals,

Seventh Circuit.

Argued April 12, 1984.

Decided Nov. 20, 1984.

David H. Miller, Asst. U.S. Atty., Hammond, Ind., for plaintiff-appellee.

Thomas A. Faurote, pro se.

Before, PELL and COFFEY, Circuit Judges, and NICHOLS, Senior Circuit Judge. ^*

COFFEY, Circuit Judge.

Defendant-appellant Thomas A. Faurote, appearing pro se, appeals his conviction for one count of failing to document the sale of a firearm, in violation of 18 U.S.C. Sec. 922(b)(5). We affirm.

I

The record reveals that the defendant, Thomas Faurote, is a quality assurance inspector for the Kunkle Valve Co. of Fort Wayne, Indiana. During the relevant time period, December 1981 to July 1982, Faurote held a Federal firearms license and an Indiana handgun sales permit. Faurote operated a firearms business from his residence in Fort Wayne, Indiana--collecting, trading, and selling firearms to members of the general public. Federal law requires that when a licensed dealer sells a firearm to a non-licensed individual, the purchaser's name, age, and place of residence must be reported on a "firearm transaction record," commonly referred to as a Federal form 4473. See 18 U.S.C. Sec. 922(b)(5)(1982). ¹ The Federal regulations expressly provide that:

"Prior to making an over-the-counter transfer of a firearm to a non-licensee who is a resident of the State in which the licensee maintains his business or collection premises, the licensed importer, licensed manufacturer, licensed dealer, or licensed collector so transferring the firearm shall obtain a Form 4473 from the transferee showing the name, address, date and place of birth, height, weight, and race of the transferee, and certification by the transferee that he is not prohibited ... from receiving a firearm in interstate or foreign commerce."

27 C.F.R. Sec. 178.124 (1983). Once completed, a copy of the Federal form 4473 is forwarded to the law enforcement officer designated on the form, and delivery of the firearm is delayed for a period of seven days to allow the officer to review the information. Id. In addition, the licensed dealer is required to retain the original of each Federal form 4473 as part of his permanent file. Id.

In December 1981, Mark Jones, a paid informant of the Allen County, Indiana Police Department, contacted Faurote concerning a firearms advertisement placed by Faurote in the Peddler's Post, a trading newspaper for northeast Indiana. Jones was interested in trading his Mouser 30.06 rifle for one of Faurote's advertised handguns. Faurote instructed Jones to "come out to his house" and when Jones arrived, Faurote offered to trade a .25 caliber semi-automatic pistol for Jones' rifle. Faurote added that "there wouldn't be papers" involved in the transaction. Jones refused to make the trade, claiming that it was "too cheap of a deal." Following this meeting, Jones called Special Agent Thomas Lambert of the Bureau of Alcohol, Tobacco and Firearms ("ATF"), and informed him that Faurote offered to sell a handgun without documenting the transaction on a Federal form 4473.

On February 7, 1982, Rulo Batchelder, a part-time officer with the Allen County Police Department and fellow employee of Faurote at the Kunkle Valve Co., purchased a .16 gauge single barrel shotgun from Faurote for $35.00. Faurote never requested that Batchelder provide him with the personal information that is necessary to complete a Federal form 4473 and, upon inspection of Faurote's firearm transaction records, the ATF discovered no documentation of this sale.

The following month, on March 11, 1982, James Richardson, a special agent of the ATF, phoned Faurote concerning his handgun advertisement appearing in the Peddler's Post. The purpose of Richardson's inquiry was to conduct a preliminary investigation and determine if Faurote was "disposed to sell firearms" without reporting the transaction on a Federal form 4473. Following a brief conversation, Faurote and Richardson agreed to meet at Faurote's house later that evening. At that meeting, Faurote displayed the various guns for sale and informed Richardson that every sale had to be documented on a Federal form 4473. Based upon the information obtained at this meeting, Richardson concluded that Faurote "would not sell firearms without paperwork."

On April 6, 1982, Joseph Byers, acting as an undercover informant for the ATF, contacted Faurote, identified himself as "Joseph Meyers," and arranged a meeting to inspect the handguns that Faurote had for sale. During the meeting, Byers expressed an interest in purchasing certain firearms, but explained that he was reluctant to do so through a licensed dealer because he "did not like to fill out paperwork." Two days later, on April 8, 1982, Byers phoned Faurote and at that time, agreed to purchase an unregistered Colt .45 semi-automatic revolver that Faurote had on display at his house. A week later, on April 14, 1982, Byers traveled to Faurote's house, purchased the revolver, and followed Faurote's instruction to "[g]ive the money to [Faurote's] wife." Faurote never requested that Byers furnish him with the personal information necessary to complete a Federal form 4473 and, upon inspection of Faurote's firearm transaction records, the ATF found no documentation of this sale.

On July 13, 1982, Faurote contacted Rulo Batchelder, the part-time policeman to whom he had previously sold a .16 gauge single barrel shotgun in February of 1982, and gave him a list describing some ten different illegal firearm transactions that Faurote had learned of from various sources. According to Faurote, he wanted to assist the local and Federal officials in their crackdown on illegal firearm transactions in northeast Indiana. Faurote asked Batchelder to pass the list along to ATF agents, but Batchelder refused because the list did not contain the names of those individuals who had illegally purchased and sold the firearms. As a result of Batchelder's refusal to notify the ATF, Faurote became suspicious that he was being "framed" by Batchelder. On July 29, 1982, Faurote visited Batchelder, inquired about the list, and allegedly recorded the ensuing conversation with a micro-cassette recorder hidden on his person. During that conversation Faurote allegedly told Batchelder, "I wish you would have gave [the list] to [the ATF] when I gave it to you." Batchelder allegedly responded, "I wish you had told me that you were willing to supply all of the names when you gave me the list."

On December 2, 1982, a Federal grand jury returned an indictment against Faurote, charging him with six counts of failing to document the sale of firearms, in violation of 18 U.S.C. Sec. 922(b)(5). Faurote pleaded not guilty to each of the six counts and requested a trial by jury. At trial, Faurote contended that he was not predisposed to sell firearms without reporting the transaction on a Federal form 4473 and thus he was entrapped into violating 18 U.S.C. Sec. 922(b)(5). In response to this entrapment defense, the Government called Rulo Batchelder as a rebuttal witness. Batchelder testified that the list he received from Faurote on July 13, 1982, "was of no use" because there were no "specific names, dates, places." On cross-examination, Batchelder could not recall his alleged statement to Faurote on July 29, 1982, that "I wish you had told me that you were willing to supply all the names when you gave me the list." At that time, the defense counsel called Faurote to the stand and attempted to introduce the alleged tape recording of the July 29 conversation, along with an alleged written transcript of that recording, into evidence. Following the defense counsel's repeated attempts to establish the authenticity of the tape recording, the district court judge ruled that the alleged recording, and the transcription of that recording, were inadmissible because the defendant had failed to lay a proper foundation for the introduction of such evidence.

Based upon the evidence presented at trial, the jury found Faurote guilty on only one of the six counts of failing to document the sale of a firearm, in violation of 18 U.S.C. Sec. 922(b)(5). In particular, the jury found that Faurote failed to report the April 8, 1982 sale of the Colt .45 caliber semi-automatic revolver to Joseph Byers. On March 21, 1983, the district court judge fined Faurote $500, imposed a suspended sentence, and placed him on probation for a period of two years. Faurote filed a pro se appeal before this court and argues that the district court erred in failing to admit the alleged tape recording of his conversation with Batchelder. Faurote further contends that he was unable to prove his entrapment defense because the Government "coached or enticed" Mark Jones into providing false testimony. Finally, Faurote claims that the district court improperly instructed the jury as to the elements of 18 U.S.C. Sec. 922(b)(5).

II

We initially address Faurote's claim that the district court erred in failing to admit the alleged tape recording of Faurote's conversation with Batchelder on July 29, 1982. It is a well-settled principle of law that the party attempting to admit a tape recording into evidence must prove, by clear and convincing evidence, that the tape is a true, accurate, and authentic recording of the conversation, at a given time, between the parties involved. United States v. Blakey, 607 F.2d 779, 787 (7th Cir.1979) ("Blakey"); United States v. Fuentes, 563 F.2d 527, 532 (2d Cir.), cert. denied, 434 U.S. 959, 98 S.Ct. 491, 54 L.Ed.2d 320 (1977); United States v. Biggins, 551 F.2d 64, 66 (5th Cir.1977) ("Biggins"); Annot., 58 A.L.R.2d 1024, 1038 (1958). Furthermore, in this circuit it is clear that the trial judge exercises broad discretion in determining whether this burden has been satisfied. Blakey, 607...