Cucchiara v. Secretary of Treasury
| Decision Date | 30 July 1981 |
| Docket Number | No. 79-4786,79-4786 |
| Citation | 652 F.2d 28 |
| Parties | Antonio CUCCHIARA, doing business as The Traders, Plaintiff-Appellant, v. SECRETARY OF the TREASURY, Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Philip Cohen, Camarillo, Cal., for plaintiff-appellant.
John M. Kern, Asst. U. S. Atty., San Francisco, Cal., for defendants-appellees.
Appeal from the United States District Court for the Northern District of California.
Before MERRILL, HUG and SKOPIL, Circuit Judges.
The district court, pursuant to 18 U.S.C. § 923(f)(3), granted the Bureau of Alcohol, Tobacco and Firearms's motion for summary judgment, affirming the Bureau's refusal to renew Cucchiara's license to sell firearms, under 18 U.S.C. § 923(d)(1)(C), for willful failure to comply with Bureau regulations. Because there exist no unresolved issues of material fact, we affirm.
The facts, as synthesized by the district court from the administrative record, are as follows:
The record shows that plaintiff received "irregularities statements" in 1970 and 1972 reflecting, in the aggregate, hundreds of violations of legal requirements, including repeated failure to record the acquisition and disposition of firearms and scores of sales of firearms to ineligible purchasers. The record further shows that plaintiff was notified in 1973 that any future violations might be considered willful. Finally, the record shows that a recent investigation of plaintiff's records revealed additional sales to ineligible purchasers, unreported multiple handgun sales, repeated failure to record the acquisition and disposition of firearms and a loss without reasonable explanation of 200 firearms.
In the district court, Cucchiara admitted that he did "not take issue with much of the basic factual background presented" in the Bureau's motion for summary judgment. The district court commented that "plaintiff concedes the essential accuracy of the administrative record" in granting summary judgment to the Bureau "on the basis of the uncontroverted evidence." The district court did not schedule a hearing to receive additional evidence, but did permit Cucchiara to introduce a deposition and several declarations intended to demonstrate that his conduct was not willful.
In failing to dispute the factual accuracy of the administrative record, however, Cucchiara implicitly admits to hundreds of violations of the Bureau's legal requirements, after multiple warnings. Although Cucchiara sought to augment the record in the district court on the question of willfulness, the district court correctly characterized the additional information as showing only
that he is one of the highest volume retail firearms dealers in this District and that he has made costly, good faith efforts to comply with all his obligations as a licensee ... (and) that his noncompliance was excusable, either because it was inevitable, due to the size and nature of his operation, or merely inadvertent.
Under the willfulness standard announced in Perri v. Department of Treasury, 637 F.2d 1332, (9th Cir. 1981), this additional information creates no dispute over a genuine issue of material fact. Perri held that willfulness is established "when a dealer understands the requirements of the law, but knowingly fails to follow them or was indifferent to them." Id. at 1336. The fact that Cucchiara has spent a great deal of money trying to correct his faulty recordkeeping system, after the violations, for example, is immaterial to the question of willfulness at the time the violations occurred. Cucchiara clearly understood the requirements of the law, as evidenced by the "irregularities statements" and the Bureau's 1973 warning that future violations might be considered willful. Yet,...
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