Dimartino v. Buckles, Civ. JFM-00-1860.

• Decision Date: 02 January 2001
• Docket Number: No. Civ. JFM-00-1860.,Civ. JFM-00-1860.
• Citation: 129 F.Supp.2d 824
• Parties: Anthony DIMARTINO, et al., Petitioners, v. Bradley A. BUCKLES, Director, Bureau of Alcohol, Tobacco, and Firearms, Respondent.
• Court: U.S. District Court — District of Maryland

129 F.Supp.2d 824

Anthony DIMARTINO, et al., Petitioners, v. Bradley A. BUCKLES, Director, Bureau of Alcohol, Tobacco, and Firearms, Respondent.

No. Civ. JFM-00-1860.

United States District Court, D. Maryland.

January 2, 2001.

COPYRIGHT MATERIAL OMITTED

Benjamin Lipsitz, Lipsitz and Lipsitz, Baltimore, MD, for plaintiff.

Andrea Leahy-Fucheck, Asst. U.S. Atty., Baltimore, MD, for defendant.

MEMORANDUM

MOTZ, District Judge.

Petitioners, Anthony DiMartino and Larry DiMartino, t/a Baltimore Gunsmith, and Larry DiMartino, Baltimore Gunsmith Co., appeal decisions by the Bureau of Alcohol, Tobacco, and Firearms ("ATF") denying an application for a firearms license and revoking an existing firearms license. Respondent, the ATF, has moved for summary judgment. That motion will be granted.

I.

Anthony DiMartino and Larry DiMartino t/a Baltimore Gunsmith, 218-220 South Broadway, Baltimore, Maryland, are federally licensed firearms dealers. Anthony DiMartino has been a firearms dealer for over 20 years. His son, Larry DiMartino, has been involved in the business for at least 8 years. Petitioners applied with the ATF for a renewal of their federal firearms dealer license. A federal firearms dealer license, issued pursuant to 18 U.S.C. § 921 et. seq., is required for firearms dealers. The ATF denied petitioners' renewal application on June 24, 1999. Petitioners requested a hearing on that denial. On November 2, 1999 and February 10, 2000, the ATF held administrative hearings on Petitioners' renewal application.

After the ATF denied Petitioners' renewal application, Larry DiMartino amended the corporate status of Baltimore Gunsmith and filed a separate application for a federal firearms dealer license. Other than the exclusion of Anthony DiMartino, the applications were substantially the same. They both concerned the same premises and the same inventory. On February 11, 2000, the ATF held hearings on Petitioners' application for a new license.

Over a series of years, the ATF investigated petitioners using a variety of means including undercover agents. The ATF's investigations provided the evidence used in the administrative hearings. On April 20, 2000, the Director of Industry Operations ("DIO") of the ATF issued a final denial of Petitioners' renewal application and a final denial of Petitioners' application for a new license. The DIO found that petitioners were unqualified to be firearms licensees. The denials were premised on 12 counts alleging firearms related violations of 18 U.S.C. § 921 et. seq. The evidence for the DIO's decision consisted of falsified federal records, possession of a weapon with an obliterated serial number, and several illegal transfers of firearms and ammunition. Many of the illegal transfers involved straw persons. The straw purchases generally involved the sale of a firearm to a prohibited buyer, such as a convicted felon or an out of state resident, while the paperwork was completed by an otherwise legal buyer.

II.

This case is an appeal from the ATF's decision to not renew petitioners' federal firearms license and to not grant their application for a new license. See 18 U.S.C. § 923(f)(3). Under section 923(f)(3), petitioners are entitled to de novo judicial review in federal district court. The reviewing court can consider any evidence submitted by the parties regardless of whether that evidence was submitted in the administrative proceeding. The reviewing court can grant summary judgment without conducting an evidentiary hearing if no genuine issues of material fact exist. See Al's Loan Office, Inc. v. Bureau of Alcohol, Tobacco, and Firearms, 738 F.Supp. 221, 223 (E.D.Mich. 1990); T.T. Salvage Auction Co. v. United States Treasury Dep't, 859 F.Supp. 977, 979 (E.D.N.C.1994).

III.

Under section 923, the ATF may revoke any federal firearms license if the holder of the license violates any federal statute or regulation dealing with the firearms industry. See § 923(e). In addition, an application for a federal firearms license can be denied if the applicant has violated any federal statute or regulation dealing with the firearms industry. See § 923(d)(1)(C). A single violation is sufficient for denying an application or revoking a license. The DiMartino's principal argument is that the evidence is insufficient to support the conclusion that they violated any federal statute or regulation concerning the firearms industry.

A.

Under section 922(d)(1), it is a crime for any person to sell or otherwise dispose of any firearm or ammunition to convicted felons. Under section 922(b)(3), it is a crime for any person to sell a firearm to any out of state resident. Under both provisions, the seller must either know or have reasonable cause to believe that the buyer is prohibited. See 18 U.S.C § 922(d)(1). Throughout Petitioners' response, they state that the straw purchases were legal because they did not have reasonable cause to believe that the buyer was prohibited. This argument takes two forms. First, petitioners seem to state that, because the weapons were obtained using proper paperwork, the sales were legal. In essence, petitioners seem to be arguing that the straw transactions worked, i.e. that they were legal even if the seller knew that the real purchaser was a prohibited buyer. This argument fails. See, e.g., United States v. Straach, 987 F.2d 232 (5th Cir.1993) (straw purchases are illegal under section 922).

The other form of this argument is that for each specific transaction, petitioners did not have reason to believe that the real purchaser was a prohibited buyer. Whether this argument is successful turns on the specific facts of each transaction. For example, in United States v. Murray, the evidence was insufficient to convict a firearms dealer of selling to a convicted felon in violation of section 922. 988 F.2d 518, 521-22 (5th Cir.1993). The evidence showed that people in the store used to joke about the buyer's prior conviction, but the evidence failed to show that the firearms dealer was ever present when the buyer's prior conviction was mentioned. Id. In contrast, in Straach, the evidence was sufficient to convict a firearms dealer for violating section 922. 987 F.2d at 238. An out of state buyer negotiated for, paid for, and took possession of several weapons. Id. The buyer had an associate fill out the paperwork. Based on this course of conduct, the jury found that the person filling out the paperwork was not the true buyer. Id. During the exchange, the buyer told the firearms dealer that he was from out of state. Based on this statement, the jury found that the firearms dealer had reasonable cause to believe that the true buyer was from out of state. Id.

1.

Counts 4-7¹ state that Larry DiMartino and Anthony DiMartino transferred firearms to Michael Russell, a resident of Georgia, in violation of 18 U.S.C. § 922(b)(3). Under section 922(b)(3), it is a crime for a Maryland firearms dealer to transfer a firearm to any person that the firearms dealer knows or has reasonable cause to believe does not reside in Maryland.²

Acting undercover, ATF Special Agents Michael Russell and Lisa Kincaid, wearing a hidden microphone and audiotape, completed four illegal purchases from Baltimore Gunsmith. On September 15, 1992, Russell selected a Colt Python 357 Magnum and negotiated a purchase price. He also told Anthony DiMartino that he was not a Maryland resident. (See Government Ex. # 6; Transcript of Administrative Proceeding ("Transcript") at 97-99.) Anthony DiMartino said that he could not sell the gun to Russell, but that they could have Kincaid, who was undercover as Russell's fiancé, fill out the paperwork. Anthony took the deposit directly from Russell. (See Government Ex. # 6; Transcript at 97-99.) On October 22, 1992, Russell returned to the store, and paid Larry DiMartino for the 357 Magnum. (See Government Ex. # 8; Transcript at 102-09.) On the same day, Russell negotiated with Anthony DiMartino and Larry DiMartino for the purchase of several additional guns. (See Government Ex. # 9; Transcript at 102-09.) Russell purchased an additional Uzi and a Smith and Wesson 38 special. (See Government Ex. # 8; Transcript at 102-09.) Russell paid for these guns and used Kincaid's paperwork. On November 23, 1992, Russell returned to Baltimore Gunsmith to pick up two Sig Sauer 9mm pistols he had ordered. Larry DiMartino sold the guns to Russell, who paid for them, and they used Kincaid's paperwork. (See Government Ex. # 10; Transcript at 112-14.) Larry Di-Martino handed the receipt and the money to Russell.

On January 26, 1993, Russell returned to the Baltimore Gunsmith. Russell picked up a Sig Sauer that he had ordered and negotiated for a Smith and Wesson revolver and a Desert Eagle 44 Magnum. Russell negotiated with and made payment to Larry DiMartino. (See Government Ex. # 12; Transcript at 115-17.) Larry DiMartino gave the change to Russell. They used Kincaid's paperwork. (See Government Ex. # 12; Transcript at 115-17.)

These facts are sufficient to prove that Baltimore Gunsmith on four separate occasions knowingly transferred firearms to Russell, who was not a Maryland resident, in violation of section 922(b)(3). Petitioners do not dispute these facts. Petitioners do dispute the conclusion that these facts show that Larry DiMartino had reasonable cause to believe he was transferring firearms to an out of state resident. Specifically, petitioners contend that, based on the above facts, a possible conclusion is that Larry DiMartino believed that he was transferring the firearms to Kincaid. They further contend that whether she gave the firearms to Russell as a gift is not their concern. Larry DiMartino, in the November 24^th conversation with Russell, expressed his belief that the use of a straw intermediary would make the transaction legal. He told Russell, "I'm supposed to be talking with her and that's fine.... She could be giving them to you as a gift for all I...