Smith v. Com.

• Decision Date: 23 November 2010
• Docket Number: Record No. 0364-09-1.
• Citation: 701 S.E.2d 826,57 Va.App. 319
• Court: Virginia Court of Appeals
• Parties: Russell Ernest SMITH v. COMMONWEALTH of Virginia.

701 S.E.2d 826

57 Va.App. 319

Russell Ernest SMITH

v.COMMONWEALTH of Virginia.

Record No. 0364-09-1.

Court of Appeals of Virginia,

Richmond.

Nov. 23, 2010.

Steven B. Novey, Prince George, (Novey and Tomko Law Firm, on brief), for appellant.

John W. Blanton, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: FELTON, C.J., and ELDER, FRANK, HUMPHREYS, KELSEY, McCLANAHAN, HALEY, PETTY, BEALES, POWELL and ALSTON, JJ.

UPON A REHEARING EN BANC

KELSEY, Judge.

The trial court found Russell Ernest Smith guilty of making a "false statement" on a firearm purchase form in violation of Code § 18.2-308.2:2. On appeal, Smith admitshis statement was false but argues he lacked scienter as a matter of law. We disagree and affirm.

I.

On appeal, we review the evidence in the "light most favorable" to the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). This principle requires us to "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom." Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and citation omitted).

Our examination of the record "is not limited to the evidence mentioned by a party in trial argument or by the trial court in its ruling." Bolden v. Commonwealth, 275 Va. 144, 147, 654 S.E.2d 584, 586 (2008). In determining whether there is evidence to sustain a conviction, an appellate court must consider "all the evidence" admitted at trial that is contained in the record. Hamilton v. Commonwealth, 279 Va. 94, 103, 688 S.E.2d 168, 173 (2010) (quoting Bolden, 275 Va. at 147, 654 S.E.2d at 586).

Smith was arrested on June 12, 2006, for felony possession of marijuana with intent to distribute. The general districtcourt continued the case several times. Smith waived his right to a preliminary hearing and remained free on bail. Over a year later, on September 18, 2007, Smith's counsel wrote to advise Smith that the general district court had "certified" the charge "to the Grand Jury." On November 7, 2007, Smith's counsel wrote again to advise that the "trial date had been preset for January 11, 2008 at 10:00 a.m. in the Newport News Circuit Court. Your presence is required in court on that date." Counsel added a handwritten note to the letter: "Please give me a call to discuss case." A week later, on November 13, the grand jury issued an indictment against Smith.

Smith did not call his counsel as instructed. Instead, on November 15, he walked into a pawnshop and attempted to buy a .40 caliber handgun. He filled out several forms, including ATF Form 4473 issued by the Bureau of Alcohol, Tobacco, Firearms, and Explosives, an arm of the United States Department of Justice. The ATF Form 4473 begins, in bold letters, with:

WARNING: You may not receive a firearm if prohibited by Federal or State Law. The information you provide will be used to determine whether you are prohibited under law from receiving a firearm. Certain violations of the Gun Control Act are punishable by up to 10 years imprisonment and/or up to a $250,000 fine.

Various questions follow the warning, including Question 11.b, which asked: "Are you under indictment or information in any court for a felony, or any other crime, for which the judge could imprison you for more than one year?" (Emphasis in original.) Smith wrote "No" in response to this question. Right above Smith's signature is a certification, which reads:

I certify that the answers to Section A are true and correct. I am aware that ATF Form 4473 contains Important Notices, Instructions, and Definitions.... I understand that a person who answers " yes " to any of the questions 11.b through 11.k is prohibited from purchasing or receiving a firearm.... I also understand that making any false oralor written statement, or exhibiting any false or misrepresented identification with respect to this transaction, is a crime punishable as a felony.

The pawnshop manager refused to complete the sale after a computer background check revealed Smith's pending felony charge.

Charged with making a false statement on a firearm purchase form in violation of Code § 18.2-308.2:2, Smith took the stand in his own defense. He admitted reading ATF Form 4473 and answering its questions. At the time he filled out the form, Smith testified, he knew he had been charged with a felony and faced possible incarceration exceeding one year. He also knew he had earlier waived his right to a preliminary hearing. Smith likewise knew at the time he filled out the form that he had received letters from his counsel advising the felony charge had been certified to a grand jury andhis trial had been preset for January 11, 2008.

Even so, Smith testified he had no idea what the word "indictment" meant. The prosecutor focused on this point:

Q: So when you got to the question, are you under indictment or information in any court for a felony or any other crime for which the judge could imprison you for more than one year, you didn't know what the word indictment meant in Section B?

A: No.

Q: Why did you then-no, you didn't know what it meant?

A: No, I did not know what it meant.

* * * * * *

Q: Alright, so despite all those statements in there, you didn't know what one of the items was, you didn't know what indictment meant and you still answered no?

A: Right.

* * * * * *

Q: And it's your testimony here in today's court that despite all of those-despite having waived your preliminaryhearing, despite having received these letters from Mr. Novey about your trial date, that you still didn't know what an indictment was?

A: No, I didn't.

App. 39-41 (emphasis added).

In closing argument, the prosecutor argued, "throughout this form it's asking you to understand what's going on. And we're talking about the understanding of the word indictment." "Not only that," the prosecutor continued, Smith "admits it on a form where all of these warnings pervade, do not answer this form if you do not understand it, do not answer this form because it may subject you to criminal liability. In the face of all that, he answered a question no to which he didn't even understand the word indictment." After denying Smith's motion to strike, the trial court found Smith guilty of making a false statement on a firearm purchase form in violation of Code § 18.2-308.2:2(K).

II.

On appeal, Smith argues Code § 18.2-308.2:2(K) only punishes a firearm buyer who answers "a question on the form incorrectly, knowing at that time that the answer is incorrect." Appellant's Br. at 6 (emphasis in original). Working from that premise, Smith claims the uncontradicted evidence (his testimony) proved he did not know what the word "indictment" meant-thus he could not have possibly known he was under indictment. We follow Smith's logic but believe it leads to a very different conclusion.

A firearm buyer violates Code § 18.2-308.2:2(K) when he "willfully and intentionally" makes a materially "false statement" on any "firearm transaction records as may be required by federal law." One such record is ATF Form 4473, which asks: "Are you under indictment ... in any court for a crime punishable by imprisonment for a term exceeding one year?" Richardson v. Commonwealth, 21 Va.App. 93, 98, 462 S.E.2d 120, 123 (1995) (emphasis in original). Smith answered that question with an unqualified no. "The word 'no' in responseto a question assuredly makes a 'statement.' " Brogan v. United States, 522 U.S. 398, 400-01, 118 S.Ct. 805, 808, 139 L.Ed.2d 830 (1998). And Smith's statement was false, as he was in fact under indictment at the time he filled out the ATF Form. Thus, the only issue is whether Smith made his false statement with the requisite scienter.

Smith sought to excuse his falsehood by claiming he did not know the meaning of the word "indictment" when he signed the ATF Form. Even if this were true, we fail to see how his excuse did anything but prove his deceit. If Smith did not know what an indictment was, he should not have affirmatively represented on the ATF Form that he was not under indictment.

Code § 18.2-308.2:2 applies to false statements on any "firearm transaction records as may be required by federal law." A knowingly false statement on the required ATF Form also violates 18 U.S.C. § 922(a)(6). The scienter element of the parallel federal crime is satisfied by actual knowledge of thestatement's falsity as well as any " deliberate disregard for its truth or falsity with a conscious purpose to avoid learning the truth." United States v. Hester, 880 F.2d 799, 802 (4th Cir.1989) (emphasis added). This standard represents the unanimous view of the courts that have addressed the scienter issue in similar contexts.¹

Consistent with these principles, the evidence supports the trial court's finding that Smith "willfully and intentionally" made a false statement in violation of Code § 18.2-308.2:2(K). He made the untrue statement "with a bad purpose; without justifiable excuse ... without ground for believing it is lawful...." Richardson, 21 Va.App. at 99, 462 S.E.2d at 123 (citation omitted). The ATF Form explicitly warned Smith that making a false statement constituted a crime. See United States v. Hayden, 64 F.3d 126, 132-33 (3d Cir.1995) (holding the ATF Form's warning of the illegality of making a false statement provided sufficient knowledge to satisfy the willfulness requirement). Despite that warning, Smith affirmatively declared he was not "under indictment" while all along knowing he had no idea what the word "indictment" meant. By doing so, Smith displayed a "deliberate disregard for its truth or falsity with a conscious purpose to avoid learning the truth." Hester, 880 F.2d at 802.

III.

Because the evidence proved Smith made a false statement on an ATF Form in violation of Code § 18.2-308.2:2(K), we affirm.

Affirmed.

ELDER, J., with whom HUMPHREYS, J.,...