U.S. v. Allah

Decision Date12 November 1997
Docket NumberNos. 1583,1584,D,s. 1583
Citation130 F.3d 33
PartiesUNITED STATES of America, Appellee, v. Latik ALLAH, aka Christopher Hamilton, aka "Lye"; William Hamilton, aka "Star", aka "Starpre", Defendants-Appellants. ocket 96-1620(L), 96-1642.
CourtU.S. Court of Appeals — Second Circuit

Ira M. Feinberg, Asst. U.S. Atty., New York City (Mary Jo White, U.S. Atty. for the Southern District of New York, Jean T. Walsh, Guy Petrillo, Asst. U.S. Atty., New York City, on the brief), for Appellee.

Barry D. Leiwant, New York City (The Legal Aid Society, Federal Defender Division, Appeals Bureau, New York City, on the brief), for Defendant-Appellant Allah.

Susan C. Wolfe, New York City (Hoffman Pollok & Pickholz, New York City, on the brief), for Defendant-Appellant Hamilton.

Before: NEWMAN, KEARSE and CALABRESI, Circuit Judges.

KEARSE, Circuit Judge:

Defendants Latik Allah and William Hamilton, who are brothers, appeal from judgments entered in the United States District Court for the Southern District of New York, following a jury trial before Robert L. Carter, Judge, convicting each on one count of willfully dealing in firearms without a license, in violation of 18 U.S.C. §§ 922(a)(1)(A) and 924(a)(1)(D) (1994), and one count of conspiring to do so, in violation of 18 U.S.C. § 371 (1994). Allah was also convicted on one count of possessing firearms and ammunition as a previously convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (1994). Allah and Hamilton were sentenced principally to prison terms of 92 and 51 months, respectively, with each term of imprisonment to be followed by a three-year period of supervised release. On appeal, defendants contend chiefly that the district court gave the jury erroneous instructions with respect to willfulness, intent, and the definition of a firearms "dealer." Finding no basis for reversal, we affirm the convictions.

I. BACKGROUND

The events leading to the present prosecution concerned defendants' sale of seven guns in five transactions during a two-month period in 1995 to New York City Police Detective George Rosado, who was working undercover as an illegal firearms dealer. Much of the evidence at trial consisted of the testimony of Rosado and another officer who worked in the undercover operation, as well as tape recordings made by Rosado of his telephone conversations with Allah or Hamilton. The following account is drawn from that evidence taken in the light most favorable to the government.

Following receipt by the police of a tip from a confidential informant as to illegal firearms sales, Rosado arranged to meet Hamilton on June 22, 1995, near a barber shop where Hamilton worked, to discuss the sale of two 9-millimeter semi-automatic pistols. At that meeting, which was conducted in Rosado's car, Hamilton said he had a "Tech" 9-millimeter pistol and a "Cat" 9-millimeter pistol that he would sell for $1,000 each. When Rosado agreed, Hamilton asked to see Rosado's money. After counting the money, Hamilton directed Rosado to drive to a new location. Upon their arrival, Rosado and Hamilton were approached by Allah, who after being introduced to Rosado by Hamilton, asked Rosado whether he had the money to complete a deal. When Rosado responded in the affirmative, Allah said it was "too hot" to conduct the transaction where they were, and he directed Rosado to meet him inside a nearby building. Rosado did so, and Hamilton remained outside, scanning the street.

Inside the building, Rosado and Allah were joined shortly by two men who posted themselves at the front door and on an interior staircase. Allah then produced a bag containing two pistols, which Rosado began to examine. The transaction was momentarily interrupted by a warning shouted from outside the building that "Five-O"--a term for the police, by reference to the television program Hawaii Five-O--were in the area. Allah left briefly to investigate, and after being assured that things were "cool," returned to complete the transaction. As agreed, Rosado paid $2,000 for the two pistols. Before they parted, Allah gave Rosado his beeper number, assuring Rosado that Allah could get any kind of gun Rosado wanted, including, various types of handguns, sawed-off shotguns, and assault rifles. Outside, as Rosado prepared to leave, he asked whether Hamilton wanted a ride back to the barber shop; Hamilton declined, saying, "not while you have those [guns] in the car."

On July 7, Rosado contacted Allah by means of the beeper number Allah had given him. The two discussed various types of guns that Allah might be able to sell Rosado, and Rosado expressed interest in purchasing .380-caliber pistols. Allah told Rosado he was expecting a delivery of 15 such pistols, along with 10 9-millimeter guns, the following day. Rosado asked the price for 12 .380-caliber pistols, and Allah said he would give Rosado a discount for such a bulk purchase and would include free ammunition. Several days later, Rosado called Allah again to renew his inquiry about the .380-caliber guns. Allah said he had not received them as expected, but that he would call Rosado when they arrived.

On July 19, not having heard from Allah, Rosado telephoned Hamilton. After being told about the deal Rosado had been discussing with Allah, Hamilton said that Rosado should have contacted Hamilton first because he was the "middleman," and that it was his job "to make sure shit is legit, and ... the funds is [sic ] produced" and to "make sure everything falls down the line." As to the .380-caliber pistols Rosado had discussed with Allah, Hamilton said, "we, we have something on that, that we 'posed to, um ... purchase"; but he said something had gone awry. Hamilton added, "[w]e still on hold about that," and that probably the reason Allah had not contacted Rosado about the .380-caliber guns was that the guns had not yet arrived. Hamilton explained, "we don't believe in half stepping, you know what I'm saying? If we suppose [sic ] to make an exchange or get something, what's the use in calling you or whoever and it's not there yet." Rosado inquired whether Hamilton had 9-millimeter pistols available and if so at what price. Hamilton responded that he could get such guns and asked "how many do you want"; he stated that he would sell them to Rosado for $700 apiece, but would "automatically drop" the price if Rosado bought in bulk. Before the conversation ended, Hamilton gave Rosado his two beeper numbers and said, "anytime you ever want some or see what we got, just give me a beep and I, I'll take care of that."

On August 8, Rosado spoke with Allah, and over the next three weeks, they entered into four additional firearms transactions. The first three of these August transactions, involving the sale of a total of four firearms were carried out in the following manner. Allah and Rosado discussed by telephone the guns that Allah had available to sell, and Rosado agreed to purchase one or two of them. They then met in various locations specified by Allah, and Rosado paid Allah cash for the gun or guns.

During and after the third of these August transactions, Allah informed Rosado that he was being given "a hard time" about dealing with Rosado, by a partner who had become "paranoid" that Rosado was "Five-O." The partner was suspicious because Rosado declined to trade two guns previously sold to him by Allah for an Uzi 9-millimeter pistol; according to Allah, the partner believed that Rosado had refused that "good deal" because "a 'Five-Oh' [sic ] can' t give a burner [i.e., a gun] up.... They can't put a burner into the street." Rosado explained that he had refused the offer not because he was a policeman, but because he had already sold the two guns by the time the trade was offered. Any concerns on Allah's part were apparently allayed, because he promptly agreed to sell the Uzi to Rosado. Allah set a price of $1,500 and assured Rosado that he need not worry about the suspicions of the partner because Allah would handle the Uzi deal by himself, explaining that he, Allah, was willing to "take the chance."

For the ensuing transaction, Allah again directed Rosado to a location where the two could meet to complete the exchange. Upon meeting Rosado at that location, however, Allah said it was "too hot" to complete the sale where they were, and he redirected Rosado to the building in which the two had conducted their first transaction. After entering the building with Allah, Rosado was immediately frisked by two men, one of whom brandished a gun upon feeling something attached to Rosado's waistband, which turned out to be his beeper. When the two had finished frisking Rosado, one of them produced a bag containing the Uzi, and Rosado handed him the agreed $1,500.

The present prosecution was commenced in early 1996. Both Allah and Hamilton were charged with willfully dealing in firearms without a license, in violation of 18 U.S.C. § 922(a)(1)(A) and 18 U.S.C. § 2 (1994) (count two), and conspiring to do so, in violation of 18 U.S.C. § 371 (count one). In addition, Allah and Hamilton were charged with possessing firearms and ammunition as previously convicted felons, in violation of 18 U.S.C. §§ 922(g)(1) and 2 (counts five and six, respectively); and Allah was charged with two counts of transporting and receiving in interstate commerce two firearms with their serial numbers obliterated, in violation of 18 U.S.C. § 922(k) (1994) and 18 U.S.C. § 2 (counts three and four).

The jury found Allah and Hamilton guilty of willfully dealing in firearms without a license and of conspiring to do so; and it found Allah guilty of possessing a firearm and ammunition as a previously convicted felon. It acquitted Hamilton on the similar felon-in-possession count against him, and it acquitted Allah on the two remaining counts. Defendants were sentenced as indicated above. Judgments were entered accordingly, and these appeals followed.

II. DI...

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