U.S. v. Auerbach, 81-1737

• Decision Date: 06 July 1982
• Docket Number: No. 81-1737,81-1737
• Parties: 10 Fed. R. Evid. Serv. 1191 UNITED STATES of America, Appellee, v. Wilbur Lee AUERBACH, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 735

682 F.2d 735

10 Fed. R. Evid. Serv. 1191

UNITED STATES of America, Appellee, v. Wilbur Lee AUERBACH, Appellant.

No. 81-1737.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 12, 1982.

Decided July 6, 1982.

Kermit B. Anderson, U. S. Atty., Ronald M. Kayser, Asst. U. S. Atty., Des Moines, Iowa, for the U. S.

Philip F. Miller, Des Moines, Iowa, for appellant.

Before HEANEY, McMILLIAN and ARNOLD, Circuit Judges.

McMILLIAN, Circuit Judge.

Wilbur Lee Auerbach appeals from a final judgment entered in the District Court ¹ for the Southern District of Iowa upon a jury verdict finding him guilty of engaging in the business of dealing in firearms without a license and conspiracy to engage in the business of dealing in firearms without a license in violation of 18 U.S.C. §§ 922(a)(1), 924(a), 926(1). The district court fined appellant $5000, suspended imposition of sentence on the conspiracy count and placed appellant on probation for three years. For reversal appellant argues that (1) evidentiary errors denied him a fair trial, (2) evidence of other crimes was improperly admitted, (3) the prosecutor's closing arguments were improper and prejudicial, (4) preindictment delay denied him due process, and (5) the government's conduct of the investigation constituted entrapment. For the reasons discussed below, we affirm the judgment of the district court.

In the spring of 1979 special agents of the Bureau of Alcohol, Tobacco and Firearms began an undercover investigation in the southern Iowa area. The original focus of the investigation was firearms violations, but the scope subsequently widened to include narcotics and stolen property. According to the government's theory of the case, appellant and his son Thomas Auerbach ran a firearms business from their gasoline service station in Atlantic, Iowa. From March through May 1979 the undercover agents purchased five firearms ² from the Auerbachs and two firearms from a third party contacted by the Auerbachs. On one occasion the Auerbachs purchased half a case of "stolen" cigarettes from the undercover agents. The undercover agents testified that during the transactions at the service station the Auerbachs closed the door of the service bays and turned off the pumps and the lights.

The undercover agents maintained contact with the Auerbachs through the fall of 1980 but made no further purchases. In February 1981, almost two years after the firearms transactions, the case was referred to the United States attorney's office. The grand jury indicted appellant, Thomas Auerbach and Bradley Cramer for conspiracy and firearms violations in March 1981. The charges against Cramer were subsequently dismissed. Appellant and his son were codefendants. Appellant was found guilty of conspiracy to engage in the business of dealing in firearms without a license and engaging in the business of dealing in firearms without a license; Thomas was found guilty of conspiracy and two counts of unlawful possession of a firearm. Only Wilbur Auerbach has appealed.

Appellant first argues that certain evidentiary errors denied him a fair trial. Appellant argues that several comments made by the district court indicate confusion and uncertainty about the fairness of the trial. We must disagree. One remark was made during the hearing on post-trial motions; the district court acknowledged that there had been several problems during trial but then concluded that appellant had received a fair, although not perfect, trial. Another remark made by the district court referred to the defense counsel's delay and lack of specificity in making objections and the difficulty this caused the district court in conducting the trial.

Appellant also argues that the prosecutor improperly referred to the defendants collectively as "they" and failed to differentiate between them. We have examined the pages in the record cited by appellant. At one point the district court sustained a defense objection to the use of "they" and directed the witness and the prosecutor to differentiate between the defendants. At the other points the prosecutor or the witness indicated that "they" meant both Auerbachs, or the reference to both Auerbachs was clear from the context, or the use of the word "they" was not challenged.

Appellant also argues that hearsay and irrelevant and immaterial statements were erroneously admitted and that the cumulative effect of these errors was so prejudicial as to deny him a fair trial. Defense counsel did not object to any of the alleged hearsay and objected to only two of the statements challenged on appeal as irrelevant and immaterial. One objection ³ was sustained; the other objection ⁴ was overruled, but the reason advanced at trial was not the same one raised on appeal. Appellant has failed to preserve these evidentiary questions for appellate review. We have carefully reviewed the record and find no plain error.

Appellant next argues that evidence of other crimes was improperly admitted. The prosecution introduced evidence about the burglary of a sporting goods store, appellant's purchase of "stolen" cigarettes, appellant's failure to have or issue concealed weapons permits, and Thomas Auerbach's prior felony conviction and serving time in the penitentiary. The reference to the sporting goods store burglary, which involved the theft of guns, came in during the redirect examination of one of the special agents. The prosecutor attempted to establish that the special agents had kept notes about the progress of the investigation; one of the events noted by the agents was the burglary of the sporting goods store. Defense objections to the improper use of memoranda to refresh the witness's recollection and to the answers as hearsay were sustained. None of the firearms involved in the present case was stolen. Defense counsel's objection to the prosecutor's questions about concealed weapons permits was sustained by the district court. The district court also cautioned the jury that no issue in the present case involved any violation of Iowa law governing the registration of concealed weapons and that there was no evidence that either defendant had violated such laws. The reference to Thomas Auerbach's prior felony conviction and to his serving time in the penitentiary was cumulative; Thomas Auerbach's prior felony conviction was already before the jury as one of the elements of the unlawful possession of a firearm charge. We note our disapproval of the prosecutor's repeated questions about why Thomas Auerbach was in the penitentiary in the face of defense objections which were sustained by the district court.

Appellant did not object to the special agent's testimony about selling appellant cigarettes which had been described as stolen. We have carefully reviewed the record and find no plain error. ⁵

Appellant next argues that certain remarks made by the prosecutor in closing argument denied him a fair trial.

(T)he trial court has broad discretion in controlling closing arguments. Absent a showing of abuse of discretion this court will not reverse. "The dominating question, always, is whether the argument complained of was so offensive as to deprive the defendant of a fair trial." We must view the prosecutor's remarks in the context of the entire trial.

United States v. Bohr, 581 F.2d 1294, 1301 (8th Cir.) (citations omitted), cert. denied, 439 U.S. 958, 99 S.Ct. 361, 58 L.Ed.2d 351 (1978); see also United States v. Segal, 649 F.2d 599, 604 (8th Cir. 1981); United States v. King, 616 F.2d 1034, 1040 (8th Cir.), cert. denied, 446 U.S. 969, 100 S.Ct. 2950, 64 L.Ed.2d 829 (1980); United States v. Splain, 545 F.2d 1131, 1135 (8th Cir. 1976) (no per se rule). We find no reversible error.

The first remark challenged by appellant was a reference to the intent of Congress in passing the firearms statutes. ⁶ As noted in United States v. Norton, 639 F.2d 427, 429 (8th Cir. 1981) (citations omitted), "(t)his Court has previously held that testimony concerning the purpose of the Gun Control Act has little or no probative value in a trial for violation of the Act. There is even less justification for allowing the prosecutor to 'testify' in closing argument about the statute's purpose." We find no basis for reversal. Unlike Norton, in the present case the reference was brief and general in terms and the defense objection was sustained by the district court. The district court did not give a cautionary instruction to the jury; however, none was requested by defense counsel and, under the circumstances, we see no reason why the district court should have given such an instruction sua sponte.

Appellant also challenges the prosecutor's references to Thomas Auerbach as a convicted felon and his allegedly lying about his car theft conviction. Defense counsel did not object to this portion of the closing argument. We find no plain error. See United States v. Segal, 649 F.2d at 604 n.10. Thomas Auerbach's status as a convicted felon was already before the jury as an element of the government's unlawful possession charges against him. Defense counsel in closing argument addressed the question whether Thomas Auerbach had lied about his conviction, explaining that he had run away from home when he was eighteen years old and evidently stole two cars in the process, his father's and another person's.

Appellant also challenges the prosecutor's reference to "the type of weapons that have been used by snipers around the country. These are the same types of weapons." The district court sustained the defense objection and instructed the jury that there was no issue in the case about the type of weapon or about possession of illegal weapons. Defense counsel's subsequent motion for a mistrial was denied. Appellant argues on appeal that the sniper reference was particularly prejudicial and inflammatory in the context of the attempted assassinations of President Reagan and Pope John Paul II during the...