U.S. v. Batterjee
| Decision Date | 24 March 2004 |
| Docket Number | No. 03-10152.,03-10152. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Abdulraouf Shahir BATTERJEE, aka Abdul Raouf Shahir Batterjee, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Dale A. Danneman and Lawrence A. Kasten, Lewis and Roca LLP, Phoenix, Arizona, for the defendant-appellant.
Howard D. Sukenic, Assistant United States Attorney, Phoenix, Arizona, for the plaintiff-appellee.
Appeal from the United States District Court for the District of Arizona, Paul G. Rosenblatt, District Judge, Presiding. D.C. No. CR-02-00374-PGR.
Before: HUG, JR., ALARCÓN, and FLETCHER, Circuit Judges.
Abdulraouf Shahir Batterjee appeals from the judgment of conviction for being a non-immigrant alien in possession of a firearm and a non-immigrant alien in possession of ammunition in violation of 18 U.S.C. §§ 922(g)(5)(B), 924(a)(2). He contends that because federal officials affirmatively misled him as to his eligibility to possess firearms and ammunition under § 922(g)(5), the district court erred in rejecting his affirmative defense of entrapment by estoppel. We reverse because we conclude that the undisputed evidence establishes the defense of entrapment by estoppel.
Mr. Batterjee is a citizen of Saudi Arabia. He was admitted into the United States on a non-immigrant student visa in 1992 to study at Arizona State University. On the dates Mr. Batterjee purchased the firearm and ammunition that are the subject of his convictions, he was lawfully present in the United States on a non-immigrant H-1 visa.1
On April 18, 2001, Mr. Batterjee went to the Shooting Star gun shop in Tempe, Arizona to receive a firearm he had purchased from a gun manufacturer, Springfield Armory, Inc. Shooting Star is a federal firearms licensee. That designation permits Shooting Star to sell firearms and imposes on it the responsibility of ensuring that customers are legally authorized to purchase firearms. See 18 U.S.C. § 922(s)-(t) (incorporating the Brady Handgun Violence Prevention Act, Pub.L. No. 103-159 (1993)). Approximately two to three weeks prior to April 18, 2001, Mr. Batterjee had ordered and paid for a .45-caliber pistol from Springfield Armory. Mr. Batterjee could not obtain the pistol directly from Springfield Armory because it is not a federal firearms licensee. Mr. Batterjee arranged to have the pistol delivered to Shooting Star to facilitate the transfer of the pistol and complete the federally-mandated paperwork and background check.
Before Mr. Batterjee could take possession of the pistol, he was required to comply with the provisions of § 922(s)(1)(A)(i)(I) which requires an individual seeking to possess firearms to provide a statement to a federal firearms licensee containing identification information and a certification that the individual is not prohibited from possessing firearms. See 18 U.S.C. § 922(s)(1)(A)(i)(I), (s)(3).2 The Bureau of Alcohol, Tobacco, and Firearms ("ATF") provides a detailed, four-page firearms transaction record, referred to as Form 4473, to assist federal firearms dealers in complying with their duties under § 922(s)-(t). See 27 C.F.R. § 478.124(a) (). In its "Important Notices" section, Form 4473 states that it is "designed so that a [federal firearms licensee] may determine if he may lawfully sell or deliver a firearm to the person [seeking to purchase the weapon], and to alert the transferee (buyer) of certain restrictions on the receipt and possession of firearms."
Shooting Star employee Corey Burt assisted Mr. Batterjee in completing a Form 4473. It is undisputed that Mr. Batterjee responded to each of the questions presented in the Form 4473 accurately. Mr. Batterjee indicated that he was not a United States citizen, that he was born in Saudi Arabia, and that he was not present in the country illegally.3
Mr. Burt testified that when he saw that Mr. Batterjee had answered "no" to the question of whether he was a United States citizen, he "believe[d] he had to get some additional information, like a phone bill or a lease or something of that nature." Mr. Burt also stated that Form 4473 When asked whether non-immigrant visa holders were eligible to possess weapons, Mr. Burt answered: "The only thing I'm aware of is what's on the back of the form, which I follow."
Upon seeing that Mr. Batterjee answered "no" to the question regarding whether he was a United States citizen, Mr. Burt requested the assistance of Bill Rozakis, the store owner. Mr. Rozakis testified that he believed Mr. Batterjee could possess the firearm so long as he could also provide government-issued photo identification and proof of residency in Arizona for ninety days or more. The record reflects the following colloquy:
A. Yes. I did or I relayed [the information] to Corey, one of the two.
Mr. Batterjee provided the additional information requested by Mr. Rozakis and Mr. Burt. Mr. Batterjee did not inform Mr. Rozakis or Mr. Burt that he was in the United States as a non-immigrant pursuant to a work visa. Form 4473 did not require that an alien lawfully present in the United States specify the type of visa he or she had been issued. A background check of Mr. Batterjee through the National Instant Criminal Background Check System indicated that Mr. Batterjee had no criminal record that would bar him from possessing a firearm. Mr. Batterjee paid the fifteen-dollar transfer fee and took possession of the pistol. Mr. Batterjee also purchased ammunition from Mr. Burt.
In 1998, prior to Mr. Batterjee's purchase of the pistol and the ammunition, Congress amended § 922(g)(5) to prohibit — with exceptions not applicable here — persons lawfully present in the United States on non-immigrant visas from possessing firearms or ammunition.4 The ATF did not update Form 4473 to reflect Congress's 1998 amendment to § 922(g)(5) until February 2002, nearly one year after Mr. Batterjee had purchased the pistol. Mr. Rozakis and Mr. Burt testified that their knowledge of the class of persons eligible to purchase firearms came solely from the Form 4473 that was distributed by the ATF. They indicated that they were unaware of the 1998 amendment to § 922(g)(5) when Mr. Batterjee purchased the pistol and ammunition. Thus, on the date Mr. Batterjee received possession of the pistol, Mr. Rozakis and Mr. Burt did not know that an alien admitted to the United States under a non-immigrant visa could not lawfully receive a firearm or ammunition under the 1998 amendment to § 922(g)(5).
On November 29, 2001, ATF agents searched Mr. Batterjee's home pursuant to a search warrant and discovered a pistol and ammunition. The affidavit in support of the search warrant erroneously alleged that Mr. Batterjee was in the United States illegally. On April 16, 2002, after learning that Mr. Batterjee was legally present in the United States at the time he purchased the firearm and ammunition, federal prosecutors filed an indictment in the district court charging Mr. Batterjee in Count 1 with possession of a firearm while "being an alien admitted to the United States under a non[-] immigrant visa" in violation of 18 U.S.C. §§ 922(g)(5)(B), 924(a)(2),5 and in Count 2 with possession of ammunition while "being an alien admitted to the United States under a non[-]immigrant visa" in violation of 18 U.S.C. § 922(g)(5)(B).
At trial, Mr. Batterjee relied upon the affirmative defense of entrapment by estoppel. The district court found that "Mr. Batterjee is an honest fellow." Nonetheless, it found that because Mr. Rozakis and Mr. Burt did not know that Mr. Batterjee was in the United States on a work visa, it would be "unreasonable to accept the entrapment by estoppel defense." In discussing its ruling, the district court commented that it had "a real problem with the concept of the fundamental due process defense of entrapment by estoppel in non-Scienter crimes, particularly in the context of licensed firearms dealers." The district court found Mr. Batterjee guilty of both counts in the indictment, and denied Mr. Batterjee's motion for a new trial.
On March 24, 2003, the district court sentenced Mr. Batterjee to fourteen days imprisonment on both counts, to be served concurrently with credit for time served, followed by three years of supervised release. The district court further ordered Mr. Batterjee to pay a special assessment of $200 and a $1000 fine. Mr. Batterjee filed a timely notice of appeal.
Mr. Batterjee's sole contention on appeal is that the district court erred in rejecting his affirmative defense of entrapment by estoppel. We review de novo a district court's legal conclusion that an entrapment by estoppel defense is unavailable. See United States v. Brebner, 951 F.2d 1017, 1024 (9th Cir.1991) (); see also United States v. Benning, 248 F.3d 772, 775 (8th Cir.2001) (...
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