U.S. v. Behenna, 75-1991

• Decision Date: 23 March 1977
• Docket Number: No. 75-1991,75-1991
• Parties: UNITED STATES of America, Appellee, v. Francis A. BEHENNA, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 573

552 F.2d 573

UNITED STATES of America, Appellee, v. Francis A. BEHENNA, Appellant.

No. 75-1991.

United States Court of Appeals, Fourth Circuit.

Submitted Oct. 13, 1976.

Decided March 23, 1977.

Kenneth Eaton, Jr., Florence, S.C. (Court-appointed) on brief for the appellant.

Mark W. Buyck, Jr., U. S. Atty., and Eric Wm. Ruschky, Asst. U. S. Atty., Columbia, S. C., on brief for appellee.

Before BOREMAN, Senior Circuit Judge, and WINTER and CRAVEN, Circuit Judges.

BOREMAN, Senior Circuit Judge:

A jury convicted Francis A. Behenna of making a particularized false statement to two South Carolina licensed firearms dealers in connection with the purchase of firearms, in violation of 18 U.S.C. § 922(a)(6). He appeals, contending that the district court erred in refusing a request to instruct the jury that a defendant's honest and reasonable belief that he could legally purchase a firearm was a defense to the charged violation of the statute.

On November 25, 1974, Behenna purchased three handguns from two federally-licensed dealers in Dillon, South Carolina. In his testimony Behenna admitted that he purchased the guns and that he signed the forms required in connection with such transactions but insisted that he reasonably and honestly believed that he was a South Carolina resident and could legally purchase the weapons. Behenna gave Highway 76, Timmonsville, South Carolina, as his "residence address" on the forms he signed in connection with the gun purchases. Upon investigation it was discovered that the residence address given was a large vacant lot on Highway 76. Behenna testified that it was his intention at the time of the gun purchases to acquire a mobile home and put it out in that vicinity because "I had been out in that area . . . (and) I happened to like it." (Tr. at 72). No evidence was presented at trial which indicated that Behenna had in any manner acquired a lot on Highway 76 in or near Timmonsville. In fact, Behenna had come from New York, where he was in business, to South Carolina only three days before his gun purchases and he left South Carolina on the same day he made his purchases. (Tr. at 65, 82).

Behenna had taken some affirmative action in an attempt to establish proof of his South Carolina residency. When he first sought to purchase a gun at a sporting goods store in Dillon, the clerk told him that it was necessary for him to provide evidence identifying him as a resident of South Carolina. ¹ The clerk suggested that a South Carolina driver's license or voter's registration card would be accepted as proper identification. Acting on this advice, the defendant applied for and received a South Carolina voter registration card, listing Highway 76, Timmonsville, as his "residence address." He testified, without corroboration, that he surrendered his New York voter registration card to the South Carolina registrar. Behenna returned later to the store and used the registration card as identification.

The general rule is that the prosecution does not have to show affirmative criminal intent on the part of the accused to establish a violation of section 922(a)(6). See, e.g., Cody v. United States, 460 F.2d 34, 38 (8 Cir. 1972). Nevertheless, the statute does require proof that the defendant knowingly made a false statement intended or likely to deceive the dealer with respect to any fact material to the lawfulness of the sale. This court has recognized that "(t)he word 'knowingly' in § 922(a)(6) incorporates scienter as an asserted element of the offense." United States v. Hedgecoe, 420 F.2d 458, 459 n. 1 (4 Cir. 1970); see also United States v. Squires, 440 F.2d 859 (2 Cir. 1971).

Had the indictment in the instant case been drawn in different form, Behenna's false statement as to his residence address would have been sufficient to establish a violation of the statute. United States v. Gudger, 472 F.2d 566, 568 (5 Cir. 1972). However, as the indictment was drawn it did not specifically charge Behenna with making a false statement as to his address; it charged him with "willfully and knowingly" making a false and fictitious written statement, certifying that he was a resident of the State of South Carolina. ² The district judge instructed the jury that the defendant had violated the statute if he knowingly made a false statement in connection with the purchase of the firearms and then undertook to explain the legal meaning of the term "residence." ³ He failed, however, to explain to the jury that under the specific charge on which Behenna was indicted, it was necessary for them to determine that the defendant had knowingly given a false statement as to the state of which he was a resident. ⁴

Because of the judge's omission, his refusal to give the defendant's requested instruction constitutes prejudicial error. It appears that if defendant reasonably and honestly believed that he was a South Carolina resident and thus entitled to purchase the firearm, this belief would be a defense to the specific charges in the indictment. The indictment was apparently drafted in such a form as to require proof by the government that Behenna knew that he was not a resident of the State of South Carolina at the time of the gun purchase. ⁵

In United States v. Hedgecoe, supra, the defendant had certified on a federal gun purchase form that he was not prohibited by federal law from purchasing firearms. In fact, however, he was a convicted felon. Hedgecoe pleaded guilty to the charge of violating § 922(a)(6) in the purchase of a firearm but asserted that he did not know at the time of his purchase that he was barred from purchasing firearms. This court ordered Hedgecoe's guilty pleas stricken because "if he did not know of his disqualification, he acted without the required scienter in certifying that he was qualified." 420 F.2d at 460. Similarly, in the instant case, if defendant reasonably and honestly believed that he was entitled to purchase firearms in South Carolina, he acted without the scienter specifically charged in the indictment. He could not have "knowingly" misrepresented his eligibility to purchase firearms in regard to his residency if he reasonably and honestly believed that he was a South Carolina resident. Because the indictment specifically charged Behenna with knowingly misrepresenting that he was a South Carolina resident, the judge should have instructed the jury on that very narrow issue. The combination of the indictment as written and the court's instructions did not properly present the issue which had to be resolved by the jury in order to find Behenna guilty as charged.

Accordingly, the judgment of conviction is vacated and the case is remanded for new trial.

Reversed and remanded.

CRAVEN, Circuit Judge, dissenting:

Viewing the evidence and inferences from it in the light most favorable to the government, United States v. VanFossen, 460 F.2d 38, 40 (4th Cir. 1972), the jury could have fairly found that Behenna was an interstate gunrunner who pretended to be a South Carolina resident in order to buy handguns for his New York trade. The Congress has taken a dim view of the traffic and has extensively regulated it. 18 U.S.C. § 921, et seq. Behenna was indicted under the penalty section of the statute, 18 U.S.C. § 924, for violating 18 U.S.C. § 922(a)(6), which makes it an offense to knowingly make any false statement intended or likely to deceive the dealer with respect to any material fact going to the lawfulness of the sale. Because of 18 U.S.C. § 922(a)(5), the sales made to Behenna were unlawful if the dealer knew or had reasonable cause to believe Behenna resided in a state other than South Carolina. Therefore Behenna lied to the dealer. He gave as his "residence address" a large vacant lot on Highway 76 which he did not even own. Rabbits reside in fields. Persons do not. Since Behenna knew that he had to claim residence in South Carolina (the dealer had told him so), he obviously intended to falsely claim residence in South Carolina in a place fit for moles and birds but not for humans.

The indictment charged him with having falsely certified that he was a resident of South Carolina when, in truth and fact, as he well knew, he was not. To so certify violates the statute. 18 U.S.C. § 922(a)(6).

The district judge fairly and correctly charged the jury that the government must prove beyond a reasonable doubt "that the defendant knowingly made a false or fictitious statement . . . in connection with the firearm, which was likely or intended to deceive the dealer with respect to any material fact." Appendix at 101. The judge defined the meaning of residence, and if he erred, it was in favor of the defendant. After correctly telling the jury that "it is possible for a person to have more than one place of residence," Appendix at 110, giving as an example one who resides in South Carolina permanently but who has a summer home in Florida or in the North Carolina mountains, he then framed a question for the jury highly favorable to the defendant's contention: "Did the defendant really intend to become a resident of South Carolina when he obtained his voter registration and when he purchased the firearm in question?" That instruction was more than the defendant was entitled to. It put into the case the defendant's subjective intent which relates to domicile, not residence. Behenna's intention with respect to establishing a residence in South Carolina would become important if domicile were the question, but, even then, only if there was some evidence suggesting that he had done something toward making South Carolina his home or one of his homes, e.g., renting a room, or buying a house, or taking household effects or clothing and leaving them in a place of habitation to which he expected to return. See Wehrle v. Brooks, 269 F.Supp. 785 (W.D.N.C.1966). Here, there was not one scintilla of evidence that Behenna had done any such thing other than to register to vote,...