U.S. v. Brooks, 79-5050

• Decision Date: 11 February 1980
• Docket Number: No. 79-5050,79-5050
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Fred K. BROOKS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 614

611 F.2d 614

UNITED STATES of America, Plaintiff-Appellee, v. Fred K. BROOKS, Defendant-Appellant.

No. 79-5050.

United States Court of Appeals Fifth Circuit.

Feb. 11, 1980.

Ed Leinster, Orlando, Fla., for defendant-appellant.

Mark L. Horwitz, Asst. U. S. Atty., Orlando, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before GODBOLD, GEE and RUBIN, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

A dealer charged with selling firearms to a person he knew or should have known to be a nonresident in violation of 18 U.S.C. § 922(b)(3) and with falsifying records of the transactions in violation of 18 U.S.C. § 922(m) seeks reversal of his conviction. Finding the attacks on the constitutionality of the charge and the validity of the indictment to be without merit, we consider alleged error in the jury instructions. We hold that, while the charge might have been more complete, it was sufficient to put the real issues to the jury and that, in addition, if it was incorrect, the error was harmless in the light of the evidence and the issues at the trial, and, therefore, we affirm the conviction.

A licensed dealer is forbidden to sell a firearm to a person who the licensee knows or has reasonable cause to believe does not reside in the state in which the licensee's place of business is located. 18 U.S.C. § 922(b)(3). Brooks, a pawn shop operator who was also a licensed firearms dealer doing business in Florida, was convicted on two counts charging him with selling firearms to Robert Chamberland, a person who he knew or should have known was not a resident of that state. He was also convicted on two counts charging that in connection with the same two sales he knowingly made false entries in his records in violation of 18 U.S.C. § 922(m) by showing Michael J. Craw as the transferee to whom the firearms had been sold and delivered. ¹

The government introduced evidence that on November 12, 1975, Chamberland, a Greyhound bus driver who lived in Massachusetts and who worked as an agent or informer for the Bureau of Alcohol, Tobacco and Firearms, went to Brooks' store, asked to see a Bayard pistol and said he wanted to buy it. Brooks requested a driver's license, Chamberland handed him a Massachusetts license and Brooks stated he could not accept it. Chamberland testified that Brooks suggested he get a friend who had a Florida driver's license. Chamberland testified that he said his tour guide had a Florida license, and that Brooks replied, "Fine. Bring him in and you can get the pistol." Chamberland asked Brooks to hold the pistol for him saying he would be back in three or four days to buy it.

Three days later Chamberland returned with Craw, a resident of Florida, who was, unknown to Brooks, an ATF agent. He introduced Craw to Brooks as a tour guide with the bus company. Chamberland selected a second pistol and said he wanted to buy both this and the Bayard pistol. After Craw produced a Florida driver's license, the necessary forms were completed, with Brooks' assistance, naming Craw as transferee of the firearms. Chamberland counted out the money for the two pistols and paid it to Brooks who gave him change. Brooks made out a receipt naming Craw as purchaser, and put it with the two pistols in a brown paper bag and handed the bag to Chamberland. Craw did not ask to see any firearms, handle any firearms or negotiate any prices. Brooks testified, and all the evidence supports, that he required a Florida driver's license in each of the sales as evidence that the sale was made to a Florida resident.

The gist of the government's case is that the purported sales to Craw and the entries made on the records showing Craw as transferee were sham transactions; the sales were in fact made to Chamberland who was known by Brooks to be a non-resident. The defense set forth in opening argument was that Brooks was a victim of entrapment. After the government had put in its evidence on direct, Brooks' counsel renewed an earlier motion to dismiss the indictment on the ground that the statute was unconstitutionally vague. After this was overruled, Brooks took the stand and testified that he thought the only purpose of the gun control law was to make it possible to trace the gun to the dealer who sold it. Brooks also testified that he did not always make sure that the person who produced a driver's license took physical possession of the gun or that the Florida resident actually paid for the gun, that some people buy guns as gifts for someone else and that it's not uncommon for one person to pay for another person's gun.

After both sides had rested, Brooks' counsel requested that the judge give the same charge concerning identification of the real purchaser of a firearm that another judge had given in the previously tried case of United States v. Scannapieco, 611 F.2d 619 (5th Cir. 1979) decided by us this date. The trial judge refused, but gave an abbreviated charge set forth below. In the charge conference, Brooks' counsel said, however, after discussing the evidence, "That's really my entire defense, is that it's entrapment. You have no predisposition to commit the crime when you don't even realize there is a crime being committed." He requested an entrapment charge, saying, "Obviously I've got nothing to argue without the entrapment charge." The closing argument was not transcribed, so we do not have before us what was actually said to the jury.

Brooks asks us to hold that § 922(b)(3) is unconstitutional (and therefore § 922(m) is unconstitutional as well), because it does not give a dealer fair notice that his contemplated conduct is forbidden by the statute. See United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954). His argument seems to be that, as applied to him, the statute makes a dealer responsible if an individual produces information that purports to identify him as a resident and forms are completed showing that person as the transferee unless the dealer insures that the person is the "ultimate recipient" of the gun, and that it does not give fair notice of this application.

The statute makes it unlawful for a dealer to "sell or deliver . . . any firearm to any person who the licensee knows or has reasonable cause to believe does not reside in the State . . . ." Because the phrases "sell or deliver" have a well settled common law meaning, Connally v. General Const. Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926), they convey sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. Jordan v. DeGeorge, 341 U.S. 223, 231-32, 71 S.Ct. 703, 708, 95 L.Ed. 886, 892 (1951).

The statute is equally clear with respect to the requisite mental state of the seller; it reaches only one who "knows or has reasonable cause to believe (that the purchaser) does not reside in the state." The law need not spell out the means that a dealer may employ to negate any inference that he either knows or has reason to know that the person is a nonresident. Indeed, disproof is unnecessary. It is the burden of the government to prove beyond reasonable doubt the state of mind that is an essential element of the case.

Nor is the statute unconstitutionally void as applied to Brooks. He was not charged with selling to Craw knowing or having reason to know that Craw was acting as agent for Chamberland or would retransfer the gun to Chamberland. He was charged with selling to Chamberland, a person he knew to be a nonresident, and the jury was instructed on this, i. e., in terms of a sham transaction with Craw. The consequence of a bona fide sale to A, who is acting as agent for B, an unrevealed principal, or who intends to later give or sell the gun to C, a...