U.S. v. Caron

• Decision Date: 01 May 1995
• Docket Number: No. 94-2026,94-2026
• Citation: 64 F.3d 713
• Parties: UNITED STATES of America, Appellee, v. Gerald R. CARON, Defendant, Appellant. First Circuit. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 713

64 F.3d 713

UNITED STATES of America, Appellee, v. Gerald R. CARON, Defendant, Appellant.

No. 94-2026.

United States Court of Appeals,First Circuit.

Heard May 1, 1995.

Decided July 31, 1995.

Order Granting Limited Rehearing

En Banc Sept. 21, 1995.

Owen S. Walker, Federal Public Defender, for appellant.

Brian T. Kelly, Asst. U.S. Atty., with whom Donald K. Stern, U.S. Atty., was on brief, for appellee.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and CYR, Circuit Judge.

COFFIN, Senior Circuit Judge.

Appellant Gerald R. Caron appeals from convictions for four counts of violating the felon-in-possession federal firearms statute, 18 U.S.C. Sec. 922(g). Two counts alleged that Caron, having previously been convicted of a crime punishable by imprisonment in excess of one year, possessed a semi-automatic rifle and ammunition in July of 1993. Two other counts alleged possession of six firearms and ammunition in December of 1993.

This is the third time appellant has been before this court in connection with a federal firearms offense and the third time we have confronted a defense of entrapment. ¹ Here the asserted defense is "entrapment by estoppel," the claim that issuance by Westport, Massachusetts authorities of a Firearms Identification (FID) card, allowing purchase and possession of a firearm under state law, estopped the federal government from prosecuting under federal law. In addition to this principal contention, appellant raises several other issues concerning the validity of a search and sentencing. We affirm.

Entrapment by Estoppel. The essential facts are the following. Appellant had been convicted of three Massachusetts felonies involving breaking and entering in the 1950s and 1960s; a California charge of attempted murder in 1970; and three federal firearms offenses in the District of Massachusetts in 1980 (see note 1, above). In June of 1991, having learned that one with no state or federal felony convictions within the previous five years can qualify for a Massachusetts FID card, Mass.Gen.L. ch. 140, Sec. 129B, appellant applied to the Westport Police Department for the card. Issuance of such a card followed a routine record check and was accompanied by no statement concerning federal firearms law. In subsequent talks with federally licensed firearms dealers, appellant was told that guns could not be sold to him, but avers that he understood that the FID card allowed him to possess guns.

On July 14, 1993, after police had responded to a call for help, appellant was apprehended on a porch in Fall River, holding a rifle, with finger on the trigger, intoxicated, talking to a woman. A .22 caliber rifle and 185 rounds of ammunition were seized. On September 28, 1993, a federal Bureau of Alcohol, Tobacco, and Firearms (ATF) agent called at appellant's Westport home and asked to see any conventional firearms. Appellant replied that he had none, only flintlock and other nonconventional weapons. At this time appellant was informed that state law did not supersede federal law and that under federal law he could not possess conventional firearms. Finally, on December 1, 1993, police and ATF agents executed a federal search warrant and seized six conventional firearms and 6,823 rounds of ammunition.

Appellant moved, before trial, that the indictment be dismissed on the ground that issuance of the FID card had worked an "entrapment by estoppel." The court ruled that decision would await factual development at trial. At the end of the first day of trial, counsel for appellant made an offer of proof that appellant would testify that he believed that his FID card gave him the right to possess firearms, that "the law was the law and the distinctions that we make between federal and state law were not something that meant anything significant to him," that he did not think it possible that what was specifically allowed by state law could be prohibited by federal law, and that he was never shown a copy of any federal law prohibiting felons from possessing firearms. The court ruled that for a defense of entrapment by estoppel to be made out, "a federal officer or a judicial officer, not some state official" would have to give the erroneous advice, but that in this case there had been no advice at all given as to what federal law allowed or proscribed.

Since the issue is whether or not there was sufficient evidence to support a theory of defense, our review is plenary. United States v. Flores, 968 F.2d 1366, 1367 (1st Cir.1992). No precedent in this circuit is squarely applicable. In United States v. Smith, 899 F.2d 116, 118 (1st Cir.1990), our statement that "federal law forbids possession of a firearm by a previously convicted felon, [FID] card or no card," had, in context, reference only to the credibility judgment of the court that a police officer shared that understanding, not to its validity. In United States v. Smith, 940 F.2d 710, 714 (1st Cir.1991), the claim of entrapment was based on a statement by a federal ATF agent to defendant that he should keep his weapons because he was to be of assistance in investigating gun club members. We stated that the defense of entrapment by estoppel had been recognized by some circuits and the Supreme Court "under certain, relatively narrow, circumstances." Id. at 714. We characterized "the underlying concept" as entitling one "to rely on the representations of an authorized government official as to the legality of his conduct." Id. Reviewing the totality of circumstances surrounding the agent's conduct under a standard of fundamental fairness, we concluded that the "mixed message" given by the agent, with no allegation that he had said that keeping the guns was in fact legal, would not have justified a finding of entrapment. Id. at 715. In United States v. Ramos, 961 F.2d 1003, 1006 (1st Cir.1992), we did not reach a claim that issuance of a state firearms license constituted entrapment by estoppel, holding that it had been waived by failure to raise the issue prior to entering a conditional plea.

Although we have not decided the issue presented here, three other circuit courts have. In United States v. Bruscantini, 761 F.2d 640 (11th Cir.1985), a defendant made an estoppel argument based on advice from a state judge, who had accepted his plea of nolo contendere in an earlier case, that he was not a convicted felon. He invoked Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965) and Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959). ² Chief Judge Godbold, writing for the court, observed that both Cox and Raley involved state officials' interpretations of state law leading to state convictions, and commented:

Where, however, the government that advises and the government that prosecutes are not the same, the entrapment problem is different.... [I]f one benefit of the estoppel defense is that it encourages government officials to better know and articulate the law, that benefit is not present where application of the defense would penalize the wrong government--the government that prosecuted appellant rather than the government that mistakenly and misleadingly interpreted the law.

761 F.2d at 642.

The Fourth Circuit applied this reasoning in a case where the estoppel defense in a federal firearms prosecution was based on a state trial judge's advice that a defendant could use firearms for hunting purposes. United States v. Etheridge, 932 F.2d 318, 320 (4th Cir.1991). And in United States v. Brebner, 951 F.2d 1017 (9th Cir.1991), the Ninth Circuit dealt with an estoppel defense based on conversations defendant had with two federally licensed firearms dealers in which he expressed his erroneous view that the dismissal of his prior state felony convictions made it legal for him to possess firearms, and alleged similar misstatements by state and local officials. The court held, first, that although perhaps both dealers should have made further inquiries as to the legality of the transactions, neither affirmatively misled the defendant as is required to support entrapment by estoppel. Id. at 1025-26. Second, it held that affirmative misleading by state and local officials was of no consequence since "these officials lacked the authority to bind the federal government to an erroneous interpretation of federal law." Id. at 1026.

Appellant seeks to avoid the thrust of these authorities by framing most of his argument as a due process claim based on fundamental fairness, citing Raley and Cox. ³ But he is forced to stretch those decisions in two important ways to make them cover his case. In the final analysis, we consider the unfairness faced by appellant to be no greater than that imposed on all who are "trapped" by the principle that ignorance of the law is no defense.

As we have noted, Raley and Cox involved state officials with authority in the particular situation affirmatively misleading defendants about what was permitted under state law. The first extension was made by a district court in United States v. Brady, 710 F.Supp. 290 (D.Col.1989), in which a state judge with criminal jurisdiction over defendant gave him erroneous advice about federal law--that he could continue to possess a firearm when hunting or trapping in the course of his occupation, a trapper of animals including coyotes. The court, relying on Raley and Cox, held that to convict defendant as a federal felon in possession would violate due process. Id. at 294. It refused to follow Bruscantini in limiting entrapment by estoppel to a misleading by an officer of the prosecuting government. Instead, it made the point that a state judge has the constitutional duty to interpret and apply federal law. Id. at 295. It therefore held that "a person is entitled to rely on a state court's views of federal law." Id. at 296.

For the second extension, appellant cites to us another district court case, United States v. Conley, 859 F.Supp. 909 (W.D.P...