U.S. v. Collins

• Decision Date: 25 February 1992
• Docket Number: D,No. 692,692
• Citation: 957 F.2d 72
• Parties: UNITED STATES of America, Appellee, v. Anthony COLLINS, Defendant-Appellant. ocket 91-1471.
• Court: U.S. Court of Appeals — Second Circuit

Page 72

957 F.2d 72

UNITED STATES of America, Appellee, v. Anthony COLLINS, Defendant-Appellant.

No. 692, Docket 91-1471.

United States Court of Appeals Second Circuit.

Argued Jan. 8, 1992.

Decided Feb. 25, 1992.

Marjorie M. Smith, New York City (The Legal Aid Soc., of counsel), for defendant-appellant.

Miguel A. Estrada, Asst. U.S. Atty., S.D.N.Y. (Otto G. Obermaier, U.S. Atty., James B. Comey, Asst. U.S. Atty., S.D.N.Y., of counsel), for appellee.

Before MINER, ALTIMARI and MAHONEY, Circuit Judges.

ALTIMARI, Circuit Judge:

Defendant-appellant Anthony Collins appeals from a judgment of conviction, entered in the United States District Court for the Southern District of New York, following a jury trial before Judge Robert P. Patterson, Jr. Collins was convicted of dealing in firearms without a federal firearms license, in violation of 18 U.S.C. § 922(a)(1), and of receiving and possessing a sawed-off rifle, in violation of 26 U.S.C. § 5861(d). On appeal, Collins contends, among other things, that the district court committed plain error by failing to charge the jury that it could only convict Collins of unlawful dealing in firearms if it found that he acted willfully. While the government concedes that the district court erred by omitting a willfulness requirement from its charge on the § 922(a)(1) count, it argues that this error was harmless.

For the reasons set forth below, we affirm the judgment of conviction.

BACKGROUND

On January 28, 1991, Anthony Collins was charged by indictment with three separate offenses involving firearms: Count One charged him with conspiracy to violate the federal firearms laws by possessing firearms and dealing in firearms without a license, in violation of 18 U.S.C. § 371; Count Two charged him with dealing in firearms without a federal firearms license, in violation of 18 U.S.C. § 922(a)(1); and Count Three charged him with receiving and possessing a sawed-off rifle, in violation of 26 U.S.C. § 5861(d). A jury trial was held in the United States District Court for the Southern District of New York in February 1991.

At trial, the government introduced the testimony of two undercover agents of the Bureau of Alcohol, Tobacco and Firearms ("ATF") and of a confidential government informant, James Barnes, as well as tape-recordings of some of the conversations that these agents had with the defendant. According to this testimony, from February 1990 through August 1990, Collins repeatedly met with undercover ATF agents outside his apartment building, and in his neighborhood, to complete or to arrange various gun sales. During one such meeting, Collins sold a Colt .45 revolver to two ATF agents, Agent Donini and Agent Mulham, for $900. As Collins showed the agents the revolver, he explained that he had obliterated its serial number, as was his general practice. Collins stated: "[T]hat's what I always do, take 'em off."

At another meeting, Collins sold Agent Mulham a .38 caliber Smith & Wesson revolver for $1,100. While Agent Mulham was inspecting the weapon, Collins noted that the gun was "oily" because he had cleaned it to ensure that his fingerprints had been removed. Shortly after the sale of the Smith & Wesson, Collins again met with Agent Mulham and sold him a sawed-off U.S. Carbine .30 caliber rifle and a .9 The government presented additional evidence that a number of other weapons sales were made by Collins' brother-in-law, Jerome Blash, in or around Collins' basement apartment. The agents also testified that Collins had informed them that he was the rightful owner of the weapons that Blash had sold to them.

                millimeter Kurz semiautomatic pistol for $1,900.   As part of the transaction, Collins agreed to sell Mulham five .9 millimeter pistols at a later date for $650.00 apiece
                

In response, Collins took the stand and charged that the government had entrapped him. He claimed that the government's informant, Barnes, was the actual source of the firearms that Collins had sold to the agents. Additionally, Collins contended that Barnes had repeatedly asked him to sell the weapons and, when Collins finally agreed, coached him on what to say to buyers.

The jury ultimately found Collins guilty on Counts Two and Three. As a result of a jury deadlock on Count One, the judge declared a mistrial on that charge. The district court calculated Collins' offense level for the two counts on which he was found guilty to be 18 and concluded that Collins' criminal history category was I, making the applicable sentencing range 27 to 33 months. The district court sentenced Collins to 27 months imprisonment, two years of supervised release and imposed $100 in mandatory special assessments.

This appeal followed.

DISCUSSION

I. Propriety of the Charge

On appeal, Collins contends--and the government concedes--that the district court erred by failing to charge the jury that it was required to find that Collins acted willfully before it could find him guilty of dealing in firearms without a license under 18 U.S.C. § 922(a)(1). Although Collins did not object to the charge as given, he now claims that the absence of a "willfulness" instruction in the court's charge on unlawful dealing constituted plain error. We disagree.

On Count Two of the indictment, Collins was convicted of violating 18 U.S.C. § 922(a)(1), which prohibits "any person ... except a ... licensed [firearms] dealer, [from engaging] in the business of ... dealing in firearms." As written, this subsection contains no scienter requirement. Therefore, the district court, following the government's requested instruction, charged the jury that "the government is not required to prove that Mr. Collins knew that a license was required, nor is the government required to prove that the defendant had knowledge that he was breaking the law."

The government now concedes, however, that an amendment to the penalty provision accompanying this section has added a willfulness requirement to the underlying offense. The Firearms Owners' Protection Act, enacted in 1986, amended 18 U.S.C. § 924(a)(1)(D), the penalty provision applicable to the crime of unlawful dealing in firearms, to provide:

Whoever ... willfully violates any other provision of this chapter, shall be fined not more than $5,000, imprisoned not more than five years, or both, and shall become eligible for parole as the Parole Commission shall determine.

(emphasis added). Prior to the enactment of the 1986 Act, many firearms crimes were essentially strict liability offenses. Because Congress recognized that the lack of a mens rea requirement accompanying these offenses could result "in severe penalties for unintentional missteps," see 132 Cong. Rec. S5350 (daily ed. May 6, 1986), it added the willfulness requirement to § 924(a)(1)(D). Thus, it is apparent that by amending § 924(a)(1)(D), Congress was in fact adding the element of willfulness to the accompanying offenses, such as § 922(a)(1). See, e.g., H.R.Rep. No. 495, 99th Cong., 2d Sess. 26 (1986), reprinted in 1986 U.S.Code Cong. & Admin.News 1327, 1352 ("House Report"); see also 132 Cong. Rec. S5350 (daily ed. May 6, 1986) (amendment requires proof of "willful" violation for certain prosecutions). Accordingly, the district court erred by failing to charge the jury that willfulness was an element of the It is a "bedrock, 'axiomatic and elementary' [constitutional] principle," that a defendant's conviction may not stand if it is based on an evidentiary presumption that essentially "reliev[es] the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime." Francis v. Franklin, 471 U.S. 307, 313, 105 S.Ct. 1965, 1970, 85 L.Ed.2d 344 (1985); see In re Winship, 397 U.S. 358, 363, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). Collins claims that the district court established such an evidentiary presumption by failing to instruct on willfulness. In opposition, the government contends that the district court's omission was merely harmless error.

                crime.   We must therefore consider whether this error requires reversal of Collins' conviction on Count Two
                

It is well-established that "if the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis." Rose v. Clark, 478 U.S. 570, 579, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460 (1986). An error committed at trial will be considered harmless if it appears "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). Recently, the Supreme Court, in Yates v. Evatt, --- U.S. ----, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991), elaborated on the harmless error rule as applied to jury instructions. Yates instructs that a court reviewing a claim of harmless error in a jury charge must examine (1) the evidence the jury considered in rendering its decision and (2) the probative force of the evidence against the probative force of the presumption standing by itself. See id. 111 S.Ct. at 1893. Basically, an appellate court "must approach [a harmless error inquiry in this context] by asking whether the force of the evidence presumably considered by the jury in accordance with the instructions is so overwhelming as to leave it beyond a reasonable doubt that the verdict resting on that evidence would have been the same in the absence of the presumption." Id. at 1894.

Here, the district court, through its failure to charge, presumed that willfulness existed. Accordingly, applying the two step inquiry set forth in Yates, we must conclude whether, based on the evidence, the jury's verdict would have been the same if the judge properly instructed that willfulness was an element of the offense of unlawful dealing in firearms.

We begin our analysis by examining the meaning of the willfulness requirement contained in the statute....