U.S. v. Obiechie

• Decision Date: 14 October 1994
• Docket Number: Nos. 93-3012,93-3879,s. 93-3012
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph D. OBIECHIE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 309

38 F.3d 309

UNITED STATES of America, Plaintiff-Appellee, v. Joseph D. OBIECHIE, Defendant-Appellant.

Nos. 93-3012, 93-3879.

United States Court of Appeals Seventh Circuit.

Argued May 20, 1994.

Decided Oct. 14, 1994.

Barry Rand Elden, Asst. U.S. Atty., James A. Shapiro (argued), Crim. Receiving, Appellate Div., Chicago, IL, for plaintiff-appellee.

John E. Horn (argued), Tinley Park, IL, for defendant-appellant.

Before POSNER, Chief Judge, and EASTERBROOK and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

This case turns on the meaning of the term "willfully" in the Firearms Owners' Protection Act of 1986, Pub.L. No. 99-308, 100 Stat. 449 (1986) ("FOPA"). Joseph D. Obiechie was convicted after a bench trial of "willfully" engaging in the business of dealing in firearms without a license in violation of 18 U.S.C. Secs. 922(a)(1)(A) & 924(a)(1)(D). The district court construed "willfully" in section 924(a)(1)(D) to mean that Obiechie must have intended to do the acts that constitute the crime, but not that he must have known of the law and intended to violate it. United States v. Obiechie, 825 F.Supp. 1335, 1338 (N.D.Ill.1993). The district court found that the evidence proved Obiechie guilty beyond a reasonable doubt under that standard. Id. at 1338-39. Obiechie argues on appeal that the district court should also have required the government to prove knowledge of section 922(a)(1)(A)'s licensing requirement and his intent to violate it. ¹ Because we agree that knowledge of the law is an element of the government's proof under section 922(a)(1)(A), we reverse Obiechie's conviction.

I. BACKGROUND

Over a period of approximately six months, Obiechie purchased fifty Beretta semiautomatic pistols from Shore Galleries ("Shore") in Lincolnwood, Illinois. The first such purchase occurred on December 3, 1991, when Obiechie arranged to buy a single Beretta for $191. ² He indicated to the Shore sales clerk that he was purchasing the Beretta for retail sale, and the clerk recorded that purpose on the sales receipt. Obiechie picked up his pistol on December 6, after the expiration of the seventy-two hour waiting period required by state law. On December 7, Obiechie traveled to Nigeria, returning to this country on January 1, 1992.

The next day, Obiechie purchased an additional eight Berettas from Shore, and on April 15, he purchased twenty Berettas and forty boxes of ammunition. Although Obiechie indicated to the Shore clerk on January 2 that he intended to resell the eight pistols, he told the clerk on April 15 that he was purchasing the twenty pistols as gifts. After complying with the three-day waiting period as to each purchase, Obiechie picked up the pistols and flew to Nigeria shortly thereafter. In compliance with federal law, Shore sent the required forms to the United States Bureau of Alcohol, Tobacco and Firearms ("ATF") reflecting Obiechie's multiple firearms purchases following each of these sales. ATF Special Agent Kevin O'Malley called Shore upon receipt of the April 15 forms and requested that Shore notify ATF of any additional purchases by Obiechie.

Obiechie returned to Shore on April 30, 1992, and purchased twenty-one Berettas and forty boxes of ammunition. ³ As he had on April 15, Obiechie told the Shore clerk that he was purchasing the pistols as gifts. Shore immediately notified Agent O'Malley, and when Obiechie returned to pick up the firearms on May 5, ATF Agent Todd Reichert, equipped with a body recorder and transmitter, was working undercover as a Shore sales clerk. In assisting Obiechie, Reichert engaged him in conversation, and Obiechie told the agent that he was from Nigeria and that he was taking the Berettas there the following day. Reichert asked whether it was difficult to import guns into Nigeria, and Obiechie responded that he had ways of doing so. Obiechie also told Reichert that he would sell the pistols to public officials in Nigeria and that he would make a forty percent profit on each sale.

Obiechie then left Shore with the Berettas and ammunition and drove to Chicago. Two Chicago police officers who were assisting in the ATF undercover operation followed Obiechie and eventually stopped his vehicle when it entered the Chicago city limits. Obiechie waived his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and consented to a search of his vehicle, during which the officers uncovered the Berettas and ammunition. Obiechie admitted to the officers that he had been transporting firearms to Nigeria by stowing them in the bottom of a cargo trunk. He explained that he had been able to avoid detection by Nigerian customs agents by bribing a customs official.

Obiechie was charged in a four-count indictment with willfully engaging in the business of dealing in firearms without a license in violation of 18 U.S.C. Sec. 922(a)(1)(A) (count I), and with willfully exporting or attempting to export firearms and ammunition without a license in violation of 22 U.S.C. Sec. 2778 (counts II, III, and IV). Obiechie waived his right to a jury, and after a three-day bench trial, the district court found Obiechie guilty on count I and not guilty of the remaining charges. On counts II, III, and IV, the district court found that the government had failed to prove beyond a reasonable doubt that Obiechie had willfully violated a known legal duty to refrain from exporting firearms and ammunition without a license as required under section 2778. 825 F.Supp. at 1341-42. The district court held that knowledge of the law was not a necessary element under section 922(a)(1)(A), however, and found that the government had thus shown a willful violation of that section. Id. at 1338. Obiechie now challenges that conviction.

II. DISCUSSION

Section 922(a)(1)(A) makes it unlawful for any person

except a licensed importer, licensed manufacturer, or licensed dealer, to engage in the business of importing, manufacturing, or dealing in firearms, or in the course of such business to ship, transport, or receive any firearm in interstate or foreign commerce....

Standing alone, this statute contains no scienter requirement. United States v. Collins, 957 F.2d 72, 74 (2d Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 2285, 119 L.Ed.2d 210 (1992). Such a requirement is instead located in 18 U.S.C. Sec. 924(a)(1), the penalty provision for this and other offenses, which provides:

(a)(1) Except as otherwise provided in this subsection, subsection (b), (c), or (f) of this section, or in section 929, whoever--

(A) knowingly makes any false statement under this chapter or in applying for any license or exemption or relief

from disability under the provisions of this chapter;

(B) knowingly violates subsection (a)(4), (a)(6), (f), (k), or (q) of section 922;

(C) knowingly imports or brings into the United States or any possession thereof any firearm or ammunition in violation of section 922(l ); or

(D) willfully violates any other provision of this chapter,

shall be fined not more than $5,000, imprisoned not more than five years, or both.

It is subsection (a)(1)(D) that applies here, as neither of the others purport to apply to section 922(a)(1)(A), meaning that violations of that section fall under the (a)(1)(D) catch-all. See Collins, 957 F.2d at 74.

Subsection (D)'s willfulness requirement was added by the FOPA amendments to the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351, 82 Stat. 225 (1968). Prior to FOPA, many firearms crimes, including the unlicensed dealing of firearms, "were, on their face, strict liability offenses." United States v. Sherbondy, 865 F.2d 996, 1001 (9th Cir.1988); see also Collins, 957 F.2d at 74; United States v. Carmany, 901 F.2d 76, 78 n. 2 (7th Cir.1990). As the Ninth Circuit explained in Sherbondy, "FOPA added a set of mens rea requirements by amending section 924(a)(1) to punish certain violations only if they are committed 'willfully' and others only if they are committed 'knowingly.' " 865 F.2d at 1001. These amendments were intended to ensure that law-abiding citizens would not be subject to severe criminal penalties for unintentional missteps. See Collins, 957 F.2d at 74, 76; see also David T. Hardy, The Firearms Owners' Protection Act: A Historical and Legal Perspective, 17 Cumb.L.Rev. 585, 604-07 (1987); 131 Cong.Rec. 18,155 & 18,158 (1985) (remarks of Senators McClure and Symms); 132 Cong.Rec. 5,779 (1986) (remarks of Representative Volkmer).

In construing the willfulness requirement in Collins, the Second Circuit reviewed FOPA's extensive legislative history and concluded that Congress had intended the term "willfully" "to be read broadly to require only that the government prove that the defendant's conduct was knowing and purposeful and that the defendant intended to commit an act which the law forbids." 957 F.2d at 76. In the Second Circuit's view, therefore, the government is not required to show knowledge and a conscious disregard of the law. The district court here relied on Collins' assessment of the pertinent legislative history to conclude that "willfully" does not connote the intentional violation of a known legal duty. Obiechie, 825 F.Supp. at 1337-38.

In a case not cited by either party, the Eighth Circuit considered the same legislative history and reached a contrary conclusion. See United States v. Hern, 926 F.2d 764, 767 (8th Cir.1991). In Hern, the government had conceded that FOPA's use of the term "willfully" means the "intentional violation of a known legal duty," and the court found FOPA's legislative history "consistent with this definition of 'willful.' " Id. at 767 & n. 6; see also United States v. Langley, No. 93-5219, 1994 WL 518394, * 8 1994 U.S.App. LEXIS 26832, * 32 (4th Cir. Sept. 23, 1994) (noting in dicta that FOPA's "willfully" requirement "was intended to mean undertaken in violation of a known legal duty."); Hardy, 17 Cumb.L.Rev. at 652 ("it is impossible to...