U.S. v. Poulos, 88-3181

• Decision Date: 06 June 1990
• Docket Number: No. 88-3181,88-3181
• Citation: 895 F.2d 1113
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William POULOS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1113

895 F.2d 1113

UNITED STATES of America, Plaintiff-Appellee, v. William POULOS, Defendant-Appellant.

No. 88-3181.

United States Court of Appeals Sixth Circuit.

Argued Nov. 8, 1989.

Decided Feb. 9, 1990.

Rehearing Denied June 6, 1990.

Ann Rowland, Asst. U.S. Atty., James V. Moroney (argued), Cleveland, Ohio, for U.S.

Larry W. Zukerman (argued), Greene & Hennenberg, Cleveland, Ohio, for William Poulos.

Before KENNEDY and NELSON, Circuit Judges; and CELEBREZZE, Senior Circuit Judge.

CELEBREZZE, Senior Circuit Judge.

Defendant-appellant William Poulos appeals his conviction for conspiring to knowingly receive and possess unregistered silencer-equipped firearms in violation of 18 U.S.C. Sec. 371 and 26 U.S.C. Secs. 5861 and 5871 (Count I); receiving and possessing a firearm bearing no serial number or registration as required by 26 U.S.C. Secs. 5841 and 5842, in violation of 26 U.S.C. Sec. 5861 and 26 U.S.C. Sec. 5871 (Counts II and III); and two counts of possessing unregistered silencers without serial numbers in violation of 26 U.S.C. Secs. 5861 and 5871 (Counts V and VI). Poulos contends that there was insufficient evidence for the jury to conclude that he entered the conspiracy charged in Count I and that there was insufficient evidence supporting the jury's verdict that he constructively possessed the firearm alleged in Counts II and III. He further asserts that two silencer kits seized from his basement during a legal search, the basis for Counts V and VI, were not in plain view nor statutorily defined as firearms at the time of their seizure by law enforcement officers. Finding sufficient evidence whereby a reasonable jury could conclude that Poulos joined the firearms conspiracy, that Poulos constructively possessed an illegal silencer-fitted .22 caliber pistol, and that it was "immediately apparent" that the silencer component parts discovered in Poulos' basement were evidence of a crime and lawfully seized pursuant to the plain view doctrine, we affirm.

I.

In 1986, the Internal Revenue Service (IRS) commenced an undercover money laundering investigation directed at William J. Wunderle and appellant William Poulos. At the time of the investigation, Poulos owned a cement company in Canton, Ohio and along with Wunderle, was attempting to start a savings and trust business using a leased old bank building in Canton. Using the name Scott McBride, an IRS undercover agent named Vernon Mason met with Poulos and Wunderle on several occasions in the course of the money laundering probe. The investigation was expanded from illegal financial transactions to unlawful transactions in firearms as a result of a May 8, 1987 meeting between IRS Agent Mason, Wunderle, and Michael Sidener, ¹ an acquaintance of Wunderle and Poulos. At the May 8, 1987 meeting, which was originally scheduled for a discussion of financial dealings, Agent Mason expressed an interest in an automatic weapon. Subsequently, conversation quickly turned to a general discussion of weapons wherein Sidener represented that he could provide weapons without the required "papers." ² Thereafter, in a series of telephone conversations on May 18th and 19th, Wunderle and Agent Mason negotiated for the purchase of numerous automatic weapons and a sample buy was discussed.

Five days later, Joe David Artman, Sidener's source for firearms, and Charles Hair, residents of Texas who owned a firearms business and who also provided computer consulting services to Poulos and Sidener, travelled from Texas to Canton to assist Poulos and Sidener in deciphering some computer disks. At a luncheon meeting, Wunderle asked Artman and Hair whether "they could provide him or someone he knew with automatic weapons or suppressors." Hair then explained the requisite logistics for a transaction.

Two days after the luncheon meeting, Sidener told Agent Mason that he and his associates did not want Wunderle to be part of the transaction. ³ Poulos was then contacted by Agent Mason who asked Poulos to have Sidener make "the sample" available at their next meeting. Poulos, who spoke with Sidener most every morning, agreed to transmit Mason's message to Sidener.

On June 2, 1987, a meeting was held between Poulos, Agent Mason, and Sidener in Poulos' bank building. Poulos informed Mason that no "samples" were immediately available and that any firearms transaction would require Mason to "pay up front." In the course of the meeting numerous telephone calls were made. As to one phone conversation, Artman testified that Sidener telephoned him requesting a suppressor for a .45 caliber pistol and that Sidener gave him instructions to ship the .45 silencer to Poulos' business address in Canton, which Artman did via UPS. Artman further testified that he told Sidener that when he returned to Canton on June 4th, he would bring a .22 caliber silencer-equipped pistol, a weapon Poulos had requested in the latter part of May, 1987, on the last day of Artman and Hair's first stay in Canton. Poulos ostensibly desired the firearm for target shooting in his basement.

Following Sidener's telephone conversations with Artman, Sidener reported to Agent Mason that Artman had the weapons sought by Mason, but that delivery would be later than desired. Sidener informed Mason that Artman would, however, be bringing a "close-up assassination tool that looks like a standard production model target pistol" for Poulos. Agent Mason testified that Poulos indicated to him that he might allow Mason to use the pistol Artman was bringing for Poulos. At the end of the meeting, Sidener advised Mason about dealing with Artman and Hair, and Poulos admonished Mason not to talk with Wunderle or anyone else about the deal.

Pursuant to the arrangements made on June 2nd, Agent Mason arrived at Poulos' bank building on June 4th to purchase a silencer-fitted pistol. When Poulos arrived, Artman informed him that a package (the .45 suppressor) had been sent via UPS to Poulos' business address and Poulos responded "alright" to Artman's disclosure that the package was sent to him. Mason then approached Artman and offered to purchase the .22 caliber silencer-equipped pistol that Artman had brought for Poulos. While Poulos apparently was not privy to this initial conversation between Artman and Mason regarding the sale of the weapon, Poulos did approve of Artman's offer to demonstrate the weapon in response to Mason's inquiry. After Poulos assisted Artman in test firing the weapon into a telephone book, Agent Mason asked Poulos if he could buy the weapon. Poulos responded "[y]eah, we can work it out.... I don't need it that bad." Mason subsequently paid Artman $400.00 for the silencer-fitted weapon and then asked Poulos if $100.00 would be sufficient to take care of him until Artman could get Poulos a replacement weapon. Although Poulos responded, "whatever you feel ... I can't do anything," he nonetheless said "alright" to one hundred dollars and accepted the money from Agent Mason.

After the transaction for the silencer-equipped pistol was completed, Artman reiterated that the .45 caliber silencer "sample" for Agent Mason would be delivered to Poulos' business and Artman recommended that Poulos call Mason upon the silencer's being delivered by UPS. Poulos clearly acknowledged Artman's instructions.

The following day, Mason called Poulos and asked if the "package" had arrived. While responding that the silencer had not yet arrived, Poulos and Mason further discussed whether the .45 caliber silencer had been sent alone or with a gun. After consulting someone, Poulos informed Agent Mason, "... no body to it. No, just a can's comin' up." (just a silencer was being shipped). Poulos then suggested that Mason call the following Monday to check on the silencer's delivery.

Thereafter, on June 7, 1987, defendants Sidener, Artman, Hair, Wunderle and Poulos were arrested, and search warrants for financial records were issued and executed at the bank building and at Poulos' residence. In the basement of Poulos' home, while agents were searching for financial records, two silencer kits were discovered and seized. A third search warrant was executed at the UPS terminal in Canton, Ohio on June 9, 1987, and the .45 caliber silencer shipped by Artman to Poulos' business address was seized.

All the defendants were charged in a 13 count indictment with various money laundering and firearms violations, and except for Poulos and Sidener, they all pled guilty to one or more offenses. Poulos and Sidener were then tried pursuant to a seven count superseding indictment. At the conclusion of the government's case, the district court dismissed Count IV (solicitation to commit murder for hire) as to Poulos. However, on February 3, 1988, after a nineteen day trial, the jury found both defendants guilty on all remaining counts. Sidener was sentenced to three years imprisonment on Count I (conspiracy), and Poulos was sentence to three years imprisonment on each of the five counts for which he was convicted, the sentences to run concurrently with one another. After Poulos' motions for acquittal and alternatively for a new trial were denied, this timely appeal ensued.

II.

Poulos' initial contention on appeal is that the evidence was insufficient to convict him of Count I of the indictment, conspiracy to receive, possess, and transport interstate firearms bearing no serial numbers or registration as required by 26 U.S.C. Secs. 5841 and 5842. Specifically, Poulos asserts that the government failed to prove the existence of an agreement between Poulos and others to violate the law and that the government failed to establish that he had the requisite intent to violate the applicable federal firearms statutes.

In assessing Poulos' challenge to the sufficiency of the evidence supporting his conspiracy conviction, this court must determine "whether the relevant evidence viewed in the light most favorable to the government could be accepted by a...