U.S. v. Schmitt

• Decision Date: 21 November 1984
• Docket Number: No. 84-3290,84-3290
• Citation: 748 F.2d 249
• Parties: 17 Fed. R. Evid. Serv. 697 UNITED STATES of America, Plaintiff-Appellee, v. Richard A. SCHMITT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 249

748 F.2d 249

17 Fed. R. Evid. Serv. 697

UNITED STATES of America, Plaintiff-Appellee, v. Richard A. SCHMITT, Defendant-Appellant.

No. 84-3290.

United States Court of Appeals Fifth Circuit.

Nov. 21, 1984.

John T. Mulvehill, Federal Public Defender, Brian P. Berson, Asst. Federal Public Defender, New Orleans, La. (Court-appointed), for defendant-appellant.

John P. Volz, U.S. Atty., Harry W. McSherry, Jr., Jan M. Maselli, Asst. U.S. Attys., New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before RUBIN, RANDALL and TATE, Circuit Judges.

RANDALL, Circuit Judge:

Defendant-appellant Richard Schmitt appeals his conviction on two counts of unlawful receipt of a firearm by a person who had been convicted of a felony crime, a violation of 18 U.S.C. Sec. 922(h)(1), and on two counts of knowingly making a false written statement to a licensed dealer in connection with the purchase of a firearm, a violation of 18 U.S.C. Sec. 922(a)(6). Schmitt contends that the district court committed reversible error by declining to give his proposed instruction in its charge to the jury and by denying a jury request made during deliberations for a copy of the automatic pardon provision of the Louisiana Constitution. For the reasons set forth below, we affirm the judgment of the district court in regard to Schmitt's conviction on the Sec. 922(h)(1) counts but reverse and remand for a new trial the court's judgment with respect to the Sec. 922(a)(6) offenses.

I. FACTUAL AND PROCEDURAL HISTORY.

On January 5, 1983, Schmitt purchased a .22 caliber revolver from Chalmette Jewelry, Inc., a federally licensed firearms dealer, in Chalmette, Louisiana. On January 27, 1983, Schmitt bought a second firearm, a .32 caliber revolver, from The Gun Shop, also a federally licensed firearms dealer, in the same city. In connection with both purchases, Schmitt, as required by law, completed and signed Bureau of Alcohol, Tobacco & Firearms Form 4473. This form included the following question:

Have you been convicted in any court of a crime punishable by imprisonment for a term exceeding one year? (Note: The actual sentence given by the judge does not matter--a yes answer is necessary if the judge could have given a sentence of more than one year. Also, a "yes" answer is required if a conviction has been discharged, set aside, or dismissed pursuant to an expungement or rehabilitation statute. However, a crime punishable by imprisonment for a term exceeding one year does not include a conviction which has been set aside under the Federal Youth Correction Act.)

Although Schmitt had been convicted in 1964 of armed robbery, a crime punishable by more than one year, he answered this question in the negative on both occasions.

On May 19, 1983, a federal grand jury indicted Schmitt on four counts arising from the gun purchases on January 5 and 27. Counts 1 and 3 charged Schmitt with violating 28 U.S.C. Sec. 922(h)(1), ¹ which prohibits the knowing receipt of a firearm by a person who had been convicted of a crime punishable by more than one year. Counts 2 and 4 charged Schmitt with violating 18 U.S.C. Sec. 922(a)(6), ² which prohibits making false statements to a licensed firearms dealer with respect to any fact material to the lawfulness of the sale of the firearm. Schmitt pleaded not guilty to all four counts.

At trial, Schmitt stipulated that he in fact had been convicted of armed robbery in 1965 and had made the two firearm purchases on January 5 and 27 of 1983 from federally licensed gun dealers. It was also conceded that Schmitt had not filled out Form 4432 accurately in either instance. Schmitt, however, maintained his innocence on the ground that at the time of the purchases he lacked the scienter necessary as a precondition for the violation of the federal statutes. According to Schmitt, in January of 1983 he was under the mistaken but good faith belief that he had received the benefit of two pardons, the effect of which he presumed was to eviscerate his status as a felon under the law. Thus, at the time of the purchases, Schmitt alleges, he was not aware that he had a conviction on his record or that he was filling out the forms inaccurately.

Following a two-day trial, the jury found Schmitt guilty on all four counts. The district court sentenced Schmitt to five years' imprisonment as to each of counts 1, 2, and 3, the sentences to run concurrently. The court suspended sentence as to count 4 and instead placed Schmitt on five years' supervised probation to commence upon his release from prison. Schmitt filed a timely notice of appeal.

II. DISCUSSION.

A. Scienter and Counts 1 & 3.

Schmitt contends on appeal that the district court erred in refusing to give the requested instruction to the jury in regard to counts 1 and 3. The charge as submitted would have instructed the jury that scienter with respect to the defendant's status as a person convicted of a felony was a necessary precondition for violating Sec. 922(h), which makes it unlawful for a person previously convicted of an offense punishable by imprisonment of more than one year to receive a firearm. Because we find that Schmitt's proposed instruction misstates the substantive law, we reject this contention as meritless. See, e.g., United States v. Lewis, 592 F.2d 1282, 1285 (5th Cir.1979); United States v. Conroy, 589 F.2d 1258, 1273 (5th Cir.), cert. denied, 444 U.S. 831, 100 S.Ct. 60, 62 L.Ed.2d 40 (1979).

Schmitt argues that, although on its face the statutory provision requires no specific intent or knowledge that the person receiving the firearm was a felon, the provision should be interpreted as including such a requirement. See Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). We have previously held in United States v. Giles, 640 F.2d 621, 627 (5th Cir.1981), however, that "it is clear from both the wording of section 922(h) and the interpretive gloss placed on that wording by many courts that knowledge is not an element of the crime defined by that section." Moreover, even if we were not bound by a prior panel opinion in this matter, see Ford v. United States, 618 F.2d 357, 361 (5th Cir.1980), we would not be persuaded to adopt Schmitt's interpretation. It is well established that "there is wide latitude in the lawmaker to declare an offense and to exclude elements of knowledge and diligence from its definition." Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 242, 2 L.Ed.2d 228 (1957). Thus, in United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971), the Supreme Court, interpreting a closely analogous statutory provision, the National Firearms Act, 26 U.S.C. Sec. 5861(d), held that scienter is not an element of the offense of unlawfully receiving unregistered firearms. In adopting such a construction, the Court emphasized that the prohibited act in that case, possession of hand grenades, was hardly innocent in itself and that the statute constituted a legitimate effort to regulate highly dangerous offensive weapons in the interests of public safety. Id. at 608-10, 91 S.Ct. at 1117-1118. See United States v. Balint, 258 U.S. 250, 252-54, 42 S.Ct. 301, 302-303, 66 L.Ed. 604 (1922) (There are many instances of regulatory measures not requiring scienter for their violation "where the emphasis of the statute is evidently upon achievement of some social betterment rather than the punishment of the crimes as in cases of mala in se."). In the case at hand, while the act at issue could conceivably be characterized as "innocent" inasmuch as gun purchases are both lawful and quite common, Sec. 922(h), like Sec. 5861(d), was clearly enacted in response to the need for regulation controlling the use of these objects which in and of themselves pose a danger to the general public. Indeed, the Supreme Court has commented that the purpose of Sec. 922(h) is "broadly to keep firearms away from persons Congress classified as potentially irresponsible and dangerous. These persons are comprehensively barred by the Act from acquiring firearms by any means." Barrett v. United States, 423 U.S. 212, 218, 96 S.Ct. 498, 502, 46 L.Ed.2d 450 (1976) (emphasis added). See also Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 119, 103 S.Ct. 986, 994-95, 74 L.Ed.2d 845 (1983) (Congress determined in enacting Sec. 922(h)(1) "that firearms must be kept away from persons, such as those convicted of serious crimes."). Under these circumstances, we will not presume from congressional silence that Congress intended to make knowledge a prerequisite to violating the statutory provision. ³

Accordingly, we hold that the district court acted properly in not granting Schmitt's request to give the jury the charge submitted.

B. Scienter and Counts 2 & 4.

Schmitt additionally asserts that the district court erred in refusing to give to the jury a submitted instruction regarding Schmitt's theory of defense to counts 2 and 4. These counts charged him with making false statements in the purchase of a firearm in violation of Sec. 922(a)(6). ⁴ The proposed instruction read:

I shall now instruct you on what is called the defendant's theory of the case, that is, the view of the evidence taken in this case by Richard Schmitt.

I give you this view of the evidence without any implication of approval or disapproval.

Richard Schmitt contends that at the time he filled out the Alcohol, Tobacco and Firearms form and received the guns charged in the indictment, he was not aware that he had a conviction on his record.

We have recently held that, "[t]o establish a violation of Sec. 922(a)(6), the government must show that the defendant knowingly made a false statement which was intended to deceive or likely to deceive the firearms dealer." United States v. Harrelson, 705 F.2d 733, 736 (5th Cir.1983). Thus, Schmitt's defense that he had only mistakenly filled out the relevant form...