U.S. v. Stout

Decision Date16 February 1982
Docket NumberNo. 80-5815,80-5815
Citation667 F.2d 1347
Parties9 Fed. R. Evid. Serv. 1466 UNITED STATES of America, Plaintiff-Appellee, v. Charles Allen STOUT, John Mark Johnson, Defendants-Appellants.
CourtU.S. Court of Appeals — Eleventh Circuit

J. Daniel Ennis, Indian Harbour Beach, Fla., for Stout.

H. Jay Stevens, Asst. Federal Public Defender, Orlando, Fla., for Johnson.

Joseph T. Urbaniak, Jr., Asst. U.S. Atty., Orlando, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Florida.

Before MORGAN, HILL and KRAVITCH, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

On April 22, 1980, defendants-appellants, John Mark Johnson and Charles Allen Stout, were arrested at the Melbourne, Florida airport by agents of the Bureau of Alcohol, Tobacco and Firearms (BATF). The defendants were subsequently indicted on thirteen counts of making, possessing and transferring firearms in noncompliance with the requirements of the National Firearms Act of 1968, 26 U.S.C. 5801 et seq. At trial, a jury returned a verdict of guilty on twelve of the counts. 1 Stout and Johnson were sentenced on each count to one and two years imprisonment, respectively, with the sentences to run concurrently. It is from these convictions and sentences that defendants now appeal.

I

Defendants' arrests marked the culmination of a seven week undercover operation by BATF Special Agent Charles Hudson and BATF Special Employee Gary Peacock. Hudson and Peacock met defendant Johnson for the first time on March 4, 1980 at a motel room in Fort Lauderdale, Florida. The meeting had been arranged by a police informant named Albert Willis. Willis had importuned Johnson to travel from Melbourne, Florida to Fort Lauderdale and negotiate the sale of a MAC-10 submachine gun owned by Johnson. Peacock and Hudson, the purported potential buyers, were represented to Johnson as narcotics and weapons traffickers, who were interested in purchasing automatic weapons 2 for use in South America.

During their initial meeting, Johnson showed Hudson and Peacock the submachine gun, claiming that it was a sample of the type of firearms he could provide in large quantities. Johnson also discussed the functioning of silencers, which as a machinist, he claimed the ability to make. A price per unit for automatic weapons was negotiated, and Johnson agreed that he would supply machine guns equipped with silencers for $2,500 each. Johnson expressed reluctance to sell the submachine gun that he then had with him because it was registered in his wife's name. The two agents were allowed, however, to leave the motel with the firearm for the reputed purpose of showing it to their South American contacts.

Two more brief meetings were arranged in Fort Lauderdale prior to Johnson's return to Brevard County on March 6. At a second meeting the evening of March 4, Hudson gave Johnson a "Hi-Standard" .22 caliber pistol barrel and asked Johnson if he had a silencer that would fit it. Johnson took the barrel saying that he would see what he could do about getting a silencer to adapt to it.

The next encounter between Hudson, Peacock and Johnson occurred in Melbourne, Florida on March 26, 1980. Johnson met the agents at the Melbourne airport and took them to a rural area of Brevard County. There Johnson displayed five silencers and two handguns. One of the silencers was attached to the .22 caliber pistol barrel that Johnson had been given at the second March 4 meeting. The barrel had been altered, the front sight was removed and a portion of the barrel threaded. Hudson and Peacock test-fired one of the pistols with silencer attached, and there was a discussion over the sale of both pistols. The two agents and Johnson next drove to a sparsely populated section of Melbourne where they were met by defendant Stout. The silencers and pistols were again displayed, and Stout accepted the agents' praise for the quality of the work exhibited. Stout asked which of two alternative means of attaching the silencers to firearms the agents would prefer, stating that he could make either kind.

At one point, Johnson expressed concern that they could be observed at their present location, and Stout suggested that they go to a more private place. Defendants then took Hudson and Peacock to a Melbourne machine shop operated by Stout called Celtic Machine and Welding, Inc. The negotiations were renewed in Stout's office at Celtic and focused on the production of one hundred silencers by defendants for use in South America. Stout and Johnson divulged that they would have to do the work at night to avoid detection by Celtic's employees.

Since their initial meeting Johnson had told the agents that he could take parts and by additional machine work modify semi-automatic weapons to fire fully automatic. Johnson also had represented that he had "contacts" in Atlanta who could provide the needed additional parts. After their meeting at the machine shop, Johnson, Hudson and Peacock returned to the Melbourne airport and flew to Atlanta to meet Johnson's "contacts" and purchase parts for automatic weapons. In Atlanta, the agents accompanied Johnson to a legitimate business trading in firearms and firearm accessories. There agents purchased one partial kit for the construction of a silencer and one partial "MAC-10 Conversion Kit." 3

The following day, March 27, 1980, Johnson, Hudson and Peacock returned to Melbourne and went to Stout's machine shop. Johnson and Stout explained to the agents what they would have to do to the parts purchased in Atlanta in order to make a silencer and modify a submachine gun. Stout also showed Hudson and Peacock a combination of parts designed to convert a M-1 carbine into a machine gun. He claimed to have a M-1 carbine but explained that he kept it at another location "in case he got caught." The agents represented that they would like to purchase the M-1 as well as a MAC-10 after the weapons had been modified for automatic firing. An agreement was also reached whereby Johnson and Stout were to make one hundred silencers at a cost of $185 per unit.

Before returning to Miami, the agents purchased the two pistols with attached silencers that they had been shown the previous day. They were allowed to take two additional silencers of different sizes and designs to show their "South American connections." None of the silencers and pistols had identifying serial numbers. In fact, one of the pistols, which had had a serial number the day before, now had its serial number obliterated.

During the next two weeks, there were numerous telephone calls between Johnson and Peacock in which the progress of defendants in making the one hundred silencers and converting semi-automatic weapons was related. Hudson and Peacock again met defendants on April 9 in Melbourne and proceeded to a remote area of Brevard County. Defendants then displayed a M-1, .30 caliber carbine and an Ingram submachine gun (MAC-10) with attached silencer. Both weapons were test fired, and both fired as fully automatic weapons. Defendants had converted the carbine to a machine gun by using the M-2 parts kit that Stout had shown the agents on March 27. The parts kit purchased by the agents and Johnson during their trip to Atlanta had been used by defendants to modify the Ingram submachine gun. Only the M-1 carbine was marked with a serial number. Defendants agreed to the immediate sale of the Ingram machine gun and silencers, but Stout refused to transfer the carbine until he could eliminate its serial number. Hudson and Peacock purchased the Ingram machine gun and silencer and returned to Miami.

Arrangements were made by phone for the transfer of the one hundred silencers and the converted M-1 carbine to Hudson and Peacock at the Melbourne airport on April 22, 1980. When defendants arrived at the airport and attempted to complete delivery, they were placed under arrest by federal agents of the BATF. In defendants possession were the modified M-1 carbine and one hundred .22 caliber silencers. A search warrant was later executed on Stout's machine shop, and many of the items seized in the search were related to the silencers confiscated at the airport.

On this appeal, defendants challenge their convictions for their involvement in the occurrences set out above, claiming that: (1) the district judge allowed incompetent and highly prejudicial evidence to be introduced; (2) crucial material evidence, proffered by the defense, was improperly excluded; (3) the prosecution injected prejudicial evidence into the case thereby precluding a fair trial; (4) the evidence was insufficient to sustain a conviction on each of the counts; and (5) in the case of Johnson, the evidence showed entrapment as a matter of law.

II

Both Johnson and Stout challenge the government's introduction into evidence of two self-authenticating documents 4 from the Department of Treasury, Bureau of Alcohol, Tobacco and Firearms, which were proffered pursuant to Fed.R.Evid. 803(10). That rule sets forth a hearsay exception for evidence introduced "(t)o prove the absence of a record ... or the nonoccurrence or nonexistence of a matter of which a record ... was regularly made and preserved by a public office or agency...." The documents introduced by the government declared that the National Firearms Registration and Transfer Record 5 had been searched, and no evidence was found that

(any firearms or any silencers were) registered to, or (had) been acquired by lawful making, transfer or importation by CHARLES ALLEN STOUT (or JOHN MARK JOHNSON) or that CHARLES ALLEN STOUT (or JOHN MARK JOHNSON) had made application to make or transfer said firearms or had paid the making or transfer tax on said firearms or has identified said firearms with a serial number assigned by the Secretary of the Treasury as required by Sections 5811, 5812, 5821, 5822 and 5842, Chapter 53, Title 26 U.S.C. (emphasis added). 6

At the time the...

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