U.S. v. Tribunella

• Decision Date: 29 November 1984
• Docket Number: D,No. 208,208
• Citation: 749 F.2d 104
• Parties: UNITED STATES of America, Appellee, v. Mario TRIBUNELLA, Defendant-Appellant. ocket 84-1180.
• Court: U.S. Court of Appeals — Second Circuit

Page 104

749 F.2d 104

UNITED STATES of America, Appellee, v. Mario TRIBUNELLA, Defendant-Appellant.

No. 208, Docket 84-1180.

United States Court of Appeals Second Circuit.

Argued Oct. 9, 1984.

Decided Nov. 29, 1984.

Paul J. Larkin, Jr., Dept. of Justice, Washington, D.C. (Salvatore R. Martoche, U.S. Atty., W.D.N.Y., Douglas E. Rowe, Dept. of Justice, Rochester, N.Y., on the brief), for appellee.

Ted A. Barraco, Rochester, N.Y., for defendant-appellant.

Before FEINBERG, Chief Judge, and MANSFIELD and KEARSE, Circuit Judges.

KEARSE, Circuit Judge:

Defendant Mario Tribunella ("Tribunella") appeals from a judgment entered in the United States District Court for the Western District of New York, after a jury trial before Michael A. Telesca, Judge, convicting him of two counts of violation of the National Firearms Act ("the Act"), 26 U.S.C. Secs. 5801-5872 (1982), to wit: possession of an unregistered firearm, in violation of Secs. 5861(d) and 5871, and possession of a firearm not having a serial number, in violation of Secs. 5861(i) and 5871. Tribunella challenges his conviction principally on the ground that the firearm in question was an antique firearm, as defined in 26 U.S.C. Sec. 5845(g), and thus was exempt from the requirements of the Act. In addition, he challenges a variety of rulings by the trial court and contends that the evidence was insufficient to show that he had possession of the firearm. Finding no merit in his contentions, we affirm the conviction.

I. BACKGROUND

The present prosecution had its origin in information obtained by an officer of the Irondequoit, New York, Police Department from a confidential informant in the course of an investigation into the shooting of a reputed local leader of organized crime. Local and federal law enforcement officials were seeking the gun used in the shooting, a .22 caliber automatic or semiautomatic weapon.

In June 1983, the informant told Police Officer Martin Corbett that he had recently been invited to look at weapons by two men whom the law enforcement agents believed to be associates of a suspect in the shooting. The informant stated that he had thereafter accompanied two men and Tribunella all of whom the informant had known for several years, to a house which he described and at which Tribunella addressed a man standing in the driveway as "dad." Inside the house, in a basement room that appeared to be Tribunella's bedroom, Tribunella showed the informant an automatic .22 caliber pistol, a rifle, a full-length shotgun, and a sawed-off shotgun. The weapons had been concealed in various places about the room. Tribunella offered to sell the informant any of the weapons except the .22 caliber pistol. When the informant responded that he did not wish to purchase any of the weapons, Tribunella told him to forget what he had seen and not to tell anyone.

Corbett verified that Tribunella's residence matched the house described by the informant as the site of his gun inspection, and he learned from local and federal authorities that neither Tribunella nor his father, Richard A. Tribunella, had a valid pistol permit and that neither had registered a sawed-off shotgun pursuant to the Act.

Corbett recounted these facts in an affidavit which formed the basis for an application to Judge Telesca for a warrant to search the Tribunella family's residence for the four weapons described by the informant and for any indicia of the ownership of the weapons. Because the confidential informant had no prior record of providing information to law enforcement officials, and thus had no "track record" for reliability, the government called the informant as a witness before Judge Telesca so that the judge could assess the informant's credibility. The informant, identified as "John Doe," testified that each of the statements attributed to him by Corbett was true, and he provided other information upon cross-examination by the court. The court concluded that there was probable cause to search Tribunella's residence and issued the warrant.

The warrant was executed at about 6:00 p.m. on June 21, 1983. When the officers arrived in the Tribunella basement, the wood-paneled room contained, inter alia, a television set and a slot car set belonging to Tribunella, a stereo, a mattress with bedspread, a footlocker beside the mattress, and a fan. Tribunella was sleeping naked on the mattress. At the officers' request, Tribunella dressed and then left the room while the officers conducted the search.

The officers thoroughly searched the room and the rest of the basement and found a double-barreled sawed-off .12 gauge shotgun concealed in an area above the ceiling tile and underneath the first floor joist. The shotgun had a wrapping of black electrical tape. From inside or near the footlocker, the officers seized several boxes of ammunition, including .12 gauge shotgun shells, a hacksaw, a metal file, a partially used roll of black electrical tape, and mail addressed to Tribunella.

Tribunella was indicted in two counts, for possession of the shotgun as an unregistered firearm, in violation of Secs. 5861(d) and 5871 (count one), and for possession of the shotgun as a firearm having no serial number, in violation of Secs. 5861(i) and 5871 (count two).

A. The Trial

At trial the government presented evidence as to the search of the basement and the items seized. Over Tribunella's objection, the court admitted into evidence photographs taken at the search, showing, inter alia, the shotgun ammunition, hacksaw, metal file, electrical tape, and a magazine displaying weapons on its cover.

The government sought to show, through the circumstances in which the gun had been found and through the testimony of Tribunella's family, that the shotgun had been in the possession of Tribunella. It called as witnesses Tribunella's mother and sister, who at first testified that the sister also used the basement to entertain friends and to sleep. Both conceded, however, that they had testified before the grand jury that the basement room was Tribunella's room, and that he had been sleeping there and using it as his room for the entire seven or eight years the family had lived in the house. The sister admitted that she had told the grand jury that she did not use the room at all. Both mother and sister testified at trial that their testimony to the grand jury had been truthful. Both testified that they had never seen the sawed-off shotgun in the house and had never seen any member of the family with it. Tribunella's mother testified that Tribunella hunted and had guns.

Richard Tribunella, the father, testified that he did not use the basement room and that he did not own and had never seen the sawed-off shotgun. ¹ He testified that his son occasionally slept in the basement and kept some guns there. Richard Tribunella also testified that he owned some shotgun shells that he kept in the basement. He did not know whether the shells found in the footlocker were his, as he had not hunted or touched a gun in 20 years.

The government also presented the testimony of Robert Stanton, a firearms examiner for the Rochester Police Department and Monroe County Public Safety Laboratory, that he had examined the shotgun found in Tribunella's basement. He testified that the shotgun's barrels measured approximately 10 5/8 inches in length; that its overall length was 24 inches; and that both the stock and the ends of the barrels had been sawed off, and the barrels appeared to have been filed. He stated that a hacksaw of the type found in Tribunella's basement could have been used to shorten the shotgun. Stanton testified that the sawed-off shotgun was a center-fire-type weapon, meaning that the primer that ignites the powder and causes the shells to fire is located in the center-based portion of the shell; and that it used standard fixed ammunition, meaning a shotgun shell loaded with gun powder and primer. Stanton testified that, since no ammunition had been given him with the shotgun, he had test-fired it using standard .12 gauge shotgun shells that were commercially available, manufactured by Winchester. He found that both barrels of the weapon were functional and that the shotgun fired the Winchester ammunition with no problem. Stanton testified that most of the .12 gauge shotgun shells seized from Tribunella's basement appeared to be made by Winchester. He also testified that the gun was very old and that it lacked a serial number.

Finally, the government introduced a certificate from the Treasury Department's Bureau of Alcohol, Tobacco and Firearms, stating that the National Firearms Registration and Transfer Record had been searched and that no record had been found of any weapon being registered to Tribunella.

The only defense witness was Richard Zeusler, a dealer and consultant in antique firearms. Zeusler gave his opinion that the shotgun was an antique within the meaning of Sec. 5845(g) of the Act because it had been manufactured sometime between the late 1870's and the early 1890's and was designed to fire a type of fixed ammunition made before 1899 that is no longer commercially available in the United States. He opined that the fact that the gun could fire modern ammunition not designed for it did not exclude it from the definition of an antique. He said many such guns could fire both types of ammunition, but that modern ammunition would eventually make the gun explode: "it could happen on the next shot, and it could be a hundred shots down the line ...."

At the close of the evidence, Tribunella moved for acquittal on the grounds (1) that there was insufficient evidence that the shotgun had been in his possession, and (2) that the shotgun was an antique within the meaning of Sec. 5845(g), and was thus exempt from the requirements of the Act. The court denied the motion. As to the latter contention, the court ruled that "[r]egardless of the weapon's age, if it can use center fire ammunition...