U.S. v. Udofot

• Decision Date: 11 August 1983
• Docket Number: No. 82-2098,82-2098
• Citation: 711 F.2d 831
• Parties: UNITED STATES of America, Appellee, v. Michael Paul UDOFOT, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 831

711 F.2d 831

UNITED STATES of America, Appellee, v. Michael Paul UDOFOT, Appellant.

No. 82-2098.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 14, 1983.

Decided June 30, 1983.

Rehearing and Rehearing En Banc Denied Aug. 11, 1983.

Joseph T. Walbran, Asst. U.S. Atty., D. Minn., Kristin Siegesmund, Sp. Asst. U.S. Atty., Minneapolis, Minn., for appellee.

Phillip S. Resnick, Robert G. Davis, Minneapolis, Minn., for Michael Paul Udofot.

Before BRIGHT, ARNOLD, and JOHN R. GIBSON, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Michael Paul Udofot was convicted by a jury of one count of knowingly delivering to a common carrier firearms and ammunition for shipment in interstate and foreign commerce without notifying the carrier that firearms and ammunition were being shipped, in violation of 18 U.S.C. §§ 922(e), 924(a) (1976). The principal question before us is whether Udofot was convicted of a crime of specific intent. We hold that 18 U.S.C. § 922(e) is not a crime of specific intent and that the district court ¹ did not err in instructing the jury that Udofot need only voluntarily and intentionally deliver a firearm to the carrier for interstate or foreign shipment. Finding no merit to any of appellant's remaining contentions, we affirm the conviction.

Udofot attempted to purchase up to a dozen .32 caliber revolvers from the Minneapolis Outlet so that he could take them to Africa. Dennis Bohnsack, the store manager, did not have that many guns available but told Udofot that more could be ordered. Bohnsack advised Udofot that city forms would have to be filled out and that there was a mandatory waiting period of approximately a week before the guns could be taken. After Udofot left the store, Bohnsack reported the incident to the Bureau of Alcohol, Tobacco and Firearms.

A.T.F. Agent Paul Zamzow, posing as a firearms dealer, placed a telephone call to Udofot, who expressed an interest in purchasing some guns. The two later met at the public library in downtown Minneapolis, Zamzow equipped with a recording device. Udofot told Zamzow that he was interested in purchasing ten or twelve handguns now for resale overseas, and that he could anticipate future transactions of possibly twenty at a time. Price, not quality, appeared to be his main concern. Zamzow said that he would try to give him a better price than that offered at the Minneapolis Outlet, but would have to check with his sources and would call him back. Later, Zamzow called Udofot and told him that he could not obtain the desired weapons. Udofot was disappointed because the delay was affecting his travel arrangements, but suggested that Zamzow try to find some other guns and that even "hot ones" would be suitable.

Meanwhile, Customs Agent James Fetsch went to the Minneapolis Outlet to deliver copies of International Traffic and Firearms Regulations dealing with the export of firearms, and instructed Bohnsack to explain the requirements to Udofot. Bohnsack did so when Udofot returned. Nevertheless, as Agent Fetsch later ascertained from the Department of State, Udofot never did apply for, or receive, an export license.

On March 13, 1982, federal agents observed Udofot return to the Minneapolis Outlet to conclude his purchase of firearms. After additional forms were filled out as required by federal law, Udofot purchased ten .32 caliber H & R revolvers and ten boxes of ammunition, and left the store.

The following day Udofot went to the Minneapolis-St. Paul International Airport, intending to take Northwest Airlines Flight 220 to New York, with connecting flights to Nigeria. Udofot went to the ticket counter, presented his tickets, and checked two items of luggage, a burgundy suitcase and a garment bag, through to Calabar, Nigeria. He retained a briefcase and another garment bag as carry-on luggage. Despite a warning sign at the check-in counter that firearms in checked luggage must be declared, Udofot did not notify the Northwest ticket agent that he had guns and ammunition in his suitcase. A Northwest supervisor notified federal agents that Udofot had arrived and had checked in luggage, and gave them tag numbers and descriptions. The agents waited in the baggage makeup area where bags are loaded prior to going on the aircraft, and picked up Udofot's checked luggage as it came off the carrousel. Customs Agent Fetsch, accompanied by other federal agents, passed the checked bags through the airport x-ray machine, which showed a distinct outline of handguns in Udofot's suitcase. Udofot was arrested as he entered the jet-way to board his flight.

Subsequently, A.T.F. Agent Robert Williams applied for, and received, a search warrant for Udofot's checked and carry-on baggage. Upon executing the warrant on March 16, 1982, agents seized ten .32 caliber H & R revolvers and ten boxes of ammunition from Udofot's suitcase.

On April 9, 1982, an indictment was returned, charging Udofot, in Count I, of knowingly delivering to a common carrier firearms and ammunition for shipment in interstate and foreign commerce without notifying the carrier that firearms and ammunition were being shipped, in violation of 18 U.S.C. §§ 922(e), 924(a) and, in Count II, of knowingly and willfully exporting and attempting to export firearms and ammunition without first having obtained an export license, in violation of 22 U.S.C. §§ 2778(b)(2), 2778(c) and 22 C.F.R. §§ 123.01, 127.

Udofot moved to suppress the firearms and ammunition seized on the grounds that the affidavit supporting the search warrant did not establish probable cause and that the affidavit contained information obtained as a result of a prior unlawful warrantless search, the x-raying of Udofot's luggage. The district court adopted the magistrate's recommendation that the motion be denied.

In a trial by jury, Udofot was found guilty of Count I and not guilty of Count II. The district court fined Udofot $500 and On appeal Udofot argues that the trial court erred (1) in refusing to give a specific intent instruction on 18 U.S.C. § 922(e); (2) in instructing the jury that notice is required under the "passenger exception" of section 922(e); and (3) in denying his motion to suppress. He further argues that section 922(e) is unconstitutionally vague and violates due process, and that the conduct of government agents was so outrageous as to violate due process.

sentenced him to eighteen months imprisonment, the execution of which was to be suspended after sixty days on condition of probation for eighteen months.

I.

Appellant's chief contention is that the trial court erred in refusing to give a jury instruction on specific intent, ² which he claims is an essential element of 18 U.S.C. § 922(e). ³ The trial court instead gave the following instruction:

The mere delivery of a firearm to a common carrier, without giving notice to the carrier, is a violation of the code section that I just read to you regarding Count I. It is not necessary for the government to prove that the defendant knew that notifying the carrier was required. It is sufficient if you find beyond a reasonable doubt that he knowingly delivered a firearm.

We say an act is knowingly done if it is done voluntarily and intentionally and not because of mistake, accident or some other innocent reason.

We add the word "knowingly" to make certain that no one is convicted of a crime, for an act which they do by mistake or accident or for some innocent reason other than knowing about it.

The seminal case on the issue of specific intent in federal firearms laws is United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971). In Freed the Supreme Court held that there was no requirement of specific intent or knowledge in cases charging the defendant with receiving or possessing a firearm not registered to him under 26 U.S.C. § 5861(d). Relying on Freed, courts have repeatedly refused to read a specific intent requirement into other firearms statutes. See United States v. Turcotte, 558 F.2d 893, 896 (8th Cir.1977) (per curiam) (18 U.S.C. § 922(h)); United States v. Powell, 513 F.2d 1249, 1251 (8th Cir.) (per curiam) (18 U.S.C. §§ 922(a)(1), 1202(a)(1)), cert. denied, 423 U.S. 853, 96 S.Ct. 99, 46 L.Ed.2d 77 (1975); United States v. Ruisi, 460 F.2d 153, 156-57 (2d Cir.) (18 U.S.C. § 922(a)(1)), cert. denied, 409 U.S. 914, 93 S.Ct. 234, 34 L.Ed.2d 176 (1972). The rationale adopted by these cases is that Congress will not be presumed to have required specific intent as an element of the crime where the purpose of the statute is the regulation of dangerous objects such as firearms. See United States v. Freed, 401 U.S. at 607-10, 91 S.Ct. at 1117-18.

Appellant attempts to distinguish these cases by arguing that section 922(e) requires that a person "knowingly" deliver a firearm to a carrier for interstate or foreign shipment. The use of the word "knowingly" in section 922(e) does mean that the Government must prove beyond a reasonable doubt that the defendant knew that he was delivering firearms to the carrier. Appellant incorrectly assumes, however, that the word "knowingly" requires that the Government must also prove a specific intent to violate the law. In the absence of This result is consistent with cases that have interpreted the meaning of the word "knowingly" in other sections of the Gun Control Act. In Cody v. United States, 460 F.2d 34, 38 (8th Cir.), cert. denied, 409 U.S. 1010, 93 S.Ct. 454, 34 L.Ed.2d 303 (1972); United States v. Cornett, 484 F.2d 1365, 1368 (6th Cir.1973), and United States v. Beebe, 467 F.2d 222, 226 (10th Cir.1972), cert. denied, 416 U.S. 904, 94 S.Ct. 1607, 40 L.Ed.2d 108 (1974), the Eighth, Sixth, and Tenth Circuits respectively held that section 922(a)(6), which prohibits a purchaser from "knowingly" making a false statement of a material fact intended or likely to deceive the dealer, does not require a showing that the defendant "knowingly" violated the law, but simply requires proof...