U.S. v. Van Buren, 78-2144

• Citation: 593 F.2d 125
• Decision Date: 20 March 1979
• Docket Number: No. 78-2144,78-2144
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Herbert VAN BUREN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 125

593 F.2d 125

UNITED STATES of America, Plaintiff-Appellee, v. Herbert VAN BUREN, Defendant-Appellant.

No. 78-2144.

United States Court of Appeals, Ninth Circuit.

March 20, 1979.

Jose de Jesus Rivera, Asst. U.S. Atty. (argued), Phoenix, Ariz., for defendant-appellant.

Robert A. Chard (argued), Phoenix, Ariz., for plaintiff-appellee.

On Appeal from the United States District Court for the District of Arizona.

Before MERRILL and CHOY, Circuit Judges, and BONSAL, ^* District Judge.

PER CURIAM:

Appellant Van Buren was convicted of knowingly engaging in the business of dealing in firearms without a license in violation of 18 U.S.C. § 922(a)(1). ¹ On appeal he contends that the statute is so vague and ambiguous that it fails to provide reasonable notice of what conduct is forbidden. Van Buren, a gun collector, specifically contends that the statute fails to define the point at which collecting becomes the business of dealing.

The distinction between collecting as a hobby and dealing as a business is not unknown to the law and it is recognized that where transactions of sale, purchase or exchange of firearms are regularly entered into in expectation of profit, the conduct amounts to engaging in business. See United States v. King, 532 F.2d 505, 510 (5th Cir.), Cert. denied, 429 U.S. 960, 97 S.Ct. 384, 50 L.Ed.2d 327 (1976); United States v. Huffman, 518 F.2d 80, 81 (4th Cir.), Cert. denied, 423 U.S. 864, 96 S.Ct. 123, 46 L.Ed.2d 92 (1975); United States v. Powell, 513 F.2d 1249, 1250-51 (8th Cir.), Cert. denied, 423 U.S. 853, 96 S.Ct. 99, 46 L.Ed.2d 77 (1975). In its use of terms such as "business" and "dealing," well defined in the law, the statute has avoided the pitfall of vagueness.

In this case the record establishes Van Buren's willingness to trade or sell firearms, the profitability of his transactions, and the fact that his activity was greater than the occasional sales normally entered into by a hobbyist. Agents of the Bureau of Alcohol, Tobacco and Firearms observed appellant at a number of gun shows from June, 1976, until his display of 31 guns was seized in March, 1977. Testimony was that appellant's gun displays were atypical of those of a collector because he exhibited many new weapons, some in the manufacturers' boxes. During five weeks in June and July of 1976, appellant engaged in four new-guns-for-cash transactions with undercover agents. A fifth new-gun-for-cash transaction with an agent occurred later, and a sixth was observed by another witness. In discussion with undercover agents, appellant indicated he attended...