U.S. v. Williams

• Decision Date: 24 August 1982
• Docket Number: No. 82-1078,82-1078
• Citation: 685 F.2d 319
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas Edwin WILLIAMS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 319

685 F.2d 319

UNITED STATES of America, Plaintiff-Appellee, v. Thomas Edwin WILLIAMS, Defendant-Appellant.

No. 82-1078.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 16, 1982.

Decided Aug. 24, 1982.

A. Lee Petersen, Anchorage, Alaska, for defendant-appellant.

Sue Ellen Tatter, Asst. U. S. Atty., Anchorage, Alaska, for plaintiff-appellee.

Appeal from the United States District Court for the District of Alaska.

Before PREGERSON, ALARCON and NELSON, Circuit Judges.

PREGERSON, Circuit Judge:

Williams appeals his conviction on seven counts of making false statements in the acquisition of firearms in violation of 18 U.S.C. § 922(a)(6). He argues that certain of the seven counts should be dismissed because there were less than seven offenses. Williams also argues that the district court erred in not instructing the jury that it must find that he knowingly violated the law before it could convict and in instructing the jury that reckless conduct may constitute knowing conduct. He challenges several evidentiary rulings and the denial of his motions for acquittal and a new trial.

Williams bought seven guns on five separate occasions. He filled out an ATF Form 4473 for each gun. In Section 8(b) of this form, Williams answered "no" to the question "(H)ave you been convicted in any court of a crime punishable by imprisonment for a term exceeding one year?" Williams had been convicted and sentenced to a term exceeding one year.

Williams testified that he did not read the form. He stated that his parole officer had told him that in five years he could own a gun and that to acquire a gun he would have to answer "no" to all the questions on the form. He claims that because he did not read the question, he did not knowingly make a false statement.

Williams' motion for acquittal was denied. The jury returned a verdict of guilty on all counts and judgment was entered accordingly. Williams' motion for a new trial was denied.

The district court did not err in refusing to dismiss any counts. Successive acts, no matter how close in time, constitute separate offenses. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). When a false statement is made in the acquisition of each of two weapons bought at one time, there are two offenses. United States v. Long, 524 F.2d 660 (9th Cir. 1975). Williams made a false statement in connection with each gun and was, therefore, correctly indicted on seven counts.

Williams argues that the court erred in not instructing the jury that it had to find specific intent to violate the law before it could convict. He contends that knowledge of the law is therefore required. Williams' contention fails. The government need only show that Williams made a statement he knew to be false not that he knew he was violating the law. United States v. Cochran, 546 F.2d 27 (5th Cir. 1977); United States v. Beebe, 467 F.2d 222 (10th Cir. 1972), cert. denied, 416 U.S. 904, 94 S.Ct. 1607, 40 L.Ed.2d 108 (1974). See also United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971).

Williams contends that the court also erred in instructing the jury that:

The defendant also acts "knowingly" if he acts with reckless disregard for truthfulness. "Recklessly" means wantonly, with indifference to consequences. If a person makes a representation without knowing whether it is true or not, or makes it without regard to its truth or falsity or to its possible consequences, he may be found to have made the representation recklessly.

This instruction, given by the court and not objected to by Williams, was erroneous because it equated reckless conduct with knowing conduct. Although conscious avoidance of the truth may constitute knowing conduct, reckless conduct alone is not sufficient. United States v. Jewell, 532 F.2d 697 (9th Cir.), cert. denied, 426 U.S. 951, 91 S.Ct. 3173, 49 L.Ed.2d 1188 (1976).

Williams did not object to this instruction as required by F.R.Crim.P. 30. Therefore, we will only reverse if it was plain error to give the instruction. F.R.Crim.P. 52. Plain...