United States v. 16,179 MOLSO ITAL.. 22 CAL. WINLEE DER., ETC., 701
| Decision Date | 08 June 1971 |
| Docket Number | No. 701,Docket 35490.,701 |
| Parties | UNITED STATES of America, Appellee, v. 16,179 MOLSO ITALIAN .22 CALIBER WINLEE DERRINGER CONVERTIBLE STARTER GUNS, Appellant. Goodwin LEE, doing business as Westbury Sales Co., Appellant, v. David M. KENNEDY, as Secretary of the Treasury, et al., Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
Before FRIENDLY, Chief Judge, and LUMBARD and HAYS, Circuit Judges.
Michael F. Crawford, Asst. U. S. Atty. (Edward R. Neaher, U. S. Atty. for the Eastern District of New York, and David G. Trager, Asst. U. S. Atty., on the brief), for appellee.
Sidney Schreiberg, New York City, for appellants.
Goodwin Lee appeals from a combined judgment of the Eastern District of New York, entered in two cases which were tried together before Judge Bruchhausen, which condemned 16,179 Molso Italian .22 caliber Derringer Starter Guns belonging to Lee. Lee also appeals from Judge Bruchhausen's dismissal of his suit to enjoin the government from confiscating these same starter pistols that Lee had imported from Italy.
The only question is whether 18 U.S.C. § 921(a) which defines a firearm as "any weapon (including a starter gun) which * * * may readily be converted to expel a projectile by the action of an explosive" is unconstitutionally vague because of the words "may readily be converted." As applied to the facts of this case, we find no infirmity in the statute, and, accordingly, we affirm the judgments.
Lee was not a licensed dealer in firearms under the federal act, 18 U.S.C. § 921, et seq. As 18 U.S.C. § 924(d) provides for the forfeiture of firearms imported contrary to the statute, i.e., by an unlicensed dealer, the central issue is whether the 16,179 starter guns which the government seized in 1969 at Lee's place of business in Westbury, Long Island, and which Lee had imported from the Molso Company in Como, Italy earlier that year, were firearms within the meaning of the statute.
In August, 1969, David Wessler, an Agent of the Alcohol Tax and Firearms Division of the Internal Revenue Service, purchased a starter gun from one Mogul who had bought the gun and other similar guns from Lee. Wessler was able to convert the gun to fire live ammunition within a few minutes. Another ATF agent who purchased a similar gun from Mogul was able to convert the gun in five or six minutes and to fire it. Thereafter, on December 8 and 22, 1969, officers of ATF seized a total of 16,179 Molso starter guns at Lee's place of business. Lee then commenced the action to enjoin confiscation by the government. When the government brought its action to enforce forfeiture, the district court, on stipulation of the parties, ordered the cases consolidated for trial.
At trial the government showed that four samples taken at random from the seized guns were converted by Agent Rowley in four, six, ten and twelve minutes, after which he fired live ammunition from each gun. Another ATF firearms expert was able to convert a number of samples in from three to eight minutes by means of an electric drill, after which he was able to fire .22 caliber ammunition from them. This evidence to which Lee offered no defense was sufficient to sustain the judgments.
The government also showed that three sample Molso starter pistols which the ATF had examined and approved as not being firearms differed from the seized pistols. On January 7, 1968, Lee left at ATF headquarters a handmade sample starter pistol which the Division designated as Model D/A #1. On April 1, 1969, he submitted two other handmade samples which, unlike D/A #1, could also be used to propel tear gas. The ATF designated these as D/A #3 and D/A #4. All of the seized pistols here involved were models D/A #1 and D/A #4. Although the ATF had approved the handmade prototypes which Lee had submitted, a metallurgical engineer testified without contradiction that the quality of the metals used in the factory-produced models was inferior to those used in the handmade samples, and thus the production models unlike the samples could be transformed readily into lethal weapons.
Lee received a letter from Molso, dated March 22, 1969, which stated:
Lee never advised the ATF of this letter even though D/A #4 was not approved until May 8, 1969. Indeed, he proceeded to order over 20,000 D/A #4 pistols but none of the more expensive D/A #3 models.
We agree with Judge Bruchhausen's holding, 314 F.Supp. 179 (E.D.N. Y.1970), that these guns, which could be converted to shoot live ammunition within three to twelve minutes, were readily convertible, and that Lee, an...
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