United States v. Barrett, Crim. No. 86-4-2.

• Decision Date: 18 July 1986
• Docket Number: Crim. No. 86-4-2.
• Citation: 639 F. Supp. 1342
• Court: U.S. District Court — District of Vermont
• Parties: UNITED STATES of America v. Shirley BARRETT.

639 F. Supp. 1342

UNITED STATES of America v. Shirley BARRETT.

Crim. No. 86-4-2.

United States District Court, D. Vermont.

July 18, 1986.

Donald P. Moroz, Asst. U.S. Atty., Burlington, Vt., for U.S Marianne L. Marshall, Swanton, Vt., for defendant.

COFFRIN, Chief Judge.

Defendant Shirley Barrett was indicted on multiple charges, including knowingly making a false statement on October 30, 1984 to an agent of the Bureau of Alcohol, Tobacco and Firearms in violation of 18 U.S.C. § 1001 (1982). With the approval of the court and the consent of the government, the defendant waived a jury trial. The matter was heard by the court on April 30, 1986. The findings of fact and conclusions of law are set forth below.

FINDINGS OF FACT

1. On October 2, 1985 Charles Barrett, a convicted felon and Vermont State parolee, and defendant,¹ his former wife, purchased a shotgun from the Woolworth Department Store in St. Albans, Vermont.

2. Woolworth employee, Zeke Cyr, sold the gun to defendant and Barrett. Barrett did most of the talking about the gun with Cyr and negotiated a ten dollar reduction in its sale price due to some scratches on the barrel. Defendant, however, filled out and executed the required Firearms Transaction Record, Bureau of Alcohol, Tobacco and Firearms ("ATF") form 4473, in her name.

3. On October 4, 1985, Barrett returned to the store alone and advised Cyr that he was interested in purchasing another shotgun. After some negotiations Cyr sold a gun to Barrett at the regular retail price. Barrett requested that Cyr fill out the Firearms Transaction Record, ATF form 4473, in defendant's name by copying the information from the ATF form 4473 which defendant had filled out and executed in connection with the October 2 transaction. Cyr agreed to do this and Barrett advised that defendant would come to the store the following morning to sign the form.

4. Barrett paid for the shotgun but Cyr did not have a "paid" sticker to affix to the box. Woolworth's requires such stickers to enable the store's "Tower Supervisor", to more easily determine that an item has been paid for. Among other assigned duties, the Tower Supervisor must verify that all items leaving the store have been paid for. To prevent Barrett from being stopped as he left the store for lack of a "paid" sticker on the gun, Cyr called Shirley Ovitt, the Tower Supervisor on duty at the time. Cyr advised her that the customer had paid for the gun, but he had run out of "paid" stickers to affix to the box. Under the circumstances, he advised Ovitt that Barrett was authorized to take the gun from the store even though the box lacked a "paid" sticker.

5. Ovitt had been acquainted with Barrett for a substantial period of time and was aware of his past criminal record. When she saw Barrett take the gun from the store she called Cyr and advised him of Barrett's criminal record. Until that point, Cyr had been unaware of Barrett's record. He thought of the sale as being in the nature of a family purchase with the gun being sold to defendant. Because defendant had filled out the ATF form 4473 for the first sale, he saw nothing wrong in her executing the form for the second sale at a later time. He assumed that Barrett may have been illiterate and, for that reason, reluctant to fill out the form.

6. The following morning, October 5, Cyr's immediate supervisor inspected the record of gun sales for the previous day and inquired about the Barrett transaction. Cyr advised him that defendant was to come to the store that day to sign the ATF form 4473.

7. Defendant failed to show up at Woolworth's to sign the form as expected. To ensure that he received the signature, Cyr went to defendant's home. He visited her home rather than telephoning because defendant has no telephone service. Defendant acknowledged to Cyr during their conversation that she knew Barrett had purchased the gun and she would come to the Woolworth store shortly to sign the form.

8. Defendant went to the store later that day and signed the ATF form. Cyr dated the form October 4 because the sale had taken place on that date. At that point, Cyr began to feel he had erred in conducting the sale of the second shotgun. He remained uncertain, however, about the exact nature of his error. Despite his reservations, he said nothing about his concerns to defendant who signed the form without discussion.

9. In October, 1985, Vermont State Trooper David Harrington began investigating a possible parole violation by Charles Barrett arising out of Barrett's purchase of firearms at Woolworth's earlier that month. Because such a purchase may also have violated federal law, Trooper Harrington contacted Special Agent Richard Dotchin.

10. Agent Dotchin is a special agent with the Bureau of Alcohol, Tobacco and Firearms whose duties include investigations of possible violations of the firearms laws of the United States.

11. Agent Dotchin commenced an investigation concerning Barrett's possible purchase of firearms at Woolworth's. On October 23, 1985, he interviewed Trooper Harrington. On October 24, he interviewed Carl Johnson, Barrett's parole officer. From these sources, Dotchin learned that Barrett had a previous felony conviction. This indicated a possible federal offense by Barrett as well as a possible parole violation.

12. On October 29, 1985, Dotchin interviewed and obtained affidavits from Cyr and Ovitt at the Woolworth store. At that time, Dotchin also obtained the ATF forms 4473 pertaining to the sales.

13. Parole Officer Johnson asked Dotchin for an affidavit detailing the results of his investigation as a basis for instituting immediate arrest proceedings against Barrett as a parole violator. By telephone, Dotchin discussed with Assistant United States Attorney Donald Moroz whether giving an affidavit as requested by Johnson would have an adverse effect with respect to any federal prosecution in the case. At that time, Moroz indicated that he intended to prosecute Barrett for a violation of 18 U.S.C. § 922(h)(1) (convicted felon receiving firearm transported in interstate commerce) and defendant with aiding and abetting the same crime.² Moroz also advised Dotchin that he could provide Johnson with the affidavit Johnson had requested without jeopardizing the federal prosecutions.

14. On the morning of October 30, 1985, Vermont State Police officers arrested Barrett for parole violation.

15. Later that morning, Dotchin and State Police Detective Sergeant William Northrup went to defendant's home. At that time, both Dotchin and Northrup considered defendant subject to prosecution for her apparent role in the purchase of the shotgun.

16. Defendant has an eighth grade education and can read and write. She has three children, has never worked and received welfare benefits in the fall of 1985. She has no known criminal record.

17. Defendant met Dotchin and Northrup at the door of her home. Dotchin and Northrup, both wearing plain clothes, immediately identified themselves as law enforcement officers. They explained to defendant that Barrett had been arrested and that they wished to speak to her.

18. Defendant then opened the door indicating that she was inviting Dotchin and Northrup into her home. The door of the home was closed after the officers entered, but no one recalls who closed it. Northrup, Dotchin and defendant sat at defendant's kitchen table to conduct the interview.

19. The officers did not place defendant under arrest, nor did they give her Miranda warnings. The officers advised her, however, that although she need not speak to them, they would appreciate receiving a statement from her.

20. When the officers informed defendant that Barrett's parole violation consisted, in part, of his receipt and possession of the firearms from Woolworth's, she responded that the guns belonged to her and not Barrett. She explained further that she, rather than Barrett, purchased the shotguns from Woolworth's.

21. Defendant's statement to ATF Agent Dotchin was false. She was not in the store on October 4, 1985 when Barrett purchased the second shotgun and carried it from the store.

22. Next, Dotchin and Northrup informed defendant that they had obtained affidavits from Woolworth employees stating that Barrett carried the first shotgun from the store and that defendant was not present at all during the second purchase. Despite Dotchin advising her of information to the contrary, defendant continued to insist she purchased both guns.

23. Dotchin then asked defendant if she kept the guns in the house. After responding in the affirmative, defendant led the officers into the living room where the guns were in a gun rack. Because the gun rack was mounted high on the wall, Dotchin assisted defendant in retrieving the guns from the rack.

24. Defendant and the officers returned to the kitchen table where Dotchin asked defendant for a written statement. After initial hesitancy, defendant agreed to give a formal written statement. Defendant arrived at this decision despite Dotchin's assurance that defendant was not required to make a statement.

25. Dotchin recorded defendant's statement exactly as she stated it. After he finished writing it, he had defendant review it and make any corrections she deemed warranted. Defendant complied with his request and corrected a few minor items.

26. In her statement, defendant essentially repeated her earlier comments to the officers, i.e. that she, rather than Barrett, purchased both shotguns and carried them from the store. Included therein was the false statement that the defendant went to the store alone and purchased the second shotgun.

27. After defendant reviewed the statement, Dotchin administered the following oath:

I have read the foregoing statement consisting of 2 pages, each of which I have signed. I fully understand this statement and I declare, certify, verify and/or state under penalty of perjury that the foregoing is true and correct. I

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