United States v. DeBartolo, No. 73-1056.

• Decision Date: 11 July 1973
• Docket Number: No. 73-1056.
• Citation: 482 F.2d 312
• Parties: UNITED STATES of America, Appellee, v. James A. DeBARTOLO, Alias John Doe, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

482 F.2d 312 (1973)

UNITED STATES of America, Appellee, v. James A. DeBARTOLO, Alias John Doe, Defendant, Appellant.

No. 73-1056.

United States Court of Appeals, First Circuit.

Argued May 7, 1973.

Decided July 11, 1973.

Leroy V. Marcotte, Providence, R. I., with whom David J. Kehoe, Providence, R. I., was on brief, for appellant.

Lincoln C. Almond, U. S. Atty., Providence, R. I., for appellee.

Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

Appellant was convicted of aiding and abetting in the transfer of a firearm, to wit, a 16-gauge shotgun having a barrel of less than 18 inches in length, in violation of the National Firearms Act the "Act", as amended, 26 U.S.C. §§ 5861(e), 5845(a), and 5812(a). The Act makes it unlawful for any person to transfer a firearm except pursuant to authorization of the Secretary of the Treasury obtained after the transferor has filed a written application for transfer and registration.¹ A "firearm" is defined in the Act as including shotguns with barrels less than 18 inches, rifles with barrels less than 16 inches, machine guns, various other described firearms capable of being concealed on the person, bombs, grenades and the like. § 5845.

While appellant also attacks the sufficiency of the evidence to support his conviction, the only substantial issue presented on this appeal is whether the district court erred in instructing the jury that, to convict, the Government need prove that the defendant had knowledge only "that the object involved in such transfer was a gun, and I use that word in the common sense meaning of the term. . . ." Appellant admitted that he participated in the sale of a shotgun, shown to have had a barrel less than 18 inches and to be unregistered, and that he knew it to be a shotgun at the time of the transfer; but he claimed ignorance of its physical characteristics.

The transfer occurred under circumstances which might well have led the jury, notwithstanding appellant's denial, to believe that he was fully aware that the gun was a "sawed-off" shotgun. Appellant, who ran an automobile business, also dealt in guns, owned a skeet range, and tested and repaired guns and rifles. The Government presented evidence that one Mirabella, on May 3, 1972, asked appellant to get a sawed-off shotgun. Appellant told Mirabella to come back the next day, he would have it then. There was testimony that on May 4, 1972, appellant asked an employee to keep a package for him as he did not want it hanging around the shop and would pick it up later. The employee took the package to a girl friend's house. He there discovered that it contained a gun, which he put in a plastic garbage bag. Later that day, Mirabella returned to the appellant's premises and paid $40 to appellant in return for which appellant instructed his employee to get the package. The employee drove to the girl friend's house, got the plastic bag with the gun, and gave it to Mirabella. On May 5, Mirabella took the gun to appellant, showed it to him, and complained that it jammed. Appellant told Mirabella to bring it back and he would fix it.

Appellant testified to a somewhat different version. He said that a friend named Jan Lauson had run into his shop on May 3 or 4 carrying a box with an object covered by a cloth. She told appellant that her boy friend, whom he knew, had been arrested and that she wanted to leave it there. She said it was a shotgun. Appellant, not wanting the gun in the shop, told his employee to get it out of there. Just after he left, Mirabella appeared and asked to buy a shotgun. Appellant purportedly told Mirabella to go "down to the gun shop." Mirabella reappeared the next day, at which time Jan Lauson suggested and appellant agreed that she sell her gun to Mirabella. Appellant suggested $40 as being what used shotguns were worth, Mirabella handed $40 to Lauson, and appellant instructed his employee to get the gun and give it to Mirabella. Appellant testified that he never saw the shotgun.

Appellant moved for judgment of acquittal at the close of the Government's evidence, raising the question of the knowledge required as to the character of the weapon. The motion was denied, the court stating, in substance, that the Government need prove only that defendant knew the object to be a weapon, not a firearm within the meaning of the Act. A renewed motion was denied at the close of all evidence.

In its charge, the court advised that, to convict, the jury must find that defendant was an active participant in the unlawful and willful transfer of a firearm, the latter being defined as a shotgun having a barrel less than 18 inches in length. The only portion of the charge which appellant asserts to be erroneous is as follows:

"To convict the defendant of this accusation of aiding and abetting in the unlawful and willful transfer of a firearm, it is not sufficient merely to show that he knew that an unlawful and willful transfer of a firearm was or had taken place, but rather it must be shown beyond a reasonable doubt that the defendant was an active participant in the total scheme of said transfer. This in turn, Mr. Foreman, members of the jury, means that in order to convict the defendant of aiding and abetting in the unlawful and willful transfer of a firearm, it is necessary that the Government establish beyond a reasonable doubt that the defendant had knowledge that the object involved in such transfer was a gun, and I use that word in the common sense meaning of the term, and of course I further instruct you you must find beyond a reasonable doubt that this weapon was capable of being fired." (Emphasis supplied.)

Following the charge, defense counsel objected, and the following colloquy took place:

Mr. Marcotte: You said that the Government must show the defendant knew the object was a gun.

The Court: You want me to tell them he knew it was a firearm?

Mr. Marcotte: That\'s what Freed² says, Your Honor.

The Court: Well, we are getting back into that argument which I read to you.

Mr. Marcotte: There was language—

The Court: No, I read to you the other case that interprets Freed and I read the Sipes case.³

Mr. Almond: Nothing as far as the Government is concerned.

Mr. Kehoe another defense counsel: We are now talking about intent. We\'re talking about a firearm. The fact is if someone gives me a box and I don\'t know what\'s in it, that\'s what the case says, Freed says a firearm.

The Court: Well, you have your exception on the record. . . .

While in light of other parts of the charge, which we do not repeat, it is possible to infer that the jury understood "gun" to mean "firearm", we think appellant's counsel by his timely objection pinpointed the issue. As, however, appellant admitted knowing not merely that the object was a "gun" but a shotgun, the precise question is whether there may be a conviction if defendant knew the transferred object to be not only a "gun . . . in the common sense meaning of the term" capable of being fired, but a shotgun, although not necessarily one with a barrel of less than 18 inches. We find no error.⁴

In United States v. Freed, supra, n. 2, the court held that an indictment for conspiracy to possess "destructive devices", i. e., hand grenades, in violation of the National Firearms Act, was not defective for absence of an allegation of specific intent, or knowledge that the grenades were unregistered. The court treated an offense under the Act as falling within the list of exceptions, "especially in the expanding regulatory area involving public health, safety and welfare," to the general requirement of proof of mens rea or "vicious will." Id. 401 U.S. at 607-610, 91 S.Ct. at 1117. It distinguished cases such as Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), involving statutory embezzlement "where scienter was historically required", and extremes such as Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957), in which a municipal code made it a crime for a convicted felon to remain in Los Angeles for more than five days without registering. As to Lambert, the court said, 401 U.S. at 608, 91 S.Ct. at 1118,

"The mere failure to register, we held, was quite `unlike the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed\'."

The Freed court likened the offense under the National Firearms Act to that in United States v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48 (1943), approving a penalty imposed upon a corporate officer who was personally without consciousness of wrongdoing but whose firm shipped adulterated and misbranded drugs in violation of the Food and Drug Act.

"This is a regulatory measure in the interest of public safety, which may well be premised on the theory that one would hardly be surprised to learn that possession of hand grenades is not an innocent act. They are highly dangerous offensive weapons, no less dangerous than the narcotics involved in United States v. Balint, 258 U.S. 250, 254, 42 S.Ct. 301, 303, 66 L.Ed. 604, where a defendant was convicted of sale of narcotics against his claim that he did not know the drugs were covered by a federal act." Freed, supra, 401 U.S. at 609, 91 S.Ct. at 1118.

The Freed court went on to cite language in Balint, supra, 258 U.S. at 254-255, 42 S.Ct. 301.

"`It is very

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