United States v. Goodman

• Decision Date: 12 February 1986
• Docket Number: Crim. No. 85-00105.
• Citation: 639 F. Supp. 802
• Parties: UNITED STATES of America v. David A. GOODMAN
• Court: U.S. District Court — Middle District of Pennsylvania

639 F. Supp. 802

UNITED STATES of America v. David A. GOODMAN

Crim. No. 85-00105.

United States District Court, M.D. Pennsylvania.

February 12, 1986.

Timothy B. Haney, Asst. U.S. Atty., Harrisburg, Pa., for U.S.

Rochelle Friedman, Pittsburgh, Pa., for Goodman.

MEMORANDUM AND ORDER

NEALON, Chief Judge.

Defendant David A. Goodman was indicted in two counts for (1) willfully and knowingly conspiring with two police officers of Archbald Borough, Pennsylvania, to import firearms into the United States contrary to the provisions of 18 U.S.C. § 922(l)¹ and in violation of 18 U.S.C. § 371, and (2) importing and bringing into the United States twenty-four (24) West German Walther semi-automatic pistols, without the authorization of the Secretary of the Treasury as provided by 18 U.S.C. § 925(d),² in violation of 18 U.S.C. §§ 922(l) and 924(a). On December 4, 1985, after trial by jury, defendant was found guilty on Count I, but was acquitted on Count II.

On December 11, 1985, defendant filed a Motion entitled "MOTION TO SET ASIDE THE VERDICT OR FOR JUDGMENT (sic) OF ACQUITTAL OR FOR JUDGMENT N.O.V. OR, IN THE ALTERNATIVE, MOTION FOR NEW TRIAL AND WITH REQUEST FOR LEAVE TO AMEND UPON REVIEW OF THE TRANSCRIPT." Document 100 of the Record (emphasis in original). In this motion, twenty-one (21) numbered errors were assigned in support of defendant's motion. By Order dated December 16, 1985, this court held that to the extent defendant was requesting leave to set forth additional grounds as trial error after reviewing the entire record, the motion was denied. See Document 101 of the Record (citing United States v. Dansker, 561 F.2d 485, 486 (3d Cir.1977); Fed.R. Crim.P. 45(b); Local Rule 601.4).

By motion filed December 31, 1985, defendant requested an enlargement of time in which to file a brief in support of the December 11, 1985 motion. The reason cited was to await receipt of the transcript which was alleged to be necessary in order to prepare a supporting brief. By Order dated January 2, 1986, this court denied the motion for enlargement of time.³ See Local Rule 601.5 ("Unless for good cause shown the court orders otherwise, post-trial motions may be decided without the transcript of testimony.")

On January 14, 1986, defendant's supporting brief not having been filed,⁴ the court sua sponte, telephonically contacted defendant's attorney, Rochelle Friedman. In unequivocal fashion, Attorney Friedman told the court that she would not file a supporting brief in the absence of the transcript as ordered by defendant. The court then read Local Rule 601.5, supra, to counsel and informed counsel that if she would not file a brief, the court would proceed to dispose of the motion without it. Defendant's counsel, in response, notwithstanding being advised of the local rule and being aware of the court's ruling that the brief would have to be filed within the 30-day period as required by Local Rule 602.1, directly stated to the court that a brief would not be filed until she received the transcript.

Out of an abundance of caution and because the Defendant, David A. Goodman, is a practicing attorney, the court, sua sponte, issued an additional order directed to the defendant himself granting him until January 24, 1986 to file a supporting brief in his own behalf if he so desired and the Government was allowed 20 days thereafter to file a responsive brief. Because no supporting brief was filed, it must be concluded that defendant decided to forego this opportunity. The Government's brief was filed February 3, 1986. The motion is now ripe for disposition and, unless the court must bow to the decision of defendant and his counsel not to follow the court's ruling, the merits of the motion will have to be addressed without further input from the defense. For the reasons set forth below, defendant's motion(s) will be denied.

I. CONSPIRACY

With this background, the court will review the elements necessary to sustain the conspiracy conviction of defendant. Section 371 of Title 18 of the United States Code provides: "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy ..." each is guilty of the offense against the United States. A conspiracy is a combination of two or more persons to accomplish some unlawful purpose or to accomplish a lawful purpose by unlawful means. To support a conspiracy conviction, four essential elements must be established: that the conspiracy charged was willfully formed and existing at or about the time alleged in the indictment; that the defendant willfully became a member of the conspiracy; that one of the conspirators committed at least one of the overt acts charged in the indictment; and that the overt act was knowingly done in furtherance of some object or purpose of the conspiracy.

Count I of the indictment here alleges that from the summer of 1981 to about July 1, 1982, defendant, an attorney and licensed federal firearms dealer, willfully and knowingly conspired with John E. McHale, Chief of Police of Archbald Borough, and John R. Ryczak, a part-time patrolman,⁵ to violate 18 U.S.C. § 922(l) by unlawfully and knowingly causing to be imported into the United States from West Germany, Walther semi-automatic pistols (Walthers) without the authorization of the Secretary of the Treasury as required under 18 U.S.C. § 925(d). As will be explained later in this memorandum, defendant could not purchase the Walthers on his own but an order could be legally placed with him by a Police Department which he, in turn, would have to order through the licensed importer. The indictment stated that the conspiracy consisted of an agreement by the co-conspirators that McHale would place official police purchase orders through defendant; that defendant would pay for the firearms; that, upon their receipt by the Archbald Police Department Department, the firearms would be transferred to defendant and the Police Department would keep several of the weapons free of charge. Seven overt acts were identified, as follows: (1) during the summer of 1981, the initial arrangement was made between defendant and Ryczak, who was also a licensed firearms dealer, whereby the Department would order the Walthers and defendant would pay for them and give the Department several free of charge; (2) the agreement by McHale and Ryczak during the summer of 1981 under which McHale would order the firearms through an Archbald Police Department Purchase Order so long as defendant paid for them; (3) the mailing on September 16, 1981, of Archbald Borough Purchase Order No. 240 for the Walthers from McHale and Ryczak to defendant in Pittsburgh; (4) on September 18, 1981, defendant made the arrangements for the 24 Walthers to be sold to the Department; (5) the entry by Ryczak on February 1, 1982, in his Federal Firearms Record Book that he had acquired the 24 Walthers from the Department; (6) the transfer on February 10, 1982, of 22 Walthers from Ryczak to defendant; and (7) the payment on March 9, 1982, of $8,996.43 from defendant to Southern Gun Distributors, Inc. for the 24 weapons.

As a preliminary matter, the court finds that under Local Rule 401.5, defendant's failure to file a supporting brief results in that motion being deemed withdrawn. Anticipating that this case will be appealed to our Third Circuit Court of Appeals, this court will address the merits of the generalized arguments raised in defendant's December 11, 1985 Motion in the event the Court of Appeals will not agree that the motion can be considered as having been withdrawn.

II. MOTION FOR JUDGMENT OF ACQUITTAL

Viewing the facts in the light most favorable to the Government, as the court is required to do on a motion for judgment of acquittal,⁶ the following facts emerge: Defendant is an attorney who specializes in representing clients engaged in buying and selling firearms. He has also been a federal firearms licensee since 1964 and is licensed to buy and sell, inter alia, handguns, shotguns, and rifles under the trade name American Armaments. The Walther TPH is a semi-automatic 22-caliber pistol that is manufactured in West Germany. It is a sought-after weapon and is considered to be "the Mercedes Benz" of small handguns. The exclusive importer of Walther TPH firearms into the United States is International Armament Corporation, trading as Interarms. A licensee, such as defendant, cannot directly order Walther TPH's from Interarms for his own personal use or for purposes of resale. In fact, under the Federal Firearms Act, 18 U.S.C. § 921, et seq., Interarms can import these weapons into the United States only in certain limited circumstances, e.g., for sale to the United States, or a state or political subdivision thereof, including a Police Department. See 18 U.S.C. § 925(a)(1).⁷ While defendant knew that he could not order Walther TPH's directly from Interarms, he also knew that the pistols could be purchased through Interarms by submitting a Police Department Purchase Order signed by a Chief of Police.

In September 1981, defendant met John Ryczak, also a licensed firearms dealer who was a part-time policeman in Archbald Borough, Pennsylvania. Defendant inquired about the Archbald Police Department gun inventory and was told by Ryczak that it was a small department consisting of a Chief of Police, three full-time and several part-time police officers, and that the department itself didn't own any guns. Defendant advised Ryczak that if the Archbald Police Department would order some Walther TPH handguns, he would pay for all of them and allow the Borough to keep some while the balance of the guns would be sent to him. Sometime later in September, defendant called Ryczak on the telephone and asked if Ryczak could arrange for the Archbald Police Department to...