United States v. Kiliyan

• Decision Date: 10 March 1972
• Docket Number: No. 71-1355.,71-1355.
• Citation: 456 F.2d 555
• Parties: UNITED STATES of America, Appellee, v. Arman KILIYAN, Jr., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

456 F.2d 555 (1972)

UNITED STATES of America, Appellee, v. Arman KILIYAN, Jr., Appellant.

No. 71-1355.

United States Court of Appeals, Eighth Circuit.

March 10, 1972.

Donald L. Schlapprizzi, St. Louis, Mo., for appellant.

Robert B. Schneider, Asst. U. S. Atty., St. Louis, Mo., Daniel Bartlett, Jr., U. S. Atty., St. Louis, Mo., for appellee.

Before VAN OOSTERHOUT, Senior Circuit Judge, STEPHENSON, Circuit Judge, and REGISTER, Senior District Judge.

REGISTER, Senior District Judge.

Defendant was charged by a two-count indictment filed in the United States District Court for the Eastern District of Missouri with violations of the Federal Firearms Act. Count I of the indictment charged that the defendant made firearms (two thereinafter described hand-grenades) without having paid the required making tax, and without having filed the required application form, in violation of Sections 5861(f) and 5871, Title 26, U.S.C.; Count II charged the defendant with transferring said grenades without paying the required transfer tax, in violation of Sections 5861(c) and 5871, of Title 26. Following trial by jury, defendant was found guilty on both Counts, and was sentenced to eight years imprisonment on each Count, the terms to run consecutively. Ten alleged errors are raised and presented on this appeal. All have received the careful consideration of this Court, and several merit discussion in detail.

1. Defendant contends that the trial court committed reversible error by failing to sustain his motions for judgment of acquittal, because of failure of the Government to prove two essential elements of the offenses charged: (a) that the grenades were "destructive devices" within the purview of the statute, and (b) that the defendant did not register the two grenades with the National Firearms Center in Washington.

The first witness for the Government, at the trial, was Donald M. Plante, special investigator with the Alcohol, Tobacco and Firearms Division of the United States Treasury Department. He testified that he purchased the grenades here involved from the defendant at the latter's home in St. Louis, Missouri, on June 29, 1970; that the following morning he took the grenades to the 50th Army Ordnance Detail in Granite City, Illinois and delivered them, for storage, to Agent Mike Kuhns; that several days later he returned and witnessed Kuhns tape each grenade to a pipe standing in the ground, attach a long rope to the pin, pull the pin, but the grenade did not explode. Defendant's contention that the Government failed to prove that the grenades were "destructive devices" is based primarily upon the testimony that they failed to explode when they were thus test fired by Agent Kuhns.

Subsequent testimony in the Government's case in chief discloses that after the tests, Kuhns dismantled the grenades, removed blackish powder from each and sent it to Washington for analysis, and that this powder was black gunpowder capable of causing an explosion. Agent Kuhns, prior to his employment by the Treasury Department, was a Captain in the United States Army, Commanding Officer of the 50th Ordnance Detachment, Explosive Ordnance Disposal Unit at the Army Depot in Granite City, Illinois. The record establishes his qualifications as an expert on various types of explosives, including grenades. He testified that an "explosive grenade" consists of a body or a container, an explosive filler, and a fuse or initiating device of some means; that each of these grenades consisted of an M-21 training grenade body, with a plug in the bottom, a fuse and an explosive filler containing approximately twenty-one grains of black powder — that the amount of such powder in each grenade was about the same as that used in combat grenades; that in his opinion the only reason why each of the grenades did not explode when first tested was that a "band-aid" had been placed over the primer; that if the tape had been removed when it was first tested it would have exploded; that, even with the "band-aid" in place, it might have exploded if it had been thrown rather than taped to a post and the pin pulled; and that if the grenade had functioned, it would have exploded and fragmented.

Title 26, Section 5845(a) (8), U.S.C., defines "Firearm" as including a "destructive device." "Destructive device" is defined in Title 26, Section 5845(f), in pertinent part, as follows:

"(f) Destructive device. — The term `destructive device\' means (1) any explosive . . . (B) grenade . . . and (3) any combination of parts either designed or intended for use in converting any device into a destructive device as defined in subparagraph (1) . . . and from which a destructive device may be readily assembled."

The Government's proof clearly established beyond a reasonable doubt that the grenades were "destructive devices" (and "firearms") within the statutory definitions.

It was essential that the Government prove beyond a reasonable doubt that the defendant failed to make an application for making and transferring the firearms, and to pay the required making and transfer taxes. Agent Plante testified that he sent to the National Firearms Registration Records Center a description of the two grenades and the name of the defendant, in order to determine whether the defendant had ever had these grenades registered to him. The proof concerning the evidence or lack of evidence, in the records, to show compliance with the law, was in the form of certificates by J. Edward Burns, Coordinator, Firearms and Explosives Branch, Alcohol, Tobacco and Firearms Division of the Internal Revenue Service, which disclosed that the search was made with reference to Arman Kalyan, Jr. Mr. Burns testified in person, stated that he was one of the official custodians of the records kept at the Center, and described the method or procedure used in the Center with reference to the making tax and application to make firearms, and the transfer tax and application to transfer, under the Gun Control Act. He testified that, upon final approval of the application form, the original is returned to the applicant and that the duplicate is retained and filed alphabetically (by name) among the Center's registration records. He also testified that he helped make the Certification and "I searched the records and made a determination regarding the lack of any registration of the weapons described." The weapons described in the Certificates were the two grenades. The Certificate which was offered in evidence as Gov't's. Ex. 16, was objected to by counsel for defendant, who stated, "My objection is that the Certification is hearsay * * *." It was thereupon received and, with the permission of the Court, Government counsel began to read it to the jury. During the reading, certain further objections were made — these included "no proper foundation for any certification," "that all this is a matter of the law and invades the province of the jury," and "no proper foundation laid for his reading the description of these two purported weapons. There has been no foundation laid as to those numbers or any other type of identification." This last objection clearly referred to the identification of the grenades. To the Certificate offered as Gov't's. Ex. 11, defendant's counsel objected as being hearsay and not the best evidence. All objections were overruled. There was no objection at any time to either exhibit for the reason that the name appearing therein was spelled differently than the name appearing on the indictment, or for the alleged reason that the person whose name appeared in the Certificate was not the defendant.

After the Court overruled defendant's motion for judgment of acquittal at the close of the Government's case, the defendant testified in his own behalf. On direct examination he testified that he had never made or transferred any grenades, and on cross-examination specifically denied having made or transferred the grenades involved in this case. The necessary and only reasonable inference that could be drawn by a jury from such testimony would be that the defendant had not made an application for the making and transferring of the grenades. The jury must be permitted to draw fair and reasonable inferences from the evidence, and we are satisfied that this evidence sufficiently established a basis for the inference, and was sufficient to justify the conclusion arrived at by the jury in this case. Niederluecke v. United States, 47 F.2d 888 (8 Cir. 1931); Hale v. United States, 410 F.2d 147 (5 Cir. 1969), cert. den. 396 U.S. 902, 90 S.Ct. 216, 24 L.Ed.2d 179.

It is, of course, established law that on a motion for a judgment of acquittal at the close of the Government's case, and at the close of all of the evidence, the evidence and inferences to be drawn from it must be taken in the light most favorable to the Government. Hale, supra; Crawford v. United States, 126 U.S.App.D.C. 156, 375 F.2d 332 (1967); United States v. Feldman, 425 F.2d 688 (3 Cir. 1970). In Cline v. United States, 395 F.2d 138 (8 Cir. 1968), this Court held that a defendant, whose motion for acquittal made at the close of the Government's case was overruled, waived such motion by offering evidence in his own behalf after the motion was overruled, and that such motion which is renewed at the close of all of the evidence is entitled to consideration but "The sufficiency of the evidence challenge, however, must be based upon the entire record including the evidence of the defendant." (p. 144.) See, also: Feldman, supra, 425 F.2d p. 692.

Viewing the evidence in the light most favorable to the Government, we must conclude that this essential element of the offenses charged was established beyond a reasonable doubt.

2. Appellant strenuously urges that the trial court committed prejudicial error and was guilty of an abuse of discretion, in failing to discharge juror Mrs. Jean F. Evans, and substitute the alternate juror for her. After the...