United States v. Kraase, 72-2047.
| Decision Date | 16 July 1973 |
| Docket Number | No. 72-2047.,72-2047. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. James F. KRAASE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
James M. Shellow, Stephen M. Glynn, James A. Walrath, Milwaukee, Wis., for defendant-appellant.
David J. Cannon, U. S. Atty., D. Jeffrey Hirschberg, Asst. U. S. Atty., Milwaukee, Wis., for plaintiff-appellee.
Before CLARK,* Associate Justice, CASTLE, Senior Circuit Judge, and STEVENS, Circuit Judge.
James Frank Kraase stands convicted by a jury of selling a .25 caliber automatic pistol to Special Investigator Edward M. Trucksa of the Alcohol Tobacco and Firearms Division of the Internal Revenue Service in violation of 18 U.S. C. § 922(a) (5). That section provides in pertinent part:
it shall be unlawful . . . for any person, (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) to . . . sell . . . any firearm to any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) who the transferor knows or has reasonable cause to believe resides in any State other than that in which the transferor resides . . . (Emphasis supplied.)
The crucial fact in this case is that while Trucksa represented himself to Kraase as an Illinois resident, in fact both Trucksa and Kraase were Wisconsin residents at the time of the sale. The question, therefore, is whether the unlicensed seller of a firearm can be convicted under § 922(a) (5) where both the purchaser and seller are residents of the same state, although the seller has reasonable cause to believe otherwise. We conclude that he cannot.
The facts are clear and concise. Special investigator Trucksa telephoned Kraase on July 22, 1971, and inquired about buying some handguns. On July 27 the two men met in the parking lot of a Milwaukee restaurant and Trucksa purchased a .25 caliber automatic pistol. Kraase gave Trucksa a government transfer form to fill out, but Trucksa left blank the portion calling for the address and driver's license number of the purchaser. Kraase then stated that it was necessary to put down a Wisconsin address and asked Trucksa whether he had one he could use. Trucksa replied that his brother-in-law lived in Wisconsin but that he did not want to use his address. Kraase then suggested that Trucksa come up with an address, and the latter suggested Rural Route 1 and asked what town to use. Kraase then picked up a road map and selected the town of Elkhorn, Wisconsin. Trucksa wrote "R.R.1, Elkhorn, Wisc." on the transfer form. Kraase then supplied a driver's license number for the form by combining the last three digits of his own Wisconsin driver's license with the number on the Illinois driver's license that Trucksa displayed.
The foregoing facts established to the satisfaction of the jury that Kraase had "reasonable cause to believe" that Trucksa was a resident of a state other than Wisconsin. Kraase does not contend otherwise but argues that he cannot be convicted under the statute because Trucksa was concededly a Wisconsin resident at the time of the purchase.
The statutory language of § 922(a) (5) is ambiguous. The Government contends that its literal language makes the non-resident status of the transferee irrelevant where the transferor has "reasonable cause to believe" that the transferee resides in a state other than that of the transferor. If this be true the section "dramatically intrudes upon traditional state criminal jurisdiction," United States v. Bass, 404 U.S. 336, 350, 92 S.Ct. 515, 524, 30 L.Ed.2d 488 (1971), for it punishes the unlicensed sale of firearms regardless of the actual residence of the purchaser. In view of the complete absence of legislative history supporting such an unusual reach of federal authority, we have concluded that it is highly improbable that Congress intended such a result. Therefore, we interpret the statutory language to mean that the purchaser must in fact be a non-resident and that the "reasonable cause to believe" clause serves merely to lighten the Government's burden of proving subjective intent.
Moreover, the Government's interpretation of the "reasonable cause to believe" clause becomes increasingly improbable when considered in the context of other provisions of § 922, which prohibit firearm sales to persons who the seller knows or has reasonable cause to believe are under eighteen, ex-convicts, fugitives from justice, drug users or addicts, or mental incompetents. 18 U.S.C. §§ 922(b)(1), 922(d). It would no doubt come as a surprise to legitimate gun dealers that they could be convicted for an otherwise lawful firearms sale if the Government could establish that they had reasonable cause to believe that the purchaser fell into one of these prohibited categories.
Furthermore, there is not a word in the legislative history of § 922(a) (5) that supports the interpretation urged by the Government in affirmance of appellant's conviction. The predecessor statutory provision, § 922(a) (5) of the Omnibus Crime Control and Safe Streets Act of 1968, stated:
It shall be unlawful . . . for any person to . . . sell . . . to any person . . . who resides in any State other than that in which the transferor resides . . . — any firearm . . . . 1968 U.S.Code Cong. & Admin.News, p. 275.
Clearly Kraase could not have been convicted under this statute. Section 922(a) (5) was amended into its present form by the Gun Control Act of 1968. The introduction of the "reasonable cause to believe" language is not even mentioned in the House Report; on the contrary, the report affirmatively refers to § 922(a) (5) as "prohibiting any unlicensed person from transferring in any way a firearm to another unlicensed person who resides in another state." (Emphasis supplied.) 1968 U.S.Code Cong. & Admin.News, p. 4419. There is likewise no indication that the "reasonable cause to believe" language used in subsections (b) (1), (b) (3), and (d) was intended in any way to enlarge their coverage. 1968 U.S.Code Cong. & Admin.News, pp. 2167, 2204, 4419, 4420, 4429-30. For example, the overall purpose of the Congress is clearly revealed in the legislative comments on § 922(b)(3), which includes the identical "reasonable cause to believe" clause:
The provisions of the Title which prohibits a licensee from disposing of firearms . . . to persons who are not residents of the State in which he conducts his business is justified by the record, which is replete with testimony documenting the fact that the purchase of such firearms by persons in other than their residence State is a serious contributing factor to crime. 1968 U.S.Code Cong. & Admin.News, p. 2167.
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