United States v. Posnjak, 370

• Decision Date: 24 March 1972
• Docket Number: No. 370,Docket 71-1693.,370
• Citation: 457 F.2d 1110
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Walter POSNJAK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

457 F.2d 1110 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Walter POSNJAK, Defendant-Appellant.

No. 370, Docket 71-1693.

United States Court of Appeals, Second Circuit.

Argued December 14, 1971.

Decided March 24, 1972.

Donald M. Kresge, New York City, for defendant-appellant.

Richard J. Arcara, Asst. U. S. Atty. (H. Kenneth Schroeder, Jr., U. S. Atty., for the W. D. N. Y., John F. Kane, Atty., Dept. of Justice, Washington, D. C., of counsel), for plaintiff-appellee.

Before SMITH, KAUFMAN and MULLIGAN, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

This case entails analysis of the definition of a "destructive device" in the National Firearms Act, 26 U.S.C. § 5801 et seq. and the Gun Control Act of 1968, 18 U.S.C. § 921 et seq., federal statutes intended to regulate the importation, possession, and transfer of weapons, particularly guns, and to stem the traffic in certain unusually dangerous weapons, including "destructive devices," for which Congress saw no legitimate uses. The statutes, although considered and approved in response to a national problem of serious dimensions, about which emotions run high, are highly technical enactments. In construing them, we have been careful to confine ourselves to the law as written. We do not find ourselves empowered to permit what we are told "must" have been Congressional intent to overcome clear statutory language and authoritative legislative history. We conclude that the sale by Walter Posnjak and his co-defendant of 4100 sticks of 40% nitroglycerine dynamite, with unattached fuse and caps, to a federal agent who told them that he intended to resell the dynamite to a Cuban revolutionary group for use in the destruction of buildings and life, although indicative of a brutal indifference to the anticipated devastating consequences of the sale, is not proscribed by the provisions under which the two nineteen-year-old sellers were indicted and convicted. The acts for which appellant was convicted are not within the prohibitions of the National Firearms or Gun Control Acts in effect at the time of the sale. (The subject has been covered by subsequent legislation specifically directed to the question.)

The defendants were tried before Judge John T. Curtin of the United States District Court for the Western District of New York and a jury and were found guilty on five counts of violation of the firearms statutes: one count of engaging in the business of dealing in firearms when not licensed to do so, in violation of 18 U.S.C. § 922 (a) (1); two counts of possession of unregistered firearms, in violation of 26 U.S.C. § 5861(d); one count of transfer of firearms without payment of a transfer tax, in violation of 26 U.S.C. § 5861 (e); and one count of conspiracy to violate section 5861(e), in violation of 18 U.S.C. §§ 2, 371. Posnjak was sentenced to the custody of the Attorney General under 18 U.S.C. § 5010(b), as a youth offender. We find error in the interpretation of the Acts and reverse the conviction.

The facts are as follows. In late 1969, Posnjak and his co-defendant became acquainted with Michael Levine, an undercover agent of the Alcohol, Tobacco, and Firearms Division of the Department of the Treasury, who was investigating possession of weapons by subversive groups, particularly motorcycle gangs, in upstate New York. Apparently on a third party's suggestion, Posnjak contacted Levine and asked what he was seeking. Hearing it was weapons, he asked Levine whether he was interested in dynamite, which Posnjak, having worked for a fireworks display outfit, had a license to buy and transport in New York. See N.Y. Labor Law, McKinney's Consol.Laws c. 31, § 458 (1949), as amended N.Y.Sess.Laws 1970, c. 1022. Levine indicated his interest; he confided that he was procuring for a Cuban revolutionary group that intended to blow up buildings and people, and suggested that he take 100 sticks for approval by the group. Several days later the agent reported that the group was pleased with the first batch and he placed an order for 4000 sticks, informing Posnjak once again of the fictitious group's dark schemes. Posnjak and his co-defendant were arrested as they were delivering the dynamite, fuse and caps to the agent. The explosives were not registered in the National Firearms Registration and Transfer Record pursuant to the provisions of the National Firearms Act, 26 U.S.C. § 5841 (Supp. IV 1968).

The government contended at trial that although commercial dynamite was not per se covered by the statutes, it would be susceptible to statutory regulation when the transferor intended or knew that the transferee intended to use it "as a destructive device."¹ The court instructed the jury that "the important thing is what is the intent, the purpose, the design of the defendant or defendants in this case." If they intended that it be used "in some fashion or manner as a bomb, grenade or other explosive" then it fell under the statutory definition of destructive device.² If they thought it would have a legitimate commercial use or didn't know what the dynamite was to be used for, then it was not covered. The defendants contended that the statute did not cover commercial dynamite, regardless of the intent of the transferor; that the statute was, in any case, vague; and that they were entrapped by the agent. The jury found them guilty on all counts. On appeal, Posnjak continues to urge that the statute does not apply to commercial dynamite and that he was entrapped as a matter of law; he also claims that the court in his charge to the jury misread the statutes in a prejudicial way. We agree with the first contention and reverse the conviction on that basis.

The statutory provisions under which appellant was convicted were enacted in 1968, as part of a Congressional attempt to stem the traffic in dangerous weapons being used in an increasing number of crimes involving personal injury. In June of that year, Congress passed, as Title IV of the Omnibus Crime Control and Safe Streets Act, Pub.L. No. 90-351, 82 Stat. 197, amendments to the criminal provisions on firearms, 18 U.S.C. § 921 et seq., to regulate the transfer and sale of firearms by licensed dealers to persons thought likely to misuse them. These provisions were deemed unsatisfactory to accomplish their purpose, however, and later in 1968 the Gun Control Act was passed, Pub.L. No. 90-618, 82 Stat. 1213, further amending Title 18 and revising the National Firearms Act, 26 U.S.C. § 5801 et seq., which dealt with registration and taxation of certain highly dangerous weapons, such as machine guns. "Destructive devices," included in the definition of "firearms" for the first time in the Crime Control Act, were somewhat redefined and were included in the provisions of both titles.

The Title 18 provisions create a broad regulatory scheme; they cover "(A) any weapon (including a starter gun) which will or is designed to or may be readily converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; (D) any destructive device." 18 U.S.C. § 921(a) (3) (Supp. IV 1968). The Act prohibits the importation and shipping in interstate commerce of firearms by persons other than licensed dealers, importers and manufacturers except in certain limited circumstances; prohibits sale by licensed dealers to those under 18, or in some instances 21 years of age, and to other specified groups felt incapable of handling weapons wisely; prohibits sale to residents of states other than the dealer's own; sets rules for the non-face-to-face sale of firearms by licensed persons; prohibits the transportation and sale of a destructive device, machine-gun, or short-barreled shotgun or rifle by anyone not licensed; and regulates the shipping of firearms or ammunition by common carrier. 18 U.S.C. § 922 (Supp. IV 1968).

The National Firearms Act provisions focus on the particularly dangerous weapons subject to special rules under the Gun Control Act, and set rigorous registration and taxation requirements for the dealers and transferors of those weapons.³ Importers, manufacturers, and dealers in the firearms covered must register and pay an occupational fee. Sections 5801, 5802. A $200 tax is assessed on each firearm made (section 5821) and on each transfer of the firearm. Section 5811. Approval for manufacture must be obtained from the Secretary. Section 5822. Reporting and record keeping are mandatory, as is the presence of approved identification on the weapon. The transferor of a firearm must register the transaction, submitting identification of himself, the firearm, and the transferee (including fingerprints and a photograph of the latter) and approval by the Secretary or his delegate (usually a local law enforcement officer) of the transfer. Section 5812; 26 C.F.R. § 179.9. Violation of either act can result in lengthy prison sentences and heavy fines. 18 U.S.C. § 924; 26 U.S.C. § 5871 (Supp. IV 1968).

As noted above, the two acts cover different weapons, accessories and components in their definitions of "firearms," but both include as firearms "destructive devices," and the definition of such devices is identical in the two statutes. A destructive device is:

(1) any explosive, incendiary, or poison gas (A) bomb, (B) grenade, (C) rocket having a propellant charge of more than four ounces, (D) missile having an explosive or incendiary charge of more than one-quarter ounce, (E) mine, or (F) similar device; (2) any type of weapon by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell which the Secretary or his delegate finds is generally recognized as particularly suitable for sporting purposes; and (3) any combination of parts either designed

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