United States v. Resnick, No. 73-1316.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBELL, DYER and CLARK, Circuit
Citation488 F.2d 1165
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Errol Bernard RESNICK, Defendant-Appellant.
Docket NumberNo. 73-1316.
Decision Date30 January 1974

488 F.2d 1165 (1974)

UNITED STATES of America, Plaintiff-Appellee,
v.
Errol Bernard RESNICK, Defendant-Appellant.

No. 73-1316.

United States Court of Appeals, Fifth Circuit.

January 30, 1974.


488 F.2d 1166

Barry L. Garber, Miami, Fla. (court-appointed), for defendant-appellant.

John L. Briggs, U. S. Atty., Jacksonville, Fla., Robert A. Leventhal, Harrison T. Slaughter, Jr., Asst. U. S. Attys., Orlando, Fla., for plaintiff-appellee.

Before BELL, DYER and CLARK, Circuit Judges.

DYER, Circuit Judge:

Resnick was convicted for selling firearms to persons whom he knew or had reasonable cause to believe were non-residents of the state of his place of business, a violation of 18 U.S.C.A. § 922(b)(3), and for failing to keep the appropriate firearms transaction records required by 18 U.S.C.A. § 922(b)(5), § 922(m), and § 923(g). The only points on appeal that merit discussion are that testimony by a government witness suggesting Resnick's involvement in unrelated criminal activity requires a reversal, and that the firearms transaction record-keeping provisions are violative of the fifth amendment privilege against self-incrimination. We affirm.

Resnick was the president-owner of E.B.R. Enterprises, a licensed dealer in firearms, which operated Triggermart, a gun shop in Orlando, Florida. On January 25, 1971, two Georgia residents, Miles and Walker, decided to purchase two pistols at Triggermart. Because federal law prohibits the sale of firearms to non-residents,1 when the men tendered out-of-state checks, Resnick informed them that only in-state checks were acceptable. It was then agreed that the purchasers would arrange to have a check sent to Triggermart from an auto dealership in Cocoa, Florida, in which they were stockholders and officers. The manager of the dealership later mailed the check according to the instructions given by Miles and Walker, but the guns were never inventoried to the corporation. Rather, Resnick delivered the pistols to the two men after paying the purchase price from his own pocket.2 He later placed the check from the dealership in Triggermart's cash register and withdrew the money.

After the financial details had been settled, Resnick inquired of those present in the store if any of the Florida residents would be willing to "sign out" the guns.3 A Triggermart employee, Nancy Gray, consented and filled

488 F.2d 1167
out the firearms transaction records indicating that she was the transferee of the two pistols. Miles and Walker filled out no forms, apparently unaware of the circumvention of the state residency requirement

The second transaction for which Resnick was prosecuted was initiated on March 18, 1971. On that date, an undercover agent of the Alcohol, Tobacco and Firearms Division of the Treasury Department, Lloyd Michael Steele, entered Triggermart and indicated to Resnick that he wanted to purchase two pistols, but did not want to sign for them.4 Resnick responded that the problem could be solved by purchasing a hunting and fishing license which could be used as "identification" for the firearms purchase. Agent Steele gave his name as Michael L. Steed, but told Resnick that the name was fictitious. Not only did Resnick respond that the use of a phony name made no difference to him, but he also suggested that the address Agent Steele gave, 115 Gore Avenue, Daytona Beach, Florida — which Resnick also knew to be a sham — be changed to 115 Gore Avenue, Orlando. The bogus hunting and fishing license was then used as identification for the purchase of two pistols on that day and for the purchase of another pistol on April 7, 1971.5

Resnick's first claim of error stems from the following testimony elicited by the prosecution during direct examination of Agent Steele:

Q. Now, sir, after you purchased the weapons, what did you do then?
A. We had some conversation. He has a coffee vendor in there. I think I asked him if he had some coffee, and we were drinking coffee, and we had some conversation.
And he asked me could I handle any hot guns; and I said, "Most likely. All the guns I handle are hot, anyhow."
Well, he says, "It does not make any difference to me." And —
Q. And then what did you say after he said it did not make any
...

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20 practice notes
  • U.S. v. Rosenberg, No. 74-2197
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 31, 1975
    ...kept, and third, that the records have public aspects. These criteria are clearly met in this case. Cf. United States v. Resnick, 488 F.2d 1165 (5th Cir. 1974). Dr. Rosenberg's Fifth Amendment rights were not Finally, Dr. Rosenberg argues that he was improperly indicted for unlawfully "dist......
  • U.S. v. Rubin, No. 76-1143
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 22, 1977
    ...United States v. Jennings, 527 F.2d 862 (5th Cir. 1976); United States v. Harbolt, 491 F.2d 78 (5th Cir. 1974); United States v. Resnick, 488 F.2d 1165 (5th Cir. 9 On the contents of that intent requirement, see United States v. Ottley, 509 F.2d 667 (2d Cir. 1975); United States v. Silverma......
  • United States v. Chen, No. 14–2003.
    • United States
    • U.S. Court of Appeals — First Circuit
    • February 29, 2016
    ...shipment and sale of firearms, see United States v. Flores, 753 F.2d 1499, 1500–04 (9th Cir.1985) (en banc); United States v. Resnick, 488 F.2d 1165, 1168 (5th Cir.1974) (noting that "the challenged laws sub judice [were] not directed at a highly selective group inherently suspect of crimin......
  • Craib v. Bulmash, Nos. S004682
    • United States
    • United States State Supreme Court (California)
    • August 28, 1989
    ...(6th Cir.1974) 497 F.2d 218, 220-221, cert. den. 419 U.S. 1009, 95 S.Ct. 328, 42 L.Ed.2d 283; United States v. Resnick (5th Cir.1974) 488 F.2d 1165, 1168, cert. den. 416 U.S. 991, 94 S.Ct. 2400, 40 L.Ed.2d 769.) And, following the lead of Byers, supra, 402 U.S. 424, 91 S.Ct. 1535, several c......
  • Request a trial to view additional results
20 cases
  • U.S. v. Rosenberg, No. 74-2197
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 31, 1975
    ...kept, and third, that the records have public aspects. These criteria are clearly met in this case. Cf. United States v. Resnick, 488 F.2d 1165 (5th Cir. 1974). Dr. Rosenberg's Fifth Amendment rights were not Finally, Dr. Rosenberg argues that he was improperly indicted for unlawfully "dist......
  • U.S. v. Rubin, No. 76-1143
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 22, 1977
    ...United States v. Jennings, 527 F.2d 862 (5th Cir. 1976); United States v. Harbolt, 491 F.2d 78 (5th Cir. 1974); United States v. Resnick, 488 F.2d 1165 (5th Cir. 9 On the contents of that intent requirement, see United States v. Ottley, 509 F.2d 667 (2d Cir. 1975); United States v. Silverma......
  • United States v. Chen, No. 14–2003.
    • United States
    • U.S. Court of Appeals — First Circuit
    • February 29, 2016
    ...shipment and sale of firearms, see United States v. Flores, 753 F.2d 1499, 1500–04 (9th Cir.1985) (en banc); United States v. Resnick, 488 F.2d 1165, 1168 (5th Cir.1974) (noting that "the challenged laws sub judice [were] not directed at a highly selective group inherently suspect of crimin......
  • Craib v. Bulmash, Nos. S004682
    • United States
    • United States State Supreme Court (California)
    • August 28, 1989
    ...(6th Cir.1974) 497 F.2d 218, 220-221, cert. den. 419 U.S. 1009, 95 S.Ct. 328, 42 L.Ed.2d 283; United States v. Resnick (5th Cir.1974) 488 F.2d 1165, 1168, cert. den. 416 U.S. 991, 94 S.Ct. 2400, 40 L.Ed.2d 769.) And, following the lead of Byers, supra, 402 U.S. 424, 91 S.Ct. 1535, several c......
  • Request a trial to view additional results

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