United States v. Resnick

• Decision Date: 30 January 1974
• Docket Number: No. 73-1316.,73-1316.
• Citation: 488 F.2d 1165
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Errol Bernard RESNICK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

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.

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 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 difference to him?

A. That was the end of that part of the conversation.

Q. What happened after that conversation?

A. After that conversation, he had mentioned something about an AK 180, I think it is, and I asked him if that was the type of weapon — it had a selector switch on it that did not work, that did not change it from automatic to full automatic — from a semi-automatic to a fully automatic — and he stated, yes, it was all that he had to do was remove the spring to make it fully automatic.

And I asked him would he show me how to do this.

And he said, yes, which he did show me that night.

Following this exchange, defense counsel moved for a mistrial on the ground that Resnick had been prejudiced by the introduction of evidence of unrelated criminal activity, namely by the implication that the defendant dealt in stolen guns and participated in the unlawful alteration of semi-automatic weapons to fully automatic ones. The trial judge properly denied the motion for a mistrial, and stated that he would instruct the jury to disregard the tainted series of questions and answers. Conner v. United States, 5 Cir. 1963, 322 F.2d 647, cert. denied, 1964, 377 U.S. 907, 84 S.Ct. 1167, 12 L. Ed.2d 178.

For reasons entirely unknown to us, the district court did not give the promised curative instructions, and defense counsel made no further reference to the matter. In fact, at the post instruction conference for objections to the charge as given, Resnick's attorney stated that he had no objection. We need not decide whether defense counsel's failure to call the district court's attention to the omission of the promised instructions makes applicable the plain error rule of F.R.Crim.P. 52(b), since the error, if any, is harmless.

If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and judgment should stand . . . .

Kotteakos v. United States, 1946, 328 U. S. 750, 764, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557; F.R.Crim.P. 52(a). In the circumstances of this case, we are convinced that the substantial rights of Resnick were not affected.

We have carefully canvassed the entire record and transcript, and are convinced that no prejudice resulted in any wise affecting the verdict of the jury. The evidence of defendant\'s guilt is strong, clear and convincing beyond question.

United States v. Christian, 8 Cir. 1970, 427 F.2d 1299, 1303, cert. denied, 400 U.S. 909, 91 S.Ct. 153, 27 L.Ed.2d 148. Cf. United States v. Ratner, 5 Cir. 1972, 464 F.2d 169, 172-173.

The second...