United States v. Ruisi

Decision Date22 May 1972
Docket NumberDocket 72-1223.,No. 713,713
Citation460 F.2d 153
PartiesUNITED STATES of America, Appellee, v. John J. RUISI and Dorothy C. Korn, Appellants.
CourtU.S. Court of Appeals — Second Circuit

Herbert Kassner, New York City, for appellant Ruisi.

Irving Anolik, New York City, for appellant Korn.

George H. Weller, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty., E D. New York, David G. Trager, Asst. U. S. Atty., on the brief), for appellee.

Before WATERMAN, HAYS and FEINBERG, Circuit Judges.

HAYS, Circuit Judge:

Appellants were convicted in the United States District Court for the Eastern District of New York, after a non-jury trial, for "engaging in the business of . . . dealing in firearms" without a license, in violation of the Gun Control Act of 1968, 18 U.S.C. § 922(a) (1) (1970). The district court dismissed a count charging conspiracy to violate that section. The district judge suspended the imposition of sentence as to both defendants and placed each on probation for a period of one day. Appellants have appealed the judgment of conviction entered on the substantive count.


Appellant Korn is the president and sole stockholder of Kaufman Surplus and Arms, Inc., a corporation which operates two stores in Manhattan specializing in the sale of war surplus materiel, including firearms. Appellant Ruisi is an employee at one of the stores. The corporation is not primarily engaged in the business of dealing in firearms, but it had federal licenses to deal in firearms at both of its stores.

Under the federal statute, an enterprise dealing in firearms must obtain a license for each location at which it sells guns. It cannot obtain a temporary license to sell firearms at a location other than at its bona fide business location. For example, a licensed dealer cannot obtain a license to deal in firearms at a trade show or gun show if that show is held at a location other than the site of the dealer's licensed business.

During the weekend of October 18-19, 1969, appellants Korn and Ruisi attended a gun show held at a union hall in Melville, Long Island. Appellant Korn selected approximately 20 guns from one of the Kaufman stores to take to the show. The guns were "long," as opposed to "hand," guns, and, while they were not all manufactured before 1898 so as to be antiques within the meaning of the Act, the firearms were not new, and some would have needed repairs to make them operable. At the show, appellants set up a display table on which the firearms were placed. About 30 to 40 firearms dealers as well as a number of others attended the gun show and firearms were bought and sold. Appellants Korn and Ruisi sold a total of eleven guns. Appellant Korn had initially set the sales price for each item, and Ruisi conducted the actual sales from the display table, although on occasion he did confer with appellant Korn, who was standing nearby, before making a particular sale. Appellant Ruisi required each purchaser to fill out Form 4473, as required by regulations promulgated pursuant to the Gun Control Act. This form requires detailed information about the purchaser and seller of the firearm, as well as the transaction itself. After the gun show was over, the appellants returned the unsold firearms to one of the Kaufman stores, and appellant Korn deposited the money received from the sales in an account in the name of Kaufman. Neither Korn, Ruisi, nor Kaufman Surplus and Arms, Inc. had a license to deal in firearms at the union hall in Melville where the show was held, nor, as we have indicated above, would it have been possible for them to obtain such a license.

Appellant Korn contended at the trial that she had taken the firearms on consignment from Kaufman Supply and Arms, Inc. and sold them as an individual owner, so that she was not a dealer in firearms within the meaning of the Act. The district court ruled that the appellants "on behalf of the corporation were engaged in the sale of firearms at that gun show," and thus violated the statute by engaging in the business of dealing in firearms without a license. The record contains overwhelming evidence to support this finding, and appellants do not challenge it on appeal. The district court found that appellant Korn knew that the unlicensed sales violated federal law but that appellant Ruisi did not. It held, however, that § 922(a) (1) does not require that the government establish that the defendant know that the unlicensed dealing in firearms violates federal law.


Appellants' first ground for challenging their conviction is that the statute applies only to interstate dealing in firearms. They urge that, since the proof at trial established that the transactions in which they engaged were entirely intrastate, the conviction should be reversed and the indictment dismissed.

The relevant section of the Act, 18 U.S.C. § 922(a) (1) (1970), provides:

"(a) It shall be unlawful —
"(1) for any person, except a licensed importer, licensed manufacturer, or licensed dealer, to engage in the business of importing, manufacturing, or dealing in firearms or ammunition, or in the course of such business to ship, transport, or receive any firearm or ammunition in interstate or foreign commerce;. . . ."

Appellants cite United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971) for the proposition that the statute proscribes only interstate dealing in firearms and does not apply to intrastate dealing. They argue that the clause "in interstate or foreign commerce" modifies both the phrase "to ship, transport, or receive" and the phrase "importing, manufacturing, or dealing." In view of the language of the statute itself and the legislative history of the Gun Control Act we must reject appellants' contention.

In United States v. Bass, supra, the Supreme Court interpreted the phrase "in commerce or affecting commerce" which appears in 18 U.S.C. § 1202(a) (1) (1970), as applying to all three antecedents — "receives, possesses, or transports" — and not solely to the last antecedent, "transports." The Court emphasized the ambiguity of the statute and the meagerness of the legislative history, 404 U.S. at 343-45, 347, 92 S.Ct. 515. It relied on the principle that "where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant," id. at 348, 92 S.Ct. at 523, and the principle of federalism that "unless Congress conveys its purpose to reach intrastate activities clearly, it will not be deemed to have significantly changed the Federal-State balance," id. at 349, 92 S.Ct. at 523 (footnote omitted).

Unlike the statute involved in Bass, § 922(a) (1) is not ambiguous. From the wording and punctuation of the section it is entirely clear that the "in interstate or foreign commerce" requirement does not modify the proscription against unlicensed "dealing in firearms." It is impossible to read the statute except as demonstrating that Congress intended to make unlawful unlicensed dealing in firearms whether interstate or intrastate. See Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971).

The legislative history of the statute unequivocally supports the conclusion that Congress intended to proscribe unlicensed intrastate dealing in firearms. See S.Rep. No. 1097, 90th Cong., 2d Sess., 1968 U.S.C.Cong. & Admin.N., pp. 2114, 2202:

"The existing Federal controls over interstate and foreign commerce in firearms are not sufficent to enable the States to effectively cope with the firearms traffic within their own borders through the exercise of their police power. Only through adequate Federal control over interstate and foreign commerce in firearms, and over all

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