United States v. Squires, 604

Decision Date25 March 1971
Docket NumberNo. 604,Docket 35629.,604
Citation440 F.2d 859
PartiesUNITED STATES of America, Appellee, v. Frank SQUIRES, Appellant.
CourtU.S. Court of Appeals — Second Circuit


Peter L. Truebner, Peter F. Rient, Asst. U. S. Attys., Whitney North Seymour, Jr., U. S. Atty., for appellee.

Robert Hermann, Milton Adler, New York City, for appellant.

Before WATERMAN, MOORE and FEINBERG, Circuit Judges.

WATERMAN, Circuit Judge:

Appellant Squires was indicted on two counts. The first charged a violation of 18 U.S.C. §§ 922(a) (6)1 and 924,2 and the second charged a violation of 18 U.S.C. §§ 922(h)3 and 924. The jury below returned a verdict of guilty on the first count and a verdict of not guilty on the second count. Judgment was entered upon the guilty verdict and Squires was sentenced to 18 months in prison. This appeal requires us to define the word "knowingly" within the meaning of 18 U.S.C. § 922(a) (6) and to apply the definition in determining whether certain jury instructions were erroneous and whether others should have been given. For reasons subsequently set forth we reverse the judgment of guilty below and remand for a new trial on the first count.

The following outline of the facts appears to be undisputed. On December 20, 1968, one John Tortora appeared at Ed Agramonte, Inc., a sporting goods store in Yonkers, New York, which was licensed by the Government to sell firearms. Tortora ordered a .30 caliber carbine, asked to have an engraved name-plate bearing his son's name placed on the gun, made a deposit on the purchase price, and agreed to return a few days later in order to take delivery. Appellant Squires, who was known to Mr. Agramonte as the operator of a nearby furniture store, accompanied Tortora on this occasion.

On December 24, 1968, Tortora returned to the store to pick up the gun, but was told that before he could take it he would have to produce a driver's license or other suitable identification to be listed on a federal form. Tortora stated that he did not have such identification but would return later, and he left without the gun. A few hours later Tortora, accompanied by Squires, returned to the store. Squires informed Agramonte that he was there to pick up Tortora's gun. Agramonte told Squires that he would have to present proper identification and was required to fill out certain necessary government forms. Agramonte then referred Squires and Tortora to his wife who was acting as bookkeeper.

Squires and Tortora explained the situation to Mrs. Agramonte who, on the basis of information listed on Squires's automobile registration, then drew up a new bill of sale and a Form 44734 reflecting a sale to Squires rather than to Tortora. Squires then signed the Form 4473 in the space designated "transferee's signature," located immediately below the statement, "I certify that I am not prohibited by the provisions of Chapter 44 of Title 18, United States Code, or Title VII of the Omnibus Crime Control and Safe Streets Act of 1968 (Public Law 90-351, 82 Stat. 197, as amended, 18 U.S.C., Appendix) from receiving a firearm in interstate or foreign commerce." The balance due on the gun was paid, and Mrs. Agramonte delivered the gun. The Government does not appear to contend that the gun was purchased otherwise than as a Christmas present for Tortora's son, or that Squires's participation in the transaction involved more than a personal favor to Tortora.

The only factual dispute centers around the signing of the Form 4473 by Squires. Mrs. Agramonte testified that, after she had prepared the form, she told Squires to read it and sign it. However, she could not remember whether she explained to him, as later became her custom, that the form was for the purpose of keeping guns out of the hands of drug users and criminals. Squires testified that Mrs. Agramonte merely told him to sign the form and that his understanding was that the completion of the form by filling in the required information was only a bookkeeping formality. He further testified that he did not read the form because the store was crowded and he did not wish to delay the customers waiting behind him. He denied any knowledge, at that time, of the prohibitions of the statutes cited in the certification statement.

It was stipulated that Squires had been convicted on a guilty plea in August 1964 of conspiring to violate 18 U.S.C. §§ 2314 and 2315 and it was also stipulated that the rifle being purchased at the Agramonte store had been transported in interstate commerce. Because of this 1964 conviction, Squires concedes that his certification on the Form 4473 which he signed was false.

At trial defense counsel requested a jury instruction to the effect that the jury could consider whether Form 4473 was reasonably designed to give a person adequate warning as to the gravamen of the certification. The denial of this request is assigned as error. In addition, when it became apparent that a government-submitted charge on recklessness was about to be accepted, defense counsel submitted a less stringent instruction on the issue and this substituted request was substantially accepted by the court.5 This instruction is now assigned as error. Although the instruction is almost verbatim the instruction submitted by the defense, we find no waiver of Squires's claims of error for the defense had clearly objected to any instruction on the issue of recklessness. Furthermore, the only significant difference between the prosecution request with reference to recklessness and the defense request on that issue is in tone, so that any error was not invited by the substitution of the defense submission for the prosecution's request. Although technically it would have been more appropriate for the defense to have made a specific reservation of the issue, sufficient notice of the objection was given to the court below, and, in any event, we find the instruction to have been plain error. Fed.R.Crim.P. 52(b).

Defense counsel, for the purpose of highlighting the lack of clarity in the form which Squires signed, attempted unsuccessfully to introduce into evidence a copy of Revised Form 4473 which was promulgated six months6 after the 1968 Gun Control Act went into effect. Although the admissibility of the revised form is not urged on appeal, we find the revised form very instructive on the question of notice and on other issues in this case and, therefore, we set forth its certification provision in the margin.7

As both assignments of error hinge on the proper definition of "knowingly" within the meaning of the statute, we turn first for enlightenment to the legislative history of the statute. The committee reports state that § 922(a) (6) "prohibits the making of false statements or the use of any deceitful practice (both knowingly) by a person in connection with the acquisition or attempted acquisition of a firearm."8 This passage clearly indicates a legislative intent to make knowledge a key element of the offense prohibited by the statute, but, although it may intimate that the word "knowingly" is to be used in its normal sense, it does not foreclose more sophisticated definitions. The Supreme Court, faced with a similar lack of legislative definition, adopted the Model Penal Code formulation:

When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist.

Leary v. United States, 395 U.S. 6, 46 n. 93, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), citing Model Penal Code 27 (A.L.I. Prop.Official Draft, 1962). This formulation is merely a more comprehensive version of the lay definition of "knowledge" in that it recognizes that there are many facts which one does not "know with certainty," and it comports with the use of "knowingly" in other criminal statutes. See, e.g., Pauldino v. United States, 379 F.2d 170 (10 Cir. 1967); Freije v. United States, 386 F.2d 408 (1 Cir. 1967), on appeal after remand, 408 F.2d 100 (1 Cir.), cert. denied, Saia v. United States, 396 U.S. 859, 90 S.Ct. 129, 24 L.Ed.2d 111 (1969); Popeko v. United States, 294 F.2d 168, 170 (5 Cir. 1961), cert. denied, 374 U.S. 835, 83 S.Ct. 1883, 10 L.Ed.2d 1056 (1963); United States v. Hines, 256 F.2d 561, 563-564 (2 Cir. 1958); Graves v. United States, 252 F.2d 878 (9 Cir. 1958); Bateman v. United States, 212 F.2d 61, 70 and n. 6 (9 Cir. 1954). The cases cited by the Government that deal with the enforcement of the Securities laws are distinguishable. In those areas of fiduciary responsibility the persons issuing statements are under an affirmative duty to investigate, and it is entirely appropriate to include "should have known" within the definition of "know." We find those cases inapplicable here and we adopt the Model Penal Code formulation for the purposes of the statutes at issue in this case.

Inasmuch as knowledge is a specific element of the crime proscribed by § 922(a) (6), the maxim that "ignorance of the law is no defense" has no relevance here with reference to Squires's purported ignorance of the provisions of Chapter 44 of Title 18 and of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968. "Ignorance * * as to a matter of law is a defense if * * * the ignorance negatives the * * * knowledge * * * required to establish a material element of the offense. * * *" Model Penal Code § 2.04(1) (a) (A.L.I.Prop.Official Draft, 1962); see G. Williams, Criminal Law: The General Part 160 (2d ed. 1961). However, whenever a defense of ignorance of the law or of ignorance of fact is claimed, it is recognized that one may not deliberately close his eyes to what otherwise would have been obvious to him. See, e. g., Greenway v. Maryland, 8 Md.App. 194, 259 A.2d 89, 91-92 (1969); G. Williams, supra at 159.

Turning from general principles to the present case, we...

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