United States v. Thomas, No. 73-1150.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtPECK and McCREE, Circuit , and O'SULLIVAN, Senior Circuit
Citation484 F.2d 909
Decision Date25 September 1973
Docket NumberNo. 73-1150.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Charles THOMAS, Defendant-Appellant.

484 F.2d 909 (1973)

UNITED STATES of America, Plaintiff-Appellee,
v.
Charles THOMAS, Defendant-Appellant.

No. 73-1150.

United States Court of Appeals, Sixth Circuit.

Argued June 6, 1973.

Decided September 25, 1973.

Certiorari Denied October 15, 1973.


484 F.2d 910
COPYRIGHT MATERIAL OMITTED
484 F.2d 911
Frederick Taft, Cleveland, Ohio, for defendant-appellant; James D. London (Court appointed), Cleveland, Ohio, on brief

Joseph H. Hart, U. S. Dept. of Justice, Cleveland, Ohio, for plaintiff-appellee; Frederick M. Coleman, U. S. Atty., David Margolis, Joseph H. Hart. Sp. Attys., U. S. Dept. of Justice, Cleveland, Ohio, on brief.

Before PECK and McCREE, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.

Certiorari Denied October 15, 1973. See 94 S.Ct. 253.

O'SULLIVAN, Senior Circuit Judge.

We consider the appeal of Charles Thomas from conviction upon jury trial, on all counts of a four-count indictment charging violation of the federal gun control laws. In Counts I, II and III he was charged with making false or fictitious statements to a licensed firearms dealer in connection with his purchase of a handgun, all in violation of 18 U.S.C. § 922(a)(6).1 These several counts charged, respectively, that at the time of the purchase on March 31, 1971, Thomas had represented that he was not then under indictment for a felony, that he had never been convicted of a felony, and that he had never been discharged from the United States Armed Forces under dishonorable conditions.

The charged misrepresentations were contained in answers to questions set out in a Firearms Transaction Record (IRS Form 4473). It was stipulated that all of these answers were false in that Thomas was under indictment at the time of purchase, that he had previously been convicted of a felony and had been dishonorably discharged from the army. Thomas' defense was that while he signed the mentioned form, he was not the author of the answers made to the questions set out in the form. He said the answers had been inserted into the form by the pawnbroker-seller without asking him the relevant questions, and he had merely affixed his signature in the proper space at the direction of the dealer. The gun dealer, one Carl P. Carbon, testified that Thomas had in fact responded negatively to each of the relevant questions and that he, the gun dealer, had correctly inserted such answers into the form prior to its execution by Thomas.

Count IV of the indictment charged violation of 18 U.S.C. § 1202(a) Appendix, in that prior to the time of purchase of the gun, appellant had, on April 19, 1948, and on April 22, 1948, been convicted by Courts Martial of two felonies; had on May 5, 1948, been dishonorably discharged from the army; and on March 31, 1971 (the date of purchase of the gun) did receive and possess the gun contrary to the statute which provides, in part:

"§ 1202
(a) Any person who —
* * * * * *
(2) has been discharged from the Armed Forces under dishonorable conditions,
484 F.2d 912
* * * * * *
and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both."

Appellant received one year concurrent sentences on all four counts, which sentences were to run concurrently with the sentence imposed in another prosecution.2

We affirm.

Appellant does not challenge the sufficiency of the evidence upon which he was convicted. The errors assigned to support his appeal have to do with the Court's charge, and he also attacks the constitutionality of the involved statutes. He charges:

I.
That relevant to the credibility of the gun dealer, the trial judge should have advised the jury that it was against the law for such a dealer to sell a gun to someone known to the dealer to be under indictment for, or convicted of, a felony. 18 U.S.C. § 922(d)(i).

There was some evidence that in January, 1971, Thomas told the dealer that he had been arrested. The indictment which followed such arrest, however, was not returned until February. Although Thomas did testify at one point that he had told the dealer that he was under indictment, a fair reading of his testimony makes clear that the conversation in which the general subject was discussed occurred before the indictment.

Appellant's argument is that such knowledge provided a strong incentive for such dealer to perjure himself in his testimony regarding execution of the IRS form. The involved instruction was first proposed by the prosecution, but was later withdrawn. The defense then asked that it be given, but it was not included in the Court's charge. At its conclusion, and upon invitation to do so, defense offered no criticism of the charge except to say "No, only the ones that I have made prior to this time. I have no additional comments." No specific reference was made to the instruction which was omitted, and we consider that Rule 30 F.R.Crim.P. forbids now assigning as error omission of the instruction.

Defense counsel, in his closing argument, and without objection, asserted the claimed motivation for false testimony by the dealer. Apart from application of Rule 30, the omission of the instruction did not, in our view, visit prejudice upon appellant. Adequate instructions on credibility were given to the jury, and we do not consider that it was reversible error to fail to give an instruction giving special...

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31 practice notes
  • U.S. v. Jewell, No. 74-2832
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 27, 1976
    ...United States v. Joly, 493 F.2d 672 (2d Cir. 1974) (21 U.S.C. §§ 841(a)(1), 952(a), 955, 960(a)(1) & (2); United States v. Thomas, 484 F.2d 909, 912-13 (6th Cir. 1973) (18 U.S.C. § 922(a)(6): firearms); United States v. Jacobs, 475 F.2d 270, 287-88 (2d Cir. 1973) (conspiracy to violate 18 U......
  • U.S. v. Keane, No. 74-1979
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 18, 1975
    ...the proffered instruction would have served only to emphasize an evidentiary fact proved at trial by one side. United States v. Thomas, 484 F.2d 909, 912 (6th Cir. 1973), Cert. denied, 415 U.S. 924, 94 S.Ct. 14, 28, 39 L.Ed.2d 480 (1974); United States v. Terry, 362 F.2d 914, 916 (6th Cir. ......
  • U.S. v. Prince, Nos. 98-6361
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • December 16, 1999
    ...failing to inquire despite a strong suspicion and shutting his eyes for fear of what he would learn. See United States v. Thomas, 484 F.2d 909, 912-13 (6th Cir.) (where the defendant was charged with knowingly making false statements in purchasing Page 762 handgun, we upheld an instruction ......
  • United States v. Mastro, Crim. No. 83-00143-01.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • September 16, 1983
    ...the Court had determined a false statement made in connection with the acquisition of a firearm to be material, United States v. Thomas, 484 F.2d 909, 914, cert. denied, 414 U.S. 912, 94 S.Ct. 253, 38 L.Ed.2d 151 (1973), and the Fifth Circuit pattern instructions state that the question is ......
  • Request a trial to view additional results
31 cases
  • U.S. v. Jewell, No. 74-2832
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 27, 1976
    ...United States v. Joly, 493 F.2d 672 (2d Cir. 1974) (21 U.S.C. §§ 841(a)(1), 952(a), 955, 960(a)(1) & (2); United States v. Thomas, 484 F.2d 909, 912-13 (6th Cir. 1973) (18 U.S.C. § 922(a)(6): firearms); United States v. Jacobs, 475 F.2d 270, 287-88 (2d Cir. 1973) (conspiracy to violate 18 U......
  • U.S. v. Keane, No. 74-1979
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 18, 1975
    ...the proffered instruction would have served only to emphasize an evidentiary fact proved at trial by one side. United States v. Thomas, 484 F.2d 909, 912 (6th Cir. 1973), Cert. denied, 415 U.S. 924, 94 S.Ct. 14, 28, 39 L.Ed.2d 480 (1974); United States v. Terry, 362 F.2d 914, 916 (6th Cir. ......
  • U.S. v. Prince, Nos. 98-6361
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • December 16, 1999
    ...failing to inquire despite a strong suspicion and shutting his eyes for fear of what he would learn. See United States v. Thomas, 484 F.2d 909, 912-13 (6th Cir.) (where the defendant was charged with knowingly making false statements in purchasing Page 762 handgun, we upheld an instruction ......
  • United States v. Mastro, Crim. No. 83-00143-01.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • September 16, 1983
    ...the Court had determined a false statement made in connection with the acquisition of a firearm to be material, United States v. Thomas, 484 F.2d 909, 914, cert. denied, 414 U.S. 912, 94 S.Ct. 253, 38 L.Ed.2d 151 (1973), and the Fifth Circuit pattern instructions state that the question is ......
  • Request a trial to view additional results

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