United States v. Virciglio, 30471.
| Decision Date | 06 May 1971 |
| Docket Number | No. 30471.,30471. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Norman Carmello VIRCIGLIO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
William T. Kominos, Birmingham, Ala., for defendant-appellant.
Wayman G. Sherrer, U. S. Atty., L. Scott Atkins, Albert C. Bowen, Jr., R. Macey Taylor, Asst. U. S. Attys., Birmingham, Ala., for plaintiff-appellee.
Before BROWN, Chief Judge, COLEMAN, and CLARK, Circuit Judges.
This is an appeal from the conviction of Norman Carmello Virciglio in the United States District Court for the Northern District of Alabama on an indictment charging him with possessing a firearm which had not been registered in violation of 26 U.S.C. § 5861(d), § 5871; aiding and abetting in the transfer of a firearm in violation of 26 U.S. C. § 5861(e), § 5871; and wilfully and knowingly engaging in the business of dealing in firearms in violation of 18 U. S.C. § 922(a) (1), § 924(a). The first two counts of the indictment names James Franklin Rice as co-defendant, who pled nolo contendere to the charges. The case was tried before a jury on August 10, 1970, and a verdict of guilty was returned against Virciglio. We affirm.
In September of 1969 William L. Park, an investigator of the Alcohol, Tobacco, and Firearms Division of the United States Treasury Department, learned from certain unnamed police officers of Birmingham, Alabama, that Virciglio might possibly be dealing in illegal weapons. Park received like information from an informer named Howard Kirby. Although Park had known Kirby, he had not previously received information from him. Park did know that on three occasions Virciglio had been convicted of felonies.
About the middle of September, 1969, Peter Ghent, an investigator for the Alcohol, Tobacco, and Firearms Division, was introduced to the informer, Kirby. At this time Ghent was given an assignment to buy a machine gun from Virciglio. Subsequently, Kirby accompanied Ghent to Virciglio's Bi-Rite Delicatessen and introduced him to Virciglio.
On this occasion Ghent asked Virciglio if he had a machine gun for sale. Virciglio replied that he did not but that he would try to get one. He then asked Ghent how he could be contacted. The agent stated that he would contact Virciglio. Before Ghent and Kirby left, Virciglio presented Ghent with his business card, which contained his telephone number. During the next two or three days Ghent contacted Virciglio several times and was advised by him that arrangements for the sale of the machine gun were not complete.
On September 27, 1969, Ghent returned to the Bi-Rite Delicatessen to inquire about the progress on the sale of the machine gun. On this visit Ghent carried with him $100 provided from government funds by Agent Park. This money was to be used by Ghent to buy or attempt to buy a pistol or revolver from Virciglio. At this meeting Virciglio told Ghent that the machine gun was still not available. However, in response to Ghent's inquiry Virciglio showed him a Smith & Wesson .38 Special, which Ghent purchased for $75. This weapon was admitted into evidence at the trial.
Two days later Ghent called Virciglio, who then advised that a machine gun was available. Ghent was told to be at Virciglio's residence at approximately 7:30 that night, with $800 cash.
Immediately after Ghent's first contact with Virciglio, Virciglio contacted James Franklin Rice and told him that he knew a man who wanted to buy a machine gun. Rice was a gun collector and had dealt in guns with Virciglio before. Rice was indicted as a co-defendant in this case, pleaded nolo contendere, and testified against Virciglio. Rice testified that when Virciglio first got in touch with him he wanted nothing to do with the sale of a machine gun. However, Rice was in touch with Virciglio six or seven times after the initial contact and finally told Virciglio that he had a machine gun. Virciglio admitted that he contacted Rice after each contact with Ghent. Rice testified that he informed Virciglio that the sale was to be for $200 and to be made to Virciglio.
The plan developed into Rice meeting Virciglio and Ghent at Virciglio's residence. Rice arrived at Virciglio's house and parked his car on the grass median of the street beside Virciglio's truck. Virciglio came from his house and talked with Rice as they waited for Ghent. Subsequently, Ghent arrived and was introduced by Virciglio as the man who wanted to buy the machine gun. Ghent asked to examine it, whereupon the truck was opened by Rice and Ghent took the gun to Virciglio's truck and looked at it. The .45 caliber Thompson sub-machine gun was not registered and the written form for transfer had not been filed. After the examination Ghent handed $800 to Virciglio. Virciglio claims that he then gave the money to Rice, but both Rice and Ghent deny this. Following the sale of the weapon, Ghent left, whereupon Rice and Virciglio went into Virciglio's house. At this point Rice testified that Virciglio paid him $250, but...
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