US v. Obiechie, No. 92 CR 342.

Decision Date01 July 1993
Docket NumberNo. 92 CR 342.
Citation825 F. Supp. 1335
PartiesUNITED STATES of America, Plaintiff, v. Joseph Danley OBIECHIE, Defendant.
CourtU.S. District Court — Northern District of Illinois

James Shapiro, Asst. U.S. Atty., Chicago, IL, for plaintiff.

James Valentino, Jr., Streamwood, IL, for defendant.


LINDBERG, District Judge.

Defendant, Joseph Daniel Obiechie, is charged with unlawfully dealing in firearms and unlawfully exporting or attempting to export fifty (50) Beretta .25 caliber semi-automatic pistols and ninety (90) boxes of .25 caliber Remington ammunition from the United States to Nigeria during the period January 7, 1992 through May 5, 1992. Count I of the indictment charges defendant with knowingly and willfully engaging in the business of dealing in firearms without a license in violation of 18 U.S.C. § 922(a)(1)(A). Counts II through IV of the indictment charge defendant with knowingly and willfully exporting or attempting to export firearms and ammunition (defense articles on the U.S. Munitions List) without a license in violation of 22 U.S.C. § 2778.

This matter was tried before the court in a three day bench trial. The evidence at trial established that defendant went to Shore Galleries, Inc. ("Shore") in Lincolnwood, Illinois in late 1991 to purchase firearms. Shore is one of Illinois' largest wholesale and retail firearms establishments. Defendant was advised that he had to possess an Illinois Firearms Owners Identification ("FOID") card in order to purchase firearms. Personnel at Shore assisted defendant in completing the application form and defendant subsequently received the card.

Defendant returned to Shore on December 3, 1991 with his FOID card and purchased one .25 caliber Beretta handgun. Defendant, who is in the business of buying and exporting computer merchandise to Nigeria, subsequently traveled to Nigeria with both the Beretta and his computer merchandise in his luggage.

Thereafter defendant made three more purchases at Shore: eight Berettas on January 2, 1992; 20 Berettas and 40 boxes of ammunition on April 15, 1992; and 21 Berettas and 50 boxes of ammunition on April 30, 1992. After each of the purchases, Shore enforced the three day waiting period required by Illinois law before delivery of the purchased firearms. Shore also completed and mailed the requisite Bureau of Alcohol, Tobacco and Firearms ("ATF") Forms 3310.4 and 4473 following each purchase.

After examining the records of defendant's January 2, 1992 and April 15, 1992 multiple firearms purchases, an ATF agent suspected that defendant might be supplying firearms and ammunition to Chicago gangs. The ATF then requested Shore's cooperation in allowing an ATF agent to act as a salesperson to electronically record defendant's conversation when he returned to accept delivery of his April 30, 1992 order.

Shore agreed to the request and ATF Special Agent Todd Reichert, wearing a body recorder and transmitter, waited on defendant when he returned on May 5, 1992 to accept delivery of 21 Berettas and 50 boxes of ammunition. When defendant left the store, Agent Reichert signaled to other agents and a detail of the Chicago Police gang crimes unit. The latter undertook a "traffic" stop of defendant when he entered the city limits of Chicago where it is illegal to possess an unregistered handgun.

Defendant waived his Miranda rights and consented to a search of his vehicle. The firearms and ammunition were recovered from the trunk of defendant's car. Defendant was taken to a Chicago Police district station where he volunteered to a consensual search of his Chicago apartment, which the police declined. Defendant was subsequently arrested for the following federal offenses.

I. SECTION 922(a)(1)(A)

Section 922(a)(1)(A) of the Gun Control Act of 1968 provides that it is unlawful 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 in the course of such business to ship, transport, or receive any firearm in interstate or foreign commerce.

18 U.S.C. § 922(a)(1)(A). The Act defines a dealer as "any person engaged in the business of selling firearms at wholesale or retail." 18 U.S.C. § 921(a)(11)(A). "Engaged in the business" is defined as:

a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases or firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.

18 U.S.C. § 921(a)(21)(C). The term "with the principal objective of livelihood and profit" means that "the intent underlying the sale or disposition of firearms is predominantly one of obtaining livelihood and pecuniary gain, as opposed to other intents, such as improving or liquidating a personal firearms collection." 18 U.S.C. § 921(a)(22). The government does not have to show, however, that defendant's primary business was dealing in firearms or that he made a profit from such dealing. See United States v. Masters, 622 F.2d 83, 88 (4th Cir.1980).

As originally enacted, section 922(a)(1)(A) had no scienter or mens rea requirement. Unlicensed dealing in firearms was essentially a strict liability offense. Congress determined that the lack of a mens rea requirement could result in severe penalties for those who unintentionally violated firearms offenses and passed the Firearms Owners' Protection Act in 1986 which amended 18 U.S.C. § 924(a)(1)(D) to include the element of willfulness in the underlying offense:

Whoever ... willfully violates any other provision of this chapter, shall be fined not more than $5000, imprisoned not more than five years, or both, and shall become eligible for parole as the Parole Commission shall determine.

See United States v. Collins, 957 F.2d 72, 74 (2d Cir.1992). By amending section 924(a)(1)(D), Congress added the element of willfulness to section 922(a)(1)(A) and the other firearms offenses of the Gun Control Act of 1968.

Congress, however, failed to define "willfully" in the context of this Act. The Seventh Circuit's Committee on Federal Criminal Jury Instructions stated that as used in various criminal statutes, "willful" has been construed to mean:

an act done voluntarily as distinguished from accidentally, with bad purpose, without justifiable excuse, without grounds for believing it was lawful, or with careless disregard for whether or not one has the right so to act. See United States v. Murdock, 290 U.S. 389, 394-95 54 S.Ct. 223, 225-26, 78 L.Ed. 381 (1933).

Federal Criminal Jury Instructions of the Seventh Circuit (1980), 6.03 at 83. The Committee also noted that an act has been defined as "willful" in tax prosecutions "if done voluntarily and intentionally with the purpose of avoiding a known legal duty." Id at 83, citing United States v. Pomponio, 429 U.S. 10, 97 S.Ct. 22, 50 L.Ed.2d 12 (1976); see Cheek v. United States, 498 U.S. 192, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991).

Few cases have construed the willfulness provision of section 924(a)(1)(D). The Fourth Circuit stated: "We express no opinion on the question of whether `willfully' does indeed require proof that the defendant violated a known legal duty." United States v. O'Conner, 915 F.2d 1566, 1990 WL 153985 *1, 1990 U.S. App. LEXIS 18201, *4 (4th Cir.1990). The Second Circuit rejected the argument that "willfully" requires the government to prove that the defendant had specific knowledge of the statute and intentionally violated it. United States v. Collins, 957 F.2d 72, 75-76 (2d Cir.1992). After lengthy analysis of the legislative history, the Collins Court determined that the "willfulness" element was to be read broadly to require the government to prove only that "the defendant's conduct was knowing and purposeful and that the defendant intended to commit an act which the law forbids." Id at 76. The Second Circuit did not define willful to require proof that the defendant knew the relevant statute and purposely violated his legal duty thereunder.1

This court does not believe that the definition of "willful" applicable to tax prosecutions should be extended to section 922(a)(1)(A). The Fourth Circuit in United States v. Rogers, 962 F.2d 342, 344 (4th Cir. 1992) reasoned that to require proof that defendant knew his actions were illegal was at odds with basic assumptions of criminal law. Where the law imposes criminal liability, the requirement that defendant's actions be "willful" generally "`means no more than that the person charged with the duty knows what he is doing. It does not mean that, in addition, he must suppose that he is breaking the law.'" Rogers at 344, citing United States v. Scanio, 900 F.2d 485, 489 (2d Cir. 1990), quoting American Surety Co. v. Sullivan, 7 F.2d 605, 606 (2d Cir.1925). The Fourth Circuit explained:

This interpretation of "willful" set forth by Judge Learned Hand in American Surety Co. v. Sullivan, supra runs parallel to the rule that "ignorance of the law is no excuse." That rule is "deeply rooted in the American legal system," Cheek v. United States, 498 U.S. 192 199 111 S.Ct. 604, 609, 112 L.Ed.2d 617 (1991), and exceptions to it must not be casually created.

Rogers at 344.

In Cheek, the Supreme Court determined that proof that defendant knew his conduct was illegal was necessary due to the complexity of the federal tax code. Cheek, 498 U.S. at 199-200, 111 S.Ct. at 609-610. This exception to the traditional definition of "willful" is not relevant in this case. Unlike the Internal Revenue Code, the Gun Control Act of 1968 is not unduly complex so that a person in the business of dealing in firearms for livelihood and profit would be unable to determine what the...

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