US v. Wegg

• Decision Date: 12 March 1996
• Docket Number: Criminal A. No. 4:94cr80.
• Citation: 919 F. Supp. 898
• Parties: UNITED STATES of America, Plaintiff, v. Brian WEGG, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

919 F. Supp. 898

UNITED STATES of America, Plaintiff, v. Brian WEGG, Defendant.

Criminal A. No. 4:94cr80.

United States District Court, E.D. Virginia, Newport News Division.

March 12, 1996.

Sydney K.L. West, Horne, West & McMurtie, Glowcester, VA, for plaintiff.

Arenda L. Wright-Allen, U.S. Atty.'s Office, Norfolk, VA., for defendant.

OPINION AND ORDER

DOUMAR, District Judge.

Defendant has been convicted in a jury trial of twenty-five counts of aiding and abetting the making of a false statement to a licensed firearms dealer in violation of 18 U.S.C. §§ 2 and 924(a)(1)(A), and four counts of conspiracy to make false statements to a licensed firearms dealer in violation of 18 U.S.C. §§ 371 and 924(a)(1)(A). The matter is before the Court for defendant's sentencing pursuant to his conviction. The defendant was indicted, tried and verdicts rendered as if these charges were all felonies. Under the circumstances of this case, this Court has determined that the sentences, and therefore the convictions, must be misdemeanors and not felonies for the reasons set forth below.

I. Facts and Procedural History

"Straw purchases" occur when an individual purchases a firearm for another but fills out the paperwork for himself or herself. The paperwork, usually the Bureau of Alcohol, Tobacco and Firearms (BATF) Form 4473, requires the purchaser to state that they are eligible to purchase, i.e., they live in the state, are not a convicted or indicted felon, do not use or sell illegal narcotics, that they have no mental illness, that they are not a fugitive from justice, that they have not had a dishonorable discharge from the armed forces, etc. The licensed dealer (transferor) must then see and record the identification of the purchaser (transferee), record the number and type of any firearms purchased, and sign the same form, attesting to the lawfulness of the transaction. The back of the BATF form states that "the transferor (seller) of a firearm is responsible for determining the lawfulness of the transaction and for keeping proper records of the transaction." It is clear that the straw purchase can occur with or without the knowing complicity of the licensed dealer.

At trial in Newport News, Virginia, the government attempted to prove the existence of four conspiracies to commit firearms "straw purchases" by producing the actual purchasers of the weapons, who were immunized by the government. These purchasers testified that they were buying guns for other individuals, and the government presented circumstantial evidence that defendant, who was a licensed firearms dealer selling firearms out of his home in Newport News, knew that the individuals signing the forms were not the intended recipients of the weapons. The government showed that purchasers came into defendant's home various times in four separate groups, thus the need for multiple conspiracy counts. The typical group consisted of one or two females who acted as the straw purchasers, and at least one male for whom the firearms were intended.

The first time that many of these purchasing groups entered defendant's home, the buyers attempted to keep their arrangement concealed from defendant by identifying the firearms prior to entering the house, and passing money to each other under the table. At subsequent transactions, however, based upon the purchasers' belief that defendant knew what they were doing and did not object, the purchasers utilized fewer and fewer of the precautions and ultimately all pretense was lost in the presence of the defendant. For example, one witness testified that she, a very pregnant female, sat on the sofa and watched television while her male friend handled and picked out the firearms he wanted to buy, and discussed with defendant matters incident to the sale such as price and ammunition. When the bargaining ended, defendant brought the federal and state forms to the pregnant woman, asked for her identification and signature, and verified her lack of a criminal record with a call to the appropriate agency. Except for the fact that the firearms were not intended for the individual signing the forms, the purchases would appear wholly legal; thus the term "straw purchase" or "straw transaction."

In total, well over fifty firearms were sold to individuals in illegal transactions. The government did not attempt to prove, nor was it required that the government show, that the intended purchasers of the weapons in the straw purchasers were somehow ineligible to purchase on their own, e.g., mentally ill, a convicted felon, a fugitive from justice, dishonorably discharged from military service. At least some of these firearms, however, came into the possession of different law enforcement agencies after having turned up in connection to varying illegal activities.

In four other counts of the indictment, numbers 33-36, the government also alleged that defendant aided and abetted the making of a false statement to a federally licensed firearms dealer in relation to four separate purchases of firearms by an out-of-state resident.

After the government closed its evidence, defendant moved for judgment of acquittal on all counts. The Court found that there was insufficient evidence to prove defendant's knowledge of the straw purchases on two counts. That is, the Court acquitted the defendant as a matter of law on Count 7, where the government's witness actually denied having signed the particular BATF form. The Court also acquitted defendant as a matter of law on Count 10, which was the first purchase by a member of the third overall conspiracy. The Court found that the evidence was insufficient to establish the fact the defendant knew that this particular transaction was illegal when it occurred, given the testimony by the government's witness that during this transaction she and her male counterpart engaged in such pretense that would have made it unlikely, as a matter of law, that defendant knew at that time of the impropriety of the particular transaction.

Defendant then presented a number of witnesses, including friends, a customer whom he had turned away for improper identification, and his mother, and also testified on his own behalf. He denied knowing that the people who were buying the weapons were not the intended purchasers, though stating that at different times he may have been "suspicious." The government did not dispute defendant's statement that he voluntarily ceased his business before any criminal investigation began, and during the government's investigation, defendant also presented the government with all of the records of his short-lived business without the issuance of a subpoena. Defendant appeared an intelligent and capable young man, but one who in this instance twisted the law to suit his convenience and make a profit. The jury agreed with the Court view of the evidence, and returned a verdict of guilty as to all counts presented it, except for counts 11 and 33-36.¹

After the verdict, the Court raised the prospect that the defendant's acts might not be punishable as felonies but rather as misdemeanors. The Court ordered the parties to brief the subject prior to the preparation of the presentence report.

II. Appropriate Punishment

A close analysis of the statute and cases requires this Court to hold that licensed dealers cannot be prosecuted as principals under the felony provisions for record-keeping violations such as defendant's. Here, however, defendant was prosecuted not as a principal but rather as an accomplice and co-conspirator, and as the government's brief states, 18 U.S.C. § 2 applies to the entire criminal code. The government further argues that defendant "just so happened" to be a licensed dealer, which should not shield him from felony liability. However Wegg was the dealer whose records were being falsified.

Case law suggests that reading the legislative history, which shows that the statute was amended in 1986 to reduce licensed dealers' record-keeping violations to misdemeanors, accomplice and co-conspirator liability should not be imposed under the felony provision where such would defeat the clear purpose of the 1986 amendments. Congress intended that defendant's status as a licensed dealer shield him from felony punishment. Despite the visceral appeal of the government's argument, it is not this Court's proper duty to question the wisdom of this statutory scheme.

Defendant's acts, allowing the transactions to proceed knowing they were illegal, fall within the specific record-keeping provision applicable only to dealers, as well as within the general aiding and abetting statute when put in combination with the general record-keeping provision. Based mostly on the legislative history but also with support in the cases, the Court believes defendant's convictions for aiding and abetting must be punished under the misdemeanor provisions applicable to licensed dealers, and not the general felony provision which does not apply to dealers (but would according to the government through the aiding and abetting statute), and the Court so ruled at defendant's sentencing hearing.

As to the conspiracy charges, similar logic applies. If a conspiracy charge may only draw as much punishment as if defendant had been a principal and committed the acts conspired to, then defendant may only be punished as if he has committed the crime as a principal. The statute clearly imposes misdemeanor liability on licensed dealers as principals, therefore all charges must be construed as misdemeanors where the licensed dealer is the individual in the straw purchase responsible for determining the lawfulness of the transaction and maintaining the appropriate records.²

A. 18 U.S.C. § 924

Any analysis of the present issue must begin with the statutory language. The firearms statute contains numerous provisions which may apply to straw purchases. Sections 922(b)(3) and (5) of Title 18 are two examples. Section (b)...