UNITED STATES COURT OF APPEALS TENTH CIRCUIT NO. 84-1650 NO. 84-1660 UNITED STATES OF AMERICA, Plaintiff/Appellee, VS. DONALD J. WALSH, JR. and INTERRAND CORPORATION, Defendants/Appellants. BRIEF OF PLAINTIFF/APPELLEE APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION HONORABLE DAVID K. WINDER, JUDGE BRENT D. WARD United States Attorney BRUCE C. LUBECK Assistant United States Attorney Attorneys for Plaintiff/Appellee 466 U.S. Post Office & Courthouse 350 South Main Street Salt Lake City, Utah 84101 Telephone: (801) 524-5682 TABLE OF CONTENTS Page I. STATEMENT OF THE ISSUES PRESENTED FOR REVIEW. .. 1 II. STATEMENT OF THE CASE ........................... 1 III. ARGUMENT......................................... 2 IV. POINT I: THE TRIAL COURT DID NOT ERR IN DENYING DEFENDANTS' MOTION TO SUPPRESS AS THE ITEMS WERE PROPERTY SEIZED AND DEFENDANTS' FOURTH AMENDMENT RIGHTS WERE NOT VIOLATED ........................... 5 POINT II. THE TRIAL COURT WAS CORRECT IN RULING THAT DEFENDANTS WERE NOT ENTITLED TO A JUDGMENT OF ACQUITTAL AND WERE NOT ENTITLED TO JURY INSTRUCTIONS DEALING WITH THE REASONABLENESS OF THEIR POSSESSION AS THE STATUTE STRICTLY PROHIBITS POSSESSION OF UNSERIALIZED FIREARMS. ...................................................... 10 V. CONCLUSION. ................................................ 15 i TABLE OF AUTHORITIES Page STATUTES 26 U.S.C. section 5842 .............................. 11 26 U.S.C. section 5861 ............................... 11 CASES Burdeau v. McDowell, 256 U.S. 465 (1921) ................ 5 Coolidge v. New Hampshire, 403 U.S. 443 (1971) ............. 7 United States v. Andrews, 618 F.2d 646 (10th Cir. 1980) ..... 7 United States v. Freed, 401 U.S. 601 (1971) ................ 12 United States v. Parker, 566 F.2d 1304 (5th Cir. 1978) ...... 13 United States v. Ranney, 524 F.2d 830 (7th Cir. 1975) ...... 12 Walter v. United States, 447 U.S. 649 (1980) ............... 6 OTHER AUTHORITIES 27 CFR part 179. ............................................. 9 ii UNITED STATES COURT OF APPEALS TENTH CIRCUIT UNITED STATES OF AMERICA, Appeal Nos, 84-1650 Plaintiff/Appellee, 84-1660 VS. BRIEF OF PLAINTIFF/APPELLEE DONALD J. WALSH, JR. and INTERRAND CORPORATION, Defendants/Appellants. I. STATEMENT OF ISSUES PRESENTED FOR REVIEW 1. Whether the court committed error in denying the defendants' motion to suppress evidence seized by agents of the Bureau of Alcohol, Tobacco and Firearms. 2. Whether the court committed error in denying defendants' motion for a new trial on the basis that the statute under which they were convicted should not be considered a strict liability statute. II. STATEMENT OF THE CASE This is an appeal by an individual defendant Donald J. Walsh, Jr. and the corporate defendant Interrand Corporation, which was really the alter-ego of defendant Walsh. Both defendants were convicted of two counts after jury trial of violating 26 U.S.C. section 5861(i), possessing a firearm not identified by serial number. Both defendants were charged with 1 other counts of a violation of section 5861 of Title 26, possessing weapons not registered and transporting unregistered weapons in commerce. Immediately prior to trial defendants filed a motion to suppress the results of the seizure conducted by agents of the Bureau of Alcohol, Tobacco and Firearms (ATF). Immediately before the trial the court heard the motion on proffered facts (tr. 1-12) and then heard the motion on the evidence presented during the trial. Following the evidence pertaining to the motion to suppress the court heard other arguments (tr. 12 5), took the matter under advisement (tr. 131) and ultimately denied the motion. (Tr. 132). After being convicted defendants filed a motion for a judgment of acquittal which was heard April 27, 1984. The motion was denied and defendant Walsh was placed on probation and the corporate defendant Interrand Corporation was fined but the imposition of the fine was stayed. Both defendants filed a timely notice of appeal, III. STATEMENT OF THE FACTS On April 27, 1983, defendant Donald J. Walsh, Jr. boarded an airplane in Washington, D.C. bound for Las Vegas, Nevada. In checking in at Western Airlines, the customer service representative, Norman Chichester, noted that Mr. Walsh had two pieces of luggage, one he declared to be a firearm (which was quite obviously a rifle) and the other was a briefcase-type bag which was not declared to be a firearm and which was placed with -2- luggage marked with the destination tag to Las Vegas. (Tr. 19-21). Mr. Chichester indicated that Mr. Walsh did not declare the briefcase type luggage as containing weapons despite warning sign requiring passengers to do so. Later that night at the Salt Lake City International Airport another Western Airlines employee, Linda Erian, found a briefcase type piece of luggage near the area where luggage is picked up, and that luggage had neither a destination tag nor any identifying information on it whatever. In accordance with Western Airlines policy she took the bag to their office and attempted to open it to determine its owner but found it locked. (Tr. 33 - 35). She was working the "graveyard shift" and so left the piece of luggage for her superiors who came on work early the next morning, April 28th. At approximately 7:00 a.m. on April 28, Hillis Mohn arrived at work for Western Airlines and found the luggage at approximately 7:30 a.m. It was still unopened and unidentified and in an effort to determine its owner he opened it up, recalling that he had to use a key and so it was probably locked. (Tr. 46-48). He immediately noticed pistols and silencers for pistols inside the briefcase, closed it up, and called security personnel at the airport. (Tr. 48, 62). Mr. Mohn told his supervisor, Harold Hardy, who was also present. Afterwards agent John Minichinno of the Bureau of Alcohol Tobacco and Firearms arrived in response to a call from the airport security personnel. When Agent Minichinno arrived Mr. Hardy took him to the briefcase in the office of Western -3- Airlines. The briefcase was sitting on a desk unopened. (Tr. 78, 80) . Agent Minichinno arrived and asked, in essence, why did you call us, what do you have? (Tr. 65, 80). Mr. Hardy indicated the briefcase and opened it. It was closed but not locked. (Tr. 90). Agent Minichinno was able to see immediately that the briefcase contained two pistols and five silencers, together with some miscellaneous items as well as some paperwork. Agent Minichinno was able to see that some of the papers were ATF forms. He picked up the silencers within the briefcase, each of them being approximately 2 inches in diameter and somewhere between 7 and 11 inches long, and noted that two of the silencers did not have serial numbers engraved upon them. Recognizing that to be a violation he took custody of the entire briefcase. (Tr. 93-95). Shortly thereafter in the Salt Lake City field office of the Bureau of Alcohol, Tobacco and Firearms a person called agent Minichinno and said he was Donald J. Walsh Jr. and that the briefcase and silencers and pistols were his. (Tr. 96). He indicated that he was a licensed manufacturer and that he had manufactured the items the day before, April 27, and was going to put the serial numbers on the silencers in Las Vegas. Later on April 30 agent Minichinno talked to Donald J. Walsh and in a tape recorded statement given under oath Mr. Walsh indicated that he had manufactured the items on April 25, 1983. -4- He indicated in his statement that he was going to put numbers on the items in Las Vegas but they had recently been manufactured and he did not have time to complete that process and they were needed for an exposition in Las Vegas, Nevada. The ATF form found within the briefcase indicated that the items were manufactured on April 17, 1983. There was a stipulation and testimony that the items seized were firearms within the Gun Control Act. Testimony indicated that the two items without serial numbers had not been registered properly. The jury acquitted both defendants of possessing unregistered firearms and transporting unregistered firearms, and convicted both defendants on two counts of possessing firearms without serial numbers. IV. ARGUMENT POINT I. THE TRIAL COURT DID NOT ERR IN DENYING DEFENDANTS' MOTION TO SUPPRESS AS THE ITEMS WERE PROPERTY SEIZED AND DEFENDANTS' FOURTH AMENDMENT RIGHTS WERE NOT VIOLATED. It is well settled that the Fourth Amendment is inapplicable to a search or seizure, even if wrongful, conducted by a private party. If there is wrongdoing by a private party that does not deprive the government of the right to use evidence it has lawfully acquired. Burdeau v. McDowell, 256 U.S. 465 (1921). Clearly Western Airline employees did not act wrongfully in this case in any event. The evidence -5- established that a briefcase was found in the luggage area with no destination tag and no outward identification whatever, In an effort to ascertain the owner Western Airline employees, pursuant to company policy, opened the briefcase, viewed what might be considered as ominous looking weapons, and called law enforcement. When law enforcement personnel arrived Western Airline employees reopened the briefcase and showed the contents to law enforcement personnel. Plaintiff contends that the conduct of the law enforcement personnel in then examining the contents of the briefcase was not only reasonable but required. The case cited by defendants, Walter v. United States, 447 U.S. 649 (1980), supports plaintiff's position rather than defendants'. That case makes clear that when law enforcement personnel come across evidence in plain view and a mere inspection revealed the unlawful nature of the evidence, a search is not unlawful. The court in Walter made it clear that there was nothing wrongful about the government's acquisition of the packages of film in Walter to the extent that those packages had already been examined by third parties. What was condemned in Walter was the further removal and detailed examination of the items by the use of a film projector. The court held that a further intrusion required a warrant. In this case plaintiff submits that it lawfully acquired the material and that it was shown to law enforcement by private parties. That is, law enforcement -6- clearly had a right to be where they were and in the performance of general police duties were asked to view certain material. To argue that having been shown the material law enforcement than had to literally close their eyes, walk away, and obtain a warrant to further look at the material in the briefcase is not founded on law or common sense. Upon even a casual observation it was readily apparent that some of the silencers had no serial numbers making their possession and transportation clearly unlawful. Having acquired items in plain view they were lawfully seized. Coolidge v. New Hampshire, 403 U.S. 443 (1971). The court in Walter stated specifically that "If the results of a private search are in plain view when materials are turned over to the government [that] may justify the governments reexamination of the materials . . . What was condemned in Walter is that the government exceeded the scope of the private search without a warrant. Here there was no further search beyond what was shown to law enforcement by private persons. This court in United States v. Andrews, 618 F.2d 646 (10th Cir. 1980) has upheld a search by law enforcement after an intrusion by private citizens. In Andrews an airline employee in Miami, Florida became suspicious and opened the package and saw a bag containing a white powder. He contacted the police who came in, field tested the powder and concluded it contained -7- cocaine. Those police officers notified the Drug Enforcement Administration in Denver, Colorado where the package was destined and then removed some of the cocaine from the plastic bag. The package was rewrapped and flown to Denver, Colorado. When it arrived a DEA agent took custody of it and later posed as an airline employee and met the defendant Andrews and turned over the package to him. The defendant was shortly thereafter arrested and the DEA agents again took custody of the package, opened it, and removed the controlled substance at their office. The defendant first argued that the search in Miami, Florida was unlawful and this court upheld the District Court's denial of his motion. Andrews filed a second motion to suppress contending that the seizure of the package following his arrest was a search conducted by law enforcement and was thus unlawful. The District Court granted his motion to suppress and this court reversed the District Court on that issue. This court ruled that the defendant's argument that once it was in his possession in Denver a warrant was required to retake and reopen the package was without merit. Even though Andrews was decided prior to Walter v. United States, supra, plaintiff contends that it stands for the proposition that what is intruded upon by private citizens no longer carries the expectation of privacy that requires a warrant to further examine what has already been seen when that further examination is merely a minor extension of the previous intrusion by private citizens. -8- In this case the only manner in which "the government [exceeded] the scope of the private search" was that agent Minichinno handled the silencers and observed there were no serial numbers on some of them, Plaintiff contends that to argue that agent Minichinno was acting properly when he looked at the items but was not acting properly when he touched them is to "strain at a gnat". It is true that silencers are not per se unlawful but they are certainly the subject of much regulation (Title 26, Chapter 53, 27 C.F.R. Part 179). Under such circumstances plaintiff contends it is unreasonable to require that a law enforcement officer observe silencers in a briefcase, and then obtain a warrant to look at the other side of those silencers. This is not a case where law enforcement was eagerly seeking to solve a crime but had been called to the scene of an unusual occurrence by private citizens and was merely examining the situation. For all that appeared at the time there was nothing unlawful but it is perfectly reasonable that a law enforcement officer trained in the firearm laws of the United States simply pick up and examine items that were clearly and properly in his plain view. Such conduct was reasonable and the Fourth Amendment prohibits only unreasonable conduct. Because the conduct of private parties was lawful, and because they lawfully turned material over to law enforcement personnel who then viewed it in normal course of their duties -9- and upon casual inspection ascertained the unlawful nature of the contraband, the seizure was lawful and the items should not be suppressed. POINT II. THE TRIAL COURT WAS CORRECT IN RULING THAT DEFENDANTS WERE NOT ENTITLED TO A JUDGMENT OF ACQUITTAL AND WERE NOT ENTITLED TO JURY INSTRUCTIONS DEALING WITH THE REASONABLENESS OF THEIR POSSESSION AS THE STATUTE STRICTLY PROHIBITS POSSESSION OF UNSERIALIZED FIREARMS. Defendants were charged with possessing and transporting in interstate commerce firearms that were not registered in the National Firearms and Transfer Record. Defendants were also charged with possession of firearms without serial numbers. The jury acquitted the defendants of the former counts and convicted them of possessing two firearms that did not have serial numbers. The evidence showed and defendant Walsh testified that defendants possessed two silencers and that those silencers did not have serial numbers on them. Plaintiff submits, as more fully detailed below, that the previous sentence is the beginning and end of the inquiry under the statute. Defendant contended at trial and does so now that his motives were laudable and pure and that he was going to imprint serial numbers at a later date. The evidence showed that the firearms (silencers) in question were shipped from Washington, D.C. headed for Las Vegas, Nevada, via Salt Lake City, Utah. Defendant Walsh testified that they were manufactured on April -10- 27th but there was evidence in the form of statements by defendant that they had been manufactured on April 17th and April 23rd. Plaintiff submits that under the statute the timing is irrelevant and knowing possession of an unserialized firearm is a violation of 26 U.S.C. section 5861(i). The statute under which defendants were convicted provides: IT SHALL BE UNLAWFUL FOR ANY PERSON- (i) To receive or possess a firearm which is not identified by a serial number as required by this chapter; The provisions set forth above refer to Chapter 53 of Title 26. Within that chapter section 5842 provides as follows: (a) Identification of firearms other than destructive devices Each manufacturer and importer and anyone making firearms shall identify each firearm, other than a destructive device, manufactured, imported, or made by a serial number which may not be readily removed, obliterated, or altered, the name of the manufacturer, importer, or maker, and such other identification as the secretary may by regulation prescribe. (b) Firearms without serial number - Any person who possesses a firearm, other than a destructive device, which does not bear the serial number and other information required by subsection (a) of this section shall identify the firearm with a serial number assigned by the secretary and any other information the secretary may have by regulations prescribed, The reference in section 5842 to regulations refers to 27 C.F.R. 179.102. Those regulations provide that any manufacturer shall place or cause to be engraved by means not susceptible of being -11- readily obliterated or altered or removed, an individual serial number and the caliber or gauge, the name or a recognized abbreviation of the manufacturer, the city and the state or an abbreviation thereof of the manufacturer, The next regulation, 27 C.F.R. 179.103, provides that every manufacturer is to file a Form 2, Notice of Firearms Manufactured or Imported, setting forth the name and address of the manufacturer, a tax stamp and number, the federal firearms license number, the date of manufacture, the type, model, length, caliber, gauge, serial numbers, and other marks of identification of firearms manufactured and the place where they will be kept. That form is to reflect all firearms manufactured during a single day and is to be filed before the close of the next business day. Thus, impliedly, before a weapon can be registered it must have a serial number placed on the form and on the firearm because the purpose of registering the firearm is so that it can be traced. In examining the statute and the regulations defendant seems to be asking this court to graft into the congressional legislation words and meanings that simply are not present. The Court of Appeals in United States v. Ranney, 524 F. 2d 830 (7th Cir. 1975) indicated that 5861(i) is "a regulatory measure in the interest of public safety." The court in Ranney quoted United States v. Freed, 401 U.S. 601 (1971), a case involving a defendant convicted of violating section 5861(d), -12- possession of an unregistered firearm. The court in Freed held there was no specific knowledge required on the part of the defendant that the firearm possessed was not registered. The court in Freed said that section 5861 was a regulatory measure and the Court of Appeals in Ranney indicated that section 5861(i) is similar and held that proof by the government that the defendant knew that he possessed a firearm in the general meaning of the term was sufficient to fulfill its burden under section 5861(i). Defendants seem to argue that as a manufacturer he is entitled to an addition to the statute and that his possession was innocent and therefore not covered by the statute. In United States v. Parker, 566 F. 2d 1304 (5th Cir. 1978) the court faced a similar challenge by a defendant convicted under section 5861(d), possession of an unregistered firearm. In that case the defendant argued that he took possession of a weapon not registered to him and he did so out of reasons of self-defense, The court ruled that under the facts of that case his "innocent reason for knowing possession" was not a legal defense. The court noted that the statute was written in absolute terms and that while the court would not decide that a defendant may never allege some justification for possession based upon the circumstances, the defense was not available under the facts of that case. Therefore, the defendant's reason for possession was immaterial and the jury was so -13- instructed and the Court of Appeals in Parker upheld the conviction. Defendant cites what he considers to be the history and policy of section 5861 and how the statute is not meant to burden lawful enterprise. It is doubtful than any congressional legislation is meant to burden lawful enterprise but it is significant that the predecessor to 26 U.S.C. section 5861 made it a crime to possess a firearm which had not been registered. The previous statute, however, further said that "whenever on trial for a violation of this section the defendant is shown to have or to have had possession of such firearm, such possession shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such possession to the satisfaction of the jury." 26 U.S.C. section 5851. Clearly that language does not now exist in section 5861(i) and plaintiff submits that is clear evidence that the statute is designed as a strict regulatory measure without excuse from manufacturers, importers, or anyone else that some kind of "reasonable time" is required to serialize firearms, Under the facts of this case, where defendant claims that he manufactured the firearms in Washington, D.C., that he could serialize the firearms in ten to fifteen minutes each (according to his own testimony, tr. 185) and that they were then transported in interstate commerce in an unmarked, -14- undeclared bag, plaintiff submits that the government has met its burden of proof under the statute and proved the elements of knowing possession of unserialized firearms. VI. CONCLUSION For the reasons above stated, that there was no unlawful seizure by law enforcement personnel and that there are no exceptions to the statute which allow any leeway for manufacturers and that the statute is clear in its prohibition of knowing possession of unserialized firearms by "any person" plaintiff submits that defendants' convictions should stand and that the judgments entered thereon be affirmed. DATED this 4 day of October, 1984. BRENT D. WARD United States Attorney By: BRUCE C. LUBEC Assistant United States Attorney 0189U -15- CERTIFICATE OF SERVICE I HEREBY CERTIFY that I am an employee of the United States Attorney's Office for the District of Utah, and that a copy of the foregoing document was mailed, postage prepaid to all parties named below, this 5th day of October, 1984. Steven R. Bailey Martin V. Gravis 2564 Washington Blvd., Suite 2 Ogden, Utah 84401 0189U -16-