IN THE UNITED STATES COURT OF APPEALS TENTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff/Appellee, Vs. Case No. 84-1650 Case No. 84-1660 DONALD J. WALSH, JR., and INTERRAND CORPORATION, Defendants/Appellants. APPELLANTS' REPLY BRIEF STEVEN R. BAILEY MARTIN V. GRAVIS 2564 Washington Blvd., Suite 2 Ogden, Utah, 84401 Attorneys for Defendants/Appellants BRUCE C. LUBECK Assistant U.S. Attorney 350 So. Main P.O. Box 2750 Salt Lake City, Utah, 84110 Attorney for Plaintiff/Appellee TABLE OF CONTENTS PAGE ARGUMENT - POINT ONE ..................................... 1 POINT TWO....................................... 4 TABLE OF CASES AND STATUTES WALTERS VS. UNITED STATES 447 U.S. 649 (1980) ........... 2 UNITED STATES VS. ANDREWS 618 F. 2d 646 (Tenth Circuit 1980) ................................. 2 ILLINOIS VS. ANDREAS 77 L.Ed 2d 851 (1984) ................ 2 UNITED STATES VS. JACOBSEN 80 L.Ed 2d 851 (1984) .......... 2 AMERICAN TOBACCO VS. PATTERSON 456 U.S. 63 (1982) ....... 4 WILLIAMS VS. UNITED STATES 458 U.S. 279 (1982) .......... 6 MCELROY VS. UNITED STATES 455 U.S. 642 (1982) ........... 6 TITLE 26 U.S.C. 5861(i)................................. 4,5 & 6 TITLE 26 U.S.C. 5800 et. seq............................4 & 6 TITLE 26 U.S.C. 5861(d)................................. 4 & 5 TITLE 26 U.S.C. 5842.................................... 4 & 6 (i) IN THE UNITED STATES COURT OF APPEALS TENTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff/Appellee, APPELLANTS' REPLY TO Vs. APPELLEE'S BRIEF DONALD J. WALSH, JR., and INTERRAND CORPORATION, Case No. 84-1650 Defendants/Appellants. Case No. 84-1660 COMES NOW the Defendants by and through their attorneys of record, Steven R. Bailey and Martin V. Gravis, who hereby submit the following reply to the brief of Plaintiff/Appellee. ARGUMENT Point One THE "PLAIN VIEW DOCTRINE" DOES NOT PERMIT THE SEARCH AND SEIZURE OF ITEMS UNLESS AT THE TIME OF THE SEIZURE, THE POLICE OFFICER HAS PROBABLE CAUSE TO BELIEVE SAID ITEMS ARE ILLEGAL OR EVIDENTIARY ITEMS OR CONTRABAND Appellee argues that since the Western Airlines Employees had previously opened the briefcase and viewed the guns and silencers in the briefcase, then the subsequent search and seizure by the BATF was a legal search and seizure. While the Appellants do not dispute that the government has a right to conduct a search and seizure of items within the plain view of the government based upon a previous private search where probable cause exists, the Fourth Amendment to the United States Constitution, does not allow the government to extend the search - 2 - beyond the scope of the private search unless it has a right to make an independent search. The case before the Court now is more similar to WALTERS VS. UNITED STATES, 467 U.S. 649 (1980) then it is to UNITED STATES VS. ANDREWS 618 F.2d 646 (Tenth Circuit) (1980) and the cases cited in Appellants' brief, ILLINOIS VS. ANDREAS 77 L.Ed.2d 1003 and UNITED STATES VS. JACOBSEN 80 L.Ed.2d 851 (3984). In this case there was no probable cause to believe that the silencers or guns were illegal evidence of crime or contraband. In WALTERS VS. UNITED STATES, supra, the Court held that a warrantless search which went beyond the scope of the private search was illegal, since it could not be determined as to whether the films seized were obscene prior to the F.B.I. viewing them with a projector, which was beyond the scope of the private search. In ANDREAS, supra, JACOBSEN, supra, and ANDREWS, supra, the search made by the private party disclosed the items searched contained drugs, which are by their nature, contraband and "cannot support a justifiable expectation of privacy without a warrant", UNITED STATES VS. JACOBSEN, supra. In the present case, it was apparent to the BATF Agent that the items were not contraband or of a suspicious nature at the time they were seized and a further search was made to determine as to whether the silencers contained serial numbers. Agent John Minichino of the BATF testified that he did not believe - 3 - that the silencers were connected with criminal activity and did not have probable cause to seize them until he visually inspected the silencers by removing them from the briefcase which was beyond the scope of a private search. Also, Agent Minichino testified that up on first opening the briefcase he saw Defendants' Registration Form 2 and the Federal Firearms License indicating that the firearms were properly registered. Appellee would have this Court extend the plain view doctrine to such a degree as to allow searches of property without probable cause. This is clearly what the Fourth Amendment was designed to protect against, in prohibiting unreasonable searches and seizures. It is a fundamental rule that a search is unreasonable under the Fourth Amendment if the search is not based upon probable cause. Therefore, Appellee's argument that the search by BATF Agent Minichino was not unreasonable and that the Court did not error in denying Defendants' Motion to Suppress is faulty, in the Appellee is arguing that the government may make a lawful search without probable cause. CONCLUSION The search by BATF Agent John Minichino was unreasonable, in that it was not performed pursuant to probable cause that the silencers were contraband or illegally possessed, therefore, even though the private search had revealed the presence of the silencers, the subsequent search and seizure of the silencers by - 4 - Agent Minichino was not with probable cause particularly since the proper registration forms were included and was not permitted by the plain view doctrine. Point Two THE CONSTRUCTION OF TITLE 26 U.S.C., 5861(i) AS ARGUED BY APPELLEE IS UNREASONABLE AND UNTENABLE Title 26 U.S.C., 5861(i) states: "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 statute; and, 26 U.S.C. 5861(d) states: It shall be unlawful for any person (d) to receive or possess a firearm which is not registered to him in the National Firearm's Registration and Transfer Records. BATF, which is authorized to implement regulations to register Firearms under 26 U.S.C. 5800 et. seq., allows a manufacturer one business day from date of manufacturing in which to register a firearm. Although Appellee agrees with that interpretation of 5861(d), Appellee argues that 5861(i) requires immediate serialization of the firearm. To read those two statutes as Appellee suggest is unreasonable. In AMERICAN TOBACCO COMPANY VS. PATTERSON 456 U.S. 63, (1982) the Supreme Court held that. "Statutes should be interpreted to avoid untenable distinctions and unreasonable results whenever possible." Appellee in their brief makes no attempt to justify the distinction between the application of 5861(d) and their purported application of 5861(i). - 5 - As the testimony clearly indicated in this case, Defendants were properly licensed Federal Firearm Manufacturers, and had registered the firearms pursuant to 5861(d) and fully intended to inscribe the serial numbers on the two silencers in question on the night of April 27, 1983, which was the date of manufacturing. 5861(i) should be interpreted in conjunction with 5861(d), thereby allowing the manufacture one business day from date of manufacturing to inscribe the serial number on the firearm. Title 26 U.S.C. 5842 provides that: "(a) each manufacturer and importer and anyone making a firearm 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 identifications as the secretary may by regulations prescribe." "(b) 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 by regulation prescribe." By enacting 5842(b), Congress has demonstrated an intent to allow a person who innocently and legally possesses a firearm without a serial number, a reasonable time to obtain a serial number and inscribe it on the firearm. It is apparent that 5861(i) can be given two possible readings, the one proposed by Appellants, in that a manufacturer of firearms should have a reasonable time, one business day after manufacturing of a firearm to inscribe a serial number on it, and - 6 - the one purported by Appellee which would require immediate serialization of the manufactured firearm. The Supreme Court in the case of WILLIAMS VS. UNITED STATES 458 U.S. 279 (1982), held that: "when choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite." the Court went further in the case of MCELROY VS. UNITED STATES 455 U.S. 642 (1982) wherein the Court stated: "criminal statutes are to be construed strictly ... this does not mean that every criminal statute must be given the narrowest possible meaning in complete disregard of the purposes of the legislature." Title 26 U.S.C. 5800 et, seq., was enacted to enable the government to trace certain types of firearms, and the requirement that these firearms be registered in the Federal Firearm's Registry and have serial numbers inscribed on them was to allow these weapons to be traced in the event these firearms were involved in criminal activity. 5861(d) and 5861(i) were specifically enacted to impose criminal penalties upon persons who did not register or inscribe the serial number on the firearm covered by the act. To allow the Appellee to require immediate serialization of a firearm but to allow registration to occur one business day after the manufacturing of the firearms does not further the congressional intent, in enacting 5861(i) nor does it make sense. - 7 - CONCLUSION To interpret 26 U.S.C. 5861(i) as proposed by Appellee is unreasonable and is an untenable distinction from the interpretation given to other portions of Title 26 5861. RESPECTFULLY SUBMITTED this 13th day of November, 1984. STEVEN R. BAILEY Attorney for Defendants MARTIN V. GRAVIS Attorney for Defendants CERTIFICATE OF MAILING I hereby certify that I mailed a true and correct copy of the foregoing to Attorney Bruce C. Lubeck, Assistant U.S. Attorney, 350 So. Main, P.O. Box 2750, Salt Lake City, Utah, 84110, postage prepaid this 13th day of November, 1984. Sue Jones - Secretary