United States v. Francis A. Behenna
1977 U.S. App. LEXIS 14172 · 552 F.2d 573
March 23, 1977 · Docket 75-1991
Opinion
A jury convicted Francis A. Behenna of making a particularized false statement to two South Carolina licensed firearms dealers in connection with the purchase of firearms, in violation of 18 U.S.C. § 922(a)(6). He appeals, contending that the district court erred in refusing a request to instruct the jury that a defendant’s honest and reasonable belief that he could legally purchase a firearm was a defense to the charged violation of the statute.
On November 25, 1974, Behenna purchased three handguns from two federally-licensed dealers in Dillon, South Carolina. In his testimony Behenna admitted that he purchased the guns and that he signed the forms required in connection with such transactions but insisted that he reasonably and honestly believed that he was a South Carolina resident and could legally purchase the weapons. Behenna gave Highway 76, Timmonsville, South Carolina, as his “residence address” on the forms he signed in connection with the gun purchases. Upon investigation it was discovered that the residence address given was a large vacant lot on Highway 76. Behenna testified that it was his intention at the time of the gun purchases to acquire a mobile home and put it out in that vicinity because “I had been out in that area . . . [and] I happened to like it.” (Tr. at 72). No evidence was presented at trial which indicated that Behenna had in any manner acquired a lot on Highway 76 in or near Timmonsville. In fact, Behenna had come from New York, where he was in business, to South Carolina only three days before his gun purchases and he left South Carolina on the same day he made his purchases. (Tr. at 65, 82).
Behenna had taken some affirmative action in an attempt to establish proof of his South Carolina residency. When he first sought to purchase a gun at a sporting goods store in Dillon, the clerk told him that it was necessary for him to provide evidence identifying him as a resident of South Carolina.
The general rule is that the prosecution does not have to show affirmative criminal intent on the part of the accused to establish a violation of section 922(a)(6). See, e.g., Cody v. United States, 460 F.2d 34, 38 (8 Cir. 1972). Nevertheless, the statute does require proof that the defendant knowingly made a false statement intended or likely to deceive the dealer with respect to any fact material to the lawfulness of the sale. This court has recognized that “[t]he word ‘knowingly’ in § 922(a)(6) incorporates scienter as an asserted element of the offense.” United States v. Hedgecoe, 420 F.2d 458, 459 n. 1 (4 Cir. 1970); see also United States v. Squires, 440 F.2d 859 (2 Cir. 1971).
Had the indictment in the instant case been drawn in different form, Behenna’s false statement as to his residence address would have been sufficient to establish a violation of the statute. United States v. Gudger, 472 F.2d 566, 568 (5 Cir. 1972). However, as the indictment was drawn it did not specifically charge Behenna with making a false statement as to his address; it charged him with “willfully and knowingly” making a false and fictitious written statement, certifying that he was a resident of the State of South Carolina.
Because of the judge’s omission, his refusal to give the defendant’s requested instruction constitutes prejudicial error. It appears that if defendant reasonably and honestly believed that he was a South Carolina resident and thus entitled to purchase the firearm, this belief would be a defense to the specific charges in the indictment. The indictment was apparently drafted in such a form as to require proof by the government that Behenna knew that he was not a resident of the State of South Carolina at the time of the gun purchase.
In United States v. Hedgecoe, supra, the defendant had certified on a federal gun purchase form that he was not prohibited by federal law from purchasing firearms. In fact, however, he was a convicted felon. Hedgecoe pleaded guilty to the charge of violating § 922(a)(6) in the purchase of a firearm but asserted that he did not know at the time of his purchase that he was barred from purchasing firearms. This court ordered Hedgecoe’s guilty pleas stricken because “if he did not know of his disqualification, he acted without the required scienter in certifying that he was qualified.” 420 F.2d at 460. Similarly, in the instant case, if defendant reasonably and honestly believed that he was entitled to purchase firearms in South Carolina, he acted without the scienter specifically charged in the indictment. He could not have “knowingly” misrepresented his eligibility to purchase firearms in regard to his residency if he reasonably and honestly believed that he was a South Carolina resident. Because the indictment specifically charged Behenna with knowingly misrepresenting that he was a South Carolina resident, the judge should have instructed the jury on that very narrow issue. The combination of the indictment as written and the court’s instructions did not properly present the issue which had to be resolved by the jury in order to find Behenna guilty as charged.
Accordingly, the judgment of conviction is vacated and the case is remanded for new trial.
Reversed and remanded.
. It is unlawful under 18 U.S.C. § 922(b)(3) for any dealer to sell a firearm to “any person who the licensee knows or has reasonable cause to believe does not reside in . . . the State in which licensee’s place of business is located
. The indictment states in pertinent part:
[Tjhe defendant, FRANCIS A. BEHENNA, in connection with the acquisition of a firearm [from] a licensed firearms dealer, did willfully and knowingly maké a false and fictitious statement likely to deceive such dealer with respect to a material fact as to the lawfulness of the sale of such firearm in that he certified in writing on Treasury Department Internal Revenue Service Form 4473 . . . that he was a resident of the State of South Carolina, when in truth and in fact, as the defendant then and there well knew, he was not a resident of the State of South Carolina . . . . (Emphasis supplied).
. The Eighth Circuit in Cody v. United States, 460 F.2d 34, 38 (8 Cir. 1972), recognized that the question to be resolved by the jury in a case involving the violation of section 922(a)(6) is whether the defendant “understood the facts, not the law.” The jurors in the present case were never presented with the ultimate factual issue — whether Behenna knew he was not a resident of South Carolina — but instead were instructed only on the technical, legal definition of what constitutes residency. The jury should have been permitted to determine whether Be-henna reasonably and honestly believed that he was a resident at the time he purchased the firearms. Behenna may very well have thought that he had met the technical requirements of becoming a South Carolina resident by obtaining a voter’s registration card because the clerk at the sporting goods store had suggested to him that a South Carolina voter registration card or a driver’s license would be sufficient identification of a resident to entitle him to purchase a firearm.
. The judge did not read the indictment to the jury at the time of his instructions. He instructed the jury:
[Tjhe question in this case is: Did the defendant really intend to become a resident of South Carolina when he obtained his voter registration and when he purchased the firearm in question? (Tr. at 102).
This instruction did not adequately present the issue which the jury had to decide to find Behenna guilty of the charges in the indictment. Resolution of the question of whether the defendant intended to become a South Carolina resident does not answer the wholly different question of whether the defendant knowingly misrepresented that he was a South Carolina resident.
. The phrase “as the defendant then and there well knew, he was not a resident of the State of South Carolina” in the indictment cannot be treated as surplusage. Professor Wright states, “Words descriptive of what is legally essential to the charge in the indictment cannot be stricken as surplusage.” 1 C. Wright, Federal Practice and Procedure § 127, at 278 (3d ed. 1969). In the instant case the above-quoted phrase from the indictment is descriptive of the requirement of scienter, a necessary element to prove a violation of section 922(a)(6). United States v. Hedgecoe, supra at 459 n. 1.
If the indictment was limited to merely the statutory language necessary to state a violation of section 922(a)(6), this “bare bones” indictment might be sufficient, but it would not have informed the defendant in what specific manner he allegedly violated the statute. Section 922(a)(6) is written in very broad and general terms [ . . . knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious or misrepresented identification, intended or likely to deceive such . . . dealer with respect to any fact material to the lawfulness of the sale . . . (Emphasis added) ] and a wide range of actions could constitute a violation of the statute. Professor Wright states: “[i]f the statute is couched in general terms, the indictment must particularize the offense sufficiently to inform the defendant of the accusation he must meet.” 1 C. Wright § 125, at 238. If the indictment had been limited merely to the statutory language, the defendant would probably have requested a bill of particulars under Rule 7(f) of the Federal Rules of Criminal Procedure to ascertain the specific accusation which he would have to meet. But because the indictment in the instant case specifically informed Behenna of the actions that the government contended were a violation of the statute, it was only logical that he would undertake to defend against the specific charge in the indictment.