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United States v. Weiler

decided: November 3, 1967.

UNITED STATES OF AMERICA,
v.
HARRY WEILER, APPELLANT



Kalodner, Freedman and Seitz, Circuit Judges.

Author: Seitz

Opinion OF THE COURT

SEITZ, Circuit Judge.

Appellant was convicted by a jury and sentenced under 18 U.S.C. § 1001 of knowingly and willfully making a false statement in an application for license under the Federal Firearms Act.*fn1 The materiality of the statement is not challenged. By this appeal appellant seeks an order either discharging him or granting him a new trial for reasons hereinafter considered.

The trial record entitled the jury to conclude that on or about February 27, 1964, the appellant signed and caused Form 7 (Firearms) to be delivered to the District Director of Internal Revenue. By filing this form the petitioner sought a license under the Act to transport, ship and receive firearms and ammunition in interstate and foreign commerce. The printed form recited, insofar as here pertinent, that the undersigned applicant "states as follows: The applicant * * * has never been convicted of a crime punishable by imprisonment for a term exceeding one year." The Government alleged that this statement was false and fraudulent in the light of its claimed proof that in 1945 the appellant was placed on probation for two years after pleading guilty to the crime of assault and battery in Pennsylvania, which crime was then punishable by imprisonment for a term exceeding one year.

Additional facts are best developed in connection with the discussion of the assigned grounds of error.

The appellant's first contention is that his motion for a judgment of acquittal at the close of the Government's case should have been granted because the Government failed to prove that any false statement of the appellant was made by him knowingly and willfully. The Government of course had the burden under the statute (18 U.S.C. § 1001) of introducing evidence which would justify such a finding beyond a reasonable doubt. However, the appellant's argument as to the Government's proof seems really to be based on a legal issue rather than an evaluation of its sufficiency. We say this because appellant's counsel argued that the fact that appellant may have been sentenced to two years on probation in 1945 did not establish that when he signed the application in 1964 he, as a layman, knew he could have been sentenced in 1945 to a term exceeding one year. Otherwise stated, the appellant's counsel would have us hold that there cannot be a conviction for making a willfully false statement when the statement made in the answer requires expert or special knowledge on the part of the answerer.

We are not prepared to adopt the general rule of law which appellant tenders. There may be situations where such a rule would be applicable. Here, however, the applicant made a request to a Government agency and was required to make a representation which was material to the subject matter of his request. Certainly he cannot, at least as a matter of law, be relieved of the consequences of a material misrepresentation when the means of ascertaining the truthfulness of his statement were available. There is no suggestion that the appellant was not free to fill out the form at his leisure. He must be assumed to have been aware of his own criminal convictions, at least the more serious ones. Assuming, therefore, that he had been convicted in 1945, he had ways to check on the accuracy of his representation that he had not been convicted of a crime for which he could have been sentenced for a term exceeding one year. There was nothing about the 1945 sentence which justified him in believing beyond challenge that his representation was true.

The instructions accompanying the Form cite the statute and make it clear that any person knowingly making a false statement therein is subject to criminal prosecution. It also relates that a license will not be issued to any person who has been convicted, inter alia, of a crime punishable by imprisonment for a term exceeding one year. If we were to recognize the defense here asserted by appellant, the trial court would have had to take the issue from the jury. Such a result would produce a perversion of the statutory purpose in a situation where principles of fairness do not require it.

Appellant relies on United States v. Slutzky, 79 F.2d 504 (3rd Cir. 1935). The court there said that a person testifying under oath cannot thereafter be convicted of perjury when his answer is legally truthful. To state the conclusion is to distinguish it from the present case.

We conclude that the appellant's basis for asserting that the Government failed to prove that any false statement of appellant was made by him knowingly and willfully is without merit. The matter was properly a jury issue here.

The appellant next states that the Government failed to prove that the appellant had been convicted of a crime punishable by imprisonment for a term exceeding one year. The Government's evidence that appellant had been so convicted consisted of an exemplified record showing that someone named Harry Weiler was convicted by a state court of assault and battery in Philadelphia in 1945 and placed on probation for two years. The other evidence consisted of testimony that appellant lived in Philadelphia at that time and a pre-trial statement by him, brought out in the Government's case, that he had previously been arrested by the Philadelphia police.

Appellant's counsel contends, as he did throughout the trial, that the proof was insufficient to make out a case for jury consideration as to whether appellant was the individual convicted in 1945.*fn2 The Government contends that it satisfied the requirement of this Circuit as announced in Hefferman v. United States, 50 F.2d 554 (3rd Cir. 1931). In the Hefferman case the court said:

"To identify the offenses and the defendant the government introduced the record of two prior convictions in the same court of a man of the same very unusual name for the same offenses of selling liquor and maintaining a nuisance at the same address (600 Morton Avenue) in the same city and in the same judicial district. There was no other identification of the offenses or the ...


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