The opinion of the court was delivered by: DUMBAULD
Jury trial having been duly waived, and the Government's evidence received, and the defendants having put in no evidence, the Court, being convinced beyond a reasonable doubt, found as facts that defendants did purchase and receive guns
from licensed gun dealers, and did in each instance in connection with such transactions knowingly execute false statements on Form 4473 that they had not been convicted of any criminal offense punishable with imprisonment for more than one year;
and accordingly found them guilty of violating 18 U.S.C. § 922(a)(6), which provides:
(6) for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, 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 importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter.
18 U.S.C.A. § 924(a) provides the penalty:
(a) Whoever violates any provision of this chapter or knowingly makes any false statement or representation with respect to the information required by the provisions of this chapter to be kept in the records of a person licensed under this chapter, * * * shall be fined not more than $5,000, or imprisoned not more than five years, or both, and shall become eligible for parole as the Board of Parole shall determine.
The materiality of the false statement is derived from 18 U.S.C. § 922(d)(1), which makes it unlawful "for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person
(1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year."
By 18 U.S.C. § 921(a)(20) the term "crime punishable by imprisonment for a term exceeding one year" is defined so as to exclude "any State offense (other than one involving a firearm or explosive) classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less."
18 U.S.C. § 923(g) provides for keeping of records as required by the Secretary of the Treasury.
Able counsel for the defense elected to produce no testimony, but to rely upon the Government's failure to negate, as part of its burden of proving each element of the offense beyond a reasonable doubt, the alleged defense that the convictions were constitutionally invalid by reason of alleged failure to notify defendants of their right to appeal. Defendant cites Douglas v. California, 372 U.S. 353, 355, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963), as requiring such notification.
In support of this defense, counsel cited United States v. DuShane, 435 F.2d 187 (C.A. 2, 1970) and also United States v. Forlano, 319 F.2d 617, 619 (C.A. 2, 1963).
The question is concededly one of first impression in this circuit, and this Court is not convinced that ...