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February 28, 1974

Paul James LETKY

Snyder, District Judge.

The opinion of the court was delivered by: SNYDER

SNYDER, District Judge.

The Defendant, Paul James Letky, was charged in a two count Indictment with violations of 18 U.S.C. § 922 (a) (6) *fn1" and 18 U.S.C. Appendix § 120(a) (1). *fn2" In Count One, the Defendant was charged with making a false and fictitious statement in a firearms transaction, i.e. that he had not been convicted of a crime punishable by a term exceeding one year. In Count Two, the Defendant was charged with wilfully and knowingly receiving and possessing a Universal Semi-Automatic Carbine which had been transported in interstate commerce. This case came before the Court for Non-Jury Trial on February 4, 1974. The following will constitute Findings of Fact and Conclusions of Law in compliance with Rule 23(c) of the Federal Rules of Criminal Procedure.


 1. A.30 caliber semi-automatic carbine, serial number 124029 was manufactured by Universal Hialeagh of Miami, Florida. Universal shipped this firearm to Firearms Unlimited, Pittsburgh, Pennsylvania on April 3, 1968. Firearms Unlimited sold this firearm to West Hills Sport Shop, Coraopolis, Pennsylvania on April 5, 1968; West Hills Sport Shop sold the firearm to Frank Gausheman of Pittsburgh, Pennsylvania on April 16, 1968. Jones Swap Shop acquired the firearm from Gausheman and sold the weapon to Paul James Letky, 236 Churchill Street, McKees Rocks, Pennsylvania on December 3, 1971.

 2. On May 18, 1972, the firearm in question was transferred from Letky to John Edelen.

 3. When purchasing the firearm on December 3, 1971, Paul Letky signed the Firearms Transaction Record and answered Section 8(b) in the negative. Section 8(b) is as follows:


"Have you been convicted in any court of a crime punishable by imprisonment for a term exceeding one year? (Note: The actual sentence given by the judge does not matter -- a yes answer is necessary if the judge could have given a sentence of more than one year.) ' No '"

 4. The Defendant, Paul Letky, had been convicted of burglary in 1965 and with possession of burglary tools in 1967. The 1965 burglary conviction was a crime punishable by a term of imprisonment exceeding one year.

 5. From all the testimony and evidence offered at the Non-Jury Trial, this Court finds that the Defendant, with the required specific intent, falsely answered Section 8(b) of the Firearms Transaction Record (Govt. Form 4473) in regard to the transfer of a semi-automatic carbine, serial number 124029, from Jones Swap Shop to Paul Letky, the Defendant here.

 6. The gun as offered in evidence clearly showed that it was sufficiently operable to constitute a firearm within the definition as set forth in 18 U.S.C. Appendix § 1202(c) (3).

 7. The prosecution offered no proof that Jones Swap Shop was a licensed dealer as required by 18 U.S.C. § 922(a) (6).


 The evidence was undisputed that the Defendant read the questions and signed the answers on Form 4473, Firearms Transaction Record, including Section 8(b) that he was not convicted of a crime punishable by a term of imprisonment exceeding one year. The Defendant acknowledged that he had read the questions and that he was in fact convicted, but he testified that he thought Section 8(b) was only meant to apply to him if he "had been in prison for over a year." In fact, he had been in prison for only six months. He further testified that he thought when he was "discharged" that this removed all stigma from his conviction and "restored all my civil rights." He even stated he thought about whether he might be qualified to buy a gun and discussed it with a friend, John Edelen, Jr., by telephone. Edelen was the person for whom the Defendant purchased the gun.

 While proof of knowingly making a false statement is necessarily circumstantial, we believe that the evidence in this case shows proof beyond a reasonable doubt, and that the Defendant's statements were knowingly false although he testified that he misunderstood them. There may have been a great deal of difficulty in proving that a false statement had been "knowingly" made in the purchase of a firearm under the original version of Form 4473. In the original form the buyer's signature was at one place on the form and he was referred to another place on the form for the listing of persons prohibited from purchasing firearms. The revised form has largely eliminated the difficulty. United States v. Garcia, 479 F.2d 322 (5th Cir. 1973); Cody v. United States, 460 F.2d 34 (8th Cir. 1972); United States v. Squires, 440 F.2d 859, at page 865 and footnote 10 at page 864 (2nd Cir. 1971).

 As to Count One, since Paul James Letky had in fact been convicted of burglary on March 10, 1967, a crime punishable by a term of imprisonment exceeding one year, and it was shown beyond a reasonable doubt that his answer on the Form 4473 was knowingly false, it was then not necessary under Section 922(a) (6) to show a nexus with interstate commerce. United States v. Colicchio, 470 F.2d 977 (4th Cir. 1972); United States v. Nichols, 466 F.2d 998 (5th Cir. 1972); United States v. Garner, 465 F.2d 265 (7th Cir. 1972).

 In the latter case, Senior Circuit Judge Duffy stated as follows (at p. 267):


"The principal issue raised by defendant is whether, in a prosecution for a violation of 18 U.S.C. § 922(a) (6), the Government must allege and prove a transaction in interstate commerce. Defendant relies on United States v. Bass, 404 U.S. 336, 92 S. Ct. 515, 30 L. Ed. 2d 488 (1971).


However, the case at bar is easily distinguished from Bass, supra, in several respects. (1) Defendant herein was convicted under 18 U.S.C. § 922(a)(6) which, in contrast to the contested statute in Bass (18 U.S.C. App. § 1202(a) (1)), contains no reference or language relating to interstate commerce. (2) The Congressional intent included in § 901 of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 901 et seq. indicates that the purpose of the Act was to regulate the acquisition of firearms by felons without regard to the nexus of each acquisition with interstate commerce, and (3) Bass was concerned with Title VII of the Act whereas the offense herein charged involves Title IV of the Act. The legislative history of Title VII is scant and, as noted by the Supreme Court in Bass, the legislation was an afterthought in need of court interpretation. Such is not the case with Title IV for which the legislative history is extensive and explicit.


After reviewing the cases which have discussed the necessity of alleging and proving interstate commerce in an illegal firearms transaction under § 922(a) (6), we conclude that a nexus with interstate commerce need not be alleged and proven in each case. A recent Fifth Circuit case, United States v. Nelson, 458 F.2d 556 (5 Cir., 1972) makes this quite clear at page 559:


'. . . In contrast to the situation in Bass, in the case before us we have a clear statement of Congress' intent and an unambiguous statute. Moreover, we believe that acquisition of firearms is more closely related to interstate commerce than mere possession. Therefore, while the Supreme Court in Bass impliedly expressed some reservations about Congress' power to regulate possession of firearms, we entertain no doubt that it has the power to regulate their acquisition without requiring proof of a nexus of interstate commerce in each individual case. '


See also -- United States v. Menna, supra, 451 F.2d 982 (9 Cir. 1971).


Furthermore, the First Circuit has considered a constitutional challenge to § 922(a) (6) in United States v. Crandall, 453 F.2d 1216 (1 Cir. 1972). The Court held in Crandall, supra, that notwithstanding the fact that Sec. 922(a) (6) did not contain the requirement that the transaction be in interstate commerce, the omission of such a requirement does not render the statute unconstitutional."


(Emphasis supplied).

 18 U.S.C. § 922(a) (6) required the Government to prove that the purchase was made "from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector." After reviewing the entire testimony and exhibits produced at the trial, it is apparent that the Government has failed to do this. The testimony of both the Treasury Agent and Mrs. Jones does not contain any statement that Jones Swap Shop is a licensed gun dealer. Mrs. Jones testified that Jones Swap Shop deals in guns, ammunition, fishing and hunting equipment, and antiques. She stated that the store handled both new and used goods. There is no evidence on the record that Jones Swap Shop is a licensed dealer as required by 18 U.S.C. § 922 (a) (6).

 As the Seventh Circuit held in United States v. Jordan, 454 F.2d 323 (7th Cir. 1971) at p. 325:


"Another reason why the conviction of defendant cannot be affirmed is that there was no evidence that Joseph Dooley, from whom the defendant had acquired the firearm, was a licensed dealer within the meaning of Section 922(a) (6) of Title 18. Therefore, a material or 'essential element ' of the offense for which defendant was convicted was at no time introduced into evidence or in any manner proven by the Government. On this failure of proof alone the conviction fails."

 Therefore, Count One of the Indictment is dismissed for the failure of the United States to prove an essential element of the crime charged.

 As to Count Two there is a somewhat different situation involved, for under § 1202(a) (1) Appendix it is clear that the conviction can not stand unless there is a nexus with interstate commerce. United States v. Bass, 404 U.S. 336, 92 S. Ct. 515, 30 L. Ed. 2d 488 (1971). The Defendant here is charged with receiving, and there was clear evidence that he did receive the firearm. Further, the evidence was unrebutted that the semi-automatic carbine was manufactured by Universal Hialeagh of Miami, Florida, and that Universal shipped the subject firearm to Firearms Unlimited in Pittsburgh, Pennsylvania on April 3, 1968; that Firearms Unlimited sold the subject firearm to Westhill Sport Shop in Coraopolis, Pennsylvania on April 5, 1968; that Westhill Sport Shop, in turn, sold the firearm to a Frank Gausheman in Pittsburgh on April 16, 1968; and that Jones Swap Shop acquired the firearm from Gausheman and sold the weapon to Paul James Letky on December 3, 1971. The Defendant was arrested on September 27, 1973. Thus, the showing was that the firearm had not been in interstate commerce for more than three years prior to the sale, and more than five years prior to the Indictment.

 In Bass, supra, Justice Marshall had this to say concerning interstate commerce (404 U.S. 336, 350, 92 S. Ct. 515, 524, 30 L. Ed. 2d 488, 498):


"Having concluded that the commerce requirement in § 1202(a) must be read as part of the 'possesses' and 'receives' offenses, we add a final word about the nexus with interstate commerce that must be shown in individual cases. The Government can obviously meet its burden in a variety of ways. We note only some of these. For example, a person 'possesses . . . in commerce or affecting commerce ' if at the time of the offense the gun was moving interstate or on an interstate facility, or if the possession affects commerce. Significantly broader in reach, however, is the offense of 'receiving . . . in commerce or affecting commerce, ' for we conclude that the Government meets its burden here if it demonstrates that the firearm received has previously traveled in interstate commerce. This is not the narrowest possible reading of the statute, but canons of clear statement and strict construction do 'not mean that every criminal statute must be given the narrowest possible meaning in complete disregard of the purpose of the legislature. ' United States v. Bramblett, 348 U.S. 503, 510, 75 S. Ct. 504, [508] 99 L. Ed. 594, [600] (1955). We have resolved the basic uncertainty about the statute in favor of the narrow reading, concluding that 'in commerce or affecting commerce ' is part of the offense of possessing or receiving a firearm. But, given the evils that prompted the statute and the basic legislative purpose of restricting the firearm-related activity of convicted felons, the readings we give to the commerce requirement, although not all narrow, are appropriate. And consistent with our regard for the sensitive relation between federal and state criminal jurisdiction, our reading preserves as an element of all the offenses a requirement suited to federal criminal jurisdiction alone." (Emphasis supplied).

 While the nexus in the instant case is somewhat delayed, it is exactly the kind of proof that the Supreme Court outlined as being sufficient with respect to Section 1202(a). See also United States v. Giannoni, 472 F.2d 136 (8th Cir. 1973); United States v. Mancino, 474 F.2d 1240 (8th Cir. 1973); United States v. Giannoni, 472 F.2d 136 (9th Cir. 1973), cert. denied 411 U.S. 935, 93 S. Ct. 1911, 36 L. Ed. 2d 396; United States v. Brown, 472 F.2d 1181 (6th Cir. 1973). In Giannoni, the Ninth Circuit held that a nexus of thirteen years was sufficient to justify a charge under 18 U.S.C. Appendix § 1202. The Court held that: "Where neither the Congress nor the Court has drawn a line as to time, we find no reason to do so."

 The question of whether a shotgun purchased by a defendant was operable or convertible to constitute a firearm within the meaning of this section prohibiting making a false statement in connection with the acquisition of such firearm from a dealer is a question for the finder of fact. United States v. Rouse, 462 F.2d 126 (5th Cir. 1972). Furthermore, we think that the gun, as offered in evidence, clearly showed that it was sufficiently operable or convertible

  In addition to the above findings, the Court wishes, in the interest of clarity, to make further observations on the evidence presented in this case. The Court notes from reading several coal deeds submitted into evidence in this case that virtually all of them refer to the coal conveyed by seam Number alone, and make no mention at all of drill holes. It is also noted that these coal deeds are often executed between farmers, who may be quite uneducated, and coal companies anxious to acquire a valuable mineral right. It thus seems consonant with the best interests of justice to view these deeds from the perspective of the "ordinary reasonable and prudent man" (read plain folks, farmers, miners, etc.).

 Two experienced coal businessmen who testified for plaintiff herein indicated that coal was referred to by a vein or seam number, and not by drill holes. Also, a very early Ohio State Court case concerning the very coal lands here in question was made available, in copies, to the Court during this litigation. The pleadings and the entry in the case clearly indicate that the Judge and the lawyers for both sides thought of and referred to the coal in question as per its vein or seam number. Against all of this evidence of custom and usage, defendant offered only the testimony of an "expert" geologist *fn1" to the effect that the use of drill holes is the most scientifically accurate way to describe the location of coal. But, this testimony is irrelevant to the legal issue of interpretation of a particular deed for coal, and to the factual issue of the intent of the grantor and grantee of the deed, viewed in the context of the usage to which they would have been accustomed. The Court also notices judicially that due to the effects of past periods of geological upheaval on the earth's stratigraphy seams of coal would not necessarily lie at continuous depths under the ground, so that use of drill hole depths as a means of identification could often result in the impracticality and expense of pockmarking a whole region with drill holes in order to locate coal. It is certainly more reasonable, it seems to the Court, to think of the coal in terms of veins, and to identify it by naming or numbering the veins. That was in fact the eastern Ohio practice in the 1920's and even remains so today.

 That the legal profession itself, often responsible for drafting deeds, uses the vein number reference is indicated by cases not only in Ohio, but other states as well, which discuss coal deed problems in terms of vein or seam numbers. See, e.g., Chalfant v. Birney, 126 N.E. 2d 359, 71 Ohio Law Ab. 158 (Ohio Com. Pl. 1954); Tennessee Gas Transmission Co. v. Blackford, 108 Ohio, App. 19, 160 N.E. 2d 336 (Ohio 1958); East Ohio Gas Co. v. James Brothers Coal Co., 40 Ohio Op. 440, 85 N.E. 2d 816, 53 Ohio Law Ab. 438 (Ohio Com. Pl. 1948); U.S. Coal Co. v. Wayne Coal Co., 12 Ohio App. 1 (Ohio 1919). The Akron Coal Co. v. M. S. Orr and Lelia Orr, Civil No. 6351, Common Pleas Court of Harrison County (Ohio 1924); Light v. E.M. Grant & Co., 73 W. Va. 56, 79 S.E. 1011 (1913); Babcock Coal and Coke Co. v. Brackens Creek Coal Land Co., 128 W. Va. 676, 37 S.E. 2d 519 (1946). Usage in other states may also involve alphabetical or proper name references, as opposed to vein numbers, to refer to coal. See, e.g., Dougherty v. Thomas, 313 Pa. 287, 169 A. 219 (1933), Lenox Coal Co. v. Duncan Spangler Coal Co., 265 Pa. 572, 109 A. 282 (1920); Luther v. Pennsylvania Game Comm., 381 Pa. 442, 113 A.2d 314 (1955). Significantly, no cases in Ohio nor any of these neighboring jurisdictions contain any indication that coal is identified by reference to drill hole depths.

 As to the use of veins or seams to describe coal generally, the practice is further exemplified and recorded at 58 C.J.S. Mines and Minerals § 3, where it is stated that:


"The terms 'vein, ' 'lode, ' and 'ledge ' are generally used as synonymous terms, and also as synonymous with the terms 'bed ' or 'seam ' . . . The definitions given by geologists are different from those used by miners. . . . Miners . . . used the term 'lode ' or 'vein ' before geologists attempted to give it a definition, and as used by miners the term means that formation, or defined body of ore or mineral, by which the miner can be led or guided in finding such ore or mineral, and it is such lodes and veins that are contemplated by the mining statues." [Emphasis added].

 The Sixth Circuit is no stranger to the interpretation of deeds to coal and mineral rights, see e.g., Belcher v. Elliott, supra ; Rowe v. Chesapeake Mineral Co., supra; Peabody Coal Co. v. Pasco, 452 F.2d 1126 (6th Cir. 1971), The Elk Horn Coal Corp. v. Allegheny Coal Sales, Inc., 391 F.2d 253 (6th Cir. 1968); Delta Drilling Co. v. Arnett, 186 F.2d 481 (6th Cir. 1950); Johnson v. Republic Steel Corp., 262 F.2d 108 (6th Cir. 1958). The Sixth Circuit, in its opinions, has also followed the accepted practice of referring to coal by the seam or vein number rather than any mention of drill hole depths, see, e.g., Sturtevant v. Hart, 327 F.2d 695 (6th Cir. 1964); Peabody Coal Co. v. Erwin, 453 F.2d 398 (6th Cir. 1971); Howard v. Hi Hat Elkhorn Mining Co., 295 F.2d 81 (6th Cir. 1961); Hi Hat Elkhorn Coal Co. v. Inland Steel Co., 370 F.2d 117 (6th Cir. 1966); Thornberry v. Buchanan County Coal Corp., 323 F.2d 517 (6th Cir. 1963). Of course, none of these cases pass on the question now directly before this Court, but they are mentioned as a courtesy to the parties to bring the body of Sixth Circuit law on coal deeds to their attention. The cases do, however, seem to further exemplify the common nature and propriety of what this Court finds to be true as a matter of fact in Ohio -- that the most particular way to describe and convey a body of coal, is by its vein number or name. This is the factual basis for this Court's holding that even when the deed here in question is construed most favorably to the grantee therein, the inescapable fact is that the grantor conveyed vein No. six and the defendant herein mined vein No. seven, having unreasonably relied on surplusage in his deed which refers to certain irrelevant drill hole depths.

 The Court makes two observations with regard to the issue of damages herein. Firstly, defendants were not justified in relying on the drill hole depths in their deed. Secondly, defendants would have been more reasonable and prudent to have brought an action to quiet title in this case prior to doing any mining on the real estate of plaintiff. Therefore, defendant's taking of the coal is hereby found not to have been innocent; negotiations and/or briefs on the issue of damages are ordered to proceed on that basis.

 Wherefore, judgment is hereby rendered in this case for plaintiff on the issue of liability alone. The parties shall make a good faith attempt to settle the case on the issue of damages. If no settlement is reached within forty days of the filing of this opinion, the parties shall submit to the Court briefs and stipulations on the issue of damages. These briefs shall proceed on the assumption that defendant's taking of the coal was not an innocent mistake. If the parties are unable to settle the case, or the Court unable to decide the damages issue from the briefs submitted, a trial will be ordered as to damages.

 It is so ordered.

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