The opinion of the court was delivered by: BRODERICK
Defendant, Harry F. Messner, was found guilty by a jury of making false entries in connection with the sale and delivery of firearms in violation of 18 U.S.C. § 922(m). Defendant has filed motions for judgment of acquittal and for a new trial. At no point, however, does he challenge the sufficiency of the evidence to support the jury verdict. For the reasons hereinafter set forth, said motions are denied.
18 U.S.C. § 922(m) provides in pertinent part:
It shall be unlawful for any . . . licensed dealer . . . knowingly to make any false entry in . . . any record which he is required to keep pursuant to section 923 of this chapter or regulations promulgated thereunder.
Regulation 178.124, 27 C.F.R. § 178.124, promulgated thereunder, requires in pertinent part that:
(a) A . . . licensed dealer shall not sell or otherwise dispose, temporarily or permanently, of any firearm to any person . . . unless he records the transaction on a firearms transaction record, Form 4473 . . . .
(b) A . . . licensed dealer . . . shall retain . . . each Form 4473 he obtains in the course of transferring custody of his firearms.
(c) Prior to making an over-the-counter transfer of a firearm . . . the . . . licensed dealer . . . so transferring the firearms shall obtain a Form 4473 from the transferee . . . and (2) if satisfied that the transferee is lawfully entitled to receive the firearm, shall sign and date the form.
Counts 1-6 of the indictment charge that the defendant knowingly entered dates other than the dates on which he transferred possession of the firearms on form 4473's, which, if proved, constitute violations of 18 U.S.C. § 922(m). Thus Counts 1-6 of the indictment do state criminal violations.
Defendant's second contention in his motion for a judgment of acquittal is that the regulations are too ambiguous to sustain a violation of 18 U.S.C. § 922(m). Defendant testified that he thought that the transaction date, the date which he was required to enter on the form 4473, was the date on which the transaction was completed -- i.e., in this case, the date on which he was paid in full for the gun. Reliance is placed upon the maxim that an "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity". Rewis v. United States, 401 U.S. 808, 812, 28 L. Ed. 2d 493, 91 S. Ct. 1056 (1971). The applicable standard by which to determine whether a statute is so ambiguous as to violate the fourteenth amendment was set forth by the Supreme Court in Connally v. General Const. Co., 269 U.S. 385, 391, 70 L. Ed. 322, 46 S. Ct. 126 (1926), wherein the Court stated:
a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.
This rule is founded on the belief that fair warning should be accorded as to what conduct is criminal and punishable by deprivation of liberty or property. Huddleston v. United States, 415 U.S. ...