The opinion of the court was delivered by: MARSH
Defendant Thomas A. Buss was found guilty by a jury of illegally engaging in the business of dealing in firearms, in violation of 18 U.S.C. § 922(a)(1).
Defendant has moved for judgment of acquittal, or in the alternative, for a new trial. The motion will be denied.
To convict a defendant under § 922(a)(1), the government must prove that the person was unlicensed and that he was engaged in the business of dealing in firearms. There is no doubt that Buss was unlicensed, and there is ample evidence from which a jury could find beyond a reasonable doubt that the defendant was engaged in the business of dealing in firearms.
The government proved that Buss arranged for the transfer of more than 140 weapons. These transfers were made at the request of Buss by two licensed firearms dealers, Paul G. Acken and Anthony J. Terrana. Both Acken and Terrana testified that Buss had ordered firearms using their federal licenses. Acken explained that:
"Buss did his own buying and selling. All I did was receive (the firearms) and fill out the forms for him."
(Tr. 22). Similarly, Terrana testified that Buss procured the weapons while Terrana simply completed the required papers. According to Terrana, Buss indicated that after he procured the weapons he sold them at gun shows in Pennsylvania and Ohio. Terrana also testified that Buss said that if he were federally licensed the record keeping requirements would interfere with his manner of selling weapons at such gun shows (Tr. 68).
There was substantial evidence to show that Buss also sold firearms on a mail order basis. Several gun purchasers testified that they had ordered firearms from Buss and made payments to Buss but that the firearms were sent to them through a third-party who was a licensed dealer. H. L. Weinstein testified that he ordered a gun from Buss after seeing Buss' advertisement in The Shotgun News. Weinstein sent a check for $ 460.00 to Buss and received the weapon from Acken's Gun Shop (Tr. 80-82). Two other witnesses testified that after correspondence with Buss they purchased weapons by making payments to Buss and subsequently receiving the weapons through licensed firearms dealers (Tr. 83-84, 88). Acken testified about additional transactions in which Buss made the arrangements for the sales and then brought the weapons to Acken to have them shipped to purchasers (Tr. 40-52).
Additional evidence presented by the government from the Buss residence included: a copy of a manual about the M1A Match Rifle which states that the rifle could be purchased from Buss; a newsletter wherein the defendant reported that he had attended a gun show in Ohio and had sold several firearms there; and, a receipt for 26 M1A firearms purchased by Buss from the Springfield Armory for a total of $ 6,700.00 (GX No. 155).
This court finds that the government's evidence was more than sufficient to prove that the defendant had engaged in the business of dealing in firearms. In fact, the defendant's illegal activity was more substantial than that upon which a number of other convictions under this statute have been sustained. See, e.g., United States v. Swinton, 521 F.2d 1255, 1256-1258 (10th Cir. 1975); United States v. Powell, 513 F.2d 1249, 1250 (8th Cir. 1975); United States v. Wilkening, 485 F.2d 234, 235 (8th Cir. 1973); United States v. Day, 476 F.2d 562, 564-566 (6th Cir. 1973); United States v. Ruisi, 460 F.2d 153, 154-157 (2d Cir. 1972). See also United States v. Jackson, 352 F. Supp. 672, 674 (S.D.Ohio 1972).
Defendant argues that his mail order sales did not violate the law because he acted in concert with licensed firearms dealers who recorded the transfers and thereby complied with the congressional intent behind § 922(a)(1). Defendant has cited no authority for this contention, and we have found none. The statute forbids an unlicensed person from dealing in firearms and makes no exception for illegal dealing which is recorded by a licensed dealer. As illustrated in the cases cited above, activity which does not comport with the precise requirements of the statute constitutes a crime.
The principal contentions raised by defendant in support of his motion for a new trial are: (A) that the court erred in admitting evidence which the defendant sought to suppress; (B) that the court erred in refusing to grant a mistrial on the basis of the closing argument of government counsel; and, (C) that the court erred in refusing to allow defendant to cross-examine Paul Acken with regard to the nature of the alleged illegal transactions. These issues have been briefed by the parties and will be addressed by the court in seriatim.
A. Defendant contends that a new trial is required because on the morning trial began the court did not allow defendant to reopen the suppression issue previously raised in motions filed before and after the defendant was indicted. The court's refusal to reopen the suppression issue at the time of trial must be viewed in light of the extended pretrial proceedings in this case.
On July 14, 1977, Thomas Buss filed a motion for return of seized property challenging the seizure in March 1977 of a shipment of firearms which had been delivered by the manufacturer to 848 Pittsburgh Street, Springdale, Pennsylvania, the address on the federal firearms license of Paul Acken and the location of an appliance store operated by Acken's parents. A hearing on the motion was conducted by United States Magistrate Ila Jeanne Sensenich. Special Agent Lawrence J. Morrissey testified that prior to the seizure Acken had telephoned the agent to report that a shipment of firearms which Acken believed to have been ordered by Buss had arrived at the store. Morrissey testified that he was told by Acken that the agent could examine the firearms. When Morrissey and Agent Masters arrived at the store the next day, they asked Acken's mother if they could open the boxes of firearms and she said they could. Subsequently, the agents seized the weapons.