Buss was indicted and the same firearms became the subject of a motion to suppress filed April 13, 1978. A hearing was held by the court, and the motion was denied.
At the beginning of trial on June 19, 1978, defense counsel announced that he had interviewed Acken for the first time on June 17, 1978, and that he had been told that Acken had given only limited consent to the government agents to enter the appliance store to inspect the shipment of firearms in March 1977. Defense counsel submitted that the agents had violated this limited consent and that Acken would not have provided this information earlier because Acken feared retaliation by the agents. Defense counsel argued that what he learned from Acken two days prior to trial mandated the reopening of the suppression hearing.
In support of his argument, the defendant cites Rouse v. United States, 123 U.S.App.D.C. 348, 359 F.2d 1014, 1015-1016 (1966), where it was held that a "pre-trial ruling on a motion to suppress does not bind the trial judge in all circumstances" and that the judge has the duty to reconsider the suppression issue again if new facts appearing at trial cast reasonable doubt on the pretrial ruling. In Rouse, a pretrial suppression motion had been denied even though there were differences between the testimony of two police officers. At trial, one officer admitted that he had confused the facts of two separate cases and he changed his testimony so that it conformed with the testimony of the other officer. A motion to reopen the suppression hearing was denied on the sole ground that the issue had already been heard and decided. The Court of Appeals remanded the case for a fresh determination of the suppression issue stating that the officer's contradictory and confusing statements stirred previous doubts and raised new ones.
Our case presents a much different situation. Prior to the initial hearing before the magistrate, it was obvious that Acken might have information relevant to the suppression issue. At that hearing, however, the government met its burden by presenting Agent Morrissey's testimony that knowing and voluntary consent had been given for the search at the appliance store, and neither the government nor the defendant called Acken as a witness. In the motion to suppress filed April 13, 1978, defendant specifically asserted that Acken's testimony was of critical importance to the consent issue. But, at the hearing on May 9, 1978, defendant again chose not to call Acken as a witness.
Acken could have been subpoenaed by the defendant to testify at the magistrate's hearing or at the hearing on the motion to suppress. Acken was neither unknown nor unavailable to the defendant, and the proffered testimony of Acken cannot be considered newly discovered evidence. United States v. White, 168 U.S.App.D.C. 309, 514 F.2d 205, 207-208 (1975). See also United States v. Beasley, 582 F.2d 337, 339 (5th Cir. 1978); United States v. Alper, 449 F.2d 1223, 1234 (3rd Cir. 1971). Having made a deliberate tactical decision not to call Acken to testify at any of the pretrial hearings, defendant waived his right to challenge the admissibility of evidence on the basis of Acken's testimony. United States v. White, 514 F.2d at 207-208; United States v. Harris, 391 F.2d 384, 389 (6th Cir. 1968); Rodriguez v. United States, 373 F.2d 17, 18 (5th Cir. 1967).
Defense counsel has argued, in the alternative, that if Acken's testimony was previously available, then the attorney's failure to call Acken as a witness deprived Buss of effective assistance of counsel. This argument is an example of the resourcefulness demonstrated by defense counsel during these proceedings. The six briefs submitted on behalf of the defendant prior to the filing of the indictment reveal that from the very beginning counsel possessed a thorough knowledge of the relevant facts and a firm understanding of the critical legal issues. At all times, defense counsel was aware of the possibility that Acken's testimony might elucidate the consent issue as well as the issue of whether defendant was in the business of dealing in firearms. The court is convinced that counsel's failure to call Acken as a witness was a deliberate tactical decision rather than the result of an oversight or incompetence. Defense counsel vigorously and capably represented his client, and counsel's performance throughout these proceedings met or exceeded the customary skill and knowledge normally shown by defense attorneys in this district. See Moore v. United States, 432 F.2d 730, 736-737 (3rd Cir. 1970).
Finally, it should be noted with respect to the suppression issue that at the trial the court permitted Acken to be questioned concerning the search of the appliance store. That testimony, viewed in the light of all of the other evidence, does not cause this court to doubt the propriety of the pretrial rulings on the suppression issue.
B. Defendant contends that the prosecutor's closing argument was prejudicial to the defendant and impinged upon the defendant's right not to present evidence. In his closing, the prosecutor told the jury that the government was unable to account for all of the guns which had been transferred to Buss (Tr. 144). In making this statement, the prosecutor was not calling upon Buss to offer an explanation of where the guns went, nor was he commenting upon Buss' failure to present records of his gun transactions as evidence at trial. Rather, the prosecutor was pointing out a problem which can arise when firearms are sold by one who is not a federally licensed dealer and who therefore is not charged with keeping records for the federal government. The prosecutor's remarks were not unduly prejudicial, and, considering the record in its entirety, the court concludes that the prosecutor's statements were by no means sufficiently prejudicial to have denied the defendant a fair trial. United States v. Jackson, 542 F.2d 403, 410 (7th Cir. 1976); United States v. LeFevre, 483 F.2d 477, 479 (3rd Cir. 1973). Moreover, we find no authority to support defendant's suggested defense that adequate records will insulate an unlicensed gun dealer from criminal liability.
C. The final major contention addressed in defendant's brief is that the court improperly limited questioning during the cross-examination of Acken. The court sustained the government's objection when Acken was asked:
"Now, your transactions with Mr. Buss, did you feel that you were discharging Your duties under the law when you recorded all those items on Form 4473?"