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UNITED STATES v. MASTRO

September 16, 1983

UNITED STATES OF AMERICA
v.
ANTHONY W. MASTRO



The opinion of the court was delivered by: BRODERICK

 BRODERICK, J.

 A jury has found the defendant, Anthony W. Mastro, guilty on count one of indictment 83-143, charging him with unlawful dealing in firearms, in violation of 18 U.S.C. § 922(a)(1), guilty on counts 3, 11, 13, 15, and 17, charging him with unlawful receipt of a firearm in violation of 18 U.S.C. § 922(a)(3), and guilty on counts 2 through 8, 12, 14, 16, and 18, charging him with knowingly making false statements in connection with the acquisition of firearms, in violation of 18 U.S.C. § 922(a)(6). The defendant was found not guilty on count ten, charging him with unlawful receipt. The charges arise out of the purchase between 1978 and 1982 of approximately three dozen firearms by the defendant, who was formerly the Chief of Police of Upper Chichester Township. These firearms were resold by Chief Mastro to members of his department, to officers affiliated with other law enforcement agencies, and, in several cases, to private citizens who had no connection with any law enforcement agency. All of the guns were ordered in a tax-exempt status upon Chief Mastro's representation that the guns were to be used by officers in his department in the performance of their official duties. Federal tax exemption certificates were also signed, or authorized to be signed, by Chief Mastro with respect to these purchases, certifying that the purchases were for the exclusive use of the Upper Chichester Township Police Department and were to remain the property of that agency.

 Chief Mastro has moved for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure or, in the alternative, for a new trial, pursuant to Rule 33, contending: (1) that the evidence does not show him to have been engaged in the business of dealing in firearms and the Court's instruction on this matter was in error; (2) that the transactions for which he was convicted were exempt from the requirements of federal law; (3) that the Court erred in not suppressing certain evidence; (4) that the Court erred in deciding the question of the materiality of the false statements as a matter of law; (5) that the Court erred in instructing the jury several times that defendant's ignorance of the law was not a defense to the crimes charged; and (6) that the Court erred in failing to instruct the jury that certain testimony was to be considered with great care because it was given by accomplices to the crimes. For the reasons which follow, the defendant's motion for a judgment of acquittal, or in the alternative for a new trial, will be denied.

 On a motion for judgment of acquittal the Court must view the evidence in the light most favorable to the Government. United States v. Pratt, 429 F.2d 690 (3d Cir. 1970). If there is sufficient evidence in the record upon which a rational jury could find beyond a reasonable doubt that the Government has proved all the elements of the offenses charged, a motion for judgment of acquittal may not be granted. Id.; United States v. Doan, 710 F.2d 124, 126-27 (3d Cir. 1983). On the other hand, a motion for a new trial on the ground that the verdict is against the weight of the evidence is directed to the sound discretion of the trial court, which may weigh the evidence but may set aside a verdict and grant a new trial only if it determines that the verdict constitutes a miscarriage of justice. United States v. Phifer, 400 F. Supp. 719, 723 (E.D. Pa. 1975), aff'd 532 F.2d 748 (3d Cir. 1976). The Court must also grant a new trial if there is a reasonable possibility that trial error could have had a substantial influence on the jury's decision. See Government of the Virgin Islands v. Bedford, 671 F.2d 758, 762 (3d Cir. 1982). In the present case, the evidence was sufficient to support the jury's verdict under both the Rule 29 standard and the Rule 33 standard, and the defendant's assignments of error are without merit.

 Defendant's Engagement in the Business of Dealing in Firearms

 The defendant contends that sufficient evidence did not support the jury's finding that he was engaged in the business of dealing in firearms, because there was no showing that he made or expected to make a profit from the transactions. The defendant also contends that it was error for the Court to refuse to charge the jury that the offense of unlawful dealing in firearms requires a showing that the defendant engaged in firearms dealing for the purpose of livelihood or profit. The Court instructed the jury that the existence or absence of a profit motive could be considered by the jury in determining whether the defendant was engaged in the business of dealing in firearms, but that the Government was not required to prove the existence of a profit or profit motive. The jury was instructed that in order to find the defendant guilty on the dealing count they must find that his procurement and sales activity was carried on over a period of time, and not merely on a few isolated occasions, and that he had firearms on hand, or was ready and able to procure them, for the purpose of selling them to such persons as he might from time to time accept as customers. The Court's charge in this respect followed the weight of recent authority, which holds that the existence or absence of a profit motive is a factor to be considered by the jury, but that the Government need not show that the defendant made or expected to make a profit. United States v. Wilmoth, 636 F.2d 123 (5th Cir. 1981); United States v. Shirling, 572 F.2d 532 (5th Cir. 1978) (explicitly rejecting the contention put forward by defendant here); United States v. Hamilton, 689 F.2d 1262, 1272 (6th Cir. 1983), cert. denied, 459 U.S. 1117, 103 S. Ct. 753, 74 L. Ed. 2d 971 (1983); United States v. Jackson, 352 F. Supp. 672, 674 (S.D. Ohio 1972), aff'd 480 F.2d 927 (6th Cir. 1973); United States v. Angelini, 607 F.2d 1305, 1309 (9th Cir. 1979); See United States v. Masters, 622 F.2d 83, 88 (4th Cir. 1980) (Government may satisfy burden by showing defendant able to procure guns and sell them to chosen customers, citing Shirling); United States v. Tarr, 589 F.2d 55, 59 (1st Cir. 1978) (dealing connotes a regular course of conduct carried on over a period of time). This interpretation supports the purposes of the federal firearms laws, as the harm from unlicensed dealing exists whether or not the defendant profits from his sales.

 The evidence at trial was amply sufficient to show that the defendant was engaged in the business of dealing in firearms. He made numerous sales over a period of some years to a variety of persons whom he chose to accept as customers. He was known as a source of firearms, and sought out by purchasers for that reason. Finally, there was evidence that the defendant in fact made a profit on several of the sales involved, and used some of this profit to improve the Township's rifle range.

 Exemption of Defendant's Transactions from the Federal Firearms Laws

 The defendant contends that all of the firearms which he purchased were exempt from the Federal Firearms Control Act (the Act) because they were shipped to the Upper Chichester Police Department, and that, in any event, those guns purchased for the use of law enforcement officers are exempt from the Act. The defendant contends that this exemption applies to the making of false statements in connection with the acquisition of the guns, as well as to the receipt and sale of the guns. In advancing this argument, the defendant relies on the exemption set forth in 18 U.S.C. § 925(a)(1), as well as an interpretation of this statute by the Bureau of Alcohol, Tobacco, and Firearms (ATF). Section 925(a)(1) provides that the provisions of the Act, including those sections which the defendant has been convicted of violating

 
shall not apply with respect to the transportation, shipment, receipt, or importation of any firearm or ammunition imported for, sold or shipped to, or issued for the use of, the United States or any department or agency thereof or any State or any department, agency, or political subdivision thereof.

 As the Court charged the jury, this statute exempts only the "transportation, shipment, receipt or importation" of firearms "sold or shipped to or issued for the use of . . . any state or any department, agency, or political subdivision thereof." The statute does not purport to exempt the making of false material statements in connection with the sales of firearms shipped to political subdivisions. See United States v. Brooks, 611 F.2d 614, 617 (5th Cir. 1980). The Court cannot ascribe to Congress the intent to allow firearms purchasers to lie about their purchases so long as the gun is shipped to a state, agency, or political subdivision and can find no support for such an intent in § 925(a)(1).

 The defendant also relies on the interpretation of § 925(a)(1) given by the ATF in its booklet entitled Federal Regulation of Firearms and Ammunition, which was introduced as defendant's exhibit 1. (DX-1). As the defendant asserts, under this interpretation certain sales of firearms to individual police officers are exempt from the requirements of the Act. (DX-1 at 8, 14). The ATF publication specifically states, however, that the exemption of § 925(a)(1) applies only to firearms used for the official business of the agency, and requires that the individual officer submit a signed certification from the authorized official for the agency for which he works stating that the firearm is to be used in the officer's official duties. Id.; Brooks, 611 F.2d at 618. See 27 C.F.R. § 178.146; United States v. Kozerski, 518 F. Supp. 1082 (D. N.H. 1981) (firearms must be owned by and used exclusively for the state, agency, or political subdivision).

 The jurors were instructed on both exemptions as set forth above, and told that in considering the charges of unlawful dealing and unlawful receipt, they were to find the defendant not guilty if they found, with respect to a given count, that the firearm in that count was sold, shipped to, or issued for the official use of a state, agency, or political subdivision, or met the requirements for the exemption as set forth in the ATF interpretation. The jury was also ...


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