The opinion of the court was delivered by: NEALON
Defendant David A. Goodman was indicted in two counts for (1) willfully and knowingly conspiring with two police officers of Archbald Borough, Pennsylvania, to import firearms into the United States contrary to the provisions of 18 U.S.C. § 922(l)
and in violation of 18 U.S.C. § 371, and (2) importing and bringing into the United States twenty-four (24) West German Walther semi-automatic pistols, without the authorization of the Secretary of the Treasury as provided by 18 U.S.C. § 925(d),
in violation of 18 U.S.C. §§ 922(l) and 924(a). On December 4, 1985, after trial by jury, defendant was found guilty on Count I, but was acquitted on Count II.
On December 11, 1985, defendant filed a Motion entitled "MOTION TO SET ASIDE THE VERDICT OR FOR JUDGMENT (sic) OF ACQUITTAL OR FOR JUDGMENT N.O.V. OR, IN THE ALTERNATIVE, MOTION FOR NEW TRIAL AND WITH REQUEST FOR LEAVE TO AMEND UPON REVIEW OF THE TRANSCRIPT." Document 100 of the Record (emphasis in original). In this motion, twenty-one (21) numbered errors were assigned in support of defendant's motion. By Order dated December 16, 1985, this court held that to the extent defendant was requesting leave to set forth additional grounds as trial error after reviewing the entire record, the motion was denied. See Document 101 of the Record (citing United States v. Dansker, 561 F.2d 485, 486 (3d Cir. 1977); Fed.R.Crim.P. 45(b); Local Rule 601.4).
By motion filed December 31, 1985, defendant requested an enlargement of time in which to file a brief in support of the December 11, 1985 motion. The reason cited was to await receipt of the transcript which was alleged to be necessary in order to prepare a supporting brief. By Order dated January 2, 1986, this court denied the motion for enlargement of time.
See Local Rule 601.5 ("Unless for good cause shown the court orders otherwise, post-trial motions may be decided without the transcript of testimony.")
On January 14, 1986, defendant's supporting brief not having been filed,
the court sua sponte, telephonically contacted defendant's attorney Rochelle Friedman. In unequivocal fashion, Attorney Friedman told the court that she would not file a supporting brief in the absence of the transcript as ordered by defendant. The court then read Local Rule 601.5, supra, to counsel and informed counsel that if she would not file a brief, the court would proceed to dispose of the motion without it. Defendant's counsel, in response, notwithstanding being advised of the local rule and being aware of the court's ruling that the brief would have to be filed within the 30-day period as required by Local Rule 602.1, directly stated to the court that a brief would not be filed until she received the transcript.
Out of an abundance of caution and because the Defendant, David A. Goodman, is a practicing attorney, the court, sua sponte, issued an additional order directed to the defendant himself granting him until January 24, 1986 to file a supporting brief in his own behalf if he so desired and the Government was allowed 20 days thereafter to file a responsive brief. Because no supporting brief was filed, it must be concluded that defendant decided to forego this opportunity. The Government's brief was filed February 3, 1986. The motion is now ripe for disposition and, unless the court must bow to the decision of defendant and his counsel not to follow the court's ruling, the merits of the motion will have to be addressed without further input from the defense. For the reasons set forth below, defendant's motion(s) will be denied.
With this background, the court will review the elements necessary to sustain the conspiracy conviction of defendant. Section 371 of Title 18 of the United States Code provides: "If two or more persons conspire either to commit an offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy . . ." each is guilty of the offense against the United States. A conspiracy is a combination of two or more persons to accomplish some unlawful purpose or to accomplish a lawful purpose by unlawful means. To support a conspiracy conviction, four essential elements must be established: that the conspiracy charged was willfully formed and existing at or about the time alleged in the indictment; that the defendant willfully became a member of the conspiracy; that one of the conspirators committed at least one of the overt acts charged in the indictment; and that the overt act was knowingly done in furtherance of some object or purpose of the conspiracy.
Count I of the indictment here alleges that from the summer of 1981 to about July 1, 1982, defendant, an attorney and licensed federal firearms dealer, willfully and knowingly conspired with John E. McHale, Chief of Police of Archbald Borough, and John R. Ryczak, a part-time patrolman,
to violate 18 U.S.C. § 922(1) by unlawfully and knowingly causing to be imported into the United States from West Germany, Walther semi-automatic pistols (Walthers) without the authorization of the Secretary of the Treasury as required under 18 U.S.C. § 925(d). As will be explained later in this memorandum, defendant could not purchase the Walthers on his own but an order could be legally placed with him by a Police Department which he, in turn, would have to order through the licensed importer. The indictment stated that the conspiracy consisted of an agreement by the co-conspirators that McHale would place official police purchase orders through defendant; that defendant would pay for the firearms; that, upon their receipt by the Archbald Police Department [Department], the firearms would be transferred to defendant and the Police Department would keep several of the weapons free of charge. Seven overt acts were identified, as follows: (1) during the summer of 1981, the initial arrangement was made between defendant and Ryczak, who was also a licensed firearms dealer, whereby the Department would order the Walthers and defendant would pay for them and give the Department several free of charge; (2) the agreement by McHale and Ryczak during the summer of 1981 under which McHale would order the firearms through an Archbald Police Department Purchase Order so long as defendant paid for them; (3) the mailing on September 16, 1981, of Archbald Borough Purchase Order No. 240 for the Walthers from McHale and Ryczak to defendant in Pittsburgh; (4) on September 18, 1981, defendant made the arrangements for the 24 Walthers to be sold to the Department; (5) the entry by Ryczak on February 1, 1982, in his Federal Firearms Record Book that he had acquired the 24 Walthers from the Department; (6) the transfer on February 10, 1982, of 22 Walthers from Ryczak to defendant; and (7) the payment on March 9, 1982, of $8,996.43 from defendant to Southern Gun Distributors, Inc. for the 24 weapons.
As a preliminary matter, the court finds that under Local Rule 401.5, defendant's failure to file a supporting brief results in that motion being deemed withdrawn. Anticipating that this case will be appealed to our Third Circuit Court of Appeals, this court will address the merits of the generalized arguments raised in defendant's December 11, 1985 Motion in the event the Court of Appeals will not agree that the motion can be considered as having been withdrawn.
II. MOTION FOR JUDGMENT OF ACQUITTAL
Viewing the facts in the light most favorable to the Government, as the court is required to do on a motion for judgment of acquittal,
the following facts emerge: Defendant is an attorney who specializes in representing clients engaged in buying and selling firearms. He has also been a federal firearms licensee since 1964 and is licensed to buy and sell, inter alia, handguns, shotguns, and rifles under the trade name American Armament. The Walther TPH is a semi-automatic 22-caliber pistol that is manufactured in West Germany. It is a sought-after weapon and is considered to be "the Mercedes Benz" of small handguns. The exclusive importer of Walther TPH firearms into the United States is International Armament Corporation, trading as Interarms. A licensee, such as defendant, cannot directly order Walther TPH's from Interarms for his own personal use or for purposes of resale. In fact, under the Federal Firearms Act, 18 U.S.C. § 921, et seq., Interarms can import these weapons into the United States only in certain limited circumstances, e.g., for sale to the United States, or a state or political subdivision thereof, including a Police Department. See 18 U.S.C. § 925(a)(1).
While defendant knew that he could not order Walther TPH's directly from Interarms, he also knew that the pistols could be purchased through Interarms by submitting a Police Department Purchase Order signed by a Chief of Police.
In September 1981, defendant met John Ryczak, also a licensed firearms dealer who was a part-time policeman in Archbald Borough, Pennsylvania. Defendant inquired about the Archbald Police Department gun inventory and was told by Ryczak that it was a small department consisting of a Chief of Police, three full-time and several part-time police officers, and that the department itself didn't own any guns. Defendant advised Ryczak that if the Archbald Police Department would order some Walther TPH handguns, he would pay for all of them and allow the Borough to keep some while the balance of the guns would be sent to him. Sometime later in September, defendant called Ryczak on the telephone and asked if Ryczak could arrange for the Archbald Police Department to order 24 Walther TPH's. Defendant advised Ryczak that, after delivery of the Walthers to the Borough, 22 guns should be sent to him and the Borough would be allowed to keep two. Ryczak then approached Police Chief John McHale and told him that he had met a firearms licensee who told Ryczak that he could get two firearms for the Department if McHale would order a larger quantity on behalf of the Borough. McHale said that he doubted that this kind of a transaction was legal but was advised by Ryczak that it was. Ryczak made a phone call to defendant who repeated to McHale that such a transaction was legal. After this conversation, McHale agreed to sign Archbald Purchase Order 240 in blank as requested and gave it to Ryczak. Ryczak called defendant and, pursuant to defendant's request, typed in an order for 24 Walther TPH's on the Purchase Order. Then, in compliance with their arrangement, Ryczak transmitted the Archbald Purchase Order dated September 16, 1981, to defendant who, in turn, submitted the order with an accompanying letter dated September 18, 1981, to Southern Gun Distributors (Southern). In the September 18th letter, defendant advised Southern that the enclosed order was a law enforcement order and verification could be obtained by calling John McHale, Chief of Archbald Police Department. Southern submitted Archbald Purchase Order 240 to the importer, Interarms. Interarms, as required by law, attached Purchase Order 240 to a United States Department of Treasury Form 6, which was filled out by Interarms personnel noting that the order was "for official use only as per attached purchase order." The purchase order and Form 6 were then forwarded to the Bureau of Alcohol, Tobacco and Firearms office (BATF) for the required approval. The application was submitted to BATF on September 30, 1981,
importation was approved on November 5, 1981 and the application returned to Interarms for further processing. The next step that Interarms had to take in order to obtain release of the 24 Walthers from the bonded warehouse in Alexandria, Virginia, was to pay the appropriate duty to United States Customs. A Customs Stamp indicating duty payment was then placed on Treasury Form 6A and the weapons were withdrawn from the warehouse on January 8, 1982, the date the Customs Stamp was obtained.
On January 18, 1982, the 24 Walthers were shipped by United Parcel Service [UPS] from Interarms to Archbald Borough. The UPS driver delivered them to Ryczak personally because no one was present at the Archbald Police Department when delivery was attempted. Ryczak received the Walthers sometime near "the end of January" and, in a subsequent telephone conversation, defendant directed him to enter the 24 firearms in Ryczak's Firearms Book as having been purchased by Ryczak from Archbald Borough on February 1, 1982, and to indicate that 22 were sold to defendant on February 10, 1982.
The 22 Walthers were shipped to defendant who paid Southern for the purchase of the 24 Walthers by check number 495 dated March 9, 1982, in the amount of $8,996.43.
Other evidence favorable to the Government bearing on defendant's intent, knowledge and wilfulness were (1) his request that Chief McHale sign an additional Archbald Borough letterhead in blank; (2) his statement in late 1981 or early 1982 to another licensed dealer, Douglas Oefinger, that he was going to get the Walthers through a police department (to which Oefinger replied "you're fucking nuts") whereupon defendant displayed the blank letterhead with Chief McHale's signature to Oefinger with the comment "I can get anything I want"; (3) his advice to McHale, after McHale continued to question the legality of the transaction, to tell anyone who asked about the purchase of the weapons by the Department that "it was a hedge against inflation "; (4) his failure to discuss the purchase with any other official of Archbald Borough; (5) his knowledge that Archbald had a small full-time police force consisting of the Chief and three policemen; (6) the entry defendant placed in his own Firearms Book as having acquired 22 Walthers from Ryczak and not from the Borough; and (7) his letters on October 27, 1981, to Ryczak and McHale in which he used deceptive language, viz., telling Ryczak he would receive one Walther for himself at the law enforcement price for services expended even though he knew Ryczak would receive the firearm free, as well as mentioning to McHale that weapons were being transferred by the Department for new weapons when such was not the case -- defendant knew this because Ryczak had previously told him that Archbald Borough did not own any guns. Furthermore, defendant admitted that he knew he could not order Walthers directly from Interarms for his personal use; that he knew Interarms was the sole importer of Walthers; that he told Ryczak that Walthers had to be purchased on an Archbald Borough Purchase Order signed by the Chief of Police; that he had read the applicable firearms law, including 18 U.S.C. § 925(a)(1), prior to his involvement with McHale and Ryczak; that he testified he could acquire an unlimited number of foreign firearms for resale so long as he could arrange a purchase through a police department, notwithstanding the fact that he, and not the police department, would pay for the weapons; that he instructed Ryczak to record the purchase in his Record Book as an acquisition from the Archbald Police Department (purportedly because he knew Archbald did not have a Firearms Acquisition Book); that the 22 Walthers were never intended to be for the use of Archbald Borough but were for him to possess or sell in the commercial market (commercial sales of some of these Walthers to third persons actually took place); and that he knew Walthers were a sought-after firearms because importation is restricted. A review of the recited facts leads the court to conclude that there was substantial, if not overwhelming, evidence from which a jury could conclude that defendant, along with McHale and Ryczak, willfully agreed to a plan to unlawfully import the Walthers knowing that the firearms were not for the use of the ...