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 Department and knowing that such an arrangement was illegal. Additionally, each of the overt acts was established by competent evidence. The September 16, 1981, mailing of the Purchase Order to carry out the scheme; the September 18th order from defendant to Southern; the February 1, 1982, entry by Ryczak in his Record Book that he acquired the Walthers from the defendant; the transfer on February 10, 1982, of 22 Walthers from Ryczak to defendant; and the March 9, 1982, payment of $8,996.43 from defendant to Southern for the weapons (overt acts 3-7) were not contradicted by defendant. Of course, the Government is only required to prove one overt act. United States v. Adamo, 534 F.2d 31 (3d Cir.), cert. denied, 429 U.S. 841, 97 S. Ct. 116, 50 L. Ed. 2d 110 (1976).
Defendant's primary argument at trial was that he did not, and could not, conspire or commit an unlawful act because his actions in arranging for the Archbald Police Department to order these restricted weapons, for which he paid, was permissible under 18 U.S.C. § 925(a)(1). He contends that § 925(a)(1) excludes firearms imported by a political subdivision such as Archbald Borough from the proscriptions of the Firearms Statute. He asserts that the reference in the statute to the words "for the use of" is limited to those firearms which are "issued" and not to firearms "imported." This position is based on his literal reading of 925(a)(1) which states that "(t)he provisions of this [Firearms] chapter shall not apply with respect to the transportation, shipment, receipt, or importation of any firearm . . . 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." (emphasis added). He argues that because the disjunctive "or" is used in the statute that this allows the importation of any firearm so long as it is ordered by a political subdivision, such as Archbald Borough, even if it is not "for the use of" that governmental entity. According to him, the statute requires that the firearm be "for the use of" a governmental entity in order to escape the sanctions provided therein only when it is "issued" and not "issued", he is free, by his own testimony to purchase "six million foreign firearms" so long as he can get a Police Department to submit an order for that amount and BATF approves the Department's order. This is an absurd legal construction and would completely gut the Act which is intended to severely restrict the importation of foreign firearms.
Penal laws are not to be construed in such a manner as to defeat the obvious intention of the legislature. United States v. Lanni, 466 F.2d 1102, 1109 (3d Cir. 1972). Support for the court's reading of § 925(a)(1) can be found in United States v. Bass, 404 U.S. 336, 30 L. Ed. 2d 488, 92 S. Ct. 515 (1971). In Bass, the defendant was convicted of possessing a firearm in violation of 18 U.S.C. App. § 1202(a). That statute provided inter alia :
Any person who --