Petition — Cox v. United States

82-2069

= eect ms}

FILED

IN THE jue BG 1985

Supreme Court of the Uniteh,.States— 2

October Term, 1982 pene ne

ROGER ALAN COX,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Awan M. DersHow1tTz

20 Elmwood Avenue

Cambridge, Massachusetts 02138

(617) 661-1965 ;

Naruan Z, DersHowItTz

15 East 84th Street

New York, New York 10028

(212) 879-4500

Attorneys for Petitioner

Victoria B. E1crer

Of Counsel

1)

2)

QUESTIONS PRESENTED

In a prosecution for making false

statements against the United States

based on the description of certain

firearms imported from Guatemala as

"1938 Guatamalan" light machine guns

where the prosecution claimed the guns

were in fact of Russian origin; and

where the only evidence of that was

the testimony of a non-expert that the

guns “appeared” to be of Russian

origin but could have been

manufactured anywhere; was the

evidence sufficient to support the

convictions?

In a prosecution for making false

statements against the United States,

where the jury instructions confused

the elements of falsity in fact

(objective falsity) and the Petitioner's

3)

4)

belief that his statements were false

(subjective falsity) and where, in

response to an inquiry by the jury,

the trial court instructed that the

jury need only find that Petitioner

believed his statements to be false

when made in order to convict, can the

convictions stand?

In a prosecution for making false

statements against the United States,

where there was no evidence to

establish materiality of the false

statements, can the convictions

stand?

In a prosecution for making false

statements against the United States,

is materiality a question for

determination by the court, as some

Circuits hold, or is it a question

which must be submitted to and decided

by the jury, as is the rule in other

Circuits?

ii

5)

6)

Does 26 U.S.C. § 5848 which was

enacted to preserve the Fifth

Amendment right against

self-incrimination bar prosecution for

conspiracy to import weapons contrary

to law and concealment of weapons

imported contrary to law where the

claim that the weapons were imported

contrary to law was based on documents

required to be kept by federal

statute?

Was Petitioner deprived of a fair

trial by the trial court's

instructions to the jury regarding the

penalty which could be imposed upon

conviction?

iii

TABLE OF CONTENTS

Questions Presented

Table of Contents

Table of Authorities

Opinions Below

Jurisdiction

Statutes Involved

Introduction

Statement of the Case

Reasons for Granting the Writ

Ba The government's failure

to prove two essential

elements of the crime

of making false state-

ments against the United

States -~- falsity and

materiality -- and the

trial court's failure

properly to submit those

questions to the jury

render the judgment of

conviction infirm

A. Falsity in fact --

the failure of

proof

B. Falsity in fact --

the instructions

18

20

26

30

C. Materiality -~- the

failure of proof

D. Materiality -- the

Circuits are in

conflict on whether

materiality is a

question for the

court or for the

jury

II. The Court of Appeals

misconstrued 26 U.S.C.

§ 5848 which barred

prosecution of Counts

l, 11 and 12, thereby

frustrating the intent

of Congress and depriving

Petitioner of his Fifth

Amendment right against

self-incrimination

III. The trial court's

instructions to the jury

with regard to sentencing

confused the respective

roles of judge and jury

and prejudiced the

Petitioner

Conclusion

Appendix

Order Denying Petition

for Rehearing

Opinion of the Court

of Appeals

=. JY .@=

TABLE OF AUTHORITIES

Cases:

B vy. U

S BELG! | re

Bon .

F.2d 1306 (llth Cir.

F v. U dad Stat

593 (1927). . . . 7 7 .*

v. United S s, 390 U.S.

as * (1968) ... . .

Prichard,

1981).

661

Jackson v. Virgi Aba 433 U.S.

307 (1977). . . . . . . .

P e * J ’ 185 N.Y. 497,

78 N.E. 169 (1906). . .

P v. JU States, 298 F.2d

507 (5th Cir. 1962) .

United States v. Beer, 518 F.2d

168 (5th Cir. 1975 . 7 . * .

d Stat

F.2d 915 (2d Cir. 1967)

United States v. Berrigan, 482

F.aG, L724 (3G Cif. 1973) « «

( ) :_D T ’

ony tee 181 (5th Cir. 1979).

United Sualns v. Freed, 401 U.S.

601 (1971 . . . . . * . * . . . .

- vi-

426

States, 351 U.S.

, 273 U.S.

25,

50

38

30

40

26

24

47

38

38

24

47

40

ad

U das

- Haynie, 568

F.2d 1091 (5th Cir. 1978) . .

U (a)

- Irwin, 654 F.2d

671 (10th Cir. 1981), cert.

United States v. Ivey, 322 F.2d

523 (4th Cir.), cert. denied,

375 U.S. 953 (1963) .....

United States v. Talkington,

589 F.2d 415 (9th Cir. 1978).

United S

- Valdez, 594

F.2d 725 (9th Cir. 1979)...

In_ re Winship, 397 U.S. 358

(1970)

Other Authorities:

Kadish & Paulsen, C Law

and Its Processes

3d ed). .

1968 U.S. Code and Admin. News

4410.

1 Wharton,

1932)

Criminal Law 12th ed.

-vii-

38

38

38

35

39

25

23

42

24

OPINIONS BELOW

The district court rendered no

written decision. The opinion of the

Court of Appeals for the Eleventh Circuit

is reported at F.2d (llth Cir.

1983), and is reprinted in the Appendix at

A-3.

JURISDICTION

The judgment of the Court of

Appeals is dated January 31, 1983. On

April 18, 1983, the Court of Appeals

denied a petition for rehearing. This

Court has jurisdiction to review the

judgment by writ of certiorari pursuant to

28 U.S.C. § 1254(1).

- viii -

STATUTES INVOLVED

18 U.S.C. § 371 (1976) (Conspiracy

to commit offense or to defraud United

States) provides:

If two or more persons conspire

either to commit any 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 conspir-

acy, each shall be fined not more

than $10,000 or imprisoned not

more than five years, or both.

If, however, the offense, the

commission of which is the object

of the conspiracy, is a misdemeanor

only, the punishment for such con-

spiracy shall not exceed the maxi-

mim punishment provided for such

misdemeanor.

18 U.S.C. § 545 (1976) (Smuggling

goods into the United States) provides:

Whoever knowingly and willfully,

with intent to defraud the United

States, smuggles, or clandestinely

introduces into the United States

any merchandise which should have

been invoiced, or makes out or

passes, or attempts to pass,

through the customhouse any false,

forged, or fraudulent invoice, or

other document or paper; or

Whoever fraudulently or knowingly

imports or brings into the United

States, any merchandise contrary to

law, or receives, conceals, buys,

sells, or in any manner facili-

tates the transportation, conceal-

ment, or sale of such merchandise

after importation, knowing the same

to have been imported or brought

into the United States contrary to

law --

Shall be fined not more than

$10,000 or imprisoned not more than

five years, or both.

Proof of defendant's possession of

such goods, unless explained to the

satisfaction of the jury, shall be

deemed evidence sufficient to auth-

orize conviction for violation of

this section.

Merchandise introduced into the

United States in violation of this

section, or the value thereof, to

be recovered from any person des~-

cribed in the first or second para-

graph of this section, shall be

forfeited to the United States.

The term “United States", as used

in this section, shall not include

the Philippine Islands, Virgin

Islands, American Samoa, Wake

Island, Midway Islands, Kingman

Reef, Johnston Island, or Guam.

18 U.S.C. § 1001 (1976) (Statements

and entries generally) provides:

Whoever, in any matter within the

jurisdiction of any department or

agency cf the United States know-

ingly and willfully falsifies,

conceals or covers up by any trick,

scheme, or device a material fact,

or makes any false, fictitious or

fraudulent statements or represen-

tations, or makes or uses any false

writing or document knowing the

same to contain any false,

fictitious or fraudulent statement

or entry, shall be fined not more

than $10,00 or imprisoned not more

than five years, or both.

26 U.S.C. § 5848 (1976)

(Restrictive use of information)

provides:

(a) General rule. ~~ No informa-

tion or evidence obtained from an

application, registration, or

records required to be submitted or

retained by a natural person in

order to comply with any provision

of this chapter or regulations

issued thereunder, shall, except as

provided in subsection (b) of this

section, be used, directly or in-

directly, as evidence against that

person in a criminal proceeding

with respect to a violation of law

occurring prior to or concurrently

with the filing of the application

or registration, or the compiling

of the records containing the

information or evidence.

as or

(b) Furnishing false information

-- Subsection (a) of this section

shall not preclude the use of any

such information or evidence in a

prosecution or other action under

any applicable provision of law

with respect to the furnishing of

false information.

- zii -

INTRODUCTION

The owner of a reputable firearms

company, which supplies weapons to police

departments, faces a substantial sentence

of imprisonment for making a statement

which was not proven to be false, but

which the government claims he believed

was false. The entire case against this

respected businessman, who has never been

in trouble, rests on a single alleged

misstatement made on forms relating to one

acquisition out of numerous he made yearly

and one in which he had little direct

personal involvement. Asked to identify

the “manufacturer (if known)" of certain

firearms purchased from the Ministry of

Defense of the Republic of Guatamala, he

answered "Guatamalan."

The government originally claimed

it could prove that the guns were, in

fact, manufactured in the Soviet Union,

rather than in Guasamala. At trial,

however, the government was unable to

-2-

prove where the guns were manufactured.

The trial court instructed the jury that

it did not matter whether the guns were

manufactured in the Soviet Union (or

anywhere else, for that matter), so long

as the defendant believed they were not

manufactured in Guatamala.

Indeed, the trial court excluded

testimony by defendant's expert witness~--

a former CIA agent ~~ that the guns were

remanufactured in the United States and

their markings modified to obfuscate and

mislead. The Court of Appeals, in

affirming the resulting convictions,

ignored Petitioner's claim that the

government had failed to prove where the

guns were manufactured.

On the basis of conflicting

evidence as to whether the Petitioner

believed or did not believe that the guns

were manufactured in Guatamala, Petitioner

stands convicted on 12 separate charges.*

In affirming these convictions, the

Court of Appeals erred in several

substantial ways. A statutory bar to

prosecution was ignored and the jury was

improperly aivised about the possible

scope of punishment. The Court of Appeals

also failed to address an important

conflict among the Circuits, namely

whether the trial court correctly ruled --

without submitting the issue to the jury

“= that the statement was material. This

was erroneous for three reasons: 1) the

issue of materiality must -~ as several

Circuits hold -~ be submitted to the jury;

2) a statement may not be material ~~ as

that concept is used in the perjury

context-~ unless it is proved to be false

in fact; and 3) the government failed to

prove that the statement was material,

since the actual place of manufacture of

* Petitioner firmly maintained that he

believed the guns were manufactured in

Guatemala.

these old guns was never shown to be

relevant to the decision of the Bureau of

Alcohol, Tobacco and Firearms to admit

them into the country.

Statement of the Case

Petitioner Roger Alan Cox, a

federally licensed firearms dealer, owned

the Law Enforcement Ordnance Company,

which supplied police equipment and

firearms to police departments throughout

the United States (Vol. II, 25%)* He was

an expert on certain firearms and their

history and had written a book on the

history of the Thompson submachine gun.

He was indicted in a l2-count indictment

on charges arising out of his openly

importing into the United States certain

collector firearms which he allegedly

mislabeled in terms of their country of

original manufacture. He described the

guns which were imported from Guatamala as

* All references are to the trial

transcript.

- 5 -

"Model 1938 Guatamalan light machine

guns." The Government charged that the

vintage guns were “in truth and in fact"

manufactured in the Soviet Union. Count l

charged that he had conspired with Edward

Faust to import and to sell the guns,

contrary to law, in violation of 18 U.S.C.

§ 545. Counts 2 through 10 charged that

he misdescribed the origin of the

firearms, calling them Guatamalan when

they were in fact Russian "DP" or

"Degtyarev" light machine guns, on four

forms required to be filled out in

connection with the release of the weapons

and parts from the foreign trade zone in

San Francisco, on three forms relating to

the transfer of three weapons which he

sold to dealer-collectors, and in records

kept at his place of business, all in

violation of 18 U.S.C. § 1001. Counts 11

and 12 charged him with concealment of

Russian Degtyarev "DP" light machine guns,

falsely described as Guatamalan, imported

-6-

contrary to law, in violation of 18 U.S.C.

§ 545.

That the subject firearms were of

Russian design was undisputed; that they

had in fact been manufactured in Russia,

was, however, in dispute. In fact,

although the jury never heard the relevant

testimony, these guns were

"remanufactured" in the United States by

the CIA which had tampered with their

markings in order to obfuscate their

origins. (Vol. III, 88)

A jury convicted the Petitioner on

every count. Consecutive five-year

sentences were imposed on each count. All

but two consecutive periods of

incarceration of six months were

suspended, pending a five-year period of

probation. The counts on which sentence

was suspended and those on which

incarceration was imposed were not

specified.

The facts underlying the charges

are, for the most part, not in dispute.

In late 1977, Petitioner met Donald J.

Martin, a Miami gun dealer with a supply

source in Guatamala. In June of 1978,

Petitioner traveled to Guatamala to

purchase certain firearms which are

unrelated to this case. During that trip,

Petitioner was shown an example of each

type of firearm available for purchase,

including a light machine gun of Russian

design. Thereafter, Petitioner introduced

Martin to Edward Faust, a California

munitions dealer charged as a

co-conspirator in Count 1 of the

indictment, who purchased a quantity of

guns through Martin. In May of 1979,

Petitioner, Faust and Martin went to

Guatamala where the transaction was

consummated. Pursuant to the transaction,

approximately 5,000 weapons were purchased

by Faust and shipped to the United States

from Guatamala. In exchange for

introducing Faust to Martin, arranging the

trangaction and packing up the weapons,

Petitioner was promised an option to

purchase certain of the weapons at

specified, attractive prices. The machine

guns and machine gun parts which are the

subject of the indictment were part of

that shipment.

By pre-trial motion, Petitioner

moved to dismiss Counts l, 11 and 12 of

the indictment on the ground that 26

U.S.C. § 5848, the statute adopted to

guarantee the Fifth Amendment right

against self-incrimination, barred

prosecution on those counts. That motion

was denied.

The government's proofs consisted

essentially of the introduction of the

documents containing the allegedly false

statements, the firearms themselves,

testimony that the Petitioner had

described the guns as Russian, DP's, or

Degtyarevs in comminications with others,

and the testimony of a collector dealer to

whom Petitioner had sold two of the guns

that the guns he had purchased "appeared"

to be of Russian origin.

At the end of the government's

case, Petitioner moved for a directed

verdict of acquittal on the ground that

the prosecution had failed to prove that

the guns were Russian in origin. Because

the government's theory as to falsity was

that the guns were in fact manufactured in

the Soviet Union, the failure of proof

meant that an essential element of the

crime of false statements -- that the

statement in fact be false -~- was

unproved. Petitioner also argued that a

second essential element -~- the

materiality of the allegedly false

statement -~- had not been proved. In

addition, he argued that, because the

conspiracy and concealment counts were

premised on the unlawfulness of the

importation because the importation was

- 10 -

accomplished through false statements,

those counts must fall as well. The

motion was denied.

Petitioner testified in his own

behalf. He testified that he was not an

expert on communist bloc firearms and

that, in his discusssions with Martin,

Martin mentioned that the guns, because of

their markings and appearance, did not

appear to be of Soviet origin. Martin

told him that as far as he knew they were

made in Guatamala or were maybe "some of

the U. S. junk that was shipped down here

in 1954." (Vol. II, 265-66)

Cox testified that the letters "MAS"

written in non-Cyrillic letters, were on

the forward part of the receiver of the

weapon he had examined and that he had

never seen such markings on a gun from the

Soviet Union (Vol. II, 266). According to

Cox, Faust had also stated that the guns

were of Guatamalan manufacture (Vol. II,

274). Cox testified directly that he

-ll-

believed the firearms were made in

Guatamala because that is what Martin had

told him and he (Cox) had good technical

reasons for believing so (Vol. II, 275).

He believed it was a copy manufactured in

Guatamala of the Russian Degtyarev DP

(Vol. II, 281). Its finish and the shape

of its barrel were different from a

Russian DP which he had previously owned

(Vol. II, 283).

On cross~examination, asked at what

point in time it was decided to call the

guns Guatamalan Model 1938, he testified

{I]nmn describing any firearm you

have to put down to the best of

your knowledge and belief the best

possible, most accurate and

reasonable description of the

firearms.... You have to call it

something and there's sometimes a

dispute as to what it is so you

have to put down to the best of

your knowledge what it is. There

is no model designation on these

guns. It doesn't say this is a

Model DP or a Model Guatamalan

1938. The date on the gun I had

an opportunity to examine was 1938.

It is common practice in the

firearms business and by people

who write textbooks on firearms to

refer to a gun by the year on most

-12-

examples of the firearm as a model

for it .... It wasn't readily

apparent who made the gun on the

outside of the gun. I just had to

reach a conclusion -~ actually Mr.

Martin reached the conclusion for

me, but I went along with his

conclusion. It seemed reasonable

to me. (Vol. II, 346-347).

Petitioner sought to introduce the

testimony of one George Fassnacht, a

forensic firearms expert and former ClA

agent, who would have testified as an

expert and from personal knowledge that

the weapons at issue were "remanufactured"

in the United States from battlefield

scrap collected in Korea with whole

subassembly parts fabricated or ob ned

elsewhere (Vol. III, 83) Such weap

were shipped from the United States t

Guatamala in 1954 in a covert operation)

designed to supply arms to Guatama

rebels engaged in the attempted, and

ultimately successful, overthrow of the

Communist regime there. He would have

testified that spurious markings were

placed on the remanufactured guns to

-13-

conceal the true origin of the weapons and

to deceive and mislead people as to their

origin (Vol. III, 69-125). Outside the

presence of the jury Fassnacht was allowed

to testify that in preparation for his

testimony in this case, he had examined

some of the guns which were the subject of

the instant indictment and he believed

they were manufactured by the U.S.

Government. Fassnacht was permitted to

testify before the jury only that in his

expert opinion, the guns were not of

Russian origin; he was not permitted to

testify about the CIA's activities (Vol.

III, 137-91) or about the misleading

marking on the guns intended to obfuscate

and conceal their origins and the reasons

why it was so difficult to identify the

country of manufacture.

The court repeatedly instructed the

jury that, while the materiality of the

allegedly false statements was an element

of the crime, materiality was a question

- 14-

of law, for the court, not a question of

fact, for the jury's determination, a

question on which there is a clear

conflict among the Circuits. The court

instructed the jury that the alleged false

statements were material (Vol. IV, 300,

301, 304).

The trial court's instructions to

the jury emphasized that the issue in

dispute was whether Petitioner believed

the guns to have been Guatamalan in

origin, not whether the guns were in fact

Russian.* While the court made passing

reference to the element of falsity in

fact, charging that “a statement is false

* In conference with counsel prior to

charging the jury, the court had made its

view of the case clear:

In my best judgment, I'm prepared

to tell the jury under the

circumstances of this case ...

they are to determine whether or

not this gentleman knew [the

statement] was false. They are

not here to decide whether or

not in truth and in fact those

guns were made in Russia. (Vol.

IV, 273)

- 15 «

if it was not true when made," its

pre-summation instructions focused almost

exclusively on the question whether

Petitioner himself believed that the guns

were of Guatamalan origin when he made

those statements.

What we're dealing with is belief.

So it boils down to, did Mr. Cox

believe the country of origin of

the weapons and the parts that he

described to be Guatamalan. See,

he put down that the country of

origin was Guatamala. When he

signed the forms, each form in

question, did he then believe that

to be the truth or was it false as

the government alleges.

(Vol. IV, 282)

During the main charge, the court again

emphasized the Petitioner's subjective

belief.

Se we're Looking at what Roger Cox

believed when he signed the form.

We're not looking at what anyone

else believed; what Roger Cox

believed from all the facts and

circumstances....

(Vol. IV, 302)

After deliberating for approximately four

hours, the jury asked the court to explain

- 16

the term "when in truth in fact" used in

the false statement counts of the

indictment. Again, the court emphasized

that the Petitioner's subjective belief

was the sole issue for the jury's

consideration.

The question, if you want to boil

that down to common sense language,

it's just telling = in legal

mumbo=jumbo, you might appro-

priately call it, that when Roger

Allan Cox signed that form, it

alleges that he then knew that as

to his knowledge the guns in

question were not made or manu-

factured in Guatamala. We're

looking at what he believed at the

time, not what anybody else

believed.

not here in a gun case.

here determining what Roger Cox

believed the place of manufacture

of those guns was when he filled

out that form. If he did not

believe them to be really made in

Guatamala and he put it on this

form, then that obviously would be

a falsity; .... (Vol. V,

319-20)

Petitioner vigorously objected to

the court's supplemental instruction,

noting that the court had eliminated the

government's need to prove falsity in fact

&

i7 =

(Vol. IV, 320-22). The court, in

response, seemed to suggest that it was

the Petitioner's obligation to prove that

guns were manufactured in Guatamala (Vol.

IV, 322).

The jury returned its guilty

verdicts within 15 minutes of receiving

the supplemental instruction (Vol. IV,

320, 324).

The trial court had also instructed

the jury that, if guilty verdicts were

rendered, the court could impose a

probationary sentence or a sentence up to

the maximum permitted by Congress. It

advised the jurors that "it's all a matter

of human judgment on the part of the

Judge." (Vol. IV, 288).

On appeal to the Court of Appeals

for the Eleventh Circuit, Petitioner

argued, among other things, that the

prosecution had failed to prove that the

guns in fact originated in the Soviet

Union, as charged in the indictment; that

- 18 -

the trial court's instructions to the jury

were defective in removing the question of

objective falsity from the jury; that the

alleged false statements were not

material; that the court's instruction to

the jury with respect to the range of

punishment that could be imposed was

error, and that 26 U.S.C. § 5848 (1976) --

the statute which bars using any

information from a registration form to

charge any offense except perjury --

invalidated the convictions on Counts l,

1l and 12.

The Court of Appeals wholly ingored

some of the claims and rejected the

others, and concluding that there were no

errors in the trial court's handling of

the case, it affirmed. A petition for

rehearing was denied on April 18, 1983.

Reasons for Granting the Writ

This case raises important

questions going to the integrity and

2. + oe

- 19 =

functioning of the system of criminal

justice as administered in the federal

courts. A federal statute designed to

preserve the Fifth Amendment right to be

free from compelled self-incrimination was

misconstrued and rendered a nullity. A

prosecution for making false statements

resulted in guilty verdicts absent proof

that the allegedly false statements were,

in fact, false. The jury was, in essence,

instructed to convict if it concluded that

the Petitioner had meant to lie, whether

or not he had in fact lied. Another

essential element of the crime of false

statements -~ materiality -~- was not

submitted to the jury at all and no

evidence of record exists to establish it.

The jury was improperly instructed on the

potential punishment which could be

imposed if guilty verdicts were rendered.

And the prosecution was tainted with the

aura of the evils of communism and the

Soviet Union despite the irrelevance of

- 20 -

such matters. In short, the handling of

this case was infected by a host of

serious errors which cumulatively made the

trial a sham and the guilty verdicts a

foreordained certainty.

Each of the individual issues

raised is important. On one of them a

clear conflict among the Circuits exists.

Accordingly, this Court's responsibility

for the supervision of the federal courts,

and basic notions of simple justice

require that this Court grant the writ of

certiorari to review the judgment below.

I. The Government's Failure to Prove

Two Essential Elements of the Crime of

Making False Statements Against the

United States -- Falsity and

Materiality -- and the Trial Court's

Failure Properly to Submit those

Questions to the Jury Render the

Judgment of Conviction Infirm

The indictment in this case

charged that the Petitioner described

certain firearms as "1938 Guatamalan” when

"in truth and fact" he knew that they were

Degtyarev “DP” light machine guns

a

manufactured in the Soviet Union. Under

the indictment, then, and under the law of

false statements, in order to sustain a

conviction, the government was compelled

to prove, among other things, that those

statements were false and that they were

material. Petitioner maintains that the

prosecution failed to prove both of these

elements of the crime.

Alternatively, even if it were the

case that sufficient proof was offered on

these elements, the trial court's charge

to the jury served to remove these issues

from the jury's consideration. The trial

court's instructions with respect to

objective falsity and subjective falsity

effectively told the jury it need not find

that the statements were in fact false in

order to convict, only that the Petitioner

believed them to be false. With respect

to materiality, the trial court ruled that

this was a question for the court,

- 22 -

instructing the jury that the statements

were material.

In certain respects, Petitioner

recognizes that his is an unusual, even a

unique, case. The precise configuration

of facts -- a false statement case where a

primary issue is whether the statement was

in fact false -- is unlikely to arise in

many other prosecutions. In another

respect, however, the issues he raises

necessarily arise in every criminal

prosecution brought by the United States

and, from that perspective, the case

merits this Court's consideration. Unless

the rule of law that in a criminal

prosecution the government must prove each

and every element of the crime beyond a

reasonable doubt is respected and

enforced, the basic underpinnings of our

system of criminal justice are

compromised. In the circumstances of this

case, failure to respect that rule means

that bad thoughts -~- an intention to do

- 23-

wrong ~~ even in the absence of bad acts

-- the actual doing of wrong -~- are

punishable, in contradiction of the basic

principle of criminal responsibility,

which requires both mens rea and actus

reus.*

This case thus presents a variant

of a subject to which much scholarly

attention has been paid: where a

defendant intends to commit a crime but

what he does is not a crime, can he be

punished. Generally, the debate focuses

on whether, under such circumstances, the

defendant may be convicted of attempt.

The classic illustration, of course,

involves the well-known hypothetical

involving “Lady Eldon's French Lace." See

Kadish & Paulsen, Crimin Law I

* The Court of Appeals simply refused to

address this fundamental issue even though

it was clearly presented to it. The court

dealt only with the issue of mens rea, a

separate issue raised by Petitioner, who

contends that he believed that Guatamala

was the place of the firearms'

mannufacture.

- 24-

Processes 362 (3d ed.), quoting 1 Wharton,

Criminal Law 304 n.9 (12th ed. 1932). See

also United States v. Berrigan, 482 F.2d

171 (3d Cir. 1973); People v. Jaffe, 185

N.Y. 497, 78 N.E. 169 (1906).

In this case, however, the Court

need not resolve that difficult question,

for it is surely beyond debate that one

cannot be convicted of the completed crime

of making a false statement, where the

statement made, even if arguably thought

to be false,* was not in fact false or,

* Petitioner contended, at trial, that he

did not believe his statements identifying

the origin of the weapons were false. The

ruling of the trial court, excluding the

testimony of Fassnacht as to the CIA's

remanufacture of the weapons in the United

States and its efforts to disguise the

origins of the remanufactured weapons,

was, accordingly, error for it excluded

relevant evidence which would have

explained how Petitioner could have

concluded that the guns were not Russian

and the reasonableness of that belief.

Despite the fact that Passnacht was

prepared to testify that the weapons were

modified by the CIA to fool those who came

into possession of them, the trial court

ruled that the testimony was irrelevant.

The court arrived at this conclusion even

- 25 -

more specifically, was not proved to be

false. To state the matter simply, and

from a different angle, the Constitution

requires proof beyond a reasonable doubt

of all elements of an offense in order to

sustain a conviction. In re Winship, 397

though Petitioner testified that he was

confused about the weapons' origins by the

"MAS" marking on the gun which he knew was

not in the Cyrillic alphabet but was in

the alphabet used in Guatamala.

The Court of Appeals upheld this

evidentiary ruling, but only by

mischaracterizing Fassnacht's proffered

testimony and stating, erroneously, that

Fassnacht would not have testified that

the guns were not originally manufactured

in the Soviet Union. In fact, Fassnacht

would have testified that some of the

weapons’ parts were manufactured in Russia

and some in Yugoslavia, and that the

weapons were remanufactured in the United

States. To characterize such testimony,

as did the Court of Appeals, as supportive

of the prosecution is disingenuous.

Fassnacht knew of the CIA's efforts to

obfuscate the origin of the weapons and

parts. Petitioner did not know of this

history, but concluded, in part on the

basis of marking apparently placed on the

guns by the CIA, that the weapons were not

Russian. Fassnacht's testimony,

therefore, would clearly have supported

the reasonableness of Petitioner's

belief.

- 26 -

U.S. 358 (1970). See also Jackson v.

Virginia, 433 U.S. 307 (1977) (a criminal

conviction based upon a record wholly

devoid of any relevant evidence of a

crucial element of an offense is

constitutionally infirm). That

constitutional command was violated here.

The Government's theory is an

unprecedented assertion that a mistake of

fact can turn an otherwise truthful and

innocent statement into a punishable false

statement.

A. F t n F --

T F u f Proof

The government's theory was that it

could prove falsity of the statement that

the guns were Guatamalan by proving that

they were manufactured in Russia. But the

government failed to prove that that was

the case. Aside from the testimony about

statements by the Petitioner himself,

which are discussed below, its only

evidence of the origin of the weapons was

ae +

a brief statement by York, who purchased

two of the subject weapons from the

Petitioner, that “from the markings and so

forth they appear to be of Russian

origin." (Vol. II, 200) Although he did

not testify as an expert, his conclusion

was based on "a number of reference books

that referred to Russian~built small

arms. On cross~examination, he conceded

that the reference works indicate that

these guns may also have been manufactured

somewhere other than the Soviet Union,

specifically in Communist China. He

emphasized, also on cross~examination,

that the guns “appeared to be of Russian

origin,” adding, "The guns could have been

manufactured all over the world." (Vol.

II, 207).*

The trial court seized on this

testimony, and on testimony with respect

*” Bliss, another purchaser, testified,

"As near as I know, it [DP's are]

penetegeeren in the Soviet Union." (Vol.

, 184

- 28 -

to certain references by the Petitioner

himself to the weapons as Soviet DP's,**

as proof sufficient to defeat a motion for

a directed verdict of acquittal.

The Court of Appeals, implicitly

recognizing the weakness of the proof,

completely ignored his claim that the

government failed to prove the firearms

were not Guatamalan. Instead, it

misstated his claim, addressing only his

Claim that the government had failed to

prove that he knew the guns were Russian

in origin. Addressing that claim, the

** The Petitioner's own references to the

guns by Soviet terminology are not proof

of their origin in fact. As he (and

others) testified, there is no dispute

that the weapons are of Soviet design and

accordingly he referred to them that way

-- that is simply an ambiguity of weapons

terminology. As for testimony that the

Petitioner told others that he would

describe them on forms as Guatamalan

because the government would not permit

the importation of Soviet weapons, that

too would tend to prove that the

Petitioner thought they were Soviet in

origin, not that they were in fact Soviet

in origin. Petitioner is no expert on

Soviet arms.

- 29 -

Court of Appeals ruled that, although the

indictment charged that the Petitioner

knew “in truth and fact" that the weapons

were made in Russia, the government did

not have to prove that he knew they were

Russian in origin. In the Court of

Appeals' words:

Whether the guns were made in

Russia, or for that matter, in

Canada or Africa would not change

the fact that [Cox] knew they were

not manufactured in Guatamala.

But, to paraphrase the Court of

Appeals, it makes no difference whether

the Petitioner believed the guns were made

in Russia, or for that matter, in Canada

or Africa. If in fact the guns were made

in Guatamala, he could not be convicted of

a crime of making a false statement.

The Court of Appeals never

addressed Petitioner's claim that the

government had failed to prove falsity in

fact. It simply ignored this essential

element of the crime.

Even if there existed sufficient

evidence on the element of falsity in fact

to warrant sending the case to the jury,

the trial court's erroneous instructions

on this element told the jury, in essence,

that it need not find falsity in fact in

order to convict, only that the Petitioner

believed his statements to be false.

Petitioner recognizes that the jury

instructions did mention, on several

occasions, falsity in fact. But, always,

what the court gave with one hand it more

than took away with the other since the

court believed that the sole issue was

Petitioner's state of mind and not falsity

in fact. Thus, in its preliminary charge

given prior to closing arguments, the

court instructed the jurors:

What we're dealing with is belief.

So it boils down to, did Mr. Cox

believe che country of origin of

the weapons and the parts that he

described to be Guatamalan. See,

he put down that the country of

- 3l1-

origin was Guatamala. When he

signed the forms, each form in

question, did he then believe that

to be the truth or was it false as

the government alleges. Now,

falsity can arise from the weapon

having been in truth and fact made

in Soviet Russia or any other

country other than Guatamala....

In its main charge, the Court, reviewed

the elements of the crime and defined

falsity, but again confused objective and

subjective falsity:

A statement or a document is false

when made or used if it is untrue

when made and is then known to be

untrue by the person making or

using it.

(Vol. IV, 299)

This statement was followed by a lengthy

instruction on the question how to

determine whether Petitioner believed the

statement to be false.

The jurors, after deliberating for

four hours, and obviously confused about

this issue, returned with a question:

"Please explain the term ‘when in truth

- 32 -

and fact' as used in Counts Two through

Ten."

The court advised them as follows:

Now, the way that an indictment is

prepared doesn't track the exact

language of the statute. It

includes language that's not in the

Statute. To the extent that the

indictment does, the language is

what we call surplusage, it's

unnecessary. There's nothing in

that statute that says "in truth

and fact." So that language is

just extra. That's the reason it

wasn't explained to you before.

The question, if you want to boil

that down to common sense language,

it's just telling you in legal

mumbo jumbo, you might appropri-

ately call it, that when Roger

Allan Cox signed that form, it

alleges that he then knew that as

to his knowledge the guns in

question were not made or manufac~

tured in Guatamala. We're looking

at what he believed at the time,

not what anybody else believed.

We're not here determining after

the fact the truth of the origin

tru

oe CWOhe BVe

319-20)

Thus, again, the court in essense

eliminated the jury's inevitable ccnfusion

about the issue of falsity in fact by in

effect telling them that it was not an

- 33 -

issue: the question for them was what

Petitioner believed.

The Court of Appeals ruled that

there was no error in the instruction,

Stating that the trial court had the

"difficult task" of instructing the jury

about both objective falsity -- falsity in

fact -- and subjective falsity -- the

defendant's belief and knowledge that his

statements were false, and that it had

per formed this task properly.

The Court of Appeals erred. The

distinction is by no means a difficult one

to explain and the jury's puzzlement was

obviously a result of the trial court's

initially confusing instructions. The

jury, in asking its question, sought

clarification of this court~-created

confusion, but instead it received more

obfuscation. Even assuming that to

establish falsity in fact the jury did not

have to find that the guns were indeed

manufactured in the Soviet Union, only

- 34 -

that they were not manufactured in

Guatamala, the instruction was still

wrong. In the circumstances of the case,

where the government sought to establish

that the guns were not Guatamalan (and

that the statement was therefore false) by

showing that they were Russian, and where

there was no suggestion by the government

that the guns were of any origin other

than Soviet, the jury did of course have

to find that the guns were Soviet in

origin in order to convict. But

the jury was initially specifically

instructed not to concern itself with

determining the actual origin of the quns!

And, in supplemental instructions, the

jury was informed, "If he did not believe

them to really be made in Guatamala ...

then that obviously would be a falsity."

Accordingly, the question whether the

statements were in fact false -- an

essential element of the crime, and one on

which there was little or, as Petitioner

- 35 -

contends, no, competent proof -- was not

submitted to the jury.

Cc. M ty -~ Failure of Proof

In the trial court and in the Court

of Appeals, Petitioner argued that the

prosecution had failed to prove that the

statements were material, another

essential element of the crime of making a

false statement.

The test of materiality is whether

the statement is "capable of influencing

the action of the agency." See, e.q.,

United States v. Talkington, 589 F.2d 415

518 F.2d 168 (5th Cir. 1975). Although

the agency need not necessarily have

relied or acted to its detriment upon the

allegedly false statement, "... the

government must still show that the

statement had the capacity to influence a

determination required to be made." Id.

at 172.

- 36 -

There is absolutely no evidence of

record to support a finding of

materiality.* No customs or BATF witness

was ever asked or testified about the

potential effect of a false answer in the

documents at issue in the false statement

counts. There was no evidence of any

reliance upon those statements. A

Statement that is factually true can never

be material as that term is used in the

law of perjury. The concept of

* Despite the aura of the Commnist

danger, no proof was introduced to show

that, had Petitioner stated that the guns

were of Russian manufacture, it would have

in any way affected the agency's decision

to allow them into the United States. A

lack of evidence indicates that the

contrary is the case. Clearly, it is not

material if the guns were manufactured or

remanufactured in the United States or in

any other non~Communist country aside from

Guatamala. Thus, the assertion that the

guns were of Guatamalan instead of any

other manufacture is irrelevant and

non-material. Moreover, the whole purpose

of the statutory scheme relates to the

country from which the firearm is

imported, not manufactured. In this

context, where a gun made in 1938 was

manufactured can in no way be relevant to

the United States with respect to customs

documents for importation purposes.

- 37 -

materiality is designed to assure that the

government agency could in fact have been

adversely affected by the content of the

statement and that the statement was not

merely abstractly false. In this case,

since the statement may not be deemed to

have been factually false, the agency

could not have been adversely affected,

even if it is assumed that Petitioner

believed his statement to have been false.

Thus, another essential element of the

crime of false statements went unproved.

D. ty --T Cc n

Cc whet e

is a Question for the Court or

for the Jury

The trial court, in its

instructions to the jury, advised that,

while materiality was an element of the

crime, the question of materiality was one

of law, for the court, not one of fact,

for the jury. The court further charged

that the alleged falsities were material.

- 38 -

Petitioner recognizes that the ruling that

materiality is a question of law for the

court to determine was compelled by

Circuit precedent. See United States v.

Haynie, 568 F.2d 1091 (5th Cir. 1978);

United States v. Beer, 518 F.2d 168 (5th

Cir. 1975); Bonner v. City of Prichard,

661 F.2d 1206 (llth Cir. 1981) (Eleventh

Circuit adopted tie law of the Fifth

Circuit). It is, moreover, the rule,

recognized not only in the Fifth and

Eleventh Circuits, but also in the Second,

see United States v. Bernard, 384 F.2d 915

(2d Cir. 1967) and in the Fourth, see

United States v. Ivey, 322 F.2d 523 (4th

Cir.), cert. denied, 375 U.S. 953 (1963).

There is a sharp conflict in the

Circuits. The rule is otherwise in the

Ninth and Tenth Circuits. In United

States v. Irwin, 654 F.2d 671 (10th Cir.

1981), cert. denied, 455 U.S. 1016 (1982),

the court stated the rule to be that

"materiality is a factual question to be

- 39 -

submitted to the jury with proper

instructions like other essential elements

of the offense, unless the court rules, as

a matter of law, that no submissible case

is made out by the government on the

issue...." Id. at 677, n.8. The rule is

the same in the Ninth Circuit. See U ed

States v. Valdez, 594 F.2d 725 (9th Cir.

1979) ("Since it is an essential element,

materiality, as with all of the other

elements of the offense charged, must be

determined by the jury.”)

The conflict among the Circuits

cannot be resolved without a ruling from

this Court. Resolution of what issues the

jury must determine in a false statement

case is of real importance in every

prosecution under 18 U.S.C. § 1001.

Materiality was a genuine disputed issue

in the case at bar; and, because it was a

question that went to the defendant's

guilt or innocence, it was a question for

the jury's determination. See Ford v.

- 40 -

United States, 273 U.S. 593 (1927).

Materiality is not a “jurisdictional”

question, but a classic question of fact,

directly related to the defendant's guilt

or innocence, and well within the

competence of the jurors. Petitioner was

entitled to have that question determined

by the jury.

II. The Court of Appeals Misconstrued

26 U.S.C. § 5848 which Barred

Prosecution of Counts l, ll

and 12, thereby Frustrating the

Intent of Congress and Depriving

the Petitioner of his Fifth Amendment

Right Against Self-Incrimination

Following this Court's decision in

(1968), Congress revised the National

Firearms Act. See United States v. Freed,

401 U.S. 601 (1971). In Haynes this Court

invalidated provisions of the Act because

such provisions compelled disclosure of

possession by registration which meant

that a possessor was required to furnish

potentially incriminating information to

the federal government inconsistent with

- 41 -

the Self-Incrimination Clause of the Fifth

Amendment.

To #liminate the constitutional

defects discussed in Haynes, certain

provisions were adopted by Congress in the

National Firearms Act to bar prosecution

resulting from the compelled disclosure:

As noted by the Court in United States v.

Freed in discussing these revisions

The revised statute explicitly

states that no information or

evidence provided in compliance

with the registration or trans-

fer provisions of the Act can

be used, directly or indirectly,

as evidence against the regis~-

trant or applicant “in a

criminal proceeding with respect

to a violation of law occurring

prior to or concurrently with

the filing of the application or

registration, or the compiling of

the records containing the infor-

mation or evidence."

401 U.S. at 604

The only exception to this rule

barring prosecution is contained in 26

U.S.C. § 5848(b) which provides that the

bar does not apply “under any applicable

- 42 -

provision of law with respect to the

furnishing of false information."

The Conference Report (No. 1956)

establishes that the scope of the

exclusiionary rule, even with the

exception, was very broad. Thus the

Report states:

Elimination of any element of

self-incrimination.--In Haynes v.

United States the Supreme Court

held the registration requirement

of existing law constitutionally

unenforceable because it required

registration almost exclusively by

those in illegal possession of a

weapon and made this information

available to prosecute them for

illegal possession. The Senate

amendment avoids this problem by

extending the registration

obligation to all possessors of the

weapons~~legitimate or

otherwise~~and by providing that

1968 U. S. Code and Administrative News

4410, 4435.

In the instant case three of the

counts were premised upon evidence

disclosed by the relevant application and

- 43 -

records despite the constitutionally

mandated bar to prosecution. Count l

alleged a conspiracy to import

Russian-made machine guns contrary to law.

Counts 11 and 12 charge concealment of

five Russian machine guns imported

contrary to law. The evidence on each of

these counts was derived from the

documents filed by Petitioner. Thus, for

example, the concealing charges contained

in Counts 11 and 12 were nothing more than

claims that Petitioner's open possession

of the guns was illegal because the guns

were admitted into this country contrary

to law, since Petitioner stated that the

guns were manufactured in Guatemala.*

Apart from Petitioner's statement no other

evidence of concealment was presented in

support of Counts 11 and 12.

* The term concealing seems entirely

inappropriate in the context of this case.

Petitioner not only never concealed the

guns nor the relevant documents but he was

completely open and forthright throughout

about his possession.

- 44-

The Court of Appeals avoided this

dilemma by an imaginative legerdemain.

The Court stated that "The Government

merely used the form to demonstrate that

the guns were brought into this country

fraudulently, which is contrary to law."

The Court then states that this is "with

respect to” the furnishing of false

information and therefore permissible

under subsection (b). The Court concluded

by saying “accordingly, Counts 11 and 12

are not multiplicious and do not violate

the exclusionary rule set forth in § 5848.

It would appear that the Court of

Appeals does not avoid but rather creates

a dilemma. Interpreting subsection (b) as

did the Court of Appeals renders the

exception to the prosecutory bar so broad

as to defeat the constitutional

requirement which mandates that bar. This

“with respect to" interpretation is also

fundamentally inconsistent with the

legislative history. In any event, if the

- 45 -

conspiracy count (Count 1) and the

concealing counts (Counts 11 and 12) are

"with respect to the furnishing of false

information" the case raises classic

double jeopardy problems. Petitioner

would stand convicted of making false

statements to bring the guns into the

United States and also stand separately

convicted for having brought the guns into

the United States by making the same false

statements. To avoid this double jeopardy

problem the concealment charges must be

separated from the false information. To

do so runs directly into the statutory bar

problem.

III. The Trial Court's Instructions

to the Jury With Regard to Sentencing

Confused the Respective Roles of Judge

and Jury and Prejudiced the Petitioner

In its instructions the trial court

advised the jury that it was not to be

concerned with possible punishment. The

jury was, however, obviously concerned and

the court acknowledged this: "Now, even

- 46 -

though that is not your responsibility, by

your questions you have indicated some

interest in how the Court goes about

performing its duty." (Vol. IV, 287) The

court then went on to explain sentencing

procedure, describing the preparation of a

pre-sentence report by the probation

department, the sentencing hearing, and

the pronouncement of sentence. The court

added:

The range of sentence that may be

imposed by the Court is determined

by Congress when they passed the

law. They set a maximum sentence

that may be imposed in any case.

The Judge, under the law, is

permitted to impose anything

from a term of probation or a fine

up to the maximum term of

imprisonment that Congress has

set. In other words, it's alla

matter of human judgment on the

part of the Judge. (Vol. IV,

288)

No mention was made of the fact

that a maximum sentence of sixty years

incarceration could be imposed.

Petitioner objected to the instruction

with respect to sentencing (Vol. IV, 316).

- 47 -

No curative instruction was given.

Petitioner was, in fact, sentenced to the

maximum, albeit a portion of the sentence

was suspended.

The Court of Appeals, acknowledging

that it "does not approve of informing a

jury of a minimum or maximmm sentence,"

nevertheless held that there was no error

in the trial court's instruction. In

that, the court erred.

In the federal system, it is clear

that punishment is not the concern of the

jury. As the Fifth Circuit stated in

United States v. Del Toro, 426 F.2d 181,

184 (Sth Cir. 1979), quoting Pope v.

United States, 298 F.2d 507 (5th Cir.

1962):

To inform the jury [concerning]

matters relating to disposition of

the defendant, tends to draw the

attention of the jury away from

their chief function as sole judges

of the facts, open the door to

compromise verdicts and to confuse

the issue or issues to be

decided.

- 48 -

In the context of this case, the dangers

to which the Fifth Circuit has alluded

were real ones.

The jury had previously

demonstrated an interest in punishment.

Immediately prior to the testimony of

prosecution witness and co-conspirator

Faust, the purchaser of the entire arms

shipment, the court advised the jury that

he had entered a plea agreement under

which the government agreed to recommend a

sentence of one year and a fine of $2,000,

but that execution of the sentence be

suspended and he be placed on probation

for two years. A juror asked about a fine

Faust testified he paid. The jury's

continuing interest in the question of

punishment was demonstrated by its

question with respect to sentencing of the

Petitioner.

With knowledge that the

co-defendant who had much greater

involvement had received a probationary

-

- 49 -

sentence and that probation could be

imposed on Petitioner, the jury might well

have convicted Petitioner on the

assumption that the court, using "iiumane

judgment" would impose only a sentence of

probation on Petitioner. Given the proofs

and the jury instructions under which the

jury might have and must have found that

the Petitioner intended to do wrong

(whether or not what he had done was

actually an illegal act), the jury may

well have believed that Petitioner

"deserved" a little bit of punishment, and

convicted on that ground.

In virtually every criminal

prosecution, the natural human curiosity

of jurors will make them interested in the

potential consequences of their verdict.

But, in the federal system punishment is

not a proper concern of the jury. Where

there is no statutory provision giving the

jury the right to determine punishment,

its function is exhausted by its

- 50 -

determination of guilt. Berra v. United

States, 351 U.S. 131, 135 (1956). Any

interest or curiosity in the subject on

its part should have been firmly

discouraged, not pandered to by

instructions like the one given in this

case. This Court should accept this case

and reiterate the basic principle in our

jurisprudence that punishment is not a

question for the jury.

Conclusion

For the reasons stated, Petitioner

respectfully prays that this Court grant a

writ of certiorari.

Respectfully submitted,

Alan M. Dershowitz

20 Elmwood Avenue

Cambridge, Mass. 02138

(617) 661-1965

Nathan Z. Dershowitz

15 East 84th Street

New York, New York 10028

(212) 879-4500

Of counsel,

Victoria B. Eiger

APPENDIX

- A-l -

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

U.S. Court of Appeals

Eleventh Circuit

PILED

Apr. 18 1983

Norman E. Zoller

Clerk

No. 82-8062

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROGER ALAN COX,

Defendant-Appellant.

Appeal from the United States

District Court for the

Middle District of Georgia

- A-2 -

ON PETITION FOR REHEARING

( April 18, 1983 )

Before HILL and VANCE, Circuit Judges,

and TUTTLE, Senior Judge.

PER CURIAM:

IT IS ORDERED that the petition for

rehearing filed in the above entitled and

numbered cause be and the same is hereby

denied.

ENTERED FOR THE COURT;

Zs/ James C. Hill

United States Circuit Judge

REHG~4

- A-3 -

UNITED STATES of America,

Plaintiff-Appellee,

Vv.

Roger Alan COX, Defendant~Appellant

No. 82-8062

United States Court of Appeals,

Eleventh Circuit.

Jan. 31, 1983.

Appeal from the United States District

Court for the Middle District of Georgia.

Before HILL and VANCE, Circuit

Judges, and TUTTLE, Senior Circuit Judge.

JAMES C. HILL, Circuit Judge:

FACTS

Roger Alan Cox, was tried and convicted

on a twelve count indictment charging

conspiracy against the United States, in

violation of 18 U.S.C. § 371 (1976),

making false statements against the United

States in violation of 18 U.S.C. § 1001

(1976), and concealing and transporting

merchandise imported contrary to law, in

violation of 18 U.S.C. § 545 (1976). The

appellant was sentenced to consecutive

- A-4 -

five-year sentences on each count. All

but two consecutive periods of six months

each were suspended, pending a five-year

period of probation. The appellant was

further ordered to pay costs of his

prosecution. Mr. Cox now sanani his

conviction.

The appellant is a federally licensed

firearms dealer doing business as Law ,

Enforcement Ordinance Company in Athens,

Georgia. Mr. Cox supplied police

departments throughout the United States

with police equipment and firearms. In

December of 1971, the appellant met Mr.

Ronald J. Martin from Miami, Florida. Mr.

Martin had access to a large quantity of

firearms available for sale in Guatemala.

The appellant was interested in purchasing

some of these weapons but needed a

financial backer to complete the

transaction. The appellant contacted Mr.

Edward Louis Faust, a firearms dealer in

- A-5 -

Sacramento, California. Mr. Faust

expressed an interest in purchasing some

of the weapons but only upon inspection.

Pursuant to their conversation Mr. Faust,

Mr. Martin and the appellant flew to

Guatemala to inspect the guns. Upon

inspection, the appellant purchased

over five thousand firearms. Among these

weapons were approximately one hundred

Russian type Degtyarev DP 7.62 millimeter

submachine guns. Although the appellant

recognized these weapons as being Russian,

he noted that they appeared slightly

different from the Russian submachine guns

he had been previously familiar with. In

discussing the origin of the guns, Mr.

Martin commented that as far as he knew

the guns were probably made in Guatemala

or else they were possibly among some of

the weapons sent by the United States to

Guatemala back in 1954.

- A-6 -

The appellant filled out the appropriate

forms for importing foreign made guns.

Question number eight on the form

requested the place of manufacture. The

appellant responded to this question with

"Guatemalan Model 1938." The appellant

contends he was not sure of where the guns

were originally made and therefore, he

chose to put down on the form the place

from which the guns were being

shipped-~-Guatemala.

I.

The indictment in this case charged that

appellant knowingly falsified documents

about the origin of the Russian submachine

guns, when in truth and fact he knew they

were made in Russia. The appellant

masterfully seized upon the language in

the latter part of this sentence. He went

to great lengths to demonstrate that the

Government did not prove the appellant

knew the guns were of Russian origin.

- A-7 -

While the evidence would support a finding

that Mr. Cox knew the guns were made in

Russia, it was not necessary that the

Government prove this point. The crime

charged was falsifying the forms for the

importation of foreign made weapons into

the United States. Therefore, the

question was not whether Mr. Cox knew the

guns were made in Russia, but rather if he

knew they were not made in Guatemala.

Viewing the evidence in a light most

favorable to the Government, Glasser v.

United States, 315 U.S. 60, 62 S.Ct. 457,

86 L.Ed. 680 (1942); United States v.

Davis, 679 F.2d 845 (llth Cir. 1982), the

Government sufficiently proved that the

appellant knew the guns were not made in

Guatemala. Accordingly, when the

appellant filled out the importation

forms, he knowingly and falsely stated

that the weapons were made in Guatemala.

Although the appellant raises a clever

defense by attempting to convince the jury

that because he did not know the guns were

of Russian origin he was not guilty, this

Oeafense was only a smoke screen which the

jury apparently saw through. Whether the

guns were made in Russia, or for that

matter, in Canada or Africa would not

change the fact that the appellant knew

they were not manufactured in Guatemala.

II.

The appellant also contends that the

trial court's refusal to admit certain

expert testimony was error. The appellant

called a forensic firearms expert to

testify about the CIA's activities

involving the remanufacture of certain

weapons and their shipment to Guatemala in

1954.

This expert was called to demonstrate to

the jury that the CIA had taken Korean

battlefield scrap Russian machine guns and

- A-9 -

remanufactured them. These weapons were

then shipped to Guatemala.

The information offered by this witness

regarding the activities of the CIA was

not probative of the two purposes for

which it was urged. The appellant

initially offered this testimony as

evidence of the appellant's subjective

belief as to the origin of the guns. The

appellant was attempting to prove that

because the expert had concluded the guns

in question may have been among the guns

which were remanufactured in the United

States in 1954, it was reasonable for the

appellant to conclude the same thing.

Although this may have been effective

evidence if the appellant could

demonstrate that he relied on the expert's

opinion when he purchased the guns, the

appellant had never known of this expert

or his testimony until the trial. Because

the appellant did not know of the expert's

opinion when he purchased the guns and he,

ee

- A-10 -

therefore, did not rely on this

information, admission of this testimony

would have only misled or confused the

jury. See United States v. White, 216

F.2d 1 (5th Cir.1954).

The second theory upon which the

appellant urged admission of this

testimony was to impeach the Government's

witnesses whose testimony in this area

only supported the Government's theory

that the guns were of Russian origin.

Moreover, the witness claimed he had

first hand knowledge of examining some

Russian submachine guns back in 1954.

However, his knowledge that the CIA had

purposefully taken scrap pieces and

remanufactured them into machine guns was

based on hearsay. Although certain

hearsay testimony by experts is permitted,

it must be based on the type of evidence

"reasonably relied upon by experts in the

particular field in forming opinions or

- Sh: ~

inferences upon the subject." Federal

Rule of Evidence § 703. The testimony

being offered by this witness was of an

historical nature; it was not based upon

"knowledge, skill, experience, training or

education" gathered in a scientific or

technical manner. Federal Rule of

Evidence § 702. Because this testimony

was primarily based on hearsay and was not

relied upon by the appellant, we find the

exclusion of this testimony well within

the trial judge's discretion.

The appellant also raises objections to

several portions of the jury instructions

given by the trial court. Appellant

specifically objected to the court's

instructions which, according to the

appellant, removed the issue of objective

falsity or falsity in fact. Throughout

the charge the court did define objective

falsity as “[a] statement is false if it

was untrue when made and was then known to

- A-12 -

be untrue by the person making it or

causing it to be made." Record on Appeal

at 296. Appellant conceded that the judge

defined objective falsity, but contends

that other charses given in essence

obliterated the objective falsity

instruction. The trial judge did instruct

the jury as to the relevance of the

appellant's subjective belief when he

signed the form. The judge in instructing

the jury stated that

(slo we're looking at what Roger Cox

believed when he signed the form.

We're not looking at what anyone else

believed; what Roger Cox believed from

all the facts and circumstances. You

could think of it as if you were Roger

Cox, having his education, his

experience, doing all that you heard the

evidence shows that he did, received all

the information that the evidence shows

he received and was exposed to and when

sah! Sie

you sat down to fill out the form in

question, would you believe that the

firearm in question was made or in this

case manufactured in Guatemala. Just

put yourself in his shoes.

Record on Appeal at 302

This instruction was given by the court

in an effort to explain what the element

of “knowingly” meant. The element of

knowingly requires the jury to attempt to

assess whether ne defendant subjectively

knew that the information he was providing

was false. As to the element of

knowingly, it is reasonable for the court

to inform the jury that they must attempt

to view this element by looking at whether

the evidence showed that the defendant

knew he filled out the form falsely.

It appears from the record the court

went to great lengths to explain the

subjective standard of "knowingly" so as

to demonstrate to the jury the difference

- A-14 -

between this element and the element of

"falsity in fact." The court had the

difficult task of informing the jury that

they must first find that the weapons were

not made in Guatemala. This is the

falsity in fact element which requires an

objective standard. Secondly, the jury

had to find that the defendant, with

knowledge, falsified the documents in

question. This element requires a

subjective standard.

The appellant's argument confuses the

subjective standard given by the court,

for the element of knowingly, with the

ob jective element of falsity in fact. The

record does not indicate this happened.

Quite the contrary, the record clearly

delineates the element of falsity in fact

with the definition of that term and the

element of “knowingly.” Accordingly, we

find no error in this part of the court's

instruction.

- A-15 -

The appellant further objects to the

charge the court gave on specific intent.

Appellant suggests that the court gave no

instruction as to Counts II-VIII on the

necessary element of specific intent. The

court simply declined to use the term

specific intent, and instead defined and

referred to the need for the jury to find

that the defendant knowingly and willingly

made a false statement relative to a

material matter. The charge to the jury

need not conform to the language of the

defendant's request, as long as it clearly

and accurately states the proposition.

United States v. Baker, 626 F.2d 512, 516

(Sth Cir.1980). The elements of specific

intent are knowingly and willfully. See

United States v. Lange, 528 F.2d 1280 (Sth

Cir.1976); United States v. Smith, 523

F.24 771 (Sth Cir.1975).

Because the court clearly delineated on

several occasions that an essential

~a°i¢ =

element to convict the defendant was

whether he knowingly and willfully

falsified the documents we find no error

in the trial court's explanation of

specific intent.

The appellant further contends that the

trial court erred by failing to give an

instruction on ignorance of the law. The

trial court refused to give this

instruction because the judge concluded

that no evidence was presented to warrant

this type of instruction. The appellant

maintained throughout his defense that he

believed the guns were made in Guatemala.

His defense was not that he thought the

form only required place of shipment,

rather than place of manufacture. It is

only upon appeal that this assertion is

made. An instruction on ignorance of the

law would be warranted only if the

appellant contended he was unaware that he

was obliged to put down the country of

a 2°17 -

manufacture. The appellant did not

contend this, and for good reason, since

the form specifically requests at question

number eight "name and address of

manufacturer." It would have been

difficult for the appellant to argue

ignorance of the law under these

circumstances. The trial court properly

excluded an instruction on ignorance of

the law.

Finally, the appellant objected to the

following instruction given by the trial

court: “the Judge, under the law, is

permitted to impose anything from a term

of probation or a fine up to the maximm

term of imprisonment that Congress has

set." Record on Appeal at 288. Appellant

points to several cases where the trial

court was supported by the appellate court

for not commenting on the issue of

possible punishment. This court does not

approve of informing a jury of a minimum

- A-18 -

' Or maximum punishment. See Pope v. United

States, 298 F.2d 507 (5th Cir.1962).

However, in this case, the judge was not

attempting to let the jury know what type

of punishment might be ordered. The judge

properly informed the jury that punishment

should be of no concern to the jury. The

jury was informed, generally speaking,

about the procedures involved when a judge

goes about sentencing. This information

was given to the jury because they had

asked questions about the potential

punishment and how it is decided. The

instruction was not given as to the

specific defendant, Mr. Cox, but rather,

was given as general information about

sentencing procedure.

In United States v. Stanley, 433 F.2d

637 (Sth Cir.1970), an objection was

raised to the court's instruction

stating: "I charge you that you are not

concerned when you make a determination of

- A-19 -

guilt or innocence with any punishment

that may be imposed, whether it be

probation or whether it be a fine or

whether it be a penitentiary sentence."

Id. at 639. The court concluded that this

instruction was not erroneous. The court

noted that this type of instruction became

necessary because of a commen t made by

defense counsel referring to the potential

maximum sentence.

In the instant case the judge's

reference to sentencing concerned the

range of potential punishment, without

referring to a specific maximum other than

that delineated by Congress. The judge in

no way intimated what punishment he might

be inclined to give. He also consistently

informed the jury that potential

pur.ishment was not their concern; they

were only to look for the truth and

provide a verdict according to what the

evidence demonstrated. Although this

- A-20 -

court prefers no reference to sentencing

whatsoever, we find no error in the trial

court's instruction.

Itt.

The appellant also contends that Counts

XI and XII, charging the concealment and

facilitation of the transport of illegally

imported goods in violation of 18 U.S.C. §

545 (1976), are not valid due to the

exclusionary rule set forth in 26 U.S.C. §

5848 (1976). The exclusionary rule

states:

(a) General rule. - No information or

evidence obtained from an application

registration, or records required to be

submitted or retained by a natural

person in order to comply with any

provision of this chapter or regulations

issued thereunder, shall except as

provided in subsection (b) of this

section, be used, directly or

indirectly, as evidence against that

- A-21 -

person in a criminal proceeding with

respect to a violation of law occurring

prior to or concurrently with the filing

of the application or registration, or

the compiling of the records containing

the information or evidence.

(b) Furnishing false information. -

Subsection (a) of this section shall not

preclude the use of any such information

or evidence in a prosecution or other

action under any applicable provision of

law with respect to the furnishing of

false information.

The appellant contends that the substance

of the Counts XI and XII is based on the

information obtained in his importation

documents and therefore, is subject to the

exclusionary rule which should bar

prosecution on those counts. The purpose

of this exclusionary rule is to avoid the

potential self-incrimination problems

inherent in any registration scheme.

- A-22 -

Congress has granted use imminity

regarding the information contained in

registration documents. See United States

v.- Freed, 401 U.S. 601, 91 S.Ct. 1112, 28

L.Ed.2d 356 (1971); Hayn - United

States, 390 U.S. 85, 88 SS.Ct. 722, 19

L.Ed.2d 923 (1968).

However, the granting of this immunity

does not exclude the prosecution of any

and all crimes as evidenced by subsection

(b). The Government proved that appellant

transported two of these weapons through

customs to his office in Athens, Georgia.

The statute for the importation violation

also requires proof that the merchandise

was transported "contrary to law.” The

Government used the form, falsely filled

out by the appellant, to demonstrate that

the guns had been imported contrary to

law. The Government was not using any

information on the form as against the

appellant whereby any fifth amendment,

- A-23 -

self incrimination problems could develop.

The Government merely used the form to

demonstrate that the guns were brought

into this country fraudulently, which is

contrary to law. Further, subsection (b)

precludes the application of subsection

(a) for prosecutions “with respect to" the

furnishing of false information. The

importation violation is clearly “with

respect to” a prosecution for furnishing

false information. Accordingly, Counts XI

and XII are not. multiplicious and do not

violate the exclusionary rule set forth in

§5848.

IV.

The appellant on February 4, 1982, filed

a Chapter 7 bankruptcy petition in the

United States Bankruptcy Court, to

discharge his debts. On April 8, 1982,

the trial court ordered the appellant to

deposit the entire amount of the costs of

prosecution, or to post a bond in lieu of,

- A-24 -

pending his appeal. Appellant

subsequently filed a bond for the costs of

his prosecution. Appellant now appeals

the trial court's order to pay costs.

Appellant's appeal for having to post bond

is moot before this court as appellant

chose to post the bond rather than

refusing to pay while petitioning for a

writ of mandamus. Because the bond has

been posted, the only remaining issue is

whether the costs of the prosecution are

dischargeable in bankruptcy. We conclude

that this question should be decided by

the Bankruptcy Court where this issue is

presently pending.

Because we find no errors in the trial

court's decisions, we

AFFIRM