Appendix — Boulin v. United States

33. Ottice-Supteme Court, Ug

B2-419 distal.

No. ——

DER

CLERK STEVAS,

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

Pe 7

RICHARD BOULIN,

Petitioner

Vv.

UNITED STATES OF AMERICA,

Respondent

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES J. FEATHERSTONE

Counsel of Record

SANTARELLI & GIMER

2033 M Street, N.W.

Suite 700

Washington, D.C. 20036

(202) 466-6800

RICHARD E. GARDINER

1600 Rhode Island Avenue, N.W.

Washington, D.C. 20036

Counsel for Petitioner

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON. D.C. 20001

TABLE OF CONTENTS

. Opinion of the Court of Appeals —......000.....eeece.

. Order of the Court of Appeals Denying Petition for

neo waissamabcbbdaniiieel

. Memerandum and Order Denying Petition of De

fendant for Writ of Error Coram Nobis (July 7,

1982) . poe

. Judgment of the District Court ............. Pe ens

. Order amending Memorandum of August 1, 1979

SE I ao sac cco eencdasgucinntnnevesiabaiersientbine

. Memorandum of Judge Murray (August 1, 1979)....

. Memorandum and Order Denying Motion to Sup-

press (July 31, 1978) 0.000.000... ee

. Stipulation of Facts (September 13, 1978) ..............

ARSED RR RU RE Se ace are eee ne eae OD

Search Warrant and accompanying affidavit ...........

. Letter to Senator Hayakawa from Acting Director

OLE ESERIES RES SIs Ree ar

Letter of Director of BATF regarding disposition of

personal firearms (April 7, 1980) 0000...

I go 2 sesscsisiademmbiensidenioecaaa

a emnenieec inhalants

. Partial transcripts of April 7, 1978, suppression

—— SST DUE Ee Ra ON Ob ea I ea

ER EER OPEL Ss 8 Lea ese eee Re es

. Transcript of December 6, 1977, telephone conver-

OT SRE ef SS aa RS eS cn CE

la

APPENDIX A

UNITED STATES COURT CF APPEALS

FOR THE FOURTH CIRCUIT

No. 79-5287 (L)

No. 82-6443

UNITED STATES OF AMERICA,

Appellee,

Ve

RICHARD BOULIN,

Appellant.

Appeal from the United States District Court

for the District of Maryland, at Baltimore

Herbert F. Murray, Judge

Argued: December 10, 1982 Decided: April 12, 1983

Before WINTER, Chief Judge, RUSSELL, Circuit Judge

and BRYAN, Senior Circuit Judge.

David H. Martin (Richard E. Gardiner on brief) for Ap-

pellant; Lynne A. Battaglia, Assistant United States At-

torney (J. Frederick A. Motz, United States Attorney on

brief) for Appellee.

2a

BRYAN, Senior Circuit Judge:

Richard Boulin attacks his conviction of violations of

the Gun Control Act of 1968, (the Act), 18 U.S.C. §§ 921-

928. A Federally licensed firearms dealer, he sold various

weapons to an informant who reported to the Bureau of

Alcohol, Tobacco, and Firearms (B.A.T.F.). Following

searches of Boulin’s business premises and home, a grand

jury for the District Court of Maryland returned a thir-

teen-count indictment of him for unlawful sales and with

failure to maintain records conforming to the Act.' Found

guilty on ten counts, he appeals and we affirm.

I

A former police officer, Boulin received a Federal license

on February 2, 1976 to trade in firearms. It confined

sales to his business premises in Silver Spring, Maryland.

While attending the J & S Wildcat Gun Show in Baltimore

on September 25, 1977 he sold three guns to B.A.T.F.

informant, Gordon Schoen. He recorded two of these sales

in his personal weapons log, but failed to include the sale

of a Luger pistol. He did not file transfer forms for any

of these transactions.

Six days later, Boulin sold three more handguns to

Schoen at a gun show in Greenbelt, Maryland. Entries in

his weapons log were made for two of these weapons for

which he also executed transfer papers. Nonetheless, he

neither recorded nor reported the sale of a Colt .857 mag-

num revolver. Boulin returned to the same gun show on

November 5, 1977. There he sold a Colt Python Revolver

to Schoen, but again omitted to record or report it.

In a telephone conversation on December 6, 1977, Schoen

and Boulin discussed the possibility of transacting further

sales without submitting Federal forms.* Schoen then

1 The indictment charged Boulin with violations of 18 U.S.C. §§ 2,

922(c), 922(m), 923, 924(a); 27 C.F.R. §§ 178.124(a), 178.124(c),

178.126(a).

2 A tape recording of the conversation revealed that Boulin agreed

the sales would be “like we did them before.”

3a

passed this information on to B.A.T.F. Special Agent Wil-

liam McMonagle who drafted an affidavit which detailed

the various purchases by Schoen. It also noted that at his

home and place of business, Boulin had concealed weapons

that had been used and were intended to be used in breach

of the Federal firearms laws. A United States Magistrate

issued two warrants authorizing the search of both places

for “firearms, ammunition and records involved in, used

in or intended to be used in violation of Title 18 U.S.C.

922(m) and 922(c).” During the home search, B.A.T.F.

agents seized numerous weapons, Boulin’s weapons log,

and his dealer’s records.®

Of the thirteen indictment counts Boulin was convicted

of ten violations of the Gun Control Act and regulations

promulgated pursuant to it.* The District Court had de-

nied the defendant’s pre-trial motion to suppress the evi-

dence, and upon a stipulation of facts, his convictions fol-

3 The B.A.T.F. agents seized 34 long guns, 49 handguns, and 5,765

rounds of ammunition. Also seized were Boulin’s personal weapons

log, Federal firearms license dealers records, and personal credit

card records.

4 The indictments embodied the sales of seven weapons on three

different dates. (1) On September 24, 1977, Boulin sold the follow-

ing weapons: A Luger semi-automatic pistol, for which no records

were completed; a Colt .25 caliber semi-automatic pistol, which

was recorded in the defendant’s personal weapons log, but for which

no Federal transfer papers were completed; a Browning .22 semi-

automatic rifle, which only was recorded in Boulin’s personal weap-

ons log. (2) On October 1, 1977 Boulin sold the following weapons:

a Colt .357 Magnum revolver, for which no records were completed ;

a High Standard .22 caliber semi-automatic pistol, for which all

records were completed; a Smith & Wesson .357 Magnum revolver

for which all records were completed. (3) On November 5, 1977,

Boulin sold a Colt Python .357 Magnum revolver without completing

any records. °

4a

lowed. A post trial petition for a writ of error coram

nobis also was denied.°

II

The Act established a comprehensive scheme for regu-

lating the purchase and sale of firearms. 18 U.S.C.

§§ 921-928. It put severe limitations upon an individual’s

free engagement in the busines of gun trading.’ Among

the strictures are those requiring the reporting of sales

where the purchaser does not appear in person at a li-

censed dealer’s place of business.” Failure to make a nec-

6 The Government entered a nolle prosequi as to the remaining

three counts of the indictment.

* The defendant’s petition for the writ centered on a letter from

B.A.T.F. Acting Director Krogman to a United States Senator.

See discussion of letter infra.

7In passing the Act, Congress declared that its purpose was to

control weapons traffic in interstate and foreign commerce. Omni-

bus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351,

§ 901, 82 Stat. 226 reprinted following 18 U.S.C. § 921.

818 U.S.C. §922(c). The section reads:

(c) In any case not otherwise prohibited by this chapter, a

licensed importer, licensed manufacturer, or licensed dealer may

sell a firearm to a person who does not appear in person at the

licensee’s business premises (other than another licensed im-

porter, manufacturer, or dealer) only if—

(1) the transferee submits to the transferor a sworn

statement in the following form:

* * * *

(2) the transferor has, prior to the shipment or delivery

of the firearm, forwarded by registered or certified mail

(return receipt requested) a copy of the sworn statement,

together with a description of the firearm, in a form pre-

scribed by the Secretary, to the chief law enforcement

officer of the transferee’s place of residence, and has re-

ceived a return receipt evidencing delivery of the statement

or had had the statement returned due to the refusal of the

5a

essary record amounts to an infraction of the law. Td.

§ 922(m).

Additionally, 18 U.S.C, § 923(g) dictates that records

must be maintained that cover the disposition of all fire-

arms by a dealer. It grants the Secretary of the Treasury

authority to prescribe regulations governing the form of

these records. Regulations issued under this section man-

date the completion of a firearms transaction record,

Form 4473, whenever a licensed dealer disposes of a fire-

arm. 27 C.F.R. § 178.124(a), (f). A separate form must

be executed when a dealer disposes of more than one pis-

tol at the same time. /d. § 178.126(a).

Boulin assigns numerous errors. Initially, he insists

that the record-keeping requirements do not obtain where

sales are made from a dealer’s private gun collection in-

stead of his business inventory.” We reject this distinc-

tion. When Boulin offered the weapons for sale the Fed-

eral regulations applied and it was immaterial whether

the guns came from his personal or business listing.

United States v. Courier, 621 F.2d 7, 9 (1st Cir. 1980) ;

named addressee to accept such letter in accordance with

United States Post Office Department regulations; and

(3) the transferor has delayed shipment or delivery for

a period of at least seven days following receipt of the

notification of the acceptance or refusal of delivery of the

statement. .

A copy of the sworn statement and a copy of the notification

to the local law enforcement officer, together with evidence of

receipt or rejection of that notification shall be retained by the

licensee as a part of the records required to be kept under

section 923(g).

%In advancing this argument, Boulin relies upon guidelines pub-

lished by the Department of the Treasury in Industry Circular 72-

30. This circular, however, explicitly refers to firearms in a dealer’s

private collection as those not being for sale. The Court of Appeals

for the Seventh Circuit reached the same conclusion in United States

v. Scherer, 523 F.2d 371, 873 (7th Cir. 1975).

6a

United States v. Scherer, 523 F.2d 371 (7th Cir. 1975),

cert. denied, 424 U.S. 911 (1976).

Boulin next contends that he was improperly accused

under 18 U.S.C. 922(c). To repeat, this section allows a

licensed gun dealer to sell a weapon to a person who does

not appear at his business premises if various reports are

made. According to the agreed facts the defendant sold

weapons away from his business location without obeying

the additiona! requirements of 922(c). He therefore prop-

erely was indicted under this section.

Throughout his prosecution, Boulin claimed that in do-

ing business with Schoen he had relied upon the opinion

of an unidentified B.A.T.F. agent as to the extent of the

recording requirements. He further postulates that a let-

ter from the Acting Director of the B.A.T.F. to a United

States Senator enunciates the same advice the B.A.T.F.

agents related to him, and because of this, his prosecution

was fundamentally unfair. Nonetheless, the District

Court found, and we agree, that Boulin did not in fact

rely upon this purported counseling. During the relevant

period, Boulin did record some sales of “personal’’ fire-

arms although he failed to record the sales made to Schoen

on September 25, 1977, October 1, 1977, and November 5,

1977. As the District Court correctly noted, the doctrine

of estoppel cannot be applied unless reliance is shown.

Bornstein v. United States, 345 F.2d 558, 563 (Ct. Cl.

1965).

Also, the defendant avers that the Government broke

the law of Brady v. Maryland, 373 U.S. 88 (1968), by

not disclosing the letter from the Acting Director to the

Senator. Boulin stresses that had he been aware of the

letter, he would not have waived his right to a jury trial

because of the letter’s potential use for impeachment pur-

poses.*° The communication, however, does not evince an

10 Indeed, Boulin waived his right to a jury trial on September 13,

1978 whiie the letter was dated July 30, 1979.

7a

invocation of the rule in Brady. First, it is only an inter-

pretation of the law and not a fact material to issues of

guilt or punishment. Reddy v. Jones, 572 F.2d 979, 982

(4th Cir. 1977); see also Moore v. Illinois, 408 U.S. 786,

794 (1971). Second, the reliability of the B.A.T.F. wit-

nesses against whom the letter might have been used would

not have been determinative of Boulin’s guilt or innocence.

United States ex rel Marzeno v. Gengler, 574 F.2d 730,

735 (3d Cir. 1978). Rather, the recorded conversations

and stipulated facts were so determinative.

Boulin also attacks his conviction on the grounds that

the warrant employed to search his home was unsupported

by probable cause. An examination of the affidavit sub-

mitted by Agent McMonagle yields an opposite conclu-

sion. The affidavit extensively detailed a series of weap-

ons transactions between a named inforinant and the de-

fendant in which the requisite forms were not completed.

It also related a telephone conversation between the two

men which raised the prospect of further sales without

the furnishing of completed forms and that the subject

matter of these sales was stored at Boulin’s home. The

District Court properly concluded that probable cause

existed.

A further ground for reversa! asserted by the defend-

ant is that the search warrant lacked a particular descrip-

tion of the things to be seized. The purpose of the partic-

ularity demand of the Fourth Amendment is to assure

that the police do not engage in a “general, exploratory

rummaging in a person’s belongings.” Coolidge v. New

Hampshire, 403 U.S. 443, 467 (1971). The requirement

renders general searches impossible by leaving nothing to

the “discretion of the officer executing the warrant.”

Stanford v. Texas, 379 U.S. 476, 485 (1965), quoting

Marron v, United States, 275 U.S. 192, 196 (1927).

At the same time, this Court has recognized that where

First Amendment considerations are not involved, ‘“[t]he

character of the items to be seized pursuant to a warrant

8a

controls to a large extent the specificity required in de-

scribing them .. .” United States v. Lowry, 675 F.2d

593, 595 (4th Cir. 1982). Consequently, the requirement

of particularity contains a “practical margin of flexi-

bility.” Id. at 595; United States v. Jacob, 657 F.2d 49,

52 (4th Cir. 1981), cert. denied. 102 S.Ct. 1485 (1982) ;

United States v. Espinoza, 641 F.2d 158, 165 (4th Cir.

1981), cert. denied 454 U.S. 841 (1981) ; United States v.

Torch, 609 F.2d 1088, 1090 (4th Cir. 1979), cert. denied

446 U.S. 957 (1980).

Here the items to be seized were limited to Boulin’s

cache of arms and the records pertaining to them. It was

not imperative that each weapon or document be described

individually. The description of the items set forth in the

warrant fell within the “margin of flexibility” necessary

for meeting the injunction of specificity under the Fourth

Amendment.

For the reasons stated, we find no error in the judg-

ment of the District Court and so we affirm.

AFFIRMED

9a

WINTER, Chief Judge, dissenting:

If we are to decide this case now,' I would reverse all

the judgments because of the invalidity of the warrant,

which lacked particularity with respect to the items to be

seized. In any event, irrespective of the admissibility of

the evidence seized, I would reverse those convictions

based upon violations of 18 U.S.C. § 922(c).

I therefore respectfully dissent.

I.

The search warrant in this case, the execution of which

uncovered evidence used to convict defendant, properly

described a particular place to be searched. It was quite

nonspecific, however, in its authorization of the seizure of

property allegedly concealed on the premises, Despite the

Fourth Amendment’s requirement that a warrant “par-

ticularly describfe] ...the... things to be seized’’, the

warrant here merely referred to “firearms, ammunition

and records involved in, used in, or intended to be used

in violation of Title 18 U.S.C. Section 922(m) and 922(c)

- .” The enforcing agents were thus effectively pro-

vided with a general] warrant, authorizing wholesale sei-

zure of items from defendant’s combined home and busi-

ness premises guided by only the agents’ own on-the-spot

legal interpretation of a federal criminal statute. There

is evidence in the case that the agent supervising execu-

tion of the warrant was so uncertain of its scope that he

telephoned his superior for clarification of what he could

seize. And illustrative of the vice of the warrant even

with such clarification was the seizure of commemorative

guns mounted on plaques inside defendant’s living quar-

ters and wholly unrelated to the charges against him, and

of his personal credit card account reco:ds over and above

1 Decision here could well be stayed until the Supreme Court de-

cides Illinois v. Gates, No. 81-430, reargued March 1, 1983, on the

general issue of whether modification of the exclusionary rule might

be warranted. Although the precise issue posed by Gates is not

present here, it is not unlikely that what will be said when Gates is

decided may have relevance to this case.

10a

all his business records. The open-ended direction to seize

items related to any “violation of Title 18 U.S.C. Section

922(m) and 922(c)” violated the Fourth Amendment

guarantee that “nothing is left to the discretion of the

officer executing the warrant.” Marron v. United States,

275 U.S. 192, 196 (1927).

The warrant issued here is indistinguishable from that

in United States v. Cardwell, 680 F.2d 75, 76-77 (9 Cir.

1982), which held that a direction to seize “corporate

books and records, including . . . checks, check stubs,

journals, [ete.,] of {certain named corporations,] which

are the fruits and instrumentalities, of violations of 26

U.S.C. § 7201” was impermissibly general. On the au-

thority of Cardwell and the cases it cites, I would make

the same ruling here. Since, in my view, the seizure was

in violation of the Fourth Amendment, I would suppress

the evidence gathered thereby, and reverse defendant’s

convictions obtained on the basis of the tainted evidence.

Il.

Defendant was convicted under five counts (counts 1-4

and 7) of the indictment charging a violation of 18 U.S.C.

§ 922(c).* That subsection prohibits a licensed dealer from

selling a firearm to a purchaser who does not appear in .

person at the dealer’s business premises unless certain

conditions are satisfied. Significantly, the opening words

of the subsection are “[i]n any case not otherwise pro-

hibited by this chapter... .” Thus I view § 922(c) as

making illegal only those acts or transactions which are

not made illegal by other provisions of the firearms laws

of Title 18 (§§ 921-928).

Each of the five § 922(c) counts relates to a given

transaction which is also the subject of another count

based on another firearms provision under which defend-

ant was charged and convicted. Since § 922(c) by its

terms could not render illegal that which was already

illegal, these five convictions cannot stand.

2 The text is set forth in the majority opinion in n.8.

lla

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 79-5287

UNITED STATES OF AMERICA,

Appellee,

versus

RICHARD BOULIN,

Appellant.

No. 82-6443

UNITED STATES OF AMERICA,

Appellee,

versus

RICHARD BOULIN,

Appellant.

ORDER

The appellant’s petition for rehearing and suggestion

for rehearing in banc has been submitted to the court.

Upon the request for a poll of the court on the suggestion

for rehearing in banc, all of the Judges voted against re-

hearing in banc except Chief Judge Winter, Judge

Murnaghan, Judge Sprouse and Judge Ervin, who voted

in favor of rehearing in banc.

12a

It is ADJUDGED and ORDERED that the petition for

rehearing and suggestion for rehearing in banc are de-

nied.

Entered at the direction of Chief Judge Winter for a

panel consisting of Chief Judge Winter, Judge Russell

and Judge Bryan. Chief Judge Winter dissents.

For the Court

/s/ William K, Slate, II

Clerk

[Filed Jul. 15, 1983]

18a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Criminal No. HM77-0598

UNITED STATES OF AMERICA

Ve

RICHARD BOULIN

MEMORANDUM

This matter arises on the petition of Richard Boulin

for a writ of error coram nobis nullifying his 1979 con-

viction for failure to comply with the registration provi-

sions of the Gun Control Act of 1968, 18 U.S.C. § 921

et seq.

Petitioner, formerly a federally licensed firearms

dealer and so licensed on all dutcs pertinent to this case,

was found guilty by the court on the basis of facts stipu-

lated to by him and by the government. The stipulated

facts before the court demonstrated that petitioner sold

firearms to an undercover informant of the Bureau of

Alcohol, Tobacco and Firearms (BATF) on three sep-

arate occasions while petitioner was away from his busi-

ness premises. The stipulated facts showed further that

petitioner knowingly failed to comply with the record-

keeping provisions of 18 U.S.C. § 922, paragraphs (c)

and (m).' Petitioner’s chief defense was that the above-

118 U.S.C. §922(c) provides that “[a] licensed dealer may sell a

firearm to a person who does not appear in person at the licensee’s

business premises (other than another licensed importer, manu-

l4a

cited sections of the United States Code were not in-

tended to apply to firearms dealers when they were sell-

ing personal weapons. The court rejected this defense,

adopting the reasoning of the Seventh Circuit Court of

Appeals in United States v. Scherer, 523 F.2d 371 (7th

Cir. 1975), cert. den. 424 U.S. 911 (1976):

. . . {I]t is immaterial whether the weapons sold

were originally acquired for [{defendant’s] personal

use or for business purposes. They became a part

of his business inventory the moment they were

placed on the market for resale. 523 F.2d at 374.

A writ of error coram nobis is only available under

28 U.S.C. § 1651(a) when errors of fact on the part of

the trial court are of such a fundamental character that

the proceeding itself is rendered irregular and invalid.

United States v. Morgan, 346 U.S. 502 (1953). It is an

extraordinary remedy which is applied only where the

circumstances of the case are such that justice will not

be achieved without its use. 7d. at 511. Absent compel-

ling circumstances, a writ of error coram nobis will not

issue. Deckard v. United States, 381 F.2d 77 (8th Cir.

1967).

in support of his petition, petitioner renews his argu-

ment that his conviction should be voided because in de-

ciding to sell guns to the undercover informant, he relied

on the advice given him by BATF inspectors that if he

sold personally owned firearms to Maryland residents he

facturer, or dealer)” only if the dealer obtains a sworn statement of

intent from the transferee or delays delivery of the firearms for at

least seven days.

18 U.S.C. § 922(m) provides:

(m) It shall be unlawful for any .. . licensed dealer, or licensed

collector knowingly to make any false entry in, to fail to make any

appropriate entry in, or to fail to properly maintain, any record

which he is required to keep pursuant to section 923 of this chapter

or regulations promulgated thereunder.

15a

need not comply with the recording requirements of the

Gun Control Act and regulations promulgated thereto.

The government’s response to Mr. Boulin’s petition dem-

onstrates to the court’s satisfaction that petitioner did

not rely upon BATF advice since petitioner did record

some sales of “personal” firearms between July and Octo-

ber 1977 while failing to record the three sales to the

undercover informant made on September 25, 1977, Oc-

tober 1, 1977 and November 5, 1977 (Government’s re-

sponse to petition for writ of error coram nobis, March

31, 1980, pp. 5-10). Therefore, there is no factual basis

for petitioner’s estoppel argument, since without reliance

there is no basis for application of the doctrine of estop-

pel. Bornstein v. United States, 345 F.2d 558, 563 (Ct.

of Cl. 1965). Nor has petitioner cited any criminal cases

in which the doctrine of estoppel has been applied to pre-

vent the government from exercising its law enforcement

function. Therefore, there also is no legal basis for peti-

tioner’s estoppel argument.

Next, petitioner brings to the court’s attention a letter

dated July 30, 1979 from John G. Krogman, Acting Di-

rector of the Bureau of Alcohol, Tobacco and Firearms,

to Senator S. I. Hayakawa, in which Mr. Krogman states

that a licensee’s disposition of personal firearms need not

be recorded in the licensee’s business records? (Exhibit B,

petition for writ of error coram nobis).

Petitioner argues that the Krogman letter presents com-

pelling circumstances for the court to disregard case

law and vacate petitioner’s conviction.* The court be-

2 The present Director of BATF states that Mr. Krogman’s con-

clusion about the disposition of “personal” firearms is incorrect

(Apr. 7, 1980 letter of BATF director G. R. Dickerson to Assistant

U.S. Attorney Lynne Battaglia, attached to April 11, 1980 letter

from Ms. Battaglia to the court).

® Petitioner relies upon Deckard v. United States, 381 F.2d 77

(8th Cir. 1957) in which a writ of error coram nobis was granted

to vacate a conviction after various courts of appeal had invalidated

l6a

ilieves that it would have found petitioner guilty even if

the court had been aware of the Krogman letter. In find-

ing petitioner guilty under 18 U.S.C. $ 922(m), the court

adopted the reasoning in United States v. Scherer, supra,

and found that a federally licensed firearms dealer must

comply with the record-keeping requirements when sell-

ing firearms from his personal collection. Petitioner also

was found guilty of a violation of 18 U.S.C. § 922(c)

which provides that a “licensed dealer may sell a firearm

to a person who does not appear in person at the licen-

see’s business premises (other than another licensed im-

porter, manufacturer or dealer)” only if the dealer ob-

tains a sworn statement of intent from the transferee or

delays delivery of the firearms for at least seven days.

Certainly, the Krogman letter does not address the re-

quirements of a statement of intent or delay when weap-

ons are sold away from business premises and therefore

the court’s finding of petitioner’s guilt under 18 U.S.C.

§$ 922(c) would remain unchanged.

Petitioner also argues that the Krogman letter consti-

tutes Brady material which should have been disclosed to

him. Petitioner misconstrues the Brady rule. The Brady

rule does not apply unless the evidence suppressed is evi-

dence favorable to the defense and is material to the is-

sues of guilt or punishment. Moore v. Illinois, 408 U.S.

786 (1972). Petitioner asserts that the letter falls within

the Brady mandate because of its impeachment potential.

The court disagrees. The reliability of the BATF wit-

nesses against whom the letter might possibly have been

used would not have been determinative of petitioner’s

guilt or innocence. “Evidence impeaching the testimony

of a government witness falls within the Brady rule when

the reliability of the witness may be determinative of a

the federal statute under which the individual had been convicted.

The factual distinction between Deckard and the instant case is ob-

vious since a letter written by the Acting Director of an Agency is

a far cry from a court ruling that a statute is unconstitutional.

17a

criminal defendant’s guilt or innocence.” United States

ex rel Marzeno v. Gengler, 574 F.2d 730, 735 (8rd Cir.

1978).

In short, the court finds petitioner has failed to demon-

strate any fundamental errors which would warrant the

granting of the extraordinary writ of error coram nobis.

Therefore, the petition will be denied.

‘s/ Herbert F. Murray

United States District Judge

Dated: July 7, 1982

18a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Criminal No. HM77-0598

UNITED STATES OF AMERICA

Vv.

RICHARD BOULIN

ORDER

For the reasons stated in the accompanying memoran-

dum, it is this 7th day of July 1982, by the United

States District Court for the District of Maryland,

ORDERED:

(i) that the petition of Richard Boulin for a writ of

error coram nobis be, and the same hereby is, Denied;

and

(2) that the Clerk of the Court mail a copy of this

memorandum and order to each of the parties.

‘s/ Herbert F. Murray

United States District Judge

19a

APPENDIX D

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Docket No. HM-77-0598

UNITED STATES OF AMERICA

vs.

RICHARD BOULIN

Defendant No, 1

JUDGMENT AND PROBATION /COMMITMENT

ORDER

In the presence of the attorney for the government the

defendant appeared in person on this date October 4,

1979.

COUNSEL

WITH COUNSEL David H. Martin, Esq. (Ret.)

FINDING & JUDGMENT

There being Court/verdict of GUILTY as to Counts

Nos. 1, 2, 3, 4, 7, 8, 9, 10, 11 & 12.

Defendant has been convicted as charged of the of-

fense(s) of (Counts Nos. 1 thru 4 inclusive, and 7)

U.S.C., Title 18, Sections 922(c), 924(a) and 2—

Unlawful sale of firearm; Aiding and Abetting.

(Counts Nos. 8 thru 12 inclusive) U.S.C., Title 18,

Sections 922(m), 923, 924(a) and 2; 27 CFR:

178.124(a) & (c)—Failure of federally licensed fire-

arms dealer to maintain records; Aiding and Abet-

ting.

20a

SENTENCE OR PROBATION ORDER

The court asked whether defendant had anything to

say why judgment should not be pronounced. Be-

cause no sufficient cause to the contrary was shown,

or appeared to the court, the court adjudged the de-

fendant guilty as charged and convicted and ordered

that: The defendant is hereby committed to the cus-

tody of the Attorney General or his authorized rep-

resentative for imprisonment for a period of One (1)

Year as to each of Counts Nos. 1, 2, 3, 4, 7, 8, 9, 10,

11 and 12 to run concurrently on condition that De-

fendant be confined in a jail-type or treatment in-

stitution for a period of Thirty (30) Days. The

Court recommends that the committment period be

in a Work Release Program of the Montgomery

County Pre-Release Center.

SPECIAL CONDITIONS OF PROBATION

IT IS FURTHER ADJUDGED that the defendant

pay a fine to the United States in the sum of Five

Hundred ($500.00) Dollars. Balance of period of

confinement is suspended and the Defendant is placed

on probation for a period of Eleven (11) Months on

the usual terms and conditions of probation and the

further special condition: that Defendant pay the

fine at such times and in such amounts as directed

by the Probation Officer. Defendant to report to be-

gin service of sentence at the Montgomery County

Pre-Release Center, when directed.

NOLLE PROSEQUI ENTERED BY UNITED

STATES ATTORNEY IN OPEN COURT AS TO

EACH COUNTS NOS. 5, 6 AND 13, WHICH WAS

ACCEPTED BY THE COURT.

ADDITIONAL CONDITIONS OF PROBATION

In addition to the special conditions of probation im-

posed above, it is hereby ordered that the general

2la

conditions of probation set out on the reverse side of

this judgment be imposed. The Court may change

the conditions of probation, reduce or extend the pe-

riod of probation, and at any time during the proba-

tion period or within a maximum probation period of

five years permitted by law, may issue a warrant

and revoke probation for a violation occurring dur-

ing the probation period.

COMMITMENT RECOMMDATION

The court orders commitment to the custody of the

Attorney General and recommends,

It is ordered that the Clerk deliver a certified copy of

this judgment and commitment to the U.S. Marshal or

other qualified officer.

Certified as a true copy on

This Date 10-11-79

By /s/ Ailene Kaplan

Deputy

/s/ Herbert F. Murray

HERBERT F’. MURRAY

Date October 4, 1979

22a

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Criminal No. HM77-0598

UNITED STATES OF AMERICA

Vv.

RICHARD BOULIN

ORDER

It is hereby ORDERED AND ADJUDGED that the

first paragraph of the memorandum issued in this case

on August 1, 1979, be amended to read as follows:

“This criminal firearms sale case comes before the

court on facts stipulated to by the government and

the defendant, Richard Boulin. The defendant is a

former Montgomery County, Maryland police officer

who is charged with selling firearms to an under-

cover informant of the Bureau of Alcohol, Tobacco

and Firearms without complying with the registra-

tion provisions of the Gun Control Act of 1968, 18

U.S.C, § 921 et seg. Under the facts stipulated the

court has no choice but to find Mr. Boulin guilty of

the crimes charged in the indictment, except for

Counts 5, 6 and 13 as to which the government will

recommend dismissal. The court does this with great

reluctance because the potential civil penalties in this

ease far outweigh the criminality of defendant’s

conduct.”

/s/ Herbert L. Murray

United States District Judge

Dated: October 10, 1979

23a

APPENDIX F

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Criminal No. HM77-0598

UNITED STATES OF AMERIC¢

¥,

RICHARD BOULIN

MEMORANDUM

This criminal firearms sale case comes before the court

on facts stipulated to by the government and the de-

fendant, Richard Boulin. The defendant is a former

Montgomery County, Maryland police officer who is charged

with selling firearms to undercover agents of the Bureau

of Alcohol, Tobacco and Firearms without complying with

the registration provisions of the Gun Control Act of

1968, 18 U.S.C. § 921 et seg. Under the facts stipulated

the court has no choice but to find Mr. Boulin guilty of

the crimes charged in the indictment. The court does

this with great reluctance because the potential civil

penalties in this ‘case far outweigh the criminality of

defendant’s conduct.

FINDINGS OF FACT

The defendant is a federally licensed firearms dealer

and was so licensed on al] dates pertinent to this case.

(Stip. 2) He ma ntained his licensed firearms business

premises at 9112 Pennsylvania Avenue, Silver Spring,

Maryland 20910. (Stip. 3) On September 25, 1977, Octo-

ber 1, 1977 and November 5, 1977, defendant sold fire-

arms to Gordon William Schoen while away from those

business premises. (Stips. 6-10) On those occasions Mr.

Schoen did not hold a federa! firearms license of any

kind. (Stip. 5) In connection with the sales to Mr.

Schoen, the defendant knowingly:

24a

(a) did not obtain or receive a sworn statement

from Gordon William Schoen, the purchaser of

the firearms, in the form prescribed by Section

922(c) of Title 18 of the United States Code;

(b) did not, prior to delivery of the firearms, for-

ward by registered or certified mail a copy of

the sworn statement, together with a description

of the firearm being sold, to the chief law en-

forcement officer of Mr. Schoen’s place of resi-

dence;

(ec) did not delay shipment or delivery of the fire-

arms to Mr. Schoen for a period of at least seven

days following receipt of notification of the ac-

ceptance or refusal of delivery of the statement;

and

(d) did not retain, as part of his federal firearms

records, a copy of the sworn statement and a

copy of the notification to the local law enforce-

ment officer, together with evidence of receipt or

rejection of that notification.

(Stip. 12)

In connection with the same sales, the defendant know-

ingly failed to record the sales on firearms transaction

records, or to obtain the same from Mr. Schoen, in ac-

cordance with the procedures set forth in 27 C.F.R.

178.124(a) and 178.124(f). (Stip. 18) Defendant’s Fed-

eral Firearms Records do not include records of the sales

to Mr. Schoen. (Stip. 14).

Mr. Boulin is charged with violating 18 U.S.C. § 922,

paragraphs (c) and (m). 18 U.S.C. §922(c) provides

that “[a] licensed dealer may sell a firearm to a person

who does not appear in person at the licensee’s business

premises (other than another licensed importer, manu-

facturer, or dealer)” only if the dealer obtains a sworn

statement of intent from the transferee or delays delivery

of the firearms for at least seven days.

25a

18 U.S.C. §922(m) provides:

(m) It shall be unlawful for any . . . licensed

dealer, or licensed collector knowingly to make any

false entry in, to fail to make appropriate entry in,

or to fail to properly maintain, any record which he

is required to keep pursuant to section 923 of this

chapter or regulations promulgated thereunder.

This section imposes criminal liability for failure to

record the sales in accordance with 27 C.F.R. 178.124(a)

and C.F.R. 178.124(f).

The activities of the defendant described in the stipu-

lated facts conform in all essential details to activities ex-

pressly prohibited by these two sections of the United

States Code. In United States v. Huffman, 518 F.2d 80,

81 (4th Cir. 1975), the Fourth Circuit Court of Appeals

held that criminal intent is not an element of the crimes

charged under the Gun Control Act. Under the stipulated

facts, therefore, the government has made out a prima

facie case against the defendant.

STATUTORY INTENT

The defendant contends that these sections of the

United States Code were not intended to apply to fire-

arms dealers when they were selling personal weapons not

held as part of their business inventory. This is pre-

cisely the argument the court rejected earlier in this case

when the court denied defendant’s Motion to Suppress

and Return Evidence and Personal Property. At that

time this court adopted the reasoning of the Seventh Cir-

cuit Court of Appeals in United States v. Scherer, 528

F.2d 371 (7th Cir. 1975), cert. den., 424 U.S. 911 (1976).

As that court stated,

... [I]t is immaterial whether the weapons sold were

originally acquired for {[defendant’s] persona! use or

for business purposes. They became a part of his

business inventory the moment they were placed on

the market for resale. 523 F.2d at 374

26a

The statutes are strict liability statutes which make

failures to report criminal offenses regardless of intent.

While this result may seem harsh, it is the result of con-

gressional efforts to “put teeth” into enforcement of gun

control laws.

CIVIL IMPLICATIONS

Early in this opinion the court stated that it found Mr.

Boulin guilty with great reluctance because of the civil

forfeiture penalties that might accompany this conviction.

If there were any way that this court could enjoin im-

position of those penalties it would do so for the court

believes that the necessary deterrence can be achieved

through the criminal penalties available. Furthermore,

the court has found Mr. Boulin to be an uncommonly co-

operative defendant whose involvement in this case has

been an isolated act of wrongdoing in an otherwise lawful

and productive career.

Although the forfeiture issue has not been formally

raised the court wishes to emphasizes its belief that jus-

tice would not be served by confiscation of Mr. Boulin’s

firearms without compensation. The court is informed

that much of Mr. Boulin’s personal savings are invested

in this collection. The court suggests that perhaps the

Departments of Justice and the Treasury and Mr. Boulin

could arrange to sell the weapons in a closely regulated

manner and that the proceeds from the sale be returned

to Mr. Boulin. As previously noted, there are ample de-

terrents to future criminal conduct without depriving Mr.

Boulin of his life’s savings.

The court will sign an appropriate judgment order sub-

mitted by the government.

/s/ Herbert L. Murray

United States District Judge

Dated: August 1, 1979

27a

APPENDIX G

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Criminal No. HM77-0598

UNITED STATES OF AMERICA

Vv.

RICHARD BOULIN

MEMORANDUM AND ORDER

On December 20, 1977 the Grand Jury for the District

of Maryland returned a thirteen count indictment charg-

ing defendant Richard Boulin, a licensed firearms dealer,

with illegal sales of weapons to non-licensed persons, and

a failure to maintain proper documentation as to such

sales, in violation of the Gun Control Act, 18 U.S.C. 921,

et seg. Five of the weapons described in counts of the

indictment were from what defendant describes as his

own personal gun collection. The sales, the government

alleges, were made to a cooperating non-licensed individ-

ual named Gordon William Schoen at various gun shows

at Baltimore and Greenbelt, Maryland where Boulin held

himself out as a federally licensed dealer dealing as Com-

memoratives Unlimited, 9112 Pennsylvania Avenue, Silver

Spring, Maryland.

On December 14, 1977, Special Agents of the Bureau

of Alcohol, Tobacco and Firearms executed search war-

rants at the 9112 Pennsylvania Avenue address (defend-

ant’s licensed firearms’ premises) and 8700 Hawkins

Creamery Road, Gaithersburg, Maryland, the defendant’s

residence. Nothing was seized from the business prem-

28a

ises. However, at defendant’s residence the agents seized

83 firearms, 5,765 rounds of ammunitions, and various

firearms records, including defendant’s Dealer’s Firearms

Record Book, Dealer’s Ammunition Record Book, and Per-

sonal Weapons Transactions Log.

On January 13, 1978, defendant moved under Rule

41(e) of the Federal Rules of Criminal Procedure for

the return of all property seized at his residence and for

suppression under Rule 12 of the use of such property

as evidence in the trial of the charges in the indictment.

On February 138, 1978 at the joint request of the

parties, the trial date was continued, and the court pro-

ceeded to hold an evidentiary hearing on April 7, 1978

on the Motion for Return of Property and to Suppress.

The hearing was not concluded on that date but was

continued on June 9, 1978 and again on June 19, 1978.

The parties have submitted memoranda and the matter

is ripe for determination.

The Basis for the Rule 41(e) Motion

Rule 41(e) of the Federal Rules of Criminal Proce-

dure provides:

A person aggrieved by an unlawful search and sei-

zure may move the district court for the district in

which the property was seized for the return of the

property on the ground that he is entitled to lawful

possession of the property which was illegally seized.

The judge shall receive evidence on any issue of fact

necessary to the decision of the motion. If the motion

is granted the property shall be restored and it shall

nut be admissible in evidence at any hearing or trial.

The application for the search warrant which issued

for the search of defendant’s residence premises set forth

that there was concealed therein certain property, namely,

“firearms, ammunition and records which are the fruits,

instrumentalities and evidence of violation of Title 18

U.S.C. Section 922(m) and 922(c).” The cited statu-

29a

tory provisions impose on a federally licensed firearms

dealer certain record-keeping requirements when selling

firearms. Defendant maintains that he was in lawful

possession of the firearms which were seized, since there

is no evidence that he obtained the items in his “personal

collection” illegally. He further contends that the seizure

was illegal because there is no requirement under the

law that a federally licensed firearms dealer comply with

the record-keeping requirements of federal law when sell-

ing firearms from his personal collection. Additionally, it

is argued by defendant that even if defendant was re-

quired to keep the records described in the statute at the

time he sold guns from his private collection, the govern-

ment cannot seize other unsol’ firearms from that collec-

tion, absent a showing of an intention on defendant’s

part to sell such weapons without complying with the

record-keeping requirements. Finally, defendant contends

the search warrant is technically deficient for failure to

describe with sufficient particularity the items to be

seized.

A. The Application of the Gun Control Act to Sales by

Firearms Dealers of Guns from a Personal Collection

Because the record-keeping provisions of sections 922

(ec), 922(m) and 923(g) do not specify whether they

pertain to sales of firearms in a personal collection by a

licensed dealer, defendant contends that it is appropriate

to examine the legislative history of the Gun Control Act

and that an examination will indicate that Congress did

not intend the Act to pertain to such transactions. De-

fendant relies primarily on. the preamble of the Gun Con-

trol Act which states that the Act is not intended to

“discourage or eliminate the private ownership or use of

firearms.” Defendant argues that application of the

record-keeping restrictions of the Act to sales of personal

collections would constitute an unnecessary burden in

contradiction to the purpose of the Act contained in the

preamble.

80a

The preamble does not address itself to the need to

avoid restrictions on the sale or disposition of firearms,

but only to avoidance of restrictions on ownership and

possession of firearms. Accordingly, the preamble does

not aid the court in determining the scope of the record-

keeping provisions which apply to sales of firearms.

Defendant also argues that the application of the

record-keeping provisions to sales by licensed dealers of

personal firearms would violate the congressional intent

not to adversely affect a person’s desire to enter the busi-

ness of dealing in firearms. Defendant reasons that appli-

cation of these restrictions to a dealer selling personally

held weapons would make it undesirable to become a

dealer because persons selling guns without a license

would not have to maintain such records. Defendant does

not offer any support for his assumption that an un-

licensed person could engage in sales of personally held

firearms without complying with the restrictions of the

Gun Control Act (Defendant’s Memorandum at 6, n.3.),

and the court does not agree with defendant’s assump-

tion. It is unlawful for a person to engage in the business

of dealing in firearms without a license. 18 U.S.C. § 922

(a)(1). Although the statute does not define the term

“engaged in the business”, courts have construed the term

to apply to one whose time, attention, and labor is occu-

pied by such i, od for the purpose of profit. See, e.g.,

United States v. Huffman, 518 F.2d 80 (4th Cir. 1975) ;

United States v. Day, 476 F.2d 562 (6th Cir. 1978),

cited with approval in United States v. Lovingood, 73-

2071 (4th Cir. March 14, 1974) (per curiam).

To be engaged in the business of selling firearms, a

person need not have that activity as his primary one.

See United States v. 57 Miscellaneous Firearms, 422 F.

Supp. 1066 (W.D. Mo. 1976). In fact, very little activity

is required for a person to be considered a dealer, and

thus subject to the license requirement of the Gun Control

Act. In Lovingood, the Fourth Circuit of Appeals held

3la

that two sales over a period of one month involving a total

of five guns is sufficient activity to characterize the seller

as a dealer.

Accordingly, persons who sell guns with sufficient

frequency to be characterized as dealers do not have the

option which defendant assumes exists to operate with or

without a license. The statute requires that they be

licensed and adhere to the restrictions established for the

operation of a dealership. Therefore, the application of

the record-keeping provisions to sales of weapons from

a personal collection does not in any way discourage

persons from becoming licensed dealers.

Defendant also argues that the record-keeping provi-

sions of the Gun Control Act are ambiguous, and there-

fore, they must be construed leniently in defendant’s

favor. Although a concern for individuals rights results

in a rule of narrow construction of ambiguous statutes,

the Supreme Court in Huddleston v. United States, 415

U.S. 814 (1974), in construing another section of the Gun

Control Act, explained that penal laws should not be

construed to defeat the obvious intention of the legisla-

ture. 415 U.S. at 831.

A review of the statute establishes that the legislature

intended the record-keeping provisions to apply to sales

of weapons from a dealer’s personai collection. First, the

regulations promulgated pursuant to sections 922 and

923(g) refer to the sale of “any firearm”. Also, to

achieve the purpose of the Gun Control Act, the record-

keeping provisions must be applied to sales from personal

collections. In Barrett v. United States, 423 U.S. 212

(1976), the Court explained that the act was designed to

prevent firearms from coming into the hands of the un-

qualified. If licensed dealers could avoid maintaining

records by simply designating guns as belonging to a per-

sonal collection rather than a business inventory or by

selling the guns from their residences rather than their

32a

place of business, the effectiveness of recording gun sales

to monitor who receives the firearms would be destroyed.

In United States v. Scherer, 523 F.2d 371 (7th Cir.

1975), cert. denied, 424 U.S. 911 (1976), the Seventh

Circuit addressed the same question before the court

today: whether sales by licensed dealers of guns from a

personal collection are regulated by the Gun Control Act.

In applying the Act to such sales, the court explained that

distinctions between business and personal transactions

are unworkable and arbitrary. Once a gun is offered for

sale by a dealer, it becomes part of his business inventory.

In finding against the defendant, the court said:

The necessary implication of these guidelines indi-

cates that the act of selling a firearm, not its loca-

tion or the arbitrary distinction between ‘personal’

and ‘business’ transactions, brings a weapon and the

parties involved within the purview of federal con-

trol. In this regard the terms of 18 U.S.C. Section

923(g)° and the executing provisions of 26 C.F.R.

Sections 178.124, 178.125 are clear. The statutes and

regulations are comprehensive in their coverage, and

refer to ‘any firearm’ and ‘each disposition’. They

were designed to keep a constant record of the trans-

fer and location of firearms in order to reduce the

indiscriminate flow of such weapons and the crime

that inevitably follows in their wake. (footnote

omitted). A licensed dealer must, therefore, comply

with the record provisions of 26 C.F.R. Sections

178.124 and 178.125 each time he disposes of a fire-

arm. In the instant case it is immaterial whether the

weapons sold were originally acquired for Scherer’s

personal use or for business purposes. They become

a part of his business inventory the moment they

were placed on the market for resale. (Emphasis

added) 523 F.2d at 374.

This court adopts the reasoning of the Seventh Circuit

in Scherer and finds that a federally licensed firearms

33a

dealer must comply with the record-keeping requirements

of 18 U.S.C. Section 922(c) and (m) when selling fire-

arms from his personal collection.

B. Intent to Sell the Seized Firearms

Defendant also argues that even if the court interprets

the statute to require records to be kept on sales of guns

from a dealer’s personal collection, the government failed

to show that defendant intended to sell the seized guns.

Defendant argues that the mere fact that he sold five

guns from his persona! collection is insufficient to estab-

lish that he intended to sell any other guns illegally,

particularly in light of the fact that the guns are not

fungible. See United States v. 2265 One-Gallon Paraffined

Tin Cans, 260 F.2d 105 (5th Cir. 1958).

The question of intent is a factual one, and a dealer’s

entire stock is subject to forfeiture if the facts so war-

rant. See United States v. 1,922 Assorted Firearms, 330

F.Supp. 635 (E.D. Mo. 1971). For example, in United

States v. One Assortment of 12 Rifles & 21 Handguns,

313 F.Supp. 641 (N.D. Fla. 1970), the court held that all

guns displayed for sale were properly seized where de

fendant was operating as a dealer without a license.

In the present case, probable cause does not hinge

merely on the fact that defendant previously had sold

guns from his personal collection. The affidavit presented

to the magistrate stated that defendant told Mr. Schoen,

who was cooperating with the government agents, that

he was willing to sell “numerous” guns which were at his

residence without recording the sale. In this conversa-

tion, which took place on December 6, 1977, Schoen told

Boulin that on December 14, 1977, he (Schoen) would be

in the market to buy more firearms “off paper.” Ac-

cording to Schoen, Boulin in agreeing to sell numerous

firearms indicated he would sell them the same way he

did before (referring to selling them without paperwork).

Boulin said that the guns were being stored at his resi-

34a

dence and would be there on December 14, 1977 when

Schoen came there to buy them.

At the various hearings held on defendant’s motion, the

court heard tapes of monitored conversations between the

defendant Boulin and Schoen which dealt with transac-

tions for the sale of certain of the weapons from de-

fendant’s personal collection. A review of the facts and

circumstances of these actual transactions circumstan-

tially supports the inference that defendant intended to

offer the weapons at his house for sale whenever the price

was right. Also, the facts alleged in the affidavit of

Agent William J. McMonagle in support of the applica-

tion for a search warrant establish probable cause that

the firearms seized at the Boulin residence were “involved

or intended to be used” in violation of the Gun Control

Act. United States v. One Assortment of 12 Rifles & 21

Handguns, 313 F.Supp. 641, 642 (N.D. Fla. Gainesville

Div., 1970); United States v. Ventresca, 380 U.S. 102

(1965).

With regard to the claim that the items to be seized

were not described in the warrant with sufficient par-

ticularity, the court finds pertinent here the language of

the Seventh Circuit in United States v. Scherer, supra,

dealing with a similar defense contention in that case:

We have no such abuse of the warrant here. The

items seized were limited to a cache of weapons and

Scherer’s Firearms Acquisition Record book—the

document containing ‘business records relating to the

purchase and sale of firearms.’ The defendant’s argu-

ment that the agents could have inspected the volumes

on the business premises as permitted by law, ignores

the realities of the situation. Scherer had’ failed to

record numerous weapons in his book. An affirma-

tion of this belief depended upon a cross-check of the

weapons with the volume entries. Since the firearms

were not located in the defendant’s office, seizure of

35a

both the guns and records was the only feasible —

method of investigation.

The government was not required, as defendant contends,

to unmistakably identify each weapon to be seized.

For the reasons herein stated, it is this 3lst day of

July, 1978,

ORDERED:

(1) that defendant’s Motion to Suppress and Return

Evidence and Personal Property be, and the same hereby

is, Denied; and

(2) that the Clerk of the Court is directed to mail

copies of this Memorandum and Order to George Beall,

Esquire, counsel for defendant, and to Assistant United

States Attorney Marsha A. Ostrer.

/s/ Herbert F. Murray

United States District Judge

36a

APPENDIX H

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Criminal No. HM-77-0598

UNITED STATES OF AMERICA

Vv.

RICHARD BOULIN

STIPULATION OF FACTS

It is hereby stipulated by and between the United

States of America, by its undersigned counsel, and the

Defendant, Richard Bonlin and his undersigned counsel,

that the following fact» are true and correct, and that the

facts contained herein shall be adopted by the parties and

the finder of fact as if proved at trial:

1. At all times pertinent to this case, the Defendant

resided at 8700 Hawkins Creamery Road, Gaithersburg,

Maryland.

2. The Defendant has been a federally licensed fire-

arms dealer since February 2, 1976, was a federally

licensed firearms dealer on September 25, 1977, October 1,

1977 and November 5, 1977, and has held no other type

of federal firearms license at any time. The Defendant’s

federal firearms license, a certified and exemplified copy

of which is attached hereto as Exhibit 1 (and admitted

in evidence herewith by agreement of the parties), au-

thorized the Defendant to conduct business at 9112 Penn-

sylvania Avenue, Silver Spring, Maryland.

37a

8. At all times pertinent to this case, the Defendant

maintained his licensed firearms business premises at 9112

Pennsylvania Avenue, Silver Spring, Maryland 20910, as

indicated on the business card of the Defendant which is

attached hereto as Exhibit 2, and which is admitted in

evidence herewith by agreement of the parties. A copy

of such business card was presented to Gordon William

Schoen on September 25, 1977. The Defendant’s licensed

firearms business was known as Commemoratives Un-

limited and was individually owned at all times pertinent

to this case.

4. At all times pertinent to this case, Gordon William

Schoen resided at 2113 Sykesville Road, Westminster,

Maryland.

5. At all times pertinent to this case, including on

September 25, 1977, October 1, 1977 and November 5,

1977, Gordon William Schoen did not hold a federal] fire-

arms license of any kind.

6. On September 25, 1977, the Defendant set up a table

at the J & S Wildcat Gun Show at the Baltimore Civic

Center, Baltimore, Maryland, and displayed various fire-

arms for sale. At such gun show, the Defendant sold and

transferred to Gordon William Schoen three firearms,

which were owned by the Defendant and were not re

corded in his Dealer’s Firearms Record Book, which was

admitted into evidence at the suppression hearing in this

case as Government’s Exhibit 7. Mr. Schoen thereafter

delivered the three firearms to Special Agent William J.

McMonagle of the Bureau of Alcohol, Tobacco and Fire

arms. The three firearms which the Defendant sold to

Mr. Schoen were as follows:

(a) One 9 mm Luger semi-automatic pistol, serial

number on barrel 7318, on frame 4907, for

$225.00 in cash, such pistol being admitted in

evidence herewith as Exhibit 3, by agreement of

the parties.

38a

(b) One Colt .25 caliber semi-automatic pistol, serial

number 15797, for $125.00 in cash, such pistol

being admitted in evidence herewith as Exhibit

4, by agreement of the parties.

(ec) One Browning .22 caliber semi-automatic rifle,

serial number 34583T47, for $125.00 in cash,

such rifle being admitted in evidence herewith as

Exhibit 5, by agreement of the parties.

7. On October 1, 1977, the Defendant set up a table at

the Greenbelt Gun Show at the Greenbelt National Guard

Armory in Greenbelt, Maryland, and displayed various

firearms for sale. At such gun show, the Defendant sold

and transferred a Colt .357 magnum caliber revolver,

serial] number 36700SA to Gordon William Schoen, which

was owned by the Defendant and was not recorded in his

Dealer’s Firearms Record Book, which was admitted into

evidence at the suppression hearing in this case as Gov-

ernment’s Exhibit 7, for $275.000 in cash, such revolver

being admitted in evidence herewith as Exhibit 6, by

agreement of the parties. Mr. Schoen thereafter delivered

such firearm to Special Agent William J. McMonagle of

the Bureau of Alcohol, Tobacco and Firearms.

8. On November 5, 1977, the Defendant set up a table

at the Greenbelt Gun Show at the Greenbelt National

Guard Armory, in Greenbelt, Maryland, and displayed

various firearms for sale. At such gun show, the De-

fendant sold and transferred a Colt Python .857 magnum

revolver, serial number 48051E, which was owned by the

Defendant and was not recorded in his Dealer’s Firearms

Record Book, which was admitted into evidence at the

suppression hearing in this case as Government’s Exhibit

7, to Gordon William Schoen for $350.00 in cash, such

revolver being admitted in evidence herewith as Exhibit 7,

by agreement of the parties. Mr. Schoen thereafter de-

livered such firearm to Special Agent William J. Mc-

Monagle of the Bureau of Alcohol, Tobacco and Firearms.

39a

9. Each of the firearms listed in paragraphs 6, 7 and

8 above is a “firearm” within the definition of Section

921(a) of Title 18 of the United States Code.

10. Neither the J & S Wildcat Gun Show on September

25, 1977, the Greenbelt Gun Show on October 1, 1977 nor

the Greenbelt Gun Show on November 5, 1977 constituted

a licensed business premise of the Defendant within the

meaning of Section 922(c) of Title 18 of the United

States Code.

11. At no time has Gordon William Schoen ever been

requested to appear or appeared at the licensed busi-

ness premise of the Defendant.

12. In connection with the sale of each of the five

firearms specified in paragraphs 6, 7 and 8 above, the

Defendant knowingly:

(a) did not obtain or receive a sworn statement

from Gordon William Schoen, the purchaser

of the firearms, in the form prescribed by Sec-

tion 922(c) of Title 18 of the United States

Code;

(b) did not, prior to delivery of the firearms, for-

ward by registered or certified mail a copy of

the sworn statement, together with a description

of the firearm being sold, to the chief law en-

forcement officer of Mr. Schoen’s place of

residence;

(ce) did not delay shipment or delivery of the fire-

arms to Mr. Schoen for a period of at least

seven days following receipt of notification of

the acceptance or refusal of delivery of the

statement; and

(d) did not retain, as part of his federal fire-

arms records, a copy of the sworn statement

and a copy of the notification to the local law

40a

enforcement officer, together with evidence of

receipt or rejection of that notification.

13. In connection with the sale of each of the five fire-

arms specified in paragraphs 6, 7 and 8 above, the De-

fendant knowingly failed to record the sale of each such

firearm to Mr. Schven on a firearms transaction record,

Form 4473 and to obtain a Form 4473 from Mr. Schoen

with respect thereto, in accordance with the procedures

set forth in 27 C.F.R. 178.124(a) and 178.124(f).

14. The Federal Firearms Records of the Defendant

do not contain or reflect any Forms 4473 taken from

Gordon William Schoen in connection with the sale to

Mr. Schoen of each of the five firearms specified in

paragraphs 6, 7 and 8 above.

15. All of the events described in the preceding para-

graphs occurred in the State and District of Maryland.

16. In addition to the facts stipulated in the preceding

paragraphs, the parties further stipulate that all contents

of the court’s file and all matters of record heretofore in

this proceeding, including all testimony recorded in con-

nection with the Defendant’s Motion to Suppress and Re-

turn Evidence and Personal Property, all exhibits intro-

duced into the record in connection with such testimony

or otherwise (including transcripts of certain tape re-

cordings made by the Government), and all stipulations

of fact or other matters of record, shall be incorporated

herein by reference and made a part hereof.

Date: 9-13-78 /s/ Russell T. Baker, Jr.

RUSSELL T. BAKER, JR.

United States Attorney

Date: 9-13-78 /s/ Lynne A. Battaglia

LYNNE A. BATTAGLIA

Assistant United States Attorney

Date:

Date:

Date:

Date:

9-13-78

9-13-78

9-13-78

9-13-78

4la

/s/ John A. MacColl

JOHN A. MACCOLL

Assistant United States Attorney

/s/ David Martin

DAVID MARTIN

Counsel for the Defendant

/s/ William P. Crewe

WILLIAM P. CREWE

Counsel for the Defendant

/s/ Richard Boulin

RICHARD BOULIN

Defendant

42a

APPENDIX I

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Criminal No. 77-0598

UNITED STATES OF AMERICA

Vv.

RICHARD BOULIN

(Unlawful Sale of a Firearm, 18 USC §§ 922(c) and (a);

Failure by Federally Licensed Firearms Dealer to

Maintain Records, 18 USC §§§ 922(m), 923, 924(a),

27 CFR § 178.124 and (c), 18 USC § 2)

The Grand Jury for the District of Maryland charges:

On or about the 25th day of September, 1977, in the

State and District of Maryland,

RICHARD BOULIN

being a licensed dealer of firearms, knowingly failed to

comply with the requirements of Title 18, United States

Code, Section 922(c) in connection with the sale of a fire-

arm, that is, one 9mm Luger semi automatic pistol, serial

number on barre] 7318, on frame 4907, to a person (who

was not a licensed importer, manufacturer, or dealer of

firearms) who did not appear in person at his licensed

business premises.

18 USC §§ 922(c) and 924(a), 18 USC § 2.

COUNT TWO

And the Grand Jury for the District of Maryland

further charges:

43a

On or about the 25th day of September, 1977, in the

State and District of Maryland,

RICHARD BOULIN

being a licensed dealer of firearms, knowingly failed to

comply with the requirements of Title 18, United States

Code, Section 922(c) in connection with the sale of a fire-

arm, that is, one Colt .25 caliber semi automatic pistol,

serial number 15797, to a person (who was not a licensed

importer, manufacturer, or dealer of firearms) who did

not appear in person at his licensed business premises.

18 USC §§ 922(c) and 924(a), 18 USC § 2.

COUNT THREE

And the Grand Jvry for the District of Maryland

further charges:

On vr about the 25th day of September, 1977, in the

State and District of Maryland,

RICHARD BOULIN

being a licensed dealer of firearms, knowingly failed to

comply with the requirements of Title 18, United States

Code, Section 922(c) in connection with the sale of a

firearm, that is, one Browning .22 caliber semi automatic

rifle, serial number 34583T47, to a person (who was not

a licensed importer, manufacturer, or dealer of firearms)

who did not appear in person at his licensed business

premises.

18 USC $§ 922(c) and 924(a), 18 USC § 2.

COUNT FOUR

And the Grand Jury for the District of Maryland

further charges:

On or about the 1st day of October, 1977, in the State

and District of Maryland,

44a

RICHARD BOULIN

being a licensed dealer of firearms, knowingly failed to

comply with the requirements of Title 18, United States

Code, Section 922(c) in connection with the sale of a

firearm, that is, one Colt .8357 magnum caliber revolver,

serial number 36700SA, to a person (who was not a

licensed importer, manufacturer, or dealer of firearms)

who did not appear in person at his licensed business

premises.

18 USC §§ 922(c) and 924(a), 18 USC § 2.

COUNT FIVE

And the Grand Jury for the District of Maryland

further charges:

On or about the lst day of October, 1977, in the State

and District of Maryland,

RICHARD BOULIN

being a licensed dealer of firearms, knowingly failed to

comply with the requirements of Title 18, United States

Code, Section 922(c) in connection with the sale of a

firearm, that is, one Smith and Wesson .357 magnum

caliber revolver, serial number N381089, to a person

(who was not a licensed importer, manufacturer, or

dealer of firearms) who did not appear in person at his

licensed business premises.

18 USC §§ 922(c) and 924(a), 18 USC § 2.

COUNT SIX

And the Grand Jury for the District of Maryland

further charges:

On or about the lst day of October, 1977, in the State

and District of Maryland,

RICHARD BOULIN

being a licensed dealer of firearms, knowingly failed to

comply with the requirements of Title 18, United States

45a

Code, Section 922(c) in connection with the sale of a

firearm, that is, one High Standard model 101, .22 caliber

semi automatic pistol, serial number 2079436, to a person

(who was not a licensed importer, manufacturer, or

dealer of firearms) who did not appear in person at his

licensed business premises.

18 USC §§ 922(c) and 924(a), 18 USC § 2.

COUNT SEVEN

And the Grand Jury for the District of Maryland

further charges:

On or about the 5th day of November, 1977, in the

State and District of Maryland,

RICHARD BOULIN

being a licensed dealer of firearms, knowingly failed to

comply with the requirements of Title 18, United States

Code, Section 922(c) in connection with the sale of a

firearm, that is, one Colt Python .357 magnum revolver,

serial number 48051E, to a person (who was not a

licensed importer, manufacturer, or a dealer of firearms)

who did not appear in person at his licensed business

premises.

18 USC &§ 922(c) and 924(a), 18 USC § 2.

COUNT EIGHT

And the Grand Jury for the District of Maryland

further charges:

On or about the 25th day of September, 1977, in the

State and District of Maryland,

RICHARD BOULIN

being a Federally Licensed Firearms Dealer did know-

ingly and unlawfully fail to maintain records which are

required to be kept pursuant to 18 U.S.C. § 923 and 27

46a

CFR § 178.124(a) in that he sold and disposed of one

9mm Luger semi-automatic pistol, serial number on

barrel 7318, on frame 4907, to a nonlicensee without re-

cording said transaction on a firearms transaction record,

Form 4473.

18 USC § 922(m), 18 USC § 923, 18 USC § 924(a), 27

CFR § 178.124(a) and (c), 18 USC § 2.

COUNT NINE

And the Grand Jury for the District of Maryland

further charges:

On or about the 25th day of September, 1977, in the

State and District of Maryland,

RICHARD BOULIN

being a Federally Licensed Firearms Dealer did know-

ingly and unlawfully fail to maintain records which are

required to be kept pursuant to 18 USC § 923 and 27

CFR §178.124(a) in that he sold and disposed of one

Colt .25 caliber semi-automatic pistol, serial number

15797, to a nonlicensee without recording said transaction

on a firearms transaction record, Form 4473.

18 USC § 922(m), 18 USC § 923, 18 USC § 924(a), 27

CFR § 178.124(a) and (c), 18 USC § 2.

COUNT TEN

And the Grand Jury for the District of Maryland

further charges:

On or about the 25th day of September, 1977, in the

State and District of Maryland,

RICHARD BOULIN

being. a Federally Licensed Firearms Dealer did know-

ngly and unlawfully fail to maintain records which are

and 27

required to be kept pursuant to 18 USC § 923

—e

47a

CFR §178.124(a) in that he sold and disposed of one

Browning .22 caliber semi automatic rifle, serial number

34583T47, to a nonlicensee without recording said trans-

action on a firearms transaction record, Form 4473.

18 USC § 922(m), 18 USC § 923, 18 USC § 924(a), 27

CFR § 178.124(a) and (c), 18 USC § 2.

COUNT ELEVEN

And the Grand Jury for the District of Maryland

further charges:

On or about the lst day of October, 1977, in the State

and District of Maryland,

RICHARD BOULIN

being a Federally Licensed Firearms Dealer did know-

ingly and unlawfully fail to maintain records which are

required to be kept pursuant to 18 USC § 923 and 27

CFR § 178.124(a) in that he sold and disposed of one

Colt .357 magnum caliber revolver, serial number 36700SA,

to a nonlicensee without recording said transaction on a

firearms transaction record, Form 4473.

18 USC § 922(m), 18 USC § 923, i8 USC § 924(a), 27

CFR § 178.124(a) and (c), 18 USC § 2.

COUNT TWELVE

And the Grand Jury for the District of Maryland

further charges:

On or about the 5th day of November, 1977, in the

State and District of Maryland,

RICHARD BOULIN

being a Federally Licensed Firearms Dealer did know-

ingly and unlawfully fail to maintain records which are

required to be kept pursuant to 18 USC § 923 and 27

CFR § 178.124(a) in that he sold and disposed of one

48a

Colt Python .857 magnum revolver, serial number 48051E,

to a nonlicensee without recording said transaction on a

firearms transaction record, Form 4473.

18 USC § 922(m), 18 USC § 923, 18 USC § 924(a), 27

CFR § 178.124(a) and (c), 18 USC § 2.

COUNT THIRTEEN

And the Grand Jury for the District of Maryland

further charges:

On or about the 25th day of September 1977, in the

State and District of Maryland,

RICHARD BOULIN

being a Federally Licensed Firearms Dealer did know-

ingly and unlawfully fail to maintain records which are

required to be kept pursuant to 18 USC § 923 and 27

CFR §178.126(a) in that he sold or disposed of one

9mm Luger semi-automatic pistol, serial number, on

barrel, 7318, on frame 4907, and one Colt,».25 caliber

semi-automatic pistol, serial number 15797, to Gordon

William Schoen, a nonlicensee, without recording the said

transaction on a Report of Multiple Sale or Other Dis-

position of Pistols and Revolvers, Form 3310.4 and did

fail to forward to the office specified thereon later than

the close of business on the day that the multiple sale or

disposition occurred.

18 USC § 922(m), 18 USC § 923, 18 USC § 924(a), 27

CFR § 178.126(a), 18 USC § 2.

JERVIS S. FINNEY

United States Attorney

A True Bill:

49a

APPENDIX J

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Docket No. 8-77

Case No. 5975N

UNITED STATES OF AMERICA

vs.

8700 HAWKINS CREAMERY ROAD,

GAITHERSBURG, MARYLAND

SEARCH WARRANT

To Special Agent William J. McMonagle, Bureau of

Alcohol, Tobacco & Firearms, or any other author-

ized officer

Affidavit(s) having been made before me by Special

Agent William J. McMonagle that he has reason to be-

lieve that on the premises known as 8700 Hawkins

Creamery Road, Gaithersburg, Maryland, being described

as a one story brick home with the numbers 8700 ap-

pearing over the door located at the intersection of Wood-

field Road %nd Woodfield School Road in the Judicial Dis-

trict of Maryland there is now being concealed certain

property, namely firearms, ammunition and records in-

volved in, used in or intended to be used in violation of

Title 13 USC Section 922(m) and 922(c) and as I am

satisfied that there is probable cause to believe that the

property so described is being concealed on the person or

premises above descrfbed and that grounds for applica-

tion for issuance of the search warrant exist as stated

in the supporting affidavit (s).

You are hereby commanded to search on December 14,

1977 (not to exceed 10 days) the person or place named .

50a

for the property specified, serving this warrant and mak-

ing the search in the daytime (6:00 a.m. to 10:00 p.m.*)

and if the property be found there to seize it, leaving a

copy of this warrant and receipt for the property taken,

and prepare a written inventory of the property seized

and promptly return this warrant and bring the prop-

erty before me as required by law.

Federal judge or magistrate

Dated this 12 day of December, 1977

/s/ (Illegible]

Judge (Federal or State Court of Record)

or Federal Magistrate.

* The Federal Rules of Criminal Procedure provide: “The war-

rant shall be served in the daytime, unless the issuing authority, by

appropriate provisions in the warrant, and for reasonable cause

shown, authorizes its execution at times other than daytime.” (Rule

4l(c)’ A statement of grounds for reasonable cause should be

made in the affidavit(s) if a search is to be authorized “at any time

day or night” pursuant to Rule 41(c).

5la

RETURN

I received the attached search warrant December 12,

1977, and have executed it as follows:

On December 14, 1977 at 11:30 o’clock AM, I searched

the person or premises described in the warrant and

I left a copy of the warrant with Mrs. Susan Boulin

together with a receipt for the items seized.

The following is an inventory of property taken pur-

suant to the warrant:

SEE ATTACHED SHEETS

This inventory was made in the presence of Special

Agent Eugene Reagan and Willie Ellison

I swear that this Inventory is a true and detailed ac-

count of all the property taken by me on the warrant.

/s/ Special Agent [Illegible]

Subscribed and sworn to and returned before me this

day of ——, 19—.

Federal Magistrate

52a

AFFIDAVIT

I, William J. McMonagle, being duly sworn upon my

oath, depose and state:

That I have been employed as a Special Agent with the

Bureau of Alcohol, Tobacco and Firearms, U.S. Treasury

Department, for approximately six and one-half (614)

years. During the course of that time I have had occasion

to participate in, as well as, obtain and execute numerous

arrest and search warrants regarding violations of the

federal firearms and explosive laws.

Your affiant has known Gordon William Schoen for ap-

proximately four (4) months. During this time Mr.

Schoen has provided your affiant with information in ref-

erence to unlawful and lawful firearms activities on a

basis of at least five (5) times a week. A substantial

portion of the aforementioned information provided to

your affiant by Mr. Schoen has been independently cor-

roborated by your affiant and other ATF Special Agents,

and has been found to be true and correct in each

instance.

On September 25, 1977, Gordon William Schoen, acting

in cooperation with and under the guidance and control

of your affiant, went to the J & G Wildcat Gun Show,

Baltimore, Maryland. Mr. Schoen stated to your affiant

that while there, he purchased the following firearms

from Richard Boulin, a federally licensed firearms dealer,

trading as Commemoratives Unlimited:

1. One 9mm Luger semi automatic pistol, serial num-

ber on barrel 7318, on frame 4907, for two hun-

dred twenty-five dollars ($225.00)

2. One Colt .25 caliber semi automatic pistol, serial

number 15797, for one hundred twenty-five dollars

($125.00)

3. One Browning .22 caliber semi automatic rifle, se-

rial number 34583T47 for one hundred twenty-five

dollars ($125.00)

53a

With the knowledge and consent of Gordon William

Schoen, the aforementioned transaction was monitored

and recorded by your affiant by means of an electronic

device placed on the person of Mr. Schoen. However, due

to technical difficulties portions of the aforementioned

transaction were inaudible.

Mr. Schoen further stated to your affiant that while at

the aforementioned gun show, Boulin stated to him that

he (Boulin) was a federally licensed firearms dealer and

presented Mr. Schoen with one of his (Boulin’s) business

cards verifying the fact that he (Boulin) was in fact a

federally licensed firearms dealer trading as Commemora-

tives Unlimited, 9112 Pennsylvania Avenue, Silver Spring,

Maryland.

On October 1, 1977, Gordon William Schoen, acting in

cooperation with and under the guidance and control of

your affiant, went to the Greenbelt Gun Show, Greenbelt

National Guard Armory, Greenbelt, Maryland. Mr.

Schoen stated to your affiant that while there, he pur-

chased the following firearms from Richard Boulin:

1. One Colt .357 magnum caliber revolver, serial num-

ber 36700SA for two hundred seventy-five dollars

($275.00)

2. One Smith and Wesson magnum caliber revolver,

serial number NE81039, for two hundred seventy-

five dollars ($275.00)

3. One High Standard model 101, .22 caliber semi auto-

matic pistol, serial number 2079436, for one hun-

dred dollars ($100.00)

With the knowledge and consent of Gordon William

Schoen, your affiant monitored the aforementioned trans-

action by means of an electronic device placed on the per-

son of Mr. Schoen. However, due to technical difficulties,

portions of the aforementioned transaction were inaudible.

On November 5, 1977, Gordon William Schoen, acting

in cooperation with and under this guidance and control

54a

of your affiant, went to the Greenbelt Gun Show, Green-

belt National Guard Armory, Greenbelt, Maryland. Mr.

Schoen stated to your affiant that while there, he pur-

chased one Colt Python .357 magnum revolver, serial

number 48051E for three hundred fifty dollars ($350.00)

from Richard Boulin. With the knowledge and consent

of Gordon William Schoen, the aforementioned transac-

tion was monitored and recorded by your affiant by means

of an electronic device placed on the person of Mr. Schoen.

However, due to technical difficulties, portions of the

aforementioned transactions were inaudible.

On or about November 14, 1977, your affiant received

certification from the Regional Regulatory Administra-

tor, Bureau of Alcohol, Tobacco and Firearms, Mid-

Atlantic Region, Philadelphia, Pennsylvania, stating that

Richard Boulin who resides at 8700 Hawkins Creamery

Road, Gaithersburg, Maryland, and whose federal fire-

arms business is located at 9112 Pennsylvania Avenue,

Silver Spring, Maryland, filed an application for a federal

firearms license on November 20, 1975. He was issued

a federal firearms license, number 52-7146, on February

2, 1976, and timely filed his renewal application. His

current license will expire on March 1, 1978.

On or about December 6, 1977, Gordon William Schoen

stated to your affiant that during some but not all of

the aforementioned firearms transactions, he completed

some federal firearms forms. However, Mr. Schoen was

not sure of just how many forms he completed.

On December 7, 1977, Gordon William Schoen stated

to your affiant that on December 6, 1977, he telephoned

Richard Boulin at 253-6133 and told him that on Wednes-

day, December 14, 1977, he (Schoen) would be in the

market to buy more firearms “off paper.” According to

Mr. Schoen, Mr. Boulin said that he would sell Mr.

Schoen numerous firearms the same way he did before

(referring to selling them without paperwork). Boulin

said that the guns are presently being stored at his resi-

55a

dence, 8700 Hawkins Creamery Road, Gaithersburg,

Maryland, and that they would be there on Wednesday,

December 14, 1977, when Schoen went there to buy them.

Mr. Boulin then proceeded to give Mr. Schoen directions

to his (Boulin’s) residence at 8700 Hawkins Creamery

Road, Gaithersburg, Maryland.

Based on the information set forth in this affidavit your

affiant has reason to believe that presently being concealed

on the federally licensed firearms premises of Richard

Boulin, 9112 Pennsylvania Avenue, Silver Spring, Mary-

land, and at his residence, 8700 Hawkins Creamery Road,

Gaithersburg, Maryland, are firearms, ammunition and

records involved in, used in and intended to be used in

violation of Title 18 USC Section 922(m), and 922(c).**

WILLIAM J. MCMONAGLE

Special Agent

Subscribed and sworn to before me this — day of De-

cember 197—

United States Magistrate

** Subsequent to each controlled purchase of firearms Gordon

William Schoen stated to your affiant that during the purchase of

said firearms, he did not execute any sworn statements so prescribed

by the Title 18 USC Section 922(c).

Ail of the aforementioned firearms purchased by Mr. Schoen were

turned over to your affiant by Mr. Schoen subsequent to each con-

trolled buy.

56a

APPENDIX K

[SEAL]

DEPARTMENT OF THE TREASURY

BUREAU OF ALCOHOL, TOBACCO AND FIREARMS

Washington, D.C. 20226

30 Jul. 1979

Honorable S. I. Hayakawa

United States Senate

Washington, D.C. 20510

Dear Senator Hayakawa:

This is in reference to your letter of May 10, 1979, where-

in you requested our comments on the abuses referred to

in the article attached to your letter entitled “BATF En-

trapment Schemes” by David T. Hardy.

The first portion of Mr. Hardy’s article discusses “straw

man entrapment” or the straw purchase. We emphasize

that it is not the practice of ATF to conduct afi under-

cover investigation regarding unlawful sales by firearms

licensees unless there is reason to believe that the licensee

has previously made unlawful sales. If the firearms li-

censee is reluctant to deal with the undercover agent,

ATF immediately terminates its investigation. Further-

more, it is the Bureau’s practice to permit the firearms

licensee himself to suggest the medium of a straw pur-

chaser to consummate the sale.

Thus, it is strictly prohibited for ATF undercover agents

to encourage, as opposed to merely provide the opportu-

nity for, such unlawful sales of firearms. In all instances,

ATF agents seek to comply with the rules laid down by

the Supreme Court concerning entrapment. In United

States v. Russell, 411 U.S. 433, 435-436 (1973), the

United States Supreme Court ruled that the fact that

officers or employees of the Government merely afford op-

portunities or facilities for the commission of the offense

57a

does not defeat the prosecution. It is only when the Gov-

ernment’s deception actually implants the criminal design

in the mind of the defendant that the defense of entrap-

ment comes into play. Of course, any defendant having

been unlawfully entrapped into commission of a crime

has a valid defense to the prosecution.

The use of straw purchasers in acquiring firearms from

licensees presents a serious law enforcement problem.

These transactions thwart the intent of the Gun Control

Act to keep firearms out of the hands of prohibited per-

sons, as well as *o regulate interstate commerce in fire-

arms. Typically, the actual or ultimate purchaser is a

felon or out-of-State resident to whom a licensee is pro-

hibited from selling or delivering firearms. By utilizing

a straw purchaser, who is himself eligible to obtain fire-

arms, the prohibited person is able to acquire the firearm

“off record” and conceal the transaction. Firearms ac-

quired in this manner are frequently used in crime. For

example, the firearm used by David Berkowitz, also known

as “Son of Sam,” in the murder of several persons in New

York was purchased from a licensed dealer in Texas by a

Texas resident acting on Berkowitz’s behalf.

While there is a continuing need to monitor straw pur-

chase transactions, you may be interested in knowing

that we have implemented internal controls to ensure

that investigations of these cases are kept within proper

limits and that only those cases warranting Federal

prosecution are investigated. That is to say,-any such in-

vestigation must be personally approved by the Director

or the Deputy Director (the same is true with regard to

investigations of firearms transactions at gun shows).

Furthermore, we are seeking to impact upon the problem

of straw purchases by informing all licensees how to

avoid those transactions which are contrary to law. A

publication serving this purpose will be issued within the

next few days.

58a

In his article, Mr. Hardy alleges a second form of en-

trapment entitled “implied dealership” which he claims

is used against collectors and those displaying firearms

at gun shows. Under Federal firearms laws, a non-

licensed resident of the State in which the show is being

held may buy, sell or exchange personal firearms with

another nonlicensee of the same State. The resident may

also sell to or place an order to buy firearms with a

licensed firearms dealer, provided the resident does not

“engage in the business” of dealing in firearms which

requires a license under the Gun Control Act of 1968.

Although the term “engaged in business” is not defined

by statute, the courts have had no difficulty construing

the term and have generally held it to mean an activity

which occupies one’s time, attention and labor for the

purpose of livelihood or profit. While an actual profit

from the sales of firearms need not be proved, a willing-

ness to deal, a profit motive and a greater degree of ac-

tivity than occasional sales by a hobbyist must be shown

for purposes of a conviction. Thus, a nonlicensed resi-

dent may make an occasional! sale as a hobbyist at a gun

show or an individual may dispose of a gun collection at

a gun show. However, if the nonlicensed person is ac-

quiring firearms for the purpose of resale and the ,ac-

tivities otherwise constitute engaging in a firearms busi-

ness as discussed above, a violation of law would result.

In investigations of such activities, ATF adheres to the

rules concerning entrapment.

As a third form of entrapment, Mr. Hardy alleges that

ATF agents approach a Federally licensed dealer and

persuade the dealer to sell some privately owned firearms

without making a record of the transaction. ATF’s ef-

forts are directed at those licensees who, as a part of

their business, at or away from their licensed prerrises

sell firearms to ineligible purchasers and fail to record

the transaction as a means of concealment. We reiterate

that ATF agents, in making such investigations are

mindful of the law of entrapment.

59a

ATF recognizes that a licensee may maintain a private

collection of firearms independent of the business inven-

tory and lawfully dispose of such firearms without en-

tering the transaction in the licensee records. As stated

in ATF Industry Circular 72-30, a licensee who uses the

firearms license to obtain personal firearms must record

in the business records the acquisition and disposition.

Such firearms may be kept on the licensee’s business

premises for purposes of display or decoration and not for

resale as long as they are segregated from the business

inventory by appropriate identification. The licensee’s

subsequent sale of such personal firearms need not be

recorded in the business records and a form 4473 executed

by the purchaser would not be required.

With respect to Mr. Hardy’s discussion of “Dewat En-

trapment,” the term “Dewat” technically denotes war

trophy firearms that were deactivated under a program

inaugurated in 1945 to permit returning servicemen to

register their trophies under the National Firearms Act

so that they could be retained. However, we construe

Mr. Hardy’s discussion as pertaining to any and all in-

operable or unserviceable machineguns, including ‘“De-

wats.”

The National Firearms Act (26 U.S.C., Chapter 53)

requires, among other things, the registration of machine-

guns and the payment of taxes on transactions in such

weapons. The term “machinegun” is defined by the Act

to include any weapon which shoots, is designed to shoot,

or can be readily restored to shoot, automatically more

than one shot, without manual reloading, by a single

function of the trigger. The term also includes a ma-

chinegun frame or receiver alone. It should also be noted

that an unserviceable machinegun (one that cannot be

readily restored to an operable condition) is still a

machinegun within the scope of the Act. Consequently,

Mr. Hardy’s inference that inoperable or unserviceable

machineguns should not be held to be National Firearms

Act weapons is wholly without merit.

60a

The 1968 amendments to the National Firearms Act

provided a 30-day amnesty period during which previ-

ously unregistered weapons could be registered by their

possessors with impunity. Thereafter, only those weap-

ons already registered and those registered pursuant to

being lawfully made could be legally possessed or trans-

ferred. In short, a person in possession of an unregis-

tered machinegun today cannot legitimize his possession

of the weapon. The unregistered weapon is contraband

and subject to seizure or abandoned to the Government.

We would add that where the possessor’s violation is non-

willful, criminal prosecution is not undertaken.

Mr. Hardy’s discussion of practice grenades relates to

the category of National Firearms Act weapons termed

“destructive devices.” In part, this term includes ex-

plosive bombs, grenades or similar devices. He cites the

ATF case reported as United States v. Kilivan, 456 F.2d

555 (8th Cir. 1972), which, he infers, was erroneously

decided. The court in Kilivan held that certain M-21

practice grenades were destructive devices for purposes

of the National Firearms Act. Subsequent to the decision

in Kilivan, other courts held that the M-21 practice

grenade and other items designed by the military estab-

lishment for training or practice purposes did not consti-

tute National Firearms Act weapons since devices which

were neither designed nor redesigned for use as weapons

were excluded from the term destructive device. Adher-

ing to the weight of authority, ATF reversed its position

and no longer considers such devices in their original con-

figuration as National Firearms Act weapons.

In his heading entitled “Other Techniques,” Mr. Hardy

depicts a less than accurate situation regarding two-hand

grip “silhouette” pistols. He states that ATF issued a

“special” regulation under the National Firearms Act so

as to bring such weapons within the scope of the Act for

prosecution purposes. We disagree. This regulation de-

fining “pistol” was added to the Code of Federal Regula-

6la

tions on August 3, 1971, or approximately six years be-

fore silhouette pistols came into the limelight. Some of

these weapons now technically fall within the Act’s

definition of firearm; however, we know of no prosecu-

tion under the Act regarding a silhouette pistol. During

the last 2 years, a number of manufacturers of silhouette

pistols have sought and obtained ATF’s advice and coun-

sel regarding the proper design to be employed in manu-

facturing these firearms so that they would not be in-

cluded within the coverage of the Act.

We trust that this has been responsive to your inquiry.

If we can be of further assistance in any way, please let

us know.

Sincerely yours,

/s/ John G. Krogman

Acting Director

62a

APPENDIX L

Letter of Director of BATF regarding disposition of

“personal” firearms (April 7, 1980)

(Lodged with the Court)

‘. ARTMENT OF THE TREASUR 3UREAU OF ALCOHOL, TOBACCOAND Fi. ARMS

FIREARMS TRANSACTION RECORD NO.

PART | — INTRASTATE OVER-THE COUNTER

-«

TRANSFEROR’S TRANSACTION}

_— Prepare in original only. All entries other than signatures must be typed or ciearly printed in ink. All signatures on this form must be in

ink,

SECTION A — MUST BE COMPLETED PERSONALLY BY TRANSFEREE (BUYER) (See Notice and instructions on reverse.)

1. TRANSFEREE’S (Buver'’s) NAME (Last, First, Middle) (Mr., Mrs., Miss) 2. HEIGHT 3. WEIGHT 4. RACE

S. RESIOENCE ACORESS (Vo., Streer, Citv. State, Zip code) 6. OATE OF BIRTH |7. PLACE OF BIRTH

. CERTIFICATION OF TRANSFERREE (Buyer) — An untruthful answer may subject you to criminal prosecution. Each question must be en-

swered with 4 “yes” or a ‘no inserted in the box at the right of the question:

. Are you under indictment or information in any court for } d. Are you an unlawful user of, of addicted to, marijuana,

a crime punishable by imprisonment for a term exceeding Of a Gepressant, stimulant, or narcotic drug?

one year?

ia @. Have you ever been adjudicated mentally defective or

. Have you been convicted in any court of a crime punisn- | have you ever been committed to a mental institution?

P able by imprisonment for a term exceeding one year?

(Note: The actual sentence given by the judge does not

matter—a yes answer s necessary if the ;udge could have

given a sentence of more than one year. Also, a “yes”

f. Have you been discharged from the Armed Forces

under dishonorable conditions?

answer is required if a conviction has been discharged,

set aside, Or dismissed pursuant to an expungement of f. Are you an alien illegally in the United Steres?

rehabilitation statute)

lc. Are you a fugitive from justice? nh. Are you 4 person who, having been a citizen of the

United States, nas renounced his citizensnio?

| hereby certify (nat (he answers to (he above are true and correct. | understand that a person who answers any of the above questions in the affir-

pmative is prohibited by Federal law fram purchasing and/or possessing a firearm. | also understand that the making of any faise oral or written

frtarermen or the exhibiting of any faise or misrepresented identification with respect to this transaction is a crime punnnabie as a felony.

TRANSFEREE’S (Buvers/ SIGNATURE DATE

SECTION 8 — TO BE COMPLETED SY TRANSFEROR (SELLER) /See Vorice and /nsrrucrions on reverse.)

S KNOWN TO ME

THE PERSON O€ESCRIBED IN SECTION A 4AS iOENTIFIED HIMSELF TO ME IN THE FOLLOWING MANNER

O10

9. TYPE OF !OENTIFICATION (Driver's License. etc. Positive identification is required. NO. NUMBER ON IDENTIFICATION

A Social Security card is not considered positive identification.)

in the basis of: (1) the statements in Section A; (2) the verification of identity noted in Section 8; and (3) the information in the current list of

ublished Ordinances, it is my belief that it is not Unlawful for me to sail, deliver or otherwise dispose of the firearm described below to the person

tified in Section A

91. TYPE (Pistol, Rifle, etc.) 12. MODEL | 13. CALIBER OR 14. SERIAL NO.

GAUGE

5S. MANUFACTURER /and importer, if any)

6. TRADE/CORPORATE NAME ANO ADORESS OF TRANSFEROR (Seller) 17. FEDERAL FIREARMS LICENSE NO.

(Hand stamp may be used.)

8. TRANSFEROR’S (Seller's) SIGNATURE 19. TRANSFEROR’S TITLE 20. TRANSACTION

OATE

ATF F 4473 (5300.9) PART! (2-77) EDITION OF 3-76 MAY BE USED

W XIGN&ddV

IMPORTANT NOTICES TO TRANSFEROR (SELLER) AND TRANSFEREE (GUYER)

_* Under 18 U.S.C. Chapter 44 and Title Vil of Public

Lew 90-351, 18 US.C. Appedix 1201-1203, as amended,

firearms may not be solid to or received by certain persons. The

information and certification on this form are designed so that a

person licensed under Chapter 44 may determine if he may

lawfully sell, deliver or transport a firearm to the person

identified in Section A, and to alert the cransferee (buyer) or

certain restrictions on the receipt ond possession of firearms.

This form should not be used for sales of transfers where neither

person is licensed under 18 U.S.C. Chapter 44.

2. The transteree (buyer) of 2 firearm should be familiar

with the provisions of iaw. Generaily, 18 US.C. Chapter 44

prohibits the shipment, transportation or receipt in interstate

commerce of a firearm by one who is under indictment or

information for, or who has been convicted of «# crime

punishable by imprisonment for a term exceeding one yeer, by

one who is a fugitive from justice, by one who is an uniewful

user of, or addicted to marijuane or 8 depressant, stimulant or

Narcotic drug, of by one who has been adjudicated mentally

defective or who has been committed to « mental institution. In

addition, Title Vil (18 U.S.C. Appendix 1201-1203) nwkes it

uniewtul for anyone who has been convicted of a crime

punishadle by imprisonment for a term excerding one year, wha

has Deen discharged from the Armed Forces under dishonorebee

conditions, whoa fas been adjudicated mentaily incomperent,

who, Naeving been a citizen of the United States, has renounced

Mis citizenship, or who is an aiien illegaily in the United Stares,

to possess a firearm.

INSTRUCTIONS TO TRANSFEREE (BUYER)

? The bduyer (transferee) of a firearm will, in every

instance, personally compiate Section A of the form and certify

(sign) that the answers are true and correct. if; because of

inability of the buyer to read or write, (he answers are written

by another person, this person and another person will sign as

witnesses to the Ouyer’s answers and/or signature.

2. When the transferee ‘Ouyer) of a tirearm is a

corporation, company, association, partnersnio or other such

INSTRUCTIONS TO

1 Should ‘he ouyers came oe liegidie the seiiar snail

print *he buyer's Name above the name orinted by the Duyer.

2. The transferor (seiler) or a tirearm will, in every

instance, comoiete Section 8 of the form.

a if more than one firearm is involved, (re dentification

required oy Section 8. items 11 tnrougm 15, must ce provided

for each firearm. The identification of the tirearms transterred in

a transaction which covers more "nan one weanon may oe on a

separate smeet of caper which ust ve attached to «ne form

covering the transaction.

4. The transferor seiler) of tne firearm s responsibie for

Getermining tne iawfuiness of the transaction. and for xeeprng

proper records of the transaction. Consequently, the transferor

should be familiar with the orovisions of the Gun Control Act of

1968 (18 U.S.C. Chapter 44) and Title VII, Uniasvtul Possession

or Receipt of Firearms, (82 Stat. 197), and 27 CFR Part 178

(Commerce in Firearms and Ammunition)

business entity, an officer authorized to act on Deheif of the

Dusiness will complete and sign Section A of the form and attach

a written statement, executed under the peneity of penury,

stating

(a) that the firearm is being acquired for the use of

and will be the property of that business entity,

and

(bd) the name and adaress of that Ousiness entity.

TRANSFEROR (SELLER)

5. Ueon completion of (ne firearm transcction, tne trens

feror (seller) must make a part of Mis Cermanent firearms rect ods

the Form 4473 (5300.9) Part | recording that uansection end

any supporting documents. Form 4473 (5300.9) Part! and any

supLorting documents must be filed «ther chronolowecally oy

Gate of tr ion, aichaebetcaily by osme of transferee

(buyer), or 9 cally Dv transaction cumber .t .Ne transferor

assigns transaction numbers to Form 4473 (5300.9) Part !.

6. in addition to compietng this record, ho licensee shail

report any Muitipie sale or other disposition of pistols. or

revoivers on ATF F 3310.4, in accordance with 27 CFR

178.126a.

7; Additional forms are availabie fromm:

Bureau of Alcohol, Tobacco and Firearms

ATF Dis*ribution Center

3800 S. Four Mile Sun Orive

Arlingron, Virginia 22206

OEFINITIONS

;

I. Inira-State Over-the-Counter Transaction -- The saie or

other disposition of a firearm by the transferor iseiler) to a

transferwe (buver!, who is a resident of the state in which the

transferor’s Qusiness 1s \ocated, occurring on the transferor’s

business premises.

BUS. Geverament Printing Office: 197 '24270

ye Published Ordinances — The publication (ATF ?

5300.5) containing «those State lews and iocal ordinences

relevant to the enforcement of Cnaprer 44 of the Title 18,

US.C., which is annually oublisned in the Federal Register and

_ distributed 10 each Federal firearms licensee by the Director,

Bureau of Alcono!, Tobacco end Firearms.

ATF F 4473 (6300.9) PART | (2-77)

DEPARTMENT OF THE TREASURY - BUREAU OF ALCOHOL, TOBACCO, AND FIREARMS

FIREARMS TRANSACTION RECORD

PART || - CONTIGUOUS-STATE OR NON-OVER-THE COUNTER

TRANSFEROR’S TRANSACTION

NO.

¢

ALL SIGNATURES ON THIS FORM MUST BE IN INK.

NOTE: PREPARE IN OUPLICATE. ALL ENTRIES OTHER THAN SIGNATURES MUST BE TYPED OR CLEARLY PRINTED IN INK.

SECTION A . MUST BE COMPLETED PERSONALLY BY TRANSFEREE OR BUYER (See notices and instructions on reverse)

1. TRANSFEREE’S (Buyer's) NAME (Last, First, Middle) (Mr., Mrs., Miss.) 2. HEIGHT 3. WEIGHT 4. RACE

5. RESIOENCE AODRESS (No., Sereer, City, State, Zip Code) 6. DATE OF BIRTH 7. PLACE OF BIRTH

8. CERTIFICATION OF TRANSFEREE (Buyer) — An untruthful answer may subject you to criminal prosecution. Each question must be

answered with a ‘yes or a “'nNo”' inserted in the box at the right of the question:

a. Are you under indictment or information in any court

for a crime punishable by imprisonment for a term

exceeding one year?

d. Are you an unlawful user of, or addicted to mari-

huana or a depressant, stimulant or narcotic Grug?

b. Have you Deen convicted in any court of a crime punish-

able Dy ‘Morisonment for a term exceeding one year?

(Note: The actual sentence given by the judge does not

matter—a yes answer is necessary if the judge could have

given a sentence of more than one year. Also, a ‘yes’

answer 's required even if a conviction has been discharged,

s@t aside, OF Jismissec pursuant to an expugment or

rehabilitation statute )

e. Have you ever been adjudicated mentally

Gefective or have you ever been committed

to a Mental institution?

f Have ycu Deen discharged from the Armed

Forces under dishonorabie conditions?

g. Are you an alien ijiegaily in the United States?

c. Are you a fugitive from justice?

|

h. Are you a person who Naving been a citizen of the

United States, nas renounced his citizenship? i

Subject to penalties orovided by law, ! swear that, in the case of any firearm other than a snotgun or a rifle, | am 21 vears or more of age,

or that, 9 the case of a shotgun or a rifle, i am 18 years or more of age; that | am not prohibited by the provisions of Chapter 44 of Title

18, United States Code, from receiving a firearm in interstate or foreign commerce, and that my receipt of this firearm will not be in

nolation of any statute of the State anc published ordinance applicabie to the locality in which | reside. Further, the true title, name,

and address of the principal law enforcement officer of the locality to which the firearm wail be delwered ore

TITLE

NAME

AOORESS

| also Nereby certify that the answers to the above are true and correct. | understand that a person who answers any of the above questions in the

affirmative is prohibited by Federal ‘aw from purchasing and/or possessing a firearm. | aiso understand that the making of any faise oral or written

statement or the exnioiting of any faise or misrepresented identification with respect to this transaction is a crime punishable as a felony

TRANSFEREE'S (Buyer's) SIGNATURE

OATE

SECTION 8 - MUST BE COMPLETED 8Y TRANSFEROR OR SELLER (See notices and instructions on reverse)

Gescribew beiow to the person identified in Section A.

On tne basis of (1) tne statements in Section A; (2) my notification of the chief jaw enforcement officer designated above: and (3) the information

in the current list of Published Ordinances, it is my belief that it is not unlawful for me to sell, deliver, transport, or otherwise dispose of the firearm

9. TYPE (Pisto/, Rifle, etc.) 10. MODEL

GUAGE

11. CALIBER OR 12. SERIAL NO.

13. MANUFACTURER (and importer, if any)

be used)

14. TRADE/CORPORATE NAME AND ADDRESS OF TRANSFEROR (Seller) (Hand stamp may

15. FEDERAL FIREARMS LICENSE NO.

16. TRANSFEROR'’S (Sellar’s) SIGNATURE

17. TRANSFEROR’S TITLE

18. TRANSACTION

DATE

ATF F 4473 (5300.9) PART II (10-76) EDITION OF 2-75 MAY BE USED

eee eee ee ae ee Sa ene ieee an aa

IMPORTANT NOTICES TO TRANSFEROR (SELLER) AND TRANSFEREE (BUYER).

.. Under 18 U.S.C. Chapter 44 and Title VI! of Public Law

90-351, 18 U.S.C. Appendix 1201-1203, as amended, firearms

may not be sold to or received by certain persons. The

information and certification on this form are designed so that a

person licensed under Chapter 44 may determine if he may

lawtully sell, deliver or transport @ firearm to the person

identified in Section A, and to siert the transferee (buyer) of

certain restrictions on the receipt and possession of firearms.

This form should not be used for sales or transfers where neither

person is licensed under 18 U.S.C. Chaprer 44.

2. The transferee (buyer) of @ firearm shouid be familiar

with the provisions of law. Generaliy, 18 U.S.C. Chaprer 44

prohibits the shipment, transportation or receipt in interstate

commerce of a firearm by one who is under indictment or

information for, of who has been convicted of » crime

punishable by imprisonment for @ term exceeding one year, by

one who is @ fugitive from justice, by one who is sn unlewful

user of, or addicted to marihuana or 8 depressant, stimulant or

narcotic drug, or by one who has been sdjudicated mentally

defective or who has been committed to a mental institution. In

addition, Title Vil (18 U.S.C. Appendix 1201-1203) makes it

unlawful for anyone who has been convicted of s crime

punishable by imprisonment for a term exceeding one year, who

has been discharged from the Armed Forces under dishonorabie

conditions, who has been adjudicated mentally incompetent,

who, having been a citizen of the United States, nas renounced

his citizenship, or who is an alien illegally in the United States,

to possess a firearm.

NOTICE TO LAW ENFORCEMENT OFFICIALS

This copy of ATF Form 4473, Part Il, is to advise you of a

firearms transaction involving a resident in your jurisdictional

area. The firearm described in Section B wil! not be shipped or

Gelivered to the transferee (buyer) identified in Section A for a

period of at least seven days foliowing receipt of the notification

of your acceptance or retusa! of delivery, by registered or

certified mail of the form.

INSTRUCTIONS TO TRANSFEREE (BUYER)

‘: The buver (transteree) of a firearm will, in every instance,

personaliy complete Section A of the form and certify (sign)

that the answers are true and correct. If, because of inability of

the buyer to read or write, the answers ere written Dy another

person, this person and another person will sign as witnesses to

the buyer's answers and/or signature.

2 When the transteree (buyer) of a firearm is @ Corporation,

company, association, partnersnip or other such business entity,

an officer authorized to act on behalf of the business will

complete anc sign Section A of tne torm and attach 8 written

statement, executed under the pensity of perjury, stating

(a) that the firearm is being acquirec tor the use of

anc will be tne property of that Dusiness entity, end

(b the name anc sdoress of that business entity.

INSTRUCTIONS TO TRANSFEROR (SELLER)

1 Should the buyer's name be iliegibie the seller shali prim

the buyer's name above the name printed by the buyer.

2. Tne transteror (seller) of a firearm will, in every instance,

complete Section B of the torm.

3. If more than one firearm is involved, the identification

required by Section B, !tems 9 through 13, must be provided for

each firearm. The identification of the firearms transterred in a

transaction which covers more than one weapon may be on @

separate sheet of paper which must be attached to the form

covering the transaction.

4. The transteror (selier) of a firearm in @ contiguousState

of non-over-the-counter transaction must forward by registered

or certified mail (return receipt requested) the copy of the form

to the chief law enforcement officer of the transteree's (buyer's)

locality of residence. The transteror must deisy shipment of

Geirvery of the firearm for a period of at least 7 days following

receipt of the post office notification of the ecceptance or

non-ecceptance of the envelope. The transferor will retain as 6

part of the records required to be kept by 18 U.S.C. Crnapter 44,

the origina! torm with evidence of the rece:pt or reyection of the

notification torwarded to the chief iaw enforcement officer of

the transteree's locality of residence

5. The transteror (seller) of the firearm is responsible for

Getermining the lawtuiness of the transaction and tor keeping

proper records of the transaction. Consequentiy, the transteror

should be familiar with the provisions ot the Gun Contro! Act of

1968 (18 U.S.C. Chapter 44) and Title Vii, Uniawtu!l Possession

or Receipt of Firearms, (82 Stat. 197), and 27 CFR Part 178

(Commerce in Firearms and Ammunition)

6. Upon completion of the firearm transaction, the trans

feror (seller) must make a pert of his permanent firearms records

the original form recording that transaction and any supporting

documents. The original form and eny supporting documents

must be filed either chronologically by Gate of transaction,

aipnaveticaliy by name of transteree (buyer), or Numerically Dy

transaction number if the transferor assigns trensaction numbers

to Form 4473 (5300.9) Part |!.

DEFINITIONS

1 Contiguous Stare Transaction—The sale or other disposi:

tion of @ rifle or shotgun to the resident of s contiguous State

which has enacted iegisistion permitting residents of that State

to purchase rifies or shotguns outside the State.

2. Non-over-the-Counter Trensacuon—A mail-order trans

ection to the resident of the State in which the transteror’s

(seller's) premises ere located.

3. Published Ordinances—The publication (ATF P 5300.5) Fy

containing those State laws and loca! ordinences relevent to the

entorcement of 18 USC Chapter 44. which « ennusally

Published in tne Federal Register end distributed to each Federsi

firearms lwcensee by the Director, Bureau of Aicoho!l, Tobeceo

and Fireerms.

ATF F 4473 ($300.9) PART 11 (10-76)

67a

APPENDIX O

[1] IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Criminal No. HM 77-0598

UNITED STATES OF AMERICA

Vv.

RICHARD BOULIN

Baltimore, Maryland

April 7, 1978

The above-entitled matter came on for hearing before

His Honor, Herbert F. Murray at 10:00 a.m.

APPEARANCES

For the United States: —

Marsha A. Ostrer, Esquire

For the Defendant:

George Beall, Esquire &

William P. Crewe, Esquire

[22] Q. Now, getting back to the first visit you had

with the Bureau of Alcohol and Tobacco Tax, could you

describe to this Court what the nature of that visit was

and what occurred?

A. All right. What it is, they periodically inspect for

record keeping and inventory. They called me at work

one day. I don’t recall] the investigator’s name. He said,

68a

“T need to come out and check your records for a routine

audit.” He said, “I’d like to come out today.” I said,

“No, sir, that’s not possible because I do not keep the

firearms here at my work. They’re kept at home and the

records are kept at home. Therefore, I would have noth-

ing to show you.”

So he said, “Well, when can I come inspect them?” So

I said we can do it at this time, this time, this time. He

said, well, we’ll make it on this day, and then he decided

to come to my house since everything was located there.

Q. Did he conduct an examination of your records at

that time?

A. He came to my house. He conducted a thorough

investigation of my books and my record keeping and my

[23] inventory, to which he told me I passed with flying

colors. There were no problems whatsoever. We had a

long discussion about different firearms regulations and

laws. I was trying to get an understanding because I was

a new dealer.

He also came back and looked at my personal collection

of firearms, admired them, and we discussed a few of the

firearms. He told me I had a very nice collection.

Q. Were you subsequently audited by the A. T. F.?

A. I was audited the second time during the course of

my license. It was approximately six or eight months

afterwards. At that time the agent did the same thing,

called me at my work. I explained to him again that I

did not keep the records or the firearms there. He said,

“Fine.”. He said, ““When can we do it?” I gave him some

possibilities and we set up a date. He came in the morn-

ing one day at nine o’clock and we went through the in-

ventory at work. I brought my inventory down in the

car and my records were already on my desk. We went

out to the car and got my inventory and brought it in so

he could audit it.

Q. Did you have any discussion with him then?

A. Yes, sir. Obviously, since he was there from ap-

proximately nine o’clock until one or two o'clock, we had

a good bit of conversation.

69a

Q. Did you have any discussion with him of selling

personal guns?

[24] A. Yes, sir, because there was some unclarity in

the federal firearms regulations about personal firearms

and I was trying to clarify it in my mind. Some opinions

that he gave me were different than what were in the

books and different than what the procedures were. Some

of them were consistent.

Q. Was anything resolved between the two of you?

A. Basically the premise that I understood was any-

thing that was acquired through my business, as a result

of my business, or directly in exchange of another fire-

arm in my business, I had to run through my books. Any-

thing that was acquired away from my business, without

the use of my federal firearms license, without the use of

my business title, I was allowed to run through as any

other person or citizen in the State of Maryland.

Q. Mr. Boulin, did you have any other discussion with

the agents while your residence was under seizure?

A. Oh, yes, sir. We had numerous discussions. I was

very upset. You have to understand that this was my

life savings that they were about to take down. They

came in with postal bags. They were going to take very,

very expensive firearms and put them in postal bags

which I had only handled with gloves myself, so you can

imagine the shock that this was to me. I tried to explain

to them over and over again what was for sale because it

was differentiated by room. They could not do anything

so they said, “Well, we'll call Baltimore.” The agent in

charge went on the phone and called Baltimore collect,

and Baltimore told him—he came back and told me what

they said, and that was to seize everything, every fire-

arm and ammunition. And I showed him where each

individual weapon was located. They found nothing that

I did not tell them was there. I showed them where

everything was and how they could safely be handled. I

tried to cooperate with them to the utmost.

70a

Q. Were all those guns yours, Mr. Boulin?

A. All those guns were mine with the exception of

one and my wife’s guns.

Q. What was the gun that did not belong to you?

A. I had a rifle that belonged to a police friend of

mine, my ex-partner, George Theodore. He had given it

to me to get a new clip put in it and to get some stock

work done to it because I had an acquaintance up in

Pennsylvania, a gunsmith that does excellent work and he

asked me if I’d get it for him at a moderate price.

Q. Did you tell the officers that this did not belong

to you?

A. Yes, sir, I certainly did, at the time they picked

it up.

Q. Did you point out to them the guns that did not

belong to you, that belonged to your wife?

Tla

APPENDIX P

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Case No. HM 77-0598 Criminal

THE UNITED STATES OF AMERICA

Vv.

RICHARD BOULIN

Baltimore, Maryland

June 9, 1977

The above-entitled matter came on for hearing of mo-

tions before the Honorable Herbert F. Murray at 3:30

p.m,

APPEARANCES

For the United States of America:

Marsha A. Ostrer, Esquire

For the Defendant:

George Beall, Esquire

William P. Crewe, Esquire

* * * *

[52] By Ms. Ostrer:

Q. Now, directing your attention to the October 1st

transcript, page 9 of that transcript, Mr. Boulin quotes a

price to somebody at the gun show, is that correct?

A. Yes ma’am. The Greenbelt Armory.

72a

Q. And the 6th notation down, the last sentence, Mr.

Boulin is quoting a price to another individual on a

weapon, a 550, serial number 579. Did you attempt to

locate those in Mr. Boulin’s records?

A. Yes, I did. I was unable to locate them in any of

the records.

Q. Would you explain to his honor the difference be-

tween the slang term “on paper” and “off paper’’?

A. Yes. On paper means the firearm must go through

the proper procedures to be sold. Must be reflected in the

bound book and on form 4473. Off paper means that the

procedure is avoided and there is no paperwork to be

completed thus not being able to trace the firearm back

to the buyer.

Q. Is that in fact a violation of the law?

A. If it is done by a federal licensed firearms dealer,

yes, it is a violation.

Ms. Ostrer: No further questions, your honor.

CROSS-EXAMINATION

By Mr. Crewe:

[53] Q. Mr. McMonagle, you did prepare the affidavit

for the search warrant?

A. Yes, I did.

Q. Do you remember what is says?

A. It has been since December since I have seen it.

Q. I would like you to look at page 3 and see if that

is a correct statement there?

A. Any particular part on page 3?

Q. The last paragraph on page 3.

A. Yes.

Q. You say that is your statement?

A. That is my statement.

Q. Sworn before the magistrate?

A. That is correct.

Q.

Are you familiar with the telephone discussion of

December 6, 1977 between Mr. Schoen and Mr. Boulin?

A. Yes, I am.

73a

Q. Would you review that and find out whether Mr.

Schoen said he was in the market to buy more firearms

off paper, as quoted in your affidavit, “off paper,”?

(Pause. )

No, it is not on there.

This affidavit was executed under oath, wasn’t it?

That is correct.

. I also ask you to check and see—

[54] The Court: Could I see the affidavit?

Mr. Crewe: That is just a copy, your honor. I think

it is in evidence.

Ms. Ostrer: I don’t believe the affidavit has ben intro-

duced in evidence. The original should be in the court

file.

Your honor, I may be able to be of some assistance.

This is the one, your honor.

The Court: Where were you referring to?

Mr. Crewe: The one that I have, your honor, page

three, the bottom paragraph.

The Court: What I was wondering about was: if

what is contained on the last ten lines or so of page two

and the first six lines of page three of the December 6

telephone conversation have any connection to what is in

that paragraph of the affidavit?

The Witness: It does, your honor.

Your honor, I reflected what Mr. Schoen said to me. I

did not reflect what I heard. Mr. Schoen reflected that

statement to me. I asked if “off paper” was used and he

said yes. Maybe he was actually making reference to the

same way he did it before, which was off paper.

oPe>

74a

APPENDIX Q

Telephone Conversation between Richard Boulin and

Gordon Schoen—Date: 12/6/77; Time 7:32 p.m.

Boulin:

Schoen:

Boulin:

Schoen:

Boulin:

Schoen:

Boulin:

Schoen:

Boulin:

Schoen:

Boulin:

lot.

Schoen:

Boulin:

Schoen:

they told

at home.

Boulin:

Schoen:

Boulin:

that.

Schoen:

Boulin:

Schoen:

Boulin:

Hello.

Richard.

Yeah.

Gordon, how you doing?

How you doing?

What do you know?

Not a whole lot.

Trying to get to you.

Is that right?

Yeah, couple of times.

Well, I’m not home much, you know. I work a

Yeah.

Try to earn a living.

Well I tried to get you down at the office too,

me to call you down there if I couldn’t get you

Is that right?

Yeah, she said you weren’t there.

Hm, well I’m out in the field a lot you know

Oh okay.

So, what’s up.

Not much, what you got, anything good?

Uh, let’s see, what have I got left? Hm, I got

an Army 45 I would probably move, I got some com-

memoratives, but you don’t want any commemoratives.

Schoen:

Boulin:

Schoen:

Boulin:

Schoen:

Boulin:

Well, that depends.

W?:at do you mean?

(Unintelligible) about the money.

Oh, is that right?

Uh huh.

You did or you will?

75a

Schoen: I am, next week, Monday a guy’s gonna be

here.

Boulin: I got a Missouri single action 45 long Colt.

Schoen: Uh huh.

Boulin: I’ve got, matter of fact I’ve got two of those.

I got a Missouri 22.

Schoen: What do you want for them?

Boulin: Uh, let’s see, 375 probably.

Schoen: Uh huh.

Boulin: Brand new, mint too.

Schoen: Yeah.

Boulin: One of them’s serial number 102.

Schoen: Uh huh.

Boulin: Then I got serial number 103 in 22, in other

words, the consecutive one to it.

Schoen: Uh huh.

Boulin: And let’s see, then I’ve got a Nevada, a Sam

Colt, they’re all commemoratives. Then I’ve got a Pat

Garret commemorative you’ve seen that one.

Schoen: Right yeah.

Boulin: Sold that. Uh I’ve got an Army 465 it’s super

mint.

Schoen: All those commemoratives have to go on

paper?

Boulin: As of right now yeah, you know what I mean.

Schoen: No.

Boulin: Huh

Schoen: (Unintelligible)

Boulin: Well you know how it is, you know, on the

telephone, Right?

Schoen: Oh, okay.

Boulin: So, I mean I got to do everything right.

Schoen: Right.

Boulin: And um,

Schoen: In other words, we do them like we did them

before.

Boulin: Right.

Schoen: Okay.

76a

Boulin: I got uh an Army 45 super mint.

Schoen: Uh huh.

Boulin: I still got that Ruger 40, I hadn’t really

parted with those Rugers you know what I mean, cause

they’re in my collection.

Schoen: Good, I’m glad cause that’s why I’m trying

to get you.

Boulin: Is that right? J

Schoen: Yeah.

Boulin: You know, well you know the only reason I

was going to sell those is if I got top dollar or I wouldn’t

sell them. ( Unintelligible)

Schoen: Well, in order words you got a mess of stuff

down there.

Boulin: Yeah, right.

Schoen: Well, how much money you think I need to

bring with me?

Boulin: All depends on how much you want to buy.

If you’re really looking to buy you know, to get a lot I’d

say two, three thousand.

Schoen: Okay, that’s no problem.

Boulin: It’s up to you.

Schoen: Aren’t you afraid of keeping them guns at

the house?

Boulin: Well I got two, can you hear my dogs.

Schoen: Yeah.

Boulin: I got two bigs shepherds. One of them was a

police dog for eight years.

Schoen: Uh huh.

Boulin: And my wife’s home all the time when I’m

not, cause (unintelligible) she never goes to the store un-

less I’m home. So you know that’s another safeguard.

Schoen: Well that’s not too bad.

Boulin: And uh.

Schoen: What you have a vault or anything you keep

them in.

Boulin: Yeah right.

Schoen: Well that’s

77a

Boulin: I got, they’re pretty well secured.

Schoen: That’s good.

Boulin: There’s an alarm system in the house.

Schoen: Uh huh.

Boulin: Well they’d have a pretty tough time going

by.

Schoen: Man.

Boulin: You got to remember this neighborhood here

is 68 houses in the neighborhood, and 37 are owned by

policemen.

Schoen: Jesus.

Boulin: So, it’s like a police ghetto. You know what

I mean. There’s one street here if you go up and down

the street, every, every street on both sides, every house

on both sides got a police car in it.

Schoen: Uh huh.

Boulin: It’s like a police community. Matter of fact

you know the realtor was telling us the property value

down here, up here

Schoen: Yeah.

Boulin: Are being affected cause there’s too many

policemen up here and a lot of people won’t move up here.

Schoen: Why?

Boulin: Cause they don’t like living with this many

cops. They feel as though you know they’ll be watched.

Everything they do.

Schoen: Well, then if if if they’re not doing anything

wrong, they got nothing to worry about.

Boulin: Right, you know how people are, you know.

They think the cops are going to be spending their off

duty time trying to catch them j-walking.

Schoen: Great.

Boulin: You know how people are.

Schoen: Yeah, I’d rather live in that type area.

Boulin: Sure, they only had one burglary in here in

five years and they caught the guy before he even got out

of the house. Matter of fact they were, they were fight-

ing over who was going to shoot him. So you know that,

that kind of makes you feel a little better.

78a

Schoen: You say I could come down Wednesday eve-

ning

Boulin: I don’t see any reason why not.

Schoen: Okay.

Boulin: Tomorrow night then right?

Schoen: Huh, no, next Wednesday.

Boulin: Oh, next Wednesday.

Schoen: Yeah.

Boulin: Yeah, no problem.

Schoen: Okay, you want to give me directions?

Boulin: Well, wait a minute, Greenbelt’s this week-

end isn’t it?

Schoen: Yeah.

Boulin: You doing Greenbelt?

Schoen: Well, I'll tell you, my grandmother is awful

sick.

Boulin: Oh okay.

Schoen: And, as close as the family is, see that’s my

mother’s mother.

Boulin: Uh huh.

Schoen: I don’t know whether I’m going to be there

or not. Now I paid him for the tables.

Boulin: Uh huh.

Schoen: And I told him if I’m not there Saturday, I

might be there Sunday. But I don’t, you know, what can

happen cause she’s ah got pneumonia really bad.

Boulin: Really, I’m sorry to hear that.

Schoen: And uh, well as close as I’ve been to her and,

you know.

Boulin: Right.

Schoen: (Unintelligible) I’d hate to be away if some-

thing happened to her.

Boulin: Oh, I can understand that.

Schoen: So.

Boulin: Well, you can slide down whenever you feel

like it I mean you know, if you change your mind another

night, let me know.

Schoen: Well, can you give me directions?

79a

Boulin: Oh, sure.

Schoen: Slowly.

Boulin: Slowly, huh?

Schoen: Let’s see I’d be comin uh

Boulin: Just come right down 27.

Schoen: Okay.

Boulin: Okay.

Schoen: Wait a minute.

Boulin: Get into Damascus right?

Schoen: Yeah.

Boulin: You know where I’m talking about?

Schoen: Yeah.

Boulin: All right there’s one traffic light, right?

Schoen: Yeah.

Boulin: You make a left.

Schoen: I make a left?

Boulin: You make a left.

Schoen: Okay.

Boulin: You know how it dead ends as you’re coming

down 27 dead ends.

Schoen: Yeah right.

Boulin: Go either left or right, you go left.

Schoen: Okay.

Boulin: All right, you go approximately a quarter of

a mile and there’s the first road on your right, Woodfield

Road.

Schoen: Wait a minute.

Boulin: In other words, you make a left and then your

immediate right.

Schoen: Yeah.

Boulin: Okay.

Schoen: Uh huh.

Boulin: Come down that road approximately two miles

and on your left you'll see Hawkins Creamery Road,

HAWKINS, separate word Creamery, CREAM-

ERY.

Schoen: Uh huh.

Boulin: Okay, now you go to 8700, 8700,

80a

Schoen: Yeah.

Boulin: Is where I live.

Schoen: Okay.

Boulin: Okay, it’s right, it’s right as you come into

the new development, in other words once you get on

Hawkins Creamery you’ll come in about two miles and

you’ll see a new development, you'll be coming down hill

and then up hill, I’m at the top of the hill.

Schoen: Okay, wait a second, I want to read this all

back to you to make sure I got it right.

Boulin: Okay.

Schoen: Okay, take route 27 till it deadends at

Damascus.

Boulin: Right.

Schoen: Turn left, go approximately a quarter of a

mile

Boulin: Right.

Schoen: And turn right.

Boulin: Okay that’s Woodfield Road or Route 124.

Schoen: Right, okay, go two miles to Hawkins Cream-

ery Road.

Boulin: Right, now you got to be careful cause there’s

a fork there, in other words it’s it’s a hard intersection

to see, so just drive slow.

Schoen: Which way do I go on Hawkins Creamery?

Boulin: Going left.

Schoen: Okay, left, that’s 8700, it’s

Boulin: Right.

Schoen: A new development on the top of the hill.

Boulin: Right, I’m on the house on the right, right on

the corner.

Schoen: Okay, I’ll definitely be there Wednesday.

Boulin: Okay.

Schoen: Okay because uh there, there isn’t any con-

flicting things Wednesday.

Boulin: Well everything I’m selling is mine so I mean

I don’t really feel too bad about it, you know what I’m

sayin’.

8la

Schoen: Uh huh.

Boulin: It’s all my stuff so they really can’t say a

whole hell of a lot.

Schoen: The uh, let’s see,

Boulin: Are you going to re-sell this stuff or what?

Schoen: Oh sure, some of it. Now those commemora-

tives, I don’t know.

Boulin: Uh huh.

Schoen: Uh, I think the best time for me would be

about betwen 7:30 and 8.

Boulin: That's fine for me cause I’ll be home by then.

Schoen: Okay, good enough.

Boulin: Okay, so you want to make it next Wednes-

day.

Schoen: Yeah.

Boulin: Okay.

Schoen: Definitely, definitely now, I will be there.

Don’t forget.

Boulin: I won’t forget you.

Schoen: Okay, (unintelligible)

Boulin: Well I need the money.

Schoen: Okay, cause I told you the other night but

you said you weren’t going to be home until nine. Did

she tell you I called?

Boulin: um, no, she sure didn’t.

Schoen: Yeah.

Boulin: I'll chew her out as soon as you get off the

phone.

Schoen: No, don’t worry about that.

Boulin: She didn’t tell me because

Schoen: (Unintelligible) I told her to tell you just tell

him Gordon called.

Boulin: I didn’t get home till 10:30 and then you said

you’d call back so she didn’t tell me.

Schoen: Well, I called, a, let’s see I think it was quar-

ter after nine and I didn’t get an answer.

Boulin: Hm, okay, well

Schoen: So, that’s that.

82a

Boulin: Well, I try to do a lot of stuff you know, I

probably trying to do too much.

Schoen: Uh huh.

Boulin: Okay.

Schoen:' Okay, Rick, if I don’t see you this weekend,

I'll definitely see you Wednesday.

Boulin: If the dogs bark at you when you pull in the

driveway

Schoen: Uh huh.

Boulin: Don’t worry about them as long as we’re home

they ain’t going to bite you.

Schoen: Okay.

Boulin: Even the big one, he won’t bother you as long

as we’re home. If we weren’t home, it’s a different story.

Schoen: All right.

Boulin: Cause as soon as we put him on his on his

chain he knows he’s a guard dog then you know, that’s

the way he was trained.

Schoen: Uh huh.

Boulin: And he’ll go bananas.

Schoen: Okay.

Boulin: Okay.

Schoen: Good enough.

Boulin: Bye.

Schoen: Talk to ya,