# Opposition — Boulin v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1984
- **Citation:** 464 U.S. 1038

## Text

No. 83-419

Office - Supreme Court, U.S.
FILED

NOV 29 1983

ALEXANDER L. STEVAS

ae

Iu the Supreme Court of the Hnited States

OCTOBER TERM, 1983

RICHARD BOULIN, PETITIONER
V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI! TO
THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

Rex E. Lee
Solicitor General

STEPHEN S. TROTT
Assistant Attorney General

SARA CRISCITELLi
Attorney

Department of Justice
Washington, D.C. 20530
(202) 633-2217

QUESTIONS PRESENTED

1. Whether a licensed firearms dealer who sells “pri-
vately owned” guns away from his licensed premises is
excused from the recordkeeping and reporting require-
ments of the Gun Control Act of 1968.

2. Whether a search warrant authorizing seizure of “fire-
arms, ammunition and records involved in, used in or
intended to be used in violation of” 18 U.S.C. 922(c) and
(m) was overly broad.

3. Whether petitioner was properly convicted for con-
duct that was allegedly represented as lawful by officials of
the Bureau of Alcohol, Tobacco, and Firearms.

(1)

TABLE OF CONTENTS

Page
Chpmtems Belew oc cccccccdsaunueee uae l
Be Pere eee l
TOROUTNGME occ ccccccceceeceusesseeuenenaann l
AAG occ cccccccvescnsseuseeueee nee eee 5
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TABLE OF AUTHORITIES
Cases:
Andersen v. Maryland, 427 U.S. 463 .......... 12
Barrett v. United States, 423 U.S. 212 .......4.5. 8
Coolidge v. New Hampshire, 403 U.S. 443 ..... 12
Dickerson v. New Banner Institute, Inc.,
No. 81-3 100 (Feb. 23, IGG) acccsasuasense tue 6
Huddleston vy. United States, 415 U.S.
BIG . cc cccv ccc sewemaeaseeca ene 5, 6
Kaneshiro vy. United States, 445 F.2d
IDGG . ccclecusecsennempeauk ae alniennnnne 9
Raley v. Ohio, 30 U.S. G33: ivscecdevesssanes 13,
United States v. Abrams, 615 F.2d 541 ........ 12
United States v. Angelini, 607 F.2d 1305 ....... 9
United States v. Biswell, 406 U.S. 311 ......... 10
United States v. Cardwell, 680 F.2d
TD cacccccvescesecwheu sine caelnnaanEE 12
United States v. Christine, 687 F.2d 749 ....... 13
United States v. Cook, 657 F.2d 730 .......... 13

(II)

lV

Page
Cases—Continued:
United States v. Cortellesso, 601 F.2d 28,

SE, CU, CG Wis HOTS cov dccscecccevess 13
United States v. Currier, 621 F.2d 7 ......... 8,9
United States v. Hernandez, 662 F.2d 289 ...... y
United States v. Kowalski, 502 F.2d 203,

es OE, TD og cciccccsecovecsboc i)
United States v. Lowry, 675 F.2d 593 ......... 11
United States v. Masters, 622 F.2d 83 .......... i)
United States v. Micieli, 594 F.2d 102 .......... y
United States » Miller, 644 F.2d 1241,

ee ee Ce OP . . hac ccc kawiac sees e 9
United States v. Perkins, 633 F.2d 856 ......... yy
United States v. Powell, 513 F.2d 1249,

es Se ee Os ED cv bw oe oe ceees buses y
United States vy. Ruisi, 460 F.2d 153,

re: SE, EE AIL, ED owiccin cvcdbcedoes ces 7
United States v. Scherer, 523 F.2d 371,

i ee, SP EE, EE ccc sbcceccusees 8,9
United States v. Smith, 686 F.2d 234 .......... 13
United States v. Swinton, 521 F.2d 1255,

ee en I EO, OU os sano ecbecace sees q
United States v. Tarr, 589 F.2d 55 .........005- 4
United States v. Ventresco, 380 U.S. 102 ...... 12

United States v. Williams, 502 F.2d 581 ........ 9

Page
Constitution, statutes, rules and regulations:
Ris NG, PUL OW 0s 6 ba 60 006 4 kecweccee be ll
Gun Control Act of 1968, 18 U.S.C.
TURUNEN a csk cess evebakcoesacdvencnchoas 4
Sere EE V5. 6-cle phases rae kh eankewas 7,8
Pi Es SND oco.c 6 cod wnddcuveatatetecks 7
ee SE it ba ewo es 2, 4, 5, 6, 7, 9-10, 11
ae PD cc cous sa sabeue 2, 5, 8, 10, 11
RRS Cs ay bp 6h eh aeRO mee au 8, 10
Pe Se NN 5 dic cvcdunseccveswsebag 10
Fed. R. Crim. P. :
EE cinch sar ds ceecane caee bes 7,11
EE vk ad c¥ks MLE S 0o bee eeREeeE Le 3
DEE cisuvacwn nwo nsuskvaie tna ones 3
2G: :
gk Spar rep reternt ces, 10
ee... Saeco vkb Secon eee mee 11
Pn EPL UOD, a'c-calne eo dcenarbowensens 1!
CE ont sb a cn Keeicanw emaels 11
PT ULEEE. 45.0 bi 00000 shu ceaewraaea es 2
I UE n'a bn dad ok cise bees cs eaueks 6
Miscellaneous:
SB POG. Tam. S4GGS CIGED) oo ccccccccccccsessce 7

S. Rep. 1097, 90th Cong., 2d Sess.
Ga Nat RN seh ehueaeled o4 b Veneer aean 5

Ju - Supreme Court of the Hnited States

OCTOBER TERM, 1983

No. 83-419
RICHARD BOULIN, PETITIONER
Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW
The opinion of the court of appeals (Pet. App. la-10a) is
not reported. The memoranda and orders of the district
court (Pet. App. 13a-17a, 23a-26a, 27a-35a) are not
reported.

JURISDICTION
The judgment of the court of appeals was entered on
April 12, 1983. A petition for rehearing was denied on July
15, 1983 (Pet. App. 1la-12a). The petition for a writ of
certiorari was filed on September 13, 1983. The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT
After a bench trial on stipulated facts (Pet. App. 36a-41a)
in the United States District Court for the District of Mary-
land, petitioner was convicted on 10 counts charging failure
of a federally licensed firearms dealer to maintain records

(1)

2

relating to five firearms transactions, in violation of 18
U.S.C. 922(c) and (m) (Pet. App. 22a-26a). Petitioner was
sentenced to concurrent terms of one year’s imprisonment,
of which all but one month was suspended in favor of
probation, and was fined $500. Petitioner subsequently
filed a petition for a writ of error coram nobis, seeking
vacation of his conviction. The district court denied the
petition (id. at |3a-17a). Petitioner appealed from both his
conviction and the denial of the coram nobis petition. The
court of appeals affirmed (id. at la-10a), with one judge
dissenting.

1. Petitioner, a former Maryland police officer, was a
firearms dealer federally licensed to conduct his commerical
business at a specific address in Silver Spring, Maryland
(Pet. App. 23a, 36a-37a). As a licensed firearms dealer,
petitioner was required to maintain a firearms record book
(27 C.F.R. 178.125). Petitioner also maintained a separate
log for weapons designated as his personal collection.

In September, October, and November 1977 petitioner
set up tables at three gun shows in Maryland. On each
occasion he sold firearms to Gordon Schoen, an unlicensed
individual acting as an undercover agent for the Bureau of
Alcohol, Tobacco, and Firearms (ATF).

On September 25, 1977, petitioner sold three semi-
automatic firearms to Schoen without recording the sales
on state or federal firearms transfer forms (Pet. App. 37a-
38a). Petitioner recorded two of these sales in his personal
weapons log but failed to record the sale of the third weapon
(id. at 2a). None of these weapons was recorded in his
dealer’s firearm record book (id. at 37a).

Several days later, on October 1, 1977, petitioner sold a
.357 magnum revolver to Schoen. The gun was not included
in petitioner's records, and petitioner did not complete any
of the required forms for its transfer (Pet. App. 2a, 37a-

3

38a).' Later that month, in a consensually recorded conver-
Sation, petitioner and Schoen discussed the sale of other
firearms, including a Colt Python revolver. Petitioner
agreed that future sales would be “off paper,” that is, not
recorded (id. at 72a), and on November 5 petitioner sold
Schoen a Colt Python .357 magnum revolver at a gun show
(id. at 38a). The handgun was not entered in petitioner’s
books, and he did not complete any federal or state transfer
forms (id. at 2a, 38a).

On December 6, 1977, in another consensually recorded
telephone conversation (Pet. App. 74a-82a), petitioner and
Schoen discussed the sale of other guns. Petitioner agreed
that the sales would be “like we did them before” (id. at 75a),
that is, unrecorded. Before these sales were consummated,
however, federal agents arrested petitioner and, a week
later, executed a search warrant on his residence. Pursuant
to the warrant, ATF agents seized 34 long guns, 49 hand-
guns, 5,765 rounds of ammunition, and various records.
Included among the seized weapons were the firearms men-
tioned in petitioner’s December 6 telephone conversation
(C.A. Br. 7).

2. After his arrest, petitioner filed a motion for the return
and the suppression of the evidence seized during the execu-
tion of the search warrant. Fed. R. Crim. P. 41(e) and 12. At
a hearing on his motion, petitioner testified that an uniden-
tified ATF agent had assured him that he was not required
to record private gun transactions relating to weapons he
acquired away from his business premises without the use of
his firearms license (Pet. App. 69a). The district court
denied the motions (id. at 35a).

‘Petitioner also sold Schoen two other handguns on October |.
Because the proper transfer forms were filled out for these handguns,
the government dismissed the three counts of the inuictment relating to
these sales (Pet. 21n.1; Pet. App. 36a-41a).

4

Following his conviction, in a petition for a writ of error
coram nobis, petitioner renewed the defense that he had
been erroneously advised by the ATF that his “private”
sales were legal. Petitioner cited a July 30, 1979, letter by
John Krogman, then acting Director of the ATF, which
stated that a licensee’s disposition of personal firearms need
not be recorded in the licensee’s business records (Pet. App.
56a-61a). The district court, noting that petitioner had
properly recorded some “personal” sales, rejected petition-
er’s assertion that he had relied on erroneous ATF advice
(id. at 15a), and similarly dismissed the Krogman letter,
observing that the present Director of ATF had disavowed
the conclusion set forth in the letter (ibid.).

3. On appeal from petitioner’s conviction and the denial
of his coram nobis petition, the court of appeals affirmed
(Pet. App. la-10a). The court first found that, under federal
law, all of petitioner's firearms transactions were subject to
the recording requirements of the Gun Control Act of 1968,
18 U.S.C. 921 et seq., irrespective of whether the firearms
came from petitioner’s personal or business collection (Pet.
App. 5a-6a). The court also found that, by selling weapons
at a location other than his licensed business address with-
out complying with the reporting requirements of the Act,
petitioner violated 18 U.S.C. 922(c) (Pet. App. 6a). The
court then affirmed the district court’s denial of the petition
for a writ of error coram nobis, agreeing with the district
court that petitioner did not in fact rely on erroneous ATF
advice (id. at 6a). Turning to petitioner’s challenge to the
search warrant and seizure of his cache of personal wea-
pons, the court rejected his claims that the warrant was
unsupported by probable cause and that it did not describe
with sufficient particularity the items to be seized (id. at
7a-8a).

5

ARGUMENT

It is undisputed that petitioner sold five guns to Schoen
without submitting the appropriate forms to ATF or main-
taining the proper records relating to the transfers. Peti-
tioner, contends, however, that he was erroneously indicted
under Sections 922(c) and (m) of the Gun Control Act of
1968, that the search warrant in this case was invalid, and
that the government should have been held estopped from
bringing this prosecution because of his alleged reliance
upon the advice of an unidentified ATF agent. None of
these contentions merits review by this Court.

l(a). Petitioner initially contends (Pet. 11-16) that he
was improperly indicted under 18 U.S.C. 922(c). That Sec-
tion, set forth at Pet. vii-viii, “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” (Pet. App.
6a). Petitioner, a licensed gun dealer, sold five weapons to
Schoen, who did not appear in person at petitioner’s
licensed place of business, without making the reports
required by Section 922(c). Hence, petitioner’s conduct
came within the plain language of the statute and “(h]e
therefore properly was indicted under this section” (Pet.
App. 6a).

When Congress enacted the 1968 gun control legislation,
“it was concerned with the widespread traffic in firearms
and with their general availability to those whose posses-
sion thereof was contrary to the public interest.” Huddle-
ston v. United States, 415 U.S. 814, 824 (1974). Congress
concluded that “the ease with which firearms could be
obtained contributed significantly to the prevalence of
lawlessness and violent crime in the United States” (ibid.).
(Citing S. Rep. 1097, 90th Cong., 2d Sess. 108 (1968)). The
1968 gun control legislation is clearly “aimed at restricting
public access to firearms.” Huddleston, 415 U.S. at 824.

6

As this Court has previously recognized, the “principal
agent of federal [gun control] enforcement is the dealer.”
Huddleston, 415 U.S. at 824. He is required to keep records
of the sale and disposition of firearms (ibid.). All commerce
in ammunition and firearms is channeled through federally
licensed dealers, “the focus of the federal scheme,” in order
“to eliminate the mail order and the generally widespread
commerce in [firearms], and to insure that, in the course of
sales or other dispositons by these dealers, weapons [will]
not be obtained by individuals whose possession of them
would be contrary to the public interest” (id. at 825; Dicker-
son v. New Banner Institute, Inc., No. 81-1180 (Feb. 23,
1983), slip op. 5). To permit a licensed dealer to avoid the
reporting requirements of the statute would defeat its
underlying purpose.

Petitioner's contrary claim is predicated upon 27 C.F.R.
178.50, which requires a licensed dealer to obtain “a separ-
ate license * * * for each location at which a firearms or
ammunition business * * * is conducted.” On the basis of
that regulation, petitioner argues that he was licensed to sell
firearms only at his place of business, and that when he sold
the firearms at the gun fair he was not a “licensed dealer”
under Section 922(c). This contention, the rationale of
which would essentially repeal the reporting requirement of
Section 922(c), ignores the reality of petitioner's course of
dealing in this case. Petitioner was a licensed dealer at all
times relevant to this case; that he may have acted wrong-
fully as a licensee in transferring firearms away from his
place of business does not alter his legal position, but merely
shows that he failed to comply with the federal regulation
that he not transfer possession of firearms in non-over-the

,

counter sales without satisfying the reporting requirements
of 18 U.S.C. 922(c).?

In any event, in a pending rulemaking proceeding, ATF
has proposed altering its regulations to permit a licensed
dealer to sell firearms at a gun show within the same state as
the dealer’s licensed premises. Notice of Proposed Rule-
making No. 487, 48 Fed. Reg. 44088 (1983). This rulemak-
ing proceeding will put to rest petitioner’s claim that a
dealer selling weapons at a gun show is “unlicensed,” ther-
eby depriving the issue raised by petitioner of any future
practical importance.

{Yjour 1977 guide to Firearms Regulation,” excerpted in part by
petitioner (Pet. xiii-xiv), explains that a licensed dealer may sell fire-
arms and ammunition at a gun show so long as he merely takes orders at
that location and fills them at his licensed premises or through the mail
(Pet. xiii).

‘Although United States v. Ruisi, 460 F.2d 153 (2d Cir.), cert.
denied, 409 U.S. 914(1972), cited by petitioner (Pet. 12-14), appears to
conflict with this analysis, any possible conflict does not merit the
attention of this Court. In that case, as in the instant one, licensed
dealers sold firearms at a gun show. Rather than being charged under 18
U.S.C. 922(c), however, they were charged with engaging in the busi-
ness of dealing in firearms without a license, in violation of 18 U.S.C.
922(a). The defendants did not challenge their conviction under Section
922(a) on the ground that they were licensed, and the court of appeals
assumed the propriety of the charge under those facts. Therefore, any
conflict between Ruisi and this case is at most over which of two
subsections of Section 922 was violated by petitioner's course of con-
duct; there is no conflict over whether the conduct is illegal — both
Ruisi and the instant case would hold that petitioner had violated the
Gun Control Act of 1968. See Fed. R. Crim. P. 7(c)(3) (error in citation
of statute not ground for reversal of conviction unless prejudicial). Nor
does the possible conflict between Ruisi and this case appear to be
recurring. We are not aware of any subsequent reported decision which
holds that a licensed dealer is unlicensed when he makes sales off his
licensed premises. Finally, as noted above, the future significance of any
discrepancy between Ruisi and this case is slight, due to the pending
ATF rulemaking that will clarify that dealers making sales at gun shows
are “licensed” under the Gun Control Act of 1968. 48 Fed. Reg. 44088
(1983).

8

b. Petitioner next contends (Pet. 16-20) that the record-
keeping requirements of 18 U.S.C. 922(m) do not apply to
personally owned firearms transferred by a licensed dealer.
Petitioner accordingly argues that, because the five charged
weapons in this case were allegedly owned in his “private
capacity” (Pet. 17), he was not required to record their sales
or to make the proper forms available for inspection by
ATF. This argument is without legal or factual merit.

Petitioner’s attempt to circumvent the statutory report-
ing requirements for licensed dealers by separating “busi-
ness” from “personal” transactions is contrary both to case
law and to the clear intent of Congress. United States v.
Scherer, 523 F.2d 371 (7th Cir. 1975), cert. denied, 424 U.S.
911 (1976); United States v. Currier, 621 F.2d 7 (lst Cir.
1980). As the district court found (Pet. App. 3la-32a):

[P}ersons 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.

A review of the statute establishes that the legislature
intended the record-keeping provisions to apply to
sales of weapons from a dealer’s personal collection.
First, the regulations promulgated pursuant to Sec-
tions 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

9

was designed to prevent firearms from coming into the
hands of the unqualified. If licensed dealers could
avoid maintaining records by simply designating guns
as belonging to a personal collection rather than a
business inventory or by selling the guns from their
residences rather than their place of business, the effec-
tiveness of recording gun sales to monitor who receives
the firearms would be destroyed.

Moreover, on the facts of his case, there is no reason to
reach petitioner's claim that the decision below and the
decisions in United States v. Scherer, supra, and United
States vy. Currier, supra, deprive him of the right afforded
non-licensed persons to trade in privately owned firearms.
In this case, petitioner engaged in a series of “off record”
sales and proposed to engage in numerous similar transac-
tions in the future. Had he not been a licensed dealer, his
course of conduct would have subjected him to prosecution
for dealing in weapons without a license.‘ Accordingly, he
was not deprived of any “right” to be free from criminal

“See, e.g., United States v. Perkins, 633 F.2d 856, 860 (8th Cir. 1981)
(three transactions involving eight guns); United States v. Tarr, 589
F.2d 55, $9 (Ist Cir. 1978) (“ ‘dealing’ connotes a regular course of
conduct carried on over a period of time or, at least, on more than one
or two unrelated occasions”); United States v. Powell, §13 F.2d 1249,
1250 (8th Cir.), cert. denied, 423 U.S. 853 (1975) (six guns); United
States v. Williams, 502 F.2d 581, 582-583 (8th Cir. 1974) (five transac-
tions); United States v. Kowalski, 502 F.2d 203, 205 (7th Cir. 1974),
cert. denied, 420 U.S. 979 (1975) (three sales). See also United States v.
Hernandez, 662 F.2d 289, 291 (Sth Cir. 1981); United States v. Miller,
644 F.2d 1241, 1245 (8th Cir.), cert. denied, 454 U.S. 850(1981); United
States v. Masters, 622 F.2d 83, 88 (4th Cir. 1980) (citing cases); United
States v. Angelini, 607 F.2d 1305, 1307 (9th Cir. 1979); United States
v. Micieli, $94 F.2d 102, 108 (Sth Cir. 1979); United States v. Swinton,
$21 F.2d 1255, 1258-1259 (10th Cir. 1975), cert. denied, 424 U.S. 918
(1976); Kaneshiro v. United States, 445 F.2d 1266, 1269-1270 (9th Cir.
1971).

10

prosecution by the imposition of a recordkeeping require-
ment on his allegedly “personal” transactions.°

c. Petitioner also asserts (Pet. 13) that he cannot simul-
taneously be convicted of failure to comply with the report-
ing requirements for sale to an individual who does not
appear at his licensed place of business, as set out in 18
U.S.C. 922(c), and failure to maintain the records required
of licensed dealers, as specified by 18 U.S.C. 922(m).° Peti-
tioner argues that the Section 922(c) counts charge him with
failing to file Form 4473, Part II (Pet. App. 65a), which is to
be completed for non-over-the-counter or mail-order sales,
and that the Section 922(m) counts contrarily charge a
failure to file Form 4473, Part I (Pet. App. 63a), which is to
be completed for on-the-premises sales. This contention is
incorrect.’

It is true that, had >etitioner complied with Section
922(c), he would have directed the buyer to complete Form
4473 for each transaction and would have submitted Part II
of the form — for non-over-the-counter sales — to the
appropriate law enforcement office. However, the record
maintenance and filing requirements of 18 U.S.C. 922(m)

‘Even if petitioner's licensed status deprived him of a right he would
otherwise have to dispose of personally owned firearms without record-
ing the disposition, there is no constitutional infirmity in the depriva-
tion. See United States v. Biswell, 406 U.S. 311 (1972).

18 U.S.C. 922(m) makes it unlawful for a licensed dealer “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.” Section 923(g) requires a licensed
dealer to “maintain such records of * * ® sale, or other disposition, of
firearms * * * as the Secretary may by regulations prescribe.” The
particular record that petitioner is charged with failing to maintain in
the Section 922(m) counts is Form 4473, the official Report of Firearms
Transaction form, required by 27 C.F.R. 178.124.

"It is also of no practical consequence in light of petitioner's concur-
rent sentences.

relate to Form 4473 as a whole, with no distinction between
over-the-counter and non-over-the counter sales. In short,
Section 922(c) and (m) are not mutually exclusive, as peti-
tioner urges.*®

2. Contrary to petitioner's claims (Pet. 20-21), the search
warrant and affidavit in this case (Pet. App. 49a-55a) were
not overly broad or vague. The warrant authorized seizure
of “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)” (Pet. App. 49a). The courts
below properly found the warrant to be within the “ ‘margin
of flexibility’ ” permitted under the Fourth Amendment
(Pet. App. 8a) (quoting United States v. Lowry, 675 F.2d
593, 595 (4th Cir. 1982)). See also Pet. App. 43a-45a.

The warrant and the accompanying affidavit made it
clear that the focus of the search was petitioner’s “personal”
collection of firearms and ammunition stored in his resi-
dence, as well as the records relating to unreported transac-
tions involving these weapons. Had the warrant not used

*Petitioner’s sole support for the contention that the Section 922(c)
counts and Section 922(m) counts are mutually exclusive lies in a
miscitation contained in the string cites at the bottom of each Section
922(m) count. Counts eight through twelve of the indictment (Pet. App.
45a-48a) charge petitioner with failing to keep records, in violation of 18
U.S.C. 923 and 27 C.F.R. 178.124(a). The string citation at the bottom
of each count, however, cites 27 C.F.R. 178.124(c) in addition to 27
C.F.R. 178.124(a). Section 178.124(a) relates to Form 4473 as a whole,
while Section 178.124(c) relates to the recordkeeping requirements for
over-the-counter sales. Any ambiguity created by this oversight was
never challenged directly by petitioner, nor is it material in this case.
Petitioner was not misled by the miscitation, so any conceivable error
was harmless. Fed. R. Crim. P. 7(c)(3). Moreover, in its memorandum
explaining the basis upon which it convicted petitioner, the district
court relied on 27 C.F.R. 178.124(a) and (f) (Pet. App. 24a-2Sa), and
Section 178.124(f) relates to non-over-the-counter sales. Thus, the
court's order made clear that it consistently regarded petitioner's con-
duct to be in violation of regulations directed at non-over-the-counter
sales,

12

the shorthand reference to Sections 922(c) and (m), but
spelled out instead that the search was to focus on evidence
of suspected activity involving unrecorded “personal” fire-
arms sales, petitioner's constitutional complaint would be
palpably meritless.

The search warrant in United States v. Cardwell, 680
F.2d 75 (9th Cir. 1982), cited by petitioner (Pet. 20), autho-
rized a search for and seizure of all records or other evidence
of violation of the general tax evasion statute. In that case,
and others cited therein, the executing officers were re-
quired “ ‘to make a legal distinction between fraudulent
records and records that are not fraudulent, which they
were not qualified to do.’ "680 F.2d at 78 (quoting United
States v. Abrams, 615 F.2d 541, 542 n.2 (Ist Cir. 1980)).
Here, in contrast, it was not necessary that the executing
agents carefully peruse petitioner's records to distinguish
between evidentiary and non-evidentiary material. The
records to be seized under the terms of the warrant were
limited to evidence of the violation of two subsections of the
firearms statute, and the warrant and accompanying affi-
davit focused the search on evidence relating to the sale of
“personal” firearms without proper documentation. See
Andresen v. Maryland, 427 U.S. 463 (1976). Thus, the
warrant, when viewed in a “a commonsense and realistic
fashion” (see United States v. Ventresca, 380 U.S. 102, 108
(1965)), was sufficiently particular to prevent “a general,
exploratory rummaging in a person’s belongings” (Coo-
lidge v. New Hampshire, 403 U.S. 443, 467 (1971)) and
both inform the magistrate and instruct the executing offic-
ers on the particular items to be seized.?

°A warrant need not describe the documents and evidence sought
with surgical precision when the investigating agents have no way of
knowing precisely what form those records might take. Because a more
precise description was not feasible in these circumstances, the general
description of “records involved in, used in and intended to be used in”

13

3. Finally, petitioner contends (Pet. 21-22) that he was
convicted “for exercising a privilege which the State had
clearly told him was available to him.” Raley v. Ohio, 360
U.S. 423, 426 (1959). The courts below correctly rejected
this claim (Pet. App. 6a, 14a-15a).

Petitioner asserts (Pet. 22 n. 16) that he relied upon the
ATF “{Y]Jour 1977 guide to Firearms Regulation” (Pet.
Xiili-xiv) in undertaking the five sales at issue here. The
guide, however, makes it clear that a licensee — such as
petitioner! — must execute a Form 4473 each time he sells
a firearm, and that at a gun show he can display and take
orders but may not transfer firearms directly. In short, the
1977 guide, when read properly and as a whole, clarified that
petitioner, as a licensed dealer, could not regularly and
_ repeatedly engage in the sale of allegedly privately owned
firearms at gun shows in circumvention of the statute. °

violations of the record-keeping provisions of the Gun Control Act of
1968 was acceptable. See United States vy. Christine, 687 F.2d 749, 760
(3d Cir. 1982); United States v. Smith, 686 F.2d 234, 238 (Sth Cir.
1982); United States v. Cook, 657 F. 2d 730, 733 (Sth Cir. 1981); United
States v. Cortellesso, 601 F.2d 28, 32 (ist Cir. 1979), cert. denied, 444
U.S. 1072 (1980).

Petitioner maintains (Pet. 22 n.16) that at the gun shows he was a
nonlicensee. Question and answer No. 59 in the 1977 firearms regula-
tion guide (Pet. xiii) put petitioner on notice that he was still a licensee,
despite the absence of a specific license to sell guns at the gun shows. The
“Krogman” letter (Pet. App. 56a-61a), to which petitioner also refers,
explains as well that a licensed firearm dealer may only accept orders at
gun shows (id. at 58a). To the extent that the letter contains statements
supportive of petitioner's position, we note that those statements have
been disavowed by the Department of the Treasury (id. at 15a n.2) and
the Krogman letter itself was written after petitioner's convictions and
could not have been relied upon by petitioner when he committed the
charged offenses.

14

Petitioner's related argument that he relied upon the
opinion of an unidentified ATF agent was rejected by both
the district court and the court of appeals (Pet. App. 6a,
14a-15a). Their conclusion that petitioner did not in fact rely
upon the advice allegedly given him merits no further
review.

CONCLUSION
The petition for a writ of certiorari should be denied.

Respectfully submitted.

Rex E. Lee
Solicitor General

STEPHEN S. TROTT
Assistant Attorney General

SARA CRISCITELLI
Attorney

NOVEMBER 1983

DOJ-1983-11

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0418%3A4. Public record. Not legal advice.