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United States v. Gardner

June 9, 1971

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
DONALD LEE GARDNER, DEFENDANT-APPELLANT



Hastings, Senior Circuit Judge, Fairchild, Circuit Judge, and Campbell, District Judge.*fn*

Author: Hastings

HASTINGS, Senior Circuit Judge.

Defendant Donald Lee Gardner was charged in Count II*fn1 of a two-count indictment*fn2 with a violation of Title 26, U.S.C.A. § 5861(d)*fn3 of the Gun Control Act of 1968, amending the National Firearms Act, having knowingly possessed a firearm which had not been registered with the Secretary of the Treasury or his delegate, as required by Title 26, U.S.C.A. § 5841.*fn4

Following a bench trial, defendant, having properly executed a written approved waiver of trial by jury, was found guilty of the offense charged in Count II. The district court entered a judgment of guilty and imposed a six months period of imprisonment, which was suspended. Defendant was placed on probation for six months and fined in the sum of $1,000. Defendant appeals. We affirm.

Defendant Gardner owned and operated a Shell service station at 3998 South East Street and resided at 6215 Loretta Drive, both in Indianapolis, Indiana. He was the owner of an extensive collection of firearms of various types. On September 15, 1969, Robert T. Crofford, Special Investigator for the Alcohol, Tobacco & Firearms Division, Internal Revenue Service, Treasury Department, contacted defendant at his Shell station and offered to purchase guns from him. After succeeding contacts on September 17, 20, 21 and 25, Crofford purchased two firearms from defendant at the service station on September 26, 1969, and another on September 29, 1969.

On the morning of October 10, 1969, Crofford drove to the area of defendant's residence at 6215 Loretta Drive to determine its location and description. Crofford then proceeded to obtain separate search warrants for defendant's Shell station and residence. That afternoon, by appointment Crofford went to defendant's Shell station where defendant sold him two shotguns. Crofford then arrested defendant and executed the search warrant for the service station. Crofford and Special Investigator Richard L. Brim, ATF Division, seized 9 firearms which were subsequently duly inventoried. Other law enforcement officers were present.

In the company of Brim and another ATF Special Investigator, together with state officers, Crofford took defendant to defendant's residence at 6215 Loretta Drive and there executed the search warrant for that location, confining the search to the basement. They seized 38 firearms there which were subsequently inventoried. Included in the 38 firearms seized at defendant's residence was a Stevens pistol,.410 gauge tip-up model, serial number A6824, having a barrel with a smooth bore and designed to shoot a.410 gauge commercial shotgun shell. This weapon was subsequently introduced in evidence at the trial and identified as Government's Exhibit No. 15.

In answering a question by Crofford, defendant stated that the Stevens pistol was not registered in the National Firearms Registration and Transfer Record maintained by Crofford's agency in Washington, D.C. Upon further inquiry by Crofford, defendant said he had obtained this particular firearm from a man named Allen who operated a gun shop on Post Road. Subsequently, Crofford acquired a.410 shotgun round, fired it in the Stevens pistol and concluded it would fire commercially available ammunition. Crofford first saw this gun on a pool table in defendant's basement in his residence at 6215 Loretta Drive at the time of the October 10, 1969 search.

The three issues presented for review on this appeal are (1) denial of due process to defendant because of the absence of an allegation of scienter, (2) invalidity of the search warrant, and (3) insufficiency of the evidence to warrant conviction.

I

It is now clear that the Government was not required to prove that the defendant had knowledge of the registration provisions of the statute requiring registration of Government Exhibit No. 15, nor that defendant knew the physical characteristics of the weapon that rendered it subject to registration, in order to convict him of the offense charged in Count II of the indictment. Scienter is not an element in this cause.

The case of United States v. Freed, 401 U.S. 601, 91 S. Ct. 1112, 28 L. Ed. 2d 356, decided April 5, 1971, after the briefs in the instant case were filed and before oral argument was heard on April 22, 1971, is concededly dispositive of this issue adversely to defendant's contention on this appeal. A reading of this opinion by the Supreme Court will suffice.

II

On the search warrant issue relating to defendant's residence, defendant contends the district court erred in denying his motion to suppress Government Exhibit No. 15 and that it was improperly admitted into evidence. This is grounded on the argument that the search warrant is invalid on its face and because of the defective supporting affidavits by ...


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