Appeal from the United States District Court for the Southern District of Illinois. No. P-CR-73-63. Robert D. Morgan, Judge.
Clark, Associate Justice,*fn* and Pell and Sprecher, Circuit Judges. Pell, Circuit Judge, dissenting.
CLARK, Associate Justice.
Alfred Kowalski was convicted by a jury of violating Title 18, U.S.C. § 922 (a)(1) [engaging in the business of importing, manufacturing or dealing in firearms]. On his appeal he raises six points: (1) Is Section 922 (a)(1) unconstitutionally vague and indefinite; (2) is the evidence sufficient to support the verdict; (3) was it error to cross-examine Kowalski regarding pending state charges; (4) may prior felony convictions more than twenty - five years old be used for impeachment; (5) is it error to allow proof by hearsay that one of the guns allegedly sold by Kowalski was stolen; and (6) was it prejudicial for the prosecutor to characterize one of the guns in question as a "sniper's gun", etc.
Wayne Stebins offered to sell a rifle (that Kowalski was holding on a $100 loan owed by Stebins) to David Krug, a Treasury Agent. Krug, Stebins and another Treasury Agent went to Kowalski's house to obtain the gun. While the Agents remained in a van truck, Stebins went into Kowalski's house and returned alone with the gun which he sold to Krug for $125.00, which money Stebins later paid to Kowalski. Thereafter a Government informer, Junior Lucas, took the Agents to Kowalski's house and inquired of Kowalski if he had any guns for sale. The latter said that he had "a varmint rifle" and after some dickering over the price, Kowalski sold the rifle to Krug for $150.00, with some ammunition thrown in. Some two weeks later the same parties returned to Kowalski's house and purchased a.45 caliber target pistol for $150.00 and an old 16 gauge shotgun for $30.00.
Kowalski was regularly employed as a truck driver by Ruan Transport Company, was 60 years of age and married. From June 7, 1973 until October 2, 1973, Kowalski did not sell or purchase any other firearms nor did he spend any time locating additional firearms to sell.
The statute in question provides that except for a licensed importer, licensed manufacturer, or licensed dealer, it "shall be unlawful . . . to engage in the business of importing, manufacturing or dealing in firearms or ammunition . . ." We hold that the statute is not unconstitutionally vague; that Kowalski was engaged "in the business of . . . dealing in firearms . . ." in violation thereof; and that there is no merit in the remainder of his points.
1. As to the vagueness claim, we find that this Circuit has upheld the Act under that attack in two cases, United States v. Zeidman, 444 F.2d 1051 (1971) and United States v. Gross, 451 F.2d 1355 (1971). In the latter case the Act was found "not impermissibly vague", Id. at 1357. Likewise three additional circuits have upheld it: Kaneshiro v. United States, 445 F.2d 1266 (9th Cir. 1971); United States v. Day, 476 F.2d 562 (6th Cir. 1973) and United States v. Wilkening, 485 F.2d 234 (8th Cir. 1973). The single case cited by Kowalski is wholly inapposite. It involved a vagrancy statute in the District of Columbia and typical of those acts, used such terms as "loitering"; "leading an immoral and profligate life", etc. And it was properly held vague. Ricks v. District of Columbia, 134 U.S. App. D.C. 201, 414 F.2d 1097 (1968). We uphold the Act involved here.
2. Kowalski attacks the evidence as being insufficient to support the jury verdict. However, a reading of the transcript reveals at least three sales of prohibited weapons, a.225 Winchester rifle, a.45 pistol and a 16-gauge shotgun. In addition, Kowalski received the proceeds of a fourth prohibited gun sale, a.30-.30 rifle. Moreover statements by Kowalski to the Government agents and admitted by Kowalski but at trial claimed to be: "That was just, like I say, just wind-ing it a little bit, playing it bigger than I should have and got myself into trouble" indicate other illegal activity under the Act. These included receiving a shipment of ten stolen rifles, after which he tried to contact Krug but could not find him and so he sold them to others; that he was trying to re-stock his gun supply; that he went to Michigan to get some guns but only got one and it was no good; and that he got guns in and out all the time for sale. We believe the evidence quite sufficient.
3. Kowalski claims that the prosecutor's questions on cross-examination if he had ever been convicted of a felony were all too remote in years, i.e. 1932, 1937 and 1948. However the cases are to the contrary. See United States v. Dow, 457 F.2d 246 (7th Cir. 1972); United States v. Morefield, 411 F.2d 1186, 1188 (7th Cir. 1969); United States v. Escobedo, 430 F.2d 14, 18-20, (7th Cir. 1970), cert. den., 402 U.S. 951, 29 L. Ed. 2d 122, 91 S. Ct. 1632.
4. During the interrogation as to prior felonies, the prosecutor also asked Kowalski: "You have been charged in state court in Bureau and La Salle County", and the answer was: "conspiracy". The prosecutor then asked: "How many charges are pending against you there, sir", whereupon objection was made. The court sustained the objection "to the pending charges." Kowalski then moved for a mistrial which was denied. The court did instruct the jury "to disregard the question and any implications of it." The question should not have been asked and we agree with the dissent's criticism of the Assistant United States Attorney. However we note that Kowalski made no objection to the previous question. Indeed he answered it. The prosecutor then asked the details. In light of the court's specific charge to the jury that the question as to the pending charges be stricken and that they disregard "the question and any implications of it", we find it harmless, especially in light of the entire record.
The direct evidence of guilt was overwhelming -- indeed it was admitted by Kowalski save for the point as to whether the number of sales etc. was sufficient to find that he engaged in the business of dealing in firearms. The jury found against him on this point under the court's charge to which there was no objection. There was no indication of bad faith on the part of the government. Indeed, the previous question as to Kowalski being charged in "Bureau and LaSalle County" had already been answered without any objection. We reiterate the question should not have been asked, and the prosecutor is censured for posing it, but in view of the overwhelming evidence of guilt as well as the manner and time in which the question was asked, we find that there was no prejudice.
5. The claimed hearsay nature of the evidence as to one of the guns involved being stolen is not correct. It is true that in tracing the sale of the gun the Agent received information as to the sequence of purchasers. However, upon going to the ultimate purchaser, he found that the gun was stolen. He then contacted the Sheriff of Putnam County who forwarded the official report showing the gun was stolen. Moreover, Kowalski admitted on cross-examination that he had told Agent Krug the gun was stolen at Granville. At trial he testified that he had traded a.243 target rifle for it at a gun show in Princeton. He said: "I was questioning around if anybody had a smaller gun that I could trade around. The guy asked me to look at it." The trade took place, he said, "right at the edge of where they -- where all the gun show -- where the people were." Kowalski remembered that it was in 1971 but could not remember the day, the month and "didn't even ask him" (the seller) his name. "He didn't ask me mine."
6. Nor was the prosecutor's comment that the gun might be a "sniper's gun" prejudicial. The gun was before the jury, had a scope on it and was called "a varmint gun" by Kowalski. The referenced characterization is not claimed to have referred to Kowalski as a sniper. It was fair comment under the evidence.
The other claims of Kowalski are frivolous and the judgment is
PELL, Circuit Judge, dissenting.
In a recent per curiam opinion, United States v. Dilts, 501 F.2d 531 (7th Cir., 1974), a panel of this court stated:
"We have previously felt compelled to criticize this Assistant United States Attorney for departing from the record. [See United States v. Hernandez, 486 F.2d 614, 618 (7th Cir. 1973).] In view of this history, we have considered the need for an exercise of our supervisory power as a deterrent to deliberate prosecutorial misconduct. Cf., United States v. Trutenko, 490 F.2d 678, 681 (7th Cir. 1973). We have concluded, however, that since the flagrant misconduct occurred before us, rather than in the trial court, these judgments should not be reversed." (501 F.2d 531, 536, footnotes omitted.)
Now we have another case involving the same Assistant United States Attorney who engaged in what, in my opinion, was sufficiently flagrant misconduct in the trial court that we should exercise our supervisory power and reverse a judgment in what has the earmarks of an unfair trial because of that misconduct. Accordingly, I respectfully dissent.
The record brooks of no dispute of the fact that Kowalski sold firearms on more than one occasion. He was not charged, however, with the sale of guns, or with possession of prohibited guns, but with being in the business of dealing in firearms. Just where the line is to be drawn between sales by a dealer engaged in the business and by an owner of firearms engaged in a casual, occasional sale is a difficult one to draw. The statute does not prescribe any standards for determining when a person is "engaged in the business." United States v. Zeidman, 444 F.2d 1051, 1055 (7th Cir. 1971). I do not conceive that the statute should be interpreted to the effect that once a person has acquired a firearm he should forever afterwards be precluded from disposing of it by threat of a substantial prison sentence if he does so.
On the customary basis of considering the evidence on appeal from a criminal conviction in the light most favorable to the Government, this court might well affirm in the ordinary case involving sales of firearms on only two occasions. However, the record does not reflect the ordinary case but instead one in which conduct on the part of the prosecutor was such that I cannot say it was not a factor in tipping a close case toward the side of conviction. In any event, our supervisory power should have been called into play.
The trial in this case commenced on January 15, 1974, at 10 a.m. All evidence was submitted, final arguments made, and the jury charged by 4:30 p.m. on the same day. Sometime after 9:00 p.m. the jury sent the following note to the judge: "After 10 votes, we have not been able to come to a verdict. We see no chance of reversal of any of the votes." An hour later, the jury returned to the courtroom where the instructions were reread to the veniremen. At fifteen minutes before midnight, the jury returned its guilty verdict.
During this compact exercise in the administration of justice, at the conclusion of which Kowalski, then aged 60, was found guilty of a crime which would result in his incarceration for three years, the Assistant United States Attorney, an experienced and veteran legal practitioner, engaged in conduct which appears to me to be designedly and by improper means denigrating of the defense advanced by Kowalski's appointed counsel. Unfortunately, his counsel did not preserve the record that should have been made on these occasions; however, I consider the errors on the part of the prosecutor to have affected substantial rights of Kowalski and therefore a basis for reversal. Rule 54, Fed. R. Crim. P.*fn1
I agree with the majority that as the law stood at the time of the trial, and as it now stands despite the more compassionate (and probably more realistic) ten-year limitation reflected in Rule 609(b) of the Proposed Rules of Evidence for United States District Courts and Magistrates, remoteness of the crime is not a basis for excluding queries to a witness about his prior criminal convictions. The remoteness aspect, however, is only a part of the cumulative picture.
At trial, the prosecutor opened this phase of his cross-examination of Kowalski not by asking him as to whether he had been convicted of a certain crime at a certain time and place but instead asked, "Now, Mr. Kowalski, have you ever been convicted of a felony?" A general objection was overruled and Kowalski responded, "Well, I don't know whether it was a felony or not. I was convicted --"
But before pursuing further the cross-examination, it should be noted that the prosecutor was fully aware of the defendant's criminal record. At a hearing more than a month prior to the trial, after referring to a pending state conspiracy charge to deliver a controlled substance sometimes referred to as "speed," which charge emanated from the same transactions as the federal firearms indictment, the prosecutor stated the following:
"In addition, the defendant's record indicates that since 1942 the defendant has not been involved or does not have any felony charges against him. He has had several charges in '47, '48 and '49 -- one each. I should say -- for being intoxicated. I don't know what 'ADW' means.
"THE CLERK: Assault with a deadly weapon.
"MR. LIPKIN: Assault with a deadly weapon, but no conviction and no disposition.
"It is true that back in the '30's the defendant was charged at one point in '35 with vagrancy and in '37 with auto theft, but no disposition was ever made, except on the vagrancy charge he had 30 days in the House of Correction; and in '32 he was charged with manslaughter arising with leaving the scene of an automobile accident and was fined a dollar and served three months in the House of Correction.
"One further investigation, as I have indicated, indicates that since this time and during this period, with the exception of this particular offense and the one involving his offer to obtain narcotics, he has no criminal ...