Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division - Nos. FCR 75-21 and FCR 75-23 JESSE E. ESCHBACH, Judge.
Pell and Bauer, Circuit Judges, and Perry, Senior District Judge.*fn*
These two appeals from convictions under 18 U.S.C. App. § 1202(a)(1)*fn1 for the receipt, possession or transport in commerce of firearms by a felon present two principal issues: the legality of a search initiated by a deceptive entry into the suspects' home and the propriety of jury instructions regarding the interstate commerce nexus required for a conviction under 18 U.S.C. App. § 1202(a)(1).
In early March, 1975, Special Agent Raymond Lewis of the Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury, received information that Clarence Ressler and an individual known as "D.J.", residents of Fort Wayne, Indiana, were convicted felons in possession of firearms in violation of federal law. His source being of unproved reliability, Agent Lewis sought to verify the information through an undercover investigation. He obtained the assistance of Indiana State Police Officers Charles Hampshire and Louis Cinko to conduct the investigation.
At approximately 11:40 p.m. on April 3, 1975, Officers Hampshire and Cinko and a confidential informant known by the suspects knocked on the door of the petitioners' residence in Fort Wayne. A woman answered and admitted them after they told her they wanted to see "Cory." "Cory" is a nickname for Clarence Ressler. The petitioners and three other persons were inside.
After entering, Officer Hampshire told the petitioners and the others that he had heard they were interested in buying some firearms and that he had some to sell. The residents requested to see the guns. Hampshire displayed several handguns he was carrying. One of the residents offered cash for the guns, which Hampshire refused. Hampshire then suggested that he might trade them for "long weapons", i.e., rifles and shotguns. In response, petitioner Ressler left the room and returned with a.12 gauge double-barreled shotgun. Hampshire noted the name and last two serial numbers on the gun.
At one point during the conversation, while Hampshire and the residents were discussing the ease with which handguns could be concealed, petitioner Johnson removed a.9 mm.,.38 caliber pistol from under his jacket. Hampshire was able to see the notation "P-38" on its side. The officers left the residence about 12:30 a.m.
On April 5, two Fort Wayne police officers recovered a pistol at a tavern from a booth in which Johnson had been sitting. The Fort Wayne police later arrested Johnson and found him to be carrying ammunition for the gun. At trial, Officer Hampshire identified the pistol as being the one with the "P-38" notation displayed to him by Johnson at the petitioners' home.
Relying principally on the information obtained by Officer Hampshire on the night of April 3, Agent Lewis obtained a warrant to search the petitioners' home. On April 7 he executed the warrant and confiscated the shotgun Ressler tried to sell to Hampshire, a World War II Japanese rifle, and some shotgun shells.
Ressler was indicted and convicted under 18 U.S.C. App. § 1202(a) (1) for receiving, possessing and transporting in commerce the shotgun. Johnson was indicted and convicted under 18 U.S.C. App. § 1202(a) (1) for receiving, possessing and transporting in commerce the pistol and Japanese rifle. Their trials were separate and their appeals were argued separately. Since the issues on appeal are similar, we will discuss them in one opinion.
Both petitioners claim that the firearms seized in the search of the petitioners' home on April 7, pursuant to the warrant based on information obtained in the April 3 entry into the petitioners' home, and the testimony of the officers regarding the April 3 entry should not have been admitted at trial since the April 3 entry was an illegal search.
The main thrust of petitioners' argument is that the officers violated the petitioners' Fourth Amendment rights by obtaining entry into their home through the ruse of asking for petitioner Ressler by his nickname.
Recognizing that the Supreme Court in Lewis v. United States, 385 U.S. 206, 17 L. Ed. 2d 312, 87 S. Ct. 424 (1966), sanctioned police investigations conducted by undercover agents who enter the homes of suspects to purchase contraband, the petitioners attempt to distinguish that case on the ground that the officers in the case at hand were not invited into the home of the suspects for the express purpose of engaging in an illegal transaction as was the officer in Lewis. They argue that the invitation to engage in an illegal transaction was the foundation for the Lewis decision and that the absence of such an invitation here renders the entry illegal, despite the later engagement in illegal transactions.
We do not read Lewis so narrowly. In our view, the rationale of the decision is that an entry by an undercover agent is not illegal if he entered for the "very purposes contemplated by the occupant". Id., 385 U.S. at 211. See also Hoffa v. United States, 385 U.S. 293, 17 L. Ed. 2d 374, 87 S. Ct. 408 (1966); United States v. Phillips, 497 F.2d ...