Unpublished Disposition, 883 F.2d 1025 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 883 F.2d 1025 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellant,v.James David BOSSE, Defendant-Appellee.

No. 88-1185.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 12, 1989.Decided Aug. 10, 1989.

Robert H. Schnacke, Senior District Judge, Presiding.

Before BROWNING, BEEZER, and KOZINSKI, Circuit Judges.


MEMORANDUM* 

A jury convicted Bosse of unlawfully possessing a sawed-off shotgun in violation of 26 U.S.C. § 5861(d). After trial Bosse moved to suppress the shotgun because: (1) an illegal entry by the government had tainted the process by which the government later secured a warrant authorizing the search that produced the evidence used to convict him, and (2) material omissions and misstatements in the affidavit for the search warrant vitiated the probable cause determination. The district court granted the motion to suppress and set the judgment aside. We affirm.

Bosse was licensed as a semiautomatic firearms dealer and had an application pending for a state license to buy and sell automatic machine guns. On September 25, 1987, Robert Dunkin, an agent of the California Department of Justice, inspected Bosse's home and surrounding premises with Bosse's consent as part of the license application process. RT 2/19/88 at 40. Alcohol, Tobacco and Firearms (ATF) Agent Mark Rusin accompanied Dunkin on the search without identifying himself as an ATF agent. Rusin diagramed the premises in preparation for a possible future search. RT 4/4/88 at 87-89.

Two days later, ATF Agent Griego sent California State Game and Fish Warden Gregory Johnson to Bosse's residence to present Bosse with a legal weapon and see if he would convert it into an illegal machine gun. RT 2/3/87 at 43. Bosse refused. Statements made by Bosse during this conversation were recorded on a hidden recording device and formed the principal basis for the affidavit supporting the application for a search warrant. SER 21-35.

After a hearing, the district court concluded the affidavit "was deliberately false as it related to probable cause to search [Bosse's] home," and granted the motion to suppress. See Franks v. Delaware, 438 U.S. 154, 171-72, (1978).1 

The district court relied primarily upon the first ground relied upon in Bosse's motions, i.e., that Rusin's September 25 entry into Bosse's home without identifying himself or his purpose, and Rusin's failure to disclose this entry in his affidavit seeking the search warrant, tainted the warrant proceeding and the subsequent search. We do not consider this ground, however, because we conclude the district court's order is clearly sustainable on the second ground.

In justifying the search the government was seeking to draw a fine line between legal and illegal conduct. The affidavit in support of the search warrant sought to establish probable cause to believe the search would disclose evidence that Bosse unlawfully possessed automatic weapons. Bosse was licensed as a class one firearms dealer and could legally buy and sell semiautomatic weapons. Moreover, he could lawfully possess manuals detailing how to convert these weapons into automatic weapons, and discuss how such conversions could be made. The government was required to show Bosse had crossed the line between legal conduct relating to semiautomatic weapons and automatic weapons, and illegal conduct relating to the latter. The omissions and misstatements found to be deliberately or recklessly false related to facts necessary to establish the line had been crossed.

The evidence relating to the issue was set out in paragraphs seven through thirteen of the affidavit.

In paragraph seven, Agent Griego stated that State Warden Johnson "is knowledgeable about firearms, as well as the conversion of semi-automatics [sic] weapons to machineguns and military type machineguns." At trial, however, Warden Johnson testified that he had only a "vague understanding" of the "auto sears" used in automatic weapons, and that he was not knowledgeable about converting semiautomatic weapons. RT 15-17; 38-39.

In paragraph eight, Griego stated Warden Johnson overheard Bosse at a gun show "explain to another person how to illegally convert a Colt AR-15, .223 caliber, semiautomatic rifle to fire fully automatic." It is neither illegal nor substantially indicative of illegal conduct to discuss the conversion process.

In paragraph nine, Griego stated that Warden Johnson approached Bosse at a gun show and asked him the details of converting an M-1 rifle to a fully automatic machine gun. Bosse responded that "the parts were readily available and that the conversion process is very simple." Bosse gave Johnson his address and telephone number and told Johnson he was a "Federal Firearms Licensee." Both Bosse's statement that conversion was simple and that Bosse was a Federal Firearms Licensee were innocuous, and true.

Paragraph ten stated only that a check of ATF records did not reveal any firearms registered to Bosse. The government has made no point of this fact.

Paragraph eleven describes the conversation between Warden Johnson and Bosse at Bosse's home that Warden Johnson secretly recorded. The affidavit recites that Warden Johnson showed Bosse a gun, saying he was considering buying it from a friend. The affidavit fails to mention the fact, disclosed by the tape, that Warden Johnson asked Bosse to convert the gun into a fully automatic weapon, and that Bosse refused to do so, warning Warden that it would be illegal. Bosse also told Warden Johnson the weapon was probably illegal in its present condition and offered to convert it into a legal weapon. SER 23-24.

Paragraph eleven also states that Bosse told the Warden he was licensed to deal in fully automatic weapons, a relatively harmless misstatement in view of the fact that Bosse's application for such a license was then pending--a fact omitted from the affidavit.2 

Paragraph eleven states that Bosse told Warden Johnson that two weapons Bosse displayed to the Warden (a "Johnson" and an M-60) were "fully automatic machine guns." ER 18. The tape reveals that Bosse replied "yeah" when Johnson asked him if the "Johnson" gun was "fully auto," then added that the "Johnson" was an antique protected by the Collector Range Bill, which made possession legal, a fact the affidavit fails to mention. SER 30-31. The tape also discloses that Bosse did not refer to the M-60 as fully automatic, as the affidavit asserts. Moreover, Bosse had earlier asked the ATF about the requirements for legally possessing an inoperable M-60 machine gun, ER 20, 54-56, suggesting Bosse legally possessed the M-60, a fact also omitted from the affidavit.

Paragraph twelve of the affidavit stated "Bosse told Warden Johnson that his inventory of fully automatic machine guns was currently depleted, however [he was] expecting shipments of MP-5's, MP-12's and a 50 caliber machine gun." ER 18-19. The tape shows that in fact Bosse did not refer to an "inventory of fully automatic machine guns," and that he described the 50 caliber not as a machine gun, but as a "single shot sniper rifle." SER 29. It also discloses that Bosse went on to explain the guns would not be shipped to him but directly to the customers--the California prison at San Luis Obispo.

Paragraph thirteen of the affidavit correctly stated that Bosse said packages containing machine guns are sent via United Parcel Service without notifying the carrier.

Comparing the affidavit with the unimpeached evidence of the tape recording, obviously known to the government when the affidavit was prepared, the district court's finding that the affidavit was "deliberately false" is not clearly erroneous.

When the affidavit is read with the recited omissions and misstatements in mind, all that is left to suggest illegal activity is Bosse's inaccurate statement that he was licensed as a class three dealer in machine guns and that machine guns are shipped by UPS. These statements are not enough to establish probable cause. The district court's order suppressing the evidence is therefore affirmed. See United States v. Condo, 782 F.2d 1502, 1506-1507 (9th Cir. 1986).

Affirmed.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

We read the district court's finding of deliberate falsity as encompassing all of the material omissions and misstatements relied upon by Bosse, not just those concerning Rusin's September 25 entry. The government has not argued to the contrary

 2

Griego's testimony that at the time he applied for the warrant he was unaware of Bosse's pending license application (RT 2/3/87) must be questioned. It was Griego who instructed Rusin to go along on the state licensing inspection. Griego also admitted seeing an ATF agent's memorandum that mentioned Bosse said his application for a machine gun dealer's license was pending. RT 2/19/88 at 8; SER 20. Both these events took place prior to the time Griego applied for the affidavit. Id