United States of America, Plaintiff-appellee, v. James Berry, Defendant-appellant, 60 F.3d 288 (7th Cir. 1995)

Barry Rand Elden, Asst. U.S. Atty., Brian Blanchard (argued), Office of the U.S. Atty., Crim. Receiving, Appellate Div., Chicago, IL, for plaintiff-appellee.

Eugene Steingold (argued), Chicago, IL, for defendant-appellant.

Before FLAUM and MANION, Circuit Judges, and SHARP, Chief District Judge.^* 

ALLEN SHARP, Chief District Judge.

This trial concluded on June 22, 1994, with the appellant convicted on all counts of a superseding and earlier indictment, charging violations of 18 U.S.C. §§ 924(a) (1) (A) and 922(a) (6). He was sentenced on October 17, 1994, to a 27-month term of imprisonment. This appeal followed. We have jurisdiction. We affirm.

A.

The appellant makes an argument with reference to the sufficiency of evidence, and that claim must be examined under the formulation of Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). See also United States v. Williams, 33 F.3d 876, 878 (7th Cir. 1994). On appellate review, this court evaluates a challenge to the sufficiency of evidence following a conviction by a jury by reviewing the evidence in the light most favorable to the government and drawing all reasonable inferences in its favor to determine if any rational jury could have found beyond a reasonable doubt the essential elements of the crime. The focus is on the jury's responsibility to determine the credibility of witnesses. United States v. Patterson, 23 F.3d 1239, 1244 (7th Cir. 1994). Most recently, see, United States v. Lahey, 55 F.3d 1289 (7th Cir. 1995). The appellant attempts to invoke United States v. Fearn, 589 F.2d 1316 (7th Cir. 1978) with regard to a narrowly constructed rule referencing the corroboration of admissions or confessions by a defendant. Most recently, this court has specifically held that a defendant may not be convicted based on his uncorroborated admissions made after the crime has ended. See United States v. Waldemer, 50 F.3d 1379 (7th Cir. 1995). See also United States v. Mukovsky, 863 F.2d 1319, 1325 (7th Cir. 1988), cert. denied, 489 U.S. 1067, 109 S. Ct. 1345, 103 L. Ed. 2d 813 (1989).

The original indictment alleged six specified occasions between February 1992 and July 1993 at Breit and Johnson Sporting Goods in Oak Park, Illinois where this appellant did knowingly make false statements with respect to information required by federal law to be kept in the records of a federally licensed firearms dealer. The superseding indictment added five additional counts made under 18 U.S.C. § 922(a) (6) which prohibits intentional false statements intended or likely to deceive a firearms dealer in connection with acquisition of firearms. The superseding indictment involved the same firearms referred to in the original indictment and the same time period of February 1992 to July 1993.

The evidence most favorable to the verdict shows that Berry would go to the Breit & Johnson gun store in Elmwood Park, Illinois and purchase handguns for individuals who could not do so on their own because they were convicted felons. At the time of each purchase, Berry would fill out Bureau of Alcohol, Tobacco and Firearms (BATF) Form 4473, as required by law. This form required the buyer to state his or her name and birth date, answer questions regarding the buyer's possible illegal drug use and felon or fugitive status, and sign his or her name as the buyer. Berry contests the jury's finding that he falsely stated on various Forms 4473 that he was not a user of illegal narcotics. Breit & Johnson would retain a portion of the Form 4473, which they referred to as a "gun sheet."

At the trial, Kenya Freeman, who had been granted immunity, testified that he had gone with Berry to the Breit and Johnson store, where Berry had purchased a gun for Freeman. Freeman further testified that Berry had then requested cocaine from Freeman. Freeman additionally testified that Berry stated he had been a "strawman" before.

The facts here simply do not benefit the appellant under the Fearn-Mukovsky- Waldemer line of authority. Here, to be sure, the evidence included a detailed confession made by this appellant a month after his arrest but there was more. The evidence also included testimony of Kenya Freeman and it was for the jury and it is not for this court to evaluate the credibility of witness Freeman. Also provided were ATF Forms 4473 and the so-called "pistol sheets" themselves, all of which squared up with the defendant's admissions at the time of his arrest and 30 days later. Thus, under Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), any argument with regard to the insufficiency of the evidence fails.

B.

The next issue which requires our specific attention has to do with the appellant's motions for continuance made after the filing of the superseding indictment on May 31, 1994. As indicated, there was a motion made by the appellant on June 1, 1994, for a "continuance to adequately investigate and prepare for trial on the superseding indictment." On June 3, 1994, the appellant also moved for a continuance of the trial date long enough to allow the defendant to obtain a transcript of the suppression hearing. In neither of the motions was an exact time requested. The district court granted the motions to continue the trial date, excepting that the jury selection would be had on the date originally scheduled, namely, June 6, 1994, thereby giving the appellant more than two additional weeks' time in which to prepare for trial and to file any objections to the recommendation of the magistrate judge made on the motion to suppress. Actual presentation of evidence commenced on June 21, 1994. During this time frame, the appellant did in fact file written objections to the recommendations of the magistrate judge on the suppression issue. The district judge adopted the recommendations of the magistrate judge on the motion to suppress over the appellant's objection. The subjects of the motion to suppress were the statements by this appellant which were admitted in evidence during his trial and the issue of probable cause for his traffic stop and arrest under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

Here, the appellant does not argue for an absolute continuance of 30 days following the return of the superseding indictment. Indeed, that argument would fly in the face of United States v. Rojas-Contreras, 474 U.S. 231, 106 S. Ct. 555, 88 L. Ed. 2d 537 (1985). The Rojas-Contreras decision has been applied by this court in a consistent fashion. See United States v. Rojas, 783 F.2d 105, 107 (7th Cir. 1986). The scheduling decision of Judge Aspen in this case is consistent with the docket and administrative needs of the district court and there is nothing in the record to indicate any actual prejudice to this appellant as the result of it.

The appellant also attempts to show prejudice in regard to an issue which came up in the trial related to the cocaine use by this appellant during the relevant period of time. The appellant's claim of surprise in this regard is disingenuous, to say the least. The appellant received from the government well in advance of the trial a signed statement of this appellant to a federal agent, including the following admissions:

On 6-29-93 Ducey went with me to [gun shop] Breit & Johnson, where I picked up the Hi Point pistol for Ducey. Ducey told me the gun was for personal use. Ducey payed [sic] me thirty dollars for buying the gun for him. Ducey later told me that the gun was picked up by the police in the alley, on the next day. I also know that Ducey is a Four Corner Hustler gang member and that he has employees who sell cocaine and heroin on the corner of Congress and Lotus.... I have previously purchased crack cocaine, in ten dollar amounts from Ducey's workers. I did not ask the people what they needed the guns for, I was just looking for a way to get high,....

That statement sent a clear signal to this appellant and his counsel that his regular use of crack cocaine at the time of the offense was intermingled with his participation in and motivation for the crimes charged in the superseding indictment.

The long and short of the continuance issue is that there is no prejudice whatsoever shown by the actions of the district court in scheduling and trying this case as above described.

C.

The appellant further makes a constitutional challenge to U.S.C. § 922(a) (6), which states:

(a) It shall be unlawful-- ...

(6) for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter.

More particularly, a challenge is made to ATF Form 4473 as being unconstitutionally vague. This court has enunciated the relevant standards for a vagueness claim:

[I]t is not enough to conclude "that Congress might, without difficulty, have chosen ' [c]learer and more precise language' equally easily.." United States v. Powell, 423 U.S. 87, 94 [96 S. Ct. 316, 321, 46 L. Ed. 2d 228] (1975); [citation omitted]. Rather, "the void-for-vagueness doctrine requires only that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357 [103 S. Ct. 1855, 1858, 75 L. Ed. 2d 903] (1983) [additional citations omitted]. The second of these two aspects is more important that the first, see id., 461 U.S. at 358, [103 S. Ct. at 1858-59], and bars criminal statutes "of such a standardless sweep [as to] allow [ ] policemen, prosecutors, and juries to pursue their personal predilections." Smith v. Goguen, 415 U.S. 566, 575, [94 S. Ct. 1242, 1248, 39 L. Ed. 2d 605] (1974). "Vagueness challenges to statutes not threatening First Amendment interests are examined in light of the facts of the case at hand; the statute is judged on an as-applied basis." Maynard v. Cartwright, 486 U.S. 356, 361 [108 S. Ct. 1853, 1857-58, 100 L. Ed. 2d 372] (1988); [citation omitted].

United States v. Jackson, 935 F.2d 832, 838 (7th Cir. 1991). Section 922(a) (6) by its own terms requires the prosecution to prove beyond a reasonable doubt that the defendant "knowingly" made a false statement in connection with the acquisition of a firearm. In this case, the jury was so instructed. This court will here assume without deciding that the same due process void for vagueness standards apply to the ATF Form 4473 as would generally apply to a federal criminal statute. Specifically, the form questions challenged are: "Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, or narcotic drug or any other controlled substance?" Question 8(d). The vagueness challenge of this appellant to that question is that the question does not precisely inquire from the firearms purchaser the most recent use of illegal narcotic drugs. The true test is not, as this appellant suggests, whether Form 4473 could have been written to specify some particular time period within which the firearms purchaser had been using or planned to use drugs, or that Congress could have narrowed the range of false statements prohibited under Sec. 922(a) (6). This vagueness argument must be considered here in the context of the evidence presented in this case. The evidence in this case was that this appellant had been at the time of his arrest purchasing crack cocaine in user amounts from street sellers. In fact, the jury was told that this appellant was engaging in the charged illegal gun transactions for the precise purpose of obtaining money for illegal drugs. This evidence came before the jury from admissions of this appellant and was corroborated by the testimony of Kenya Freeman. This evidence certainly rendered this appellant a user of crack cocaine at the time he engaged in the firearms transactions and prepared and submitted the relevant 4473 forms. It is often possible to parade a list of horribles as to how a criminal statute might unjustly be applied. However, the focus needs to be how it could be properly applied in this case. See United States v. Cherry, 938 F.2d 748, 755 (7th Cir. 1991). In this case, the illegal purchase of firearms and the submission of Forms 4473 and the illegal use of drugs by this appellant were contemporary events. Congress has chosen to criminalize the knowing making of material false statements in connection with the acquisition of firearms which statements are intended to or likely to deceive firearms dealers. The Treasury Department, which is basically charged with the enforcement of these statutes, created a form which requires that certain information be provided from all those who acquire firearms, and a principle focus is whether the purchaser is a user of narcotics or illegal controlled substances. Such is an altogether appropriate legislative concern of the Congress. Here, the defendant freely admitted that he was a regular cocaine user during the precise period covered by the charge in the indictment, and the various Forms 4473 which had been submitted to the firearms dealers were indeed false. Thus, any vagueness claim fails. This statute is light years away from the classic application of void for vagueness made by Justice Butler in Lanzetta v. New Jersey, 306 U.S. 451, 59 S. Ct. 618, 83 L. Ed. 888 (1939). See also, United States v. Leibowitz, 779 F. Supp. 425 (N.D. Ind. 1991).