Citation Codes

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citation codes

Docket Number

No. 72-3308. Summary Calendar.

Attorney(S)

Raymond E. LaPorte, Tampa, Fla. (Court-appointed), for defendant-appellant. John L. Briggs, U.S. Atty., Jacksonville, Fla., Ronald H. Watson, Asst. U.S. Atty., Tampa, Fla., for plaintiff-appellee.

Judges

Charles Clark

Acts

Internal Revenue Code — Alcohol, Tobacco, And Certain Other Excise Taxes — Machine Guns, Destructive Devices, And Certain Other Firearms — Prohibited Acts — Prohibited Acts
Internal Revenue Code — Alcohol, Tobacco, And Certain Other Excise Taxes — Machine Guns, Destructive Devices, And Certain Other Firearms — General Provisions And Exemptions — General Provisions — Definitions

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Smart Summary

Case Summary

Factual and Procedural Background

Bienvenido Mercado Vasquez was convicted in the United States District Court for the Middle District of Florida under 26 U.S.C. § 5861 for possession of an unregistered firearm. An M-14 rifle had been seized in connection with a recent shooting. Vasquez was interviewed while in custody in a Florida county jail by an F.B.I. agent; after Miranda warnings and execution of a written waiver, he initially declined to discuss the shooting but later consented to discuss the rifle and gave a statement. Vasquez appealed his conviction to the United States Court of Appeals for the Fifth Circuit. The opinion is from a three-judge panel (WISDOM, AINSWORTH and CLARK, Circuit Judges) and is dated March 22, 1973.

Legal Issues Presented

Whether the Government was required to prove that Vasquez knew the rifle was designed to shoot automatically or could be readily converted to shoot automatically (i.e., knowledge of the firearm's technical statutory characteristics).
Whether the trial court erred in denying Vasquez's motion to suppress statements made to Government agents (issues raised under Miranda v. Arizona and the presence/representation of counsel).
Whether the prosecution was required to establish the "chain" or "continuity of possession" to prove the weapon had not been changed or altered.
Whether the trial court erred in refusing to instruct the jury that it was not unlawful to possess an unregistered rifle with a barrel 16 inches or more in length.

Arguments of the Parties

Appellant's Arguments

The trial court erred in instructing the jury that the Government need not prove Vasquez knew the rifle was designed to shoot automatically or could be readily converted to shoot automatically.
Statements he made to Government agents should have been suppressed because he had expressed a desire not to discuss the shooting and because an attorney had been appointed on the state charge of attempted murder.
The prosecution should have been required to establish the chain or continuity of possession to show the weapon had not been changed or altered.
The court erred in refusing to charge the jury that possession of an unregistered rifle with a barrel 16 inches or more in length was not unlawful, which would have provided a defense.

Plaintiff-Appellee (Government) Arguments

The Government need only prove that the defendant knew he possessed an item which was a firearm in the general sense, not that he knew the firearm met the technical statutory definition of 26 U.S.C. § 5845.
The defendant's statements were voluntary and admissible: he received Miranda warnings, executed a written waiver, and consented to discuss the rifle after clarifications by the agent.
The chain/continuity objection goes to the weight of the evidence, not admissibility.
The fact that the subject M-14 might fit a broader statutory definition of "rifle" does not provide a defense because the gun was within the statutory definition of "machine gun."

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
United States v. Freed, 401 U.S. 601, 91 S. Ct. 1112, 28 L.Ed.2d 356	Majority (Justice Douglas): "the only knowledge required to be proved was knowledge that the instrument possessed was a firearm." Concursus noted that lower-court decisions required only knowledge that the item was a firearm. Concurrence (Justice Brennan): Congress meant the Government must prove knowledge with regard to the first two elements of the offense under the amended statute (willing and conscious possession and knowledge the items were firearms).	The court treated Freed as supporting the proposition that scienter requires only that the defendant knew he possessed an item which he knew to be a firearm in the general sense, not knowledge of technical statutory characteristics.
Sipes v. United States, 321 F.2d 174	Held that knowing possession of a gun (knowing it was a gun) satisfied scienter for the statute; "This is all the scienter which the statute requires."	Quoted and used to show that "firearm" was used in the general meaning by courts and by Justices Douglas and Brennan in Freed; supported the conclusion that Government need not prove knowledge of statutory definition.
United States v. Decker, 292 F.2d 89	Holds that it is not necessary for the Government to prove that the defendant knew the weapon was a firearm within the meaning of the statute; "Scienter is not involved."	Quoted and relied upon as authority that scienter regarding the weapon's technical statutory status is not required.
United States v. Gardner, 448 F.2d 617	Cited as supporting authority for the proposition concerning the requisite scienter (knowledge of an item as a firearm in the general sense).	Referenced to bolster the court's holding that scienter is established by proving knowing possession of an item the defendant knew to be a firearm in the general meaning of the term.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694	Establishes that interrogation must cease if a suspect indicates he wishes to remain silent.	The court applied Miranda to evaluate admissibility of Vasquez's statements, concluding that Vasquez had only declined to discuss the shooting (a limited subject) and that his subsequent statements about the rifle were voluntary and not barred by Miranda.
United States v. Brown, 459 F.2d 319	Used to reject the per se position that all statements obtained in the absence of counsel from a person represented by counsel are inadmissible.	Relied upon as precedent within the Fifth Circuit to support the court's conclusion that absence of counsel did not automatically render Vasquez's statements inadmissible where he was advised and waived rights.
United States v. De Loy, 421 F.2d 900	Fifth Circuit authority rejecting automatic inadmissibility of statements taken in absence of counsel for a person represented by counsel.	Used along with other Fifth Circuit decisions to reject Vasquez's contention that statements obtained in the absence of counsel were per se inadmissible.
United States v. Venere, 416 F.2d 144	Fifth Circuit precedent on admissibility of statements in context of representation by counsel.	Included among Fifth Circuit cases relied upon to reject the per se rule urged by Vasquez.
Wilson v. United States, 398 F.2d 331, cert. denied 393 U.S. 1069, 89 S.Ct. 727, 21 L.Ed.2d 712 (1969)	Fifth Circuit authority on statements and representation issues.	Relied upon as part of the line of Fifth Circuit authority that statements obtained in absence of counsel are not automatically inadmissible where a defendant has been apprised of rights and validly waived them.
United States v. Mendoza, 473 F.2d 692	Holds that objections regarding chain or continuity of possession go to the weight of the evidence, not admissibility.	Applied to reject Vasquez's contention that the prosecution was required to establish chain/continuity as a matter of admissibility; court treated it as a weight issue.
United States v. Wilson, 451 F.2d 209	Supports the proposition that chain/continuity objections affect weight of evidence, not admissibility.	Relied upon to conclude that the chain/continuity argument did not render evidence inadmissible and instead went to evidentiary weight.

Court's Reasoning and Analysis

The court began by addressing the scienter issue raised by Vasquez's challenge to the jury instruction. The court examined United States v. Freed and the cases cited therein (notably Sipes and Decker) and concluded that the references in Freed and those prior cases used the term "firearm" in its general meaning rather than its technical statutory meaning. Quoting Sipes and Decker, the court explained that these authorities held that knowing possession of an item that the defendant knew to be a gun satisfied the scienter requirement and that it was not necessary for the Government to prove knowledge that the weapon fell within the statute's technical definition.

Based on that authority, the court held that the Government was not required to prove that the defendant knew that the physical characteristics of the weapon rendered it subject to registration; scienter was established if the defendant knowingly possessed an item he knew to be a firearm in the general sense.

On the suppression issue, the court applied Miranda. It noted the general Miranda rule that interrogation must cease if a suspect indicates he wishes to remain silent, but distinguished the present facts: Vasquez had said he did not wish to discuss the shooting, not that he wished to remain silent about all matters. After a proper Miranda advisal and a written waiver, the agent clarified the subject matter (the rifle) and Vasquez consented to talk about the rifle and gave a statement. The court concluded that the partial invocation (refusing to discuss the shooting) did not taint his decision to discuss the rifle, so the statements were admissible.

Regarding counsel, the court referenced prior Fifth Circuit decisions rejecting a categorical rule that statements obtained in the absence of counsel from a person represented by counsel are inadmissible. Because Vasquez was "carefully apprised" of his right to counsel and executed a waiver, the court found no merit to his claim that he was unable to waive that right.

The court addressed the chain/continuity argument by treating it as a challenge to the weight of the evidence rather than admissibility, citing United States v. Mendoza and United States v. Wilson for that proposition.

Finally, the court rejected the requested jury instruction that possession of an unregistered rifle with a barrel 16 inches or more in length was lawful. The court reasoned that even if the M-14 fit the broader § 5845(c) definition of "rifle," that fact would not provide a defense because the gun was within the statutory definition of "machine gun."

Holding and Implications

Holding: The conviction is Affirmed.

Implications: The direct effect is that Vasquez's conviction under 26 U.S.C. § 5861 was upheld. The court's decision confirms that, under the authorities it relied upon, the Government need only prove that a defendant knowingly possessed an item he knew to be a firearm in the general sense to establish scienter; it need not prove knowledge of the firearm's technical statutory characteristics. The opinion treats suppression, counsel-presence, chain/continuity, and jury-instruction issues as resolved against the appellant on the facts presented. The opinion does not announce broader holdings beyond its application to the presented issues.

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UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. BIENVENIDO MERCADO VASQUEZ, DEFENDANT-APPELLANT.

CLARK, Circuit Judge:

Vasquez appeals from his conviction under 26 U.S.C. § 5861 for possession of an unregistered firearm. We affirm.

Initially, it is contended that the trial court erred in instructing the jury that it was unnecessary for the Government to prove that Vasquez knew that the rifle was designed to shoot automatically or could be readily converted to shoot automatically. The Government, on the other hand, argues that it need prove only that the defendant knew he possessed an item which was a firearm within the general sense of meaning of the term, and not that the defendant knew that the firearm which he possessed was a firearm within the meaning of 26 U.S.C. § 5845. Both the Government and the defendant rely on United States v. Freed, 401 U.S. 601, 91 S. Ct. 1112, 28 L.Ed.2d 356 (1971). In the majority opinion in Freed, Justice Douglas stated the following rule:

By the lower court decisions at the time [the Act was amended] the only knowledge required to be proved was knowledge that the instrument possessed was a firearm. See Sipes v. United States, 8 Cir., 321 F.2d 174, 179, and cases cited.

401 U.S. at 607, 91 S.Ct. at 1117.

Mr. Justice Brennan's concurrence amplified this thought thus:

The cases [decided prior to the enactment of the amended law] held that a conviction of an individual of illegal possession of unregistered firearms had to be supported by proof that his possession was "willing and conscious" and that he knew the items possessed were firearms. E.g., Sipes v. United States, 321 F.2d 174, 179 (C.A.8 1963); United States v. Decker, 292 F.2d 89 (C.A.6 1961). Congress did not disapprove these cases, and we may therefore properly infer that Congress meant that the Government must prove knowledge with regard to the first two elements of the offense under the amended statute.

401 U.S. at 614, 91 S.Ct. at 1121.

These two explicit references to Sipes and its cited cases, including Decker, make it abundantly clear that Justices Douglas and Brennan used the term "firearm" in its general meaning, not in its technical statutory meaning. For in Sipes, then Circuit Judge Blackmun stated:

He said he found it and possessed it for several days. It was in his hands when the arresting officers took it from him. He knew it was a gun. His possession therefore was a knowing possession. This is all the scienter which the statute requires. It is not necessary that, in addition to knowing possession, there also be knowledge on the defendant's part that it was made in violation of § 5821.

321 F.2d at 179.

Decker supports the same conclusion, as follows:

Appellants urge that they did not know that the weapon was a firearm within the meaning of the statute and that it could not be ascertained from visual examination without test firing the gun. They insist that the element of criminal intent is lacking.

* * * * * *

The statute makes the mere possession of an unregistered firearm transferred in violation of law an offense. If an accused possesses such firearm, the offense is complete. It is not necessary for the Government to prove that the defendant knew that the weapon in his possession was a firearm within the meaning of the statute. Scienter is not involved.

Based upon this authority, we hold that the Government was not required to prove that the defendant had knowledge that the physical characteristics of the weapon rendered it subject to registration. Scienter is established if the defendant be proved to have had knowing possession of an item which he knew to be a firearm, within the general meaning of that term. See United States v. Gardner, 448 F.2d 617 (7th Cir. 1971).

Vasquez's next contention is that the court erred in denying his motion to suppress statements he made to Government agents. Vasquez was interviewed by an agent of the F.B.I. while in custody in a Florida county jail. After administering the advice and warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Vasquez executed a written waiver of those rights. The agent thereupon requested that Vasquez talk to him about an M-14 rifle that had been seized in connection with a recent shooting. Vasquez then told the agent he did not wish to discuss the shooting. The agent assured him that he was not interested in the shooting itself but only in the rifle. Vasquez consented to talk about the rifle and gave the agent a statement.

The well-established general rule is that all interrogation must cease if a suspect indicates that he wishes to remain silent. Miranda v. Arizona, supra. However, that rule is much broader than this case. Vasquez indicated no more than that he did not wish to discuss the shooting. While the shooting was tangentially related to Vasquez's possession of the rifle, it was not so closely and inexorably related that Vasquez's partial exercise of his Miranda privilege tainted his decision to inform the agent of the details of his purchase of the rifle. When a person in custody has responded to proper police interrogation by voicing a general willingness to talk, subject only to a limited desire for silence, and his wishes not to discuss a particular subject-matter area are respected, nothing rooted in law or constitutional policy makes it improper to question him as to any unlimited subjects.

We certainly do not intimate approval of any practice by which a suspect's express desire to remain silent as to some specific activity is aborted by the subterfuge of questioning which is designed or intended to indirectly gain information about those matters which he has indicated he wishes not to discuss.

Nor do we find that the agent violated Vasquez's right to effective counsel by interviewing him when he was alone in the jail, at a time after an attorney had been appointed for him on the state charge of attempted murder. This court has previously rejected the position urged by Vasquez that all statements obtained in the absence of counsel from a person represented by counsel are inadmissible. See United States v. Brown, 459 F.2d 319 (5th Cir. 1971); United States v. De Loy, 421 F.2d 900 (5th Cir. 1970); United States v. Venere, 416 F.2d 144 (5th Cir. 1969); Wilson v. United States, 398 F.2d 331 (5th Cir. 1968), cert. denied 393 U.S. 1069, 89 S.Ct. 727, 21 L.Ed.2d 712 (1969). In this case where the defendant was carefully apprised of his right to have the advice of his counsel, there is no merit in the contention that the defendant was unable to waive that right.

Vasquez also contends that the prosecution should have been required to establish the "chain" or "continuity of possession" in order to prove that the weapon had not been changed or altered. It is well settled, however, that such an objection goes merely to the weight of the evidence, and not to its admissibility. United States v. Mendoza, 473 F.2d 692 (5th Cir. 1972); United States v. Wilson, 451 F.2d 209, 213 (5th Cir. 1971).

Finally, we find without merit his allegation of error in the trial court's refusal to charge the jury that it was not unlawful to possess an unregistered rifle with a barrel 16 inches or more in length. Such an instruction could not have provided appellant with a valid defense to the charge. The mere fact that the subject M-14 would fit the broader § 5845(c) definition of a rifle constitutes no defense, since the gun was within the statutory definition of machine gun.

The conviction appealed from is

Affirmed.

UNITED STATES v. VASQUEZ