WATERMAN, Circuit Judge:
Appellant Squires was indicted on two counts. The first charged a violation of 18 U.S.C. §§ 922(a) (6)
The following outline of the facts appears to be undisputed. On December 20, 1968, one John Tortora appeared at Ed Agramonte, Inc., a sporting goods store in Yonkers, New York, which was licensed by the Government to sell firearms. Tortora ordered a .30 caliber carbine, asked to have an engraved name-plate bearing his son's name placed on the gun, made a deposit on the purchase price, and agreed to return a few days later in order to take delivery. Appellant Squires, who was known to Mr. Agramonte as the operator of a nearby furniture store, accompanied Tortora on this occasion.
On December 24, 1968, Tortora returned to the store to pick up the gun, but was told that before he could take it he would have to produce a driver's license or other suitable identification to be listed on a federal form. Tortora stated that he did not have such identification but would return later, and he left without the gun. A few hours later Tortora, accompanied by Squires, returned to the store. Squires informed Agramonte that he was there to pick up Tortora's gun. Agramonte told Squires that he would have to present proper identification and was required to fill out certain necessary government forms. Agramonte then referred Squires and Tortora to his wife who was acting as bookkeeper.
Squires and Tortora explained the situation to Mrs. Agramonte who, on the basis of information listed on Squires's automobile registration, then drew up a new bill of sale and a Form 4473
The only factual dispute centers around the signing of the Form 4473 by Squires. Mrs. Agramonte testified that, after she had prepared the form, she told Squires to read it and sign it. However, she could not remember whether she explained to him, as later became her custom, that the form was for the purpose of keeping guns out of the hands of drug users and criminals. Squires testified that Mrs. Agramonte merely told him to sign the form and that his understanding was that the completion of the form by filling in the required information was only a bookkeeping formality. He further testified that he did not read the form because the store was crowded and he did not wish to delay the customers waiting behind him. He denied any knowledge, at that time, of the prohibitions of the statutes cited in the certification statement.
It was stipulated that Squires had been convicted on a guilty plea in August 1964 of conspiring to violate 18 U.S.C. §§ 2314 and 2315 and it was also stipulated that the rifle being purchased at the Agramonte store had been transported in interstate commerce. Because of this 1964 conviction, Squires concedes that his certification on the Form 4473 which he signed was false.
At trial defense counsel requested a jury instruction to the effect that the jury could consider whether Form 4473 was reasonably designed to give a person adequate warning as to the gravamen of the certification. The denial of this request is assigned as error. In addition, when it became apparent that a government-submitted charge on recklessness was about to be accepted, defense counsel submitted a less stringent instruction on the issue and this substituted request was substantially accepted by the court.
Defense counsel, for the purpose of highlighting the lack of clarity in the form which Squires signed, attempted unsuccessfully to introduce into evidence a copy of Revised Form 4473 which was promulgated six months
As both assignments of error hinge on the proper definition of "knowingly" within the meaning of the statute, we turn first for enlightenment to the legislative history of the statute. The committee reports state that § 922(a) (6) "prohibits the making of false statements or the use of any deceitful practice (both knowingly) by a person in connection with the acquisition or attempted acquisition of a firearm."
Leary v. United States, 395 U.S. 6, 46 n. 93, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), citing Model Penal Code 27 (A.L.I. Prop.Official Draft, 1962). This formulation is merely a more comprehensive version of the lay definition of "knowledge" in that it recognizes that there are many facts which one does not "know with certainty," and it comports with the use of "knowingly" in other criminal statutes. See, e.g., Pauldino v. United States, 379 F.2d 170 (10 Cir. 1967); Freije v. United States, 386 F.2d 408 (1 Cir. 1967), on appeal after remand, 408 F.2d 100 (1 Cir.), cert. denied, Saia v. United States, 396 U.S. 859, 90 S.Ct. 129, 24 L.Ed.2d 111 (1969); Popeko v. United States, 294 F.2d 168, 170 (5 Cir. 1961), cert. denied, 374 U.S. 835, 83 S.Ct. 1883, 10 L.Ed.2d 1056 (1963); United States v. Hines, 256 F.2d 561, 563-564 (2 Cir. 1958); Graves v. United States, 252 F.2d 878 (9 Cir. 1958); Bateman v. United States, 212 F.2d 61, 70 and n. 6 (9 Cir. 1954). The cases cited by the Government that deal with the enforcement of the Securities laws are distinguishable. In those areas of fiduciary responsibility the persons issuing statements are under an affirmative duty to investigate, and it is entirely appropriate to include "should have known" within the definition of "know." We find those cases inapplicable here and we adopt the Model Penal Code formulation for the purposes of the statutes at issue in this case.
Inasmuch as knowledge is a specific element of the crime proscribed
Turning from general principles to the present case, we find that the trial judge instructed the jury: "Thus, if you find * * * that had [the defendant Squires] read the form he would have known that he was prohibited from receiving the firearm, * * * you may find that the defendant acted wilfully and knowingly, even though he was actually ignorant of the prohibition of this statute." The primary error in this instruction is that it is internally inconsistent. If Squires "were actually ignorant of the prohibition of [the statutes cited in the form]," it should be evident that "had he read the form" he would not "have known he was prohibited from receiving the firearm."
In conclusion, the errors below resulted primarily from the sincere efforts of a distinguished judge to deal with the unnecessary issues introduced by the inadequate drafting of the original Form 4473. Although ignorance of the law may conceivably arise as an issue even with the revised form, we expect that the revised form will eliminate much of the difficulty in the prosecution of cases under § 922(a) (6). The judgment of conviction is reversed, and the case is remanded for retrial on the first count.
MOORE, Circuit Judge (concurring):
I concur in the reversal of the judgment of conviction but for reasons differing somewhat from those expressed in the majority opinion. My problem is how to reconcile my own belief that the defendant did not "knowingly" commit the crime (1) with the trial court's charge correctly (in my opinion) defining "knowingly" and (2) without usurping the fact-finding function of the jury.
Finding no errors of commission, I am quite convinced that an error of omission may well have been of vital importance to the jury's deliberations, namely, the failure to direct the jury to consider whether Form 4473 was reasonably designed to give a person adequate warning as to the representations as to which he was certifying.
The government's case depends almost entirely on the form which Squires signed. The first page of the form (Appendix hereto) is relied on by the government to establish notice. The only place for the transferee's (the purchaser's) signature is in a section entitled "Section B — Statement of Transferee" and under a paragraph reading as follows:
A purchaser, while in the process of transacting a purchase and certainly under the circumstances attendant to the purchase here, could hardly be expected to hire a lawyer or go to a law library to ascertain the prohibitions of the statute. Moreover, the "Notice to Transferees" which contains the prohibitions is relegated to a position at the bottom of the form and far below any place for a transferee's (purchaser's) signature which might well escape his attention. Normally, a subscriber certifies or attests to that which appears above his
Since Congress made "knowingly" an essential element of the crime, I, therefore, would be better satisfied of Squires' guilt had the element of notice been stressed in the instructions insofar as this particular form and its format were concerned.
(a) It shall be unlawful —
(h) It shall be unlawful for any person —
to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
The Gun Control Act became effective on December 16, 1968, only eight days before the transaction in question. Section 105 of Pub.L. 90-618. Thus, if Squires had signed the certification nine days earlier, he would not have been making a false statement.