United States v. Sanchez-Corcino

United States Court of Appeals,

Eleventh Circuit.

No. 94-4363.

UNITED STATES of America, Plaintiff-Appellee,

v.

Francisco SANCHEZ-CORCINO, Defendant-Appellant.

June 17, 1996.

Appeal from the United States District Court for the Southern
District of Florida. (No. 93-456-CR), Jacob Mishler, Visiting
Judge.

Before TJOFLAT, Chief Judge, and RONEY and PHILLIPS*, Senior
Circuit Judges.

PHILLIPS, Senior Circuit Judge:

After a jury trial, Francisco Sanchez-Corcino (Sanchez) was

convicted of one count of engaging in the business of dealing in

firearms without a license, 18 U.S.C. §§ 922(a)(1)(A) (Supp.1996),

924(a)(1)(D) (Supp.1996) (Count 1), and of nine counts of making

false statements with respect to information required to be kept on

file by licensed firearms dealers, 18 U.S.C. § 924(a)(1)(A)

(Supp.1996) (Counts 2 through 10). Sanchez appeals his convictions

on all counts, as well as his sentence. As to Count 1, Sanchez

claims that the district court erred in failing to instruct the

jury that, in order to find that Sanchez "willfully" sold guns

without a license, it had to conclude that Sanchez knew of the

licensing requirement he was accused of violating. Because we

agree that § 924(a)(1)(D)'s "willfulness" standard requires proof

that the defendant knew of the licensing requirement and,

*
Honorable J. Dickson Phillips, Jr., Senior U.S. Circuit
Judge for the Fourth Circuit, sitting by designation.
nonetheless, intentionally violated it, we reverse Sanchez's

conviction on Count 1 and remand it to the district court for a new

trial. We affirm all of Sanchez's other convictions and their

accompanying sentences.

I.

Between April and September of 1993, Sanchez bought more than

150 handguns from two licensed firearms dealers in Miami. He

purchased the guns in nine separate transactions, the first seven

at Miami Police Supply Store, the last two at 27th Avenue Pawn

Shop.

Each time he bought guns, Sanchez filled out an Alcohol,

Tobacco, and Firearms (ATF) Form 4473. This form required Sanchez

to give his name, date of birth, and other basic personal

information, including his "Residence Address." On each form,

Sanchez gave his correct name and biographical data, and he listed

his address as 236 N.W. 24th Avenue, Miami, Florida.

After having purchased seven sets of handguns at Miami Police

Supply Store, Sanchez began patronizing 27th Avenue Pawn, where, on

his first visit, he bought twenty more guns. In connection with

this sale, the store owner completed and sent to the ATF a

"multiple gun purchase" form, which the ATF requires licensed

sellers to complete whenever they sell more than one firearm in a

single transaction. An ATF agent later called the owner and asked

him to notify the ATF if Sanchez returned to the store. When

Sanchez did return, he ordered thirteen more guns, and the owner,

as promised, notified the ATF. ATF Agent Foster then set up

surveillance outside the store. A few days later, Sanchez returned
and picked up the thirteen guns; Agent Foster then arrested him.

The men drove to the ATF station where, after having been

properly advised of his rights, Sanchez told ATF agents about his

weapons activity. He then signed a written statement in which he

admitted having purchased and resold at least 140 handguns. Also

in this statement, Sanchez explained that he had begun buying guns

for resale because he was unemployed and needed money. In

describing his sales activities, Sanchez explained that he did not

purchase the guns with specific buyers in mind, but that after he

bought the guns, potential buyers would contact him via his beeper.

He then would meet the buyers, whom he identified only as "latin

males," in Miami's "Little Havana" district, where he would sell

them the guns.

As to the address he used on the 4473 Forms, Sanchez explained

that, although he had not lived at 236 N.W. 24th Avenue for about

eight months, he had given that as his address for two reasons.

First, it was the address on the Florida identification card he

presented when he made the purchases, and, second, he had not yet

established another permanent address.

A few days after the arrest, a grand jury returned a ten-count

indictment against Sanchez. Count 1 charged him with engaging in

the business of selling firearms without a license, a violation of

18 U.S.C. §§ 922(a)(1)(A) and 924(a)(1)(D). Counts 2 through 10

charged him with making false statements with respect to

information required to be kept by licensed firearms sellers, in

violation of 18 U.S.C. § 924(a)(1)(A). More specifically, these

latter counts alleged that each time Sanchez filled out an ATF Form
4473, he knowingly gave a false residence address. Sanchez pleaded

not guilty to all counts.

At trial, the Government presented the above-described

evidence regarding Sanchez's purchase and resale of the handguns,

including Sanchez's own signed statement to the ATF. It also

presented testimony aimed at showing that, at the time he purchased

the guns, Sanchez did not live at 236 N.W. 24th Avenue.

At the close of the Government's case, and again at the close

of all the evidence, Sanchez's attorney moved for a judgment of

acquittal. As to Count 1, Sanchez's counsel argued that the

Government had failed to prove that Sanchez had "willfully" engaged

in the business of selling firearms without a license, as required

by 18 U.S.C. § 924(a)(1)(D). More specifically, he argued that

"there is no evidence by which a jury could rationally conclude

that Francisco Sanchez was aware of the licensing requirements and

that he sold these guns with the specific intent of circumventing

or somehow violating that known legal duty." The district court

denied Sanchez's motion as to Count 1, noting that Sanchez's

"surreptitious[ ]" use of a beeper suggested that "he knew he was

in an illegal business." The court similarly denied Sanchez's Rule

29 motion with respect to Counts 2 through 10.

Then at the charge conference, the parties and the court again

presented their conflicting positions on the meaning of willfulness

under § 924(a)(1)(D). The defense argued that

it's not sufficient if the government simply proves that this
man knew of the generally unlawful nature of his conduct. The
government must prove above and beyond that that he knew about
the licensing requirement and willfully violated that
provision.
The Government disagreed, asking the court to instruct that "the

government is not required to prove the defendant was aware of the

licensing requirement." The court ultimately rejected the

defense's suggestion, concluding instead "the government must show

... that in conducting his business [Sanchez] was aware he was in

an illegal business." Both parties conformed their closing

arguments to the district court's chosen "willfulness" definition.

In its jury instructions, the court described the elements of

Count 1 as follows:

[T]he government must prove the following three essential
elements beyond a reasonable doubt. One, that the defendant
Sanchez engaged in the business of dealing in firearms. Two,
the defendant Sanchez was not then a federally licensed
firearms dealer. Three, the defendant Sanchez acted
willfully.

(Emphasis added). The court then defined "willfully":

The word "willfully" ... means that the act was committed
voluntarily and purposely with the specific intent to do
something the law forbids. That is, with bad purpose either
to disobey or disregard the law. The government must prove
beyond a reasonable doubt that Sanchez was in the business of
dealing in firearms and that he was aware that his conduct was
illegal and that he deliberately conducted the business of
dealing in firearms.

The jury convicted Sanchez on all counts. Sanchez was

sentenced to thirty-three months' imprisonment and three years of

supervised release on each count, all sentences to run

concurrently. Sanchez now appeals his convictions and sentences,

contending first that the district court erred in rejecting his

proposed jury instruction on the "willfully" scienter requirement

of Count 1. Sanchez also contests the admission of his signed

statement, some aspects of the Government's closing argument, and

his sentence.
 II.

We first address whether the district court erred in

instructing the jury on the "willfulness" element of the unlicensed

sale of firearms offense charged in Count 1, and conclude that the

court did so err, and that the error requires vacatur of Sanchez's

conviction on Count 1.

As we have had occasion to note, "willfully" is a word of

many meanings and each usage of the word must be interpreted with

reference to the statutory context in which it appears. United

States v. Phillips, 19 F.3d 1565, 1576 (11th Cir.1994) (citing

Ratzlaf v. United States, 510 U.S. 135, ----, 114 S.Ct. 655, 659,

126 L.Ed.2d 615 (1994)), cert. denied --- U.S. ----, 115 S.Ct.

1312, 131 L.Ed.2d 194 (1995); see also United States v. Obiechie,

38 F.3d 309, 313-14 (7th Cir.1994) ( Ratzlaf requires court to

construe "willfully" as used in § 924(a)(1)(D) with reference to

its statutory context); United States v. Hayden, 64 F.3d 126, 132

n. 9 (3d Cir.1995) (same). Accordingly, we must first identify the

context in which the "willfully" requirement is used in the

statutory provisions under which Sanchez was charged in Count 1.

The word does not appear in 18 U.S.C. § 922(a)(1)(A), the

subsection which directly prohibits any person other than a

licensed dealer from dealing in firearms. That subsection in fact

contains no mens rea requirement. Instead, § 924(a)(1)(D) supplies

the applicable mens rea requirement for § 922(a)(1)(A)'s "dealing

without a license" offense. While subsections 924(a)(1)(A) through

(C) require that certain violations of §§ 922 and 924 be committed

"knowingly," subsection 924(a)(1)(D) is a catch-all provision that
specifies a different mens rea for all other violations of the

chapter: "Whoever ... willfully violates any other provision of

this chapter...." Because no other provision of § 924(a)(1)

specifically applies to the violation of § 922(a)(1)(A)—with which

Sanchez is charged—the "willfully" requirement of the catch-all §

924(a)(1)(D) applies here. Obiechie, 38 F.3d at 312; United

States v. Collins, 957 F.2d 72, 74 (2d Cir.), cert. denied 504 U.S.

944, 112 S.Ct. 2285, 119 L.Ed.2d 210 (1992).

Thus, the context within which subsection (D)'s "willfully"

requirement must be interpreted includes the other subsections—(A)

through (C)—of § 924(a)(1). The Seventh Circuit interpreted

subsection (D)'s willfully requirement in light of these other

subsections in Obiechie. Pointing out that subsections (A) through

(C) specify "knowingly" as the scienter requirement for the

offenses to which they apply, while only subsection (D) specifies

"willfully", the court reasoned that "knowingly" must therefore be

contrasted with and shape the meaning of "willfully." Then,

further noting that the "knowingly" standard does not require

knowledge of the law, but only that the defendant intended to do

the act that is proscribed by law, the Obiechie court concluded

that because "willfully" must signify a higher mens rea standard

than "knowingly," it must necessarily require knowledge of the law.

Obiechie, 38 F.3d at 315 (must mean an "intentional violation of a

known duty") (emphasis added); accord Hayden, 64 F.3d at 130

("[I]t is difficult to understand what more the "willfully'

language could require, if not knowledge of the law."); United

States v. Hern, 926 F.2d 764, 767 (8th Cir.1991) (assuming that
"willfully" in § 924(a)(1)(D) means "intentional violation of a

known legal duty").

We agree with the reasoning and result in Obiechie.1

Accordingly, we too conclude that in order for the Government to

prove the offense of willfully dealing in firearms without a

license under §§ 922(a)(1)(A) and 924(a)(1)(D), it must prove that

the defendant acted with knowledge of the licensing requirement.

In doing so, we do not ignore "the venerable principle that

ignorance of the law is no excuse," Ratzlaf, 510 U.S. at ----, 114

S.Ct. at 663, but simply recognize that "Congress may decree

otherwise," see id., and conclude that it has done so in §

924(a)(1)(D).2

1
In agreeing with the Seventh Circuit, we necessarily
disagree with the Second Circuit's contrary interpretation of §
924(a)(1)(D) in Collins. In Collins, the Second Circuit, without
noting the "willfully" requirement's statutory context, looked
straight to the statute's legislative history to guide its
interpretation. Based on its reading of the legislative history,
the Second Circuit concluded that the willfulness requirement did
not contemplate knowledge of the law, but required the Government
to prove only that "the defendant intended to commit an act which
the law forbids." Collins, 957 F.2d at 76. This analysis
ignores the effect of Congress's use of "knowingly" in the
adjacent subsections of the statute on the meaning of "willfully"
in § 924(a)(1)(D), a point that, as did the Obiechie court, we
think is critical to a proper interpretation.
2
Although we re-emphasize that the meaning of "willfully"
always must be ascertained with reference to the specific
statutory language in which it appears, we note that our
understanding of that term as it is used in § 924(a)(1)(D) is
consistent with our understanding of how "willfully" is used in
other statutes. See, e.g., United States v. Macko, 994 F.2d
1526, 1532-33 (11th Cir.1993) ("willfully" in Trading with the
Enemy Act requires proof that defendants knew of and
intentionally violated embargo); United States v. Adames, 878
F.2d 1374, 1377 (11th Cir.1989); United States v. Frade, 709
F.2d 1387, 1391 (11th Cir.1983) (" "[W]illfully' ... generally
connotes a voluntary, intentional violation of a known legal
duty.").
 In so holding, we wish to avoid raising more questions than we

answer. Jury confusion in applying various mens rea

standards—particularly the appropriate "willfulness" standard—may

often reflect imprecision in appellate courts' formulations of

those standards which then are embodied in correspondingly

imprecise jury instructions. With that in mind, we will attempt

concreteness here. To prove a willful violation of § 922(a)(1)(A),

the Government must prove that a defendant (1) knew that he was

required to have a license in order to deal in firearms, (2) knew

that he did not have the requisite license, and (3) nonetheless

voluntarily, intentionally engaged in the business of dealing in

firearms, knowing that such conduct violated the licensing

requirement.

There remains the question whether, though without this

degree of precision, the district court's instruction here

sufficiently conveyed the essence of this formulation of the

willfulness requirement.

After listing the other elements of a § 922(a)(1)(A)

violation, the district court defined "willfully" as follows:

The word "willfully" ... means that the act was committed
voluntarily and purposely with the specific intent to do
something the law forbids. That is, with bad purpose either
to disobey or disregard the law. The government must prove
beyond a reasonable doubt that Sanchez was in the business of
dealing in firearms and that he was aware that his conduct was
illegal and that he deliberately conducted the business of
dealing in firearms.

Although much of this definition comes from some of this court's

definitions of "willfully" as it is used in other statutes, see,

e.g., Phillips, 19 F.3d at 1577 ("Willfully" can mean acting with

"a "bad purpose' to disobey or disregard the law"), we conclude
that it does not suffice as an instruction on the offense at issue

here. Critically, the instruction would have allowed the jury to

convict Sanchez without ever having concluded that he knew of the

licensing requirement. While the instruction does require proof

that Sanchez knew "his conduct was illegal," this is not enough.

Knowledge of the general illegality of one's conduct is not the

same as knowledge that one is violating a specific rule—here, the

prohibition against unlicensed dealing in firearms.3 See Adames,

878 F.2d at 1377 (defendant's awareness of generally unlawful

nature of her actions cannot sustain finding of specific intent).

Accordingly, we conclude that the instruction did not communicate

the correct understanding of § 924(a)(1)(D)'s scienter requirement.

By permitting the jury to convict Sanchez without finding the

required form of willfulness in his conduct, it necessarily

prejudiced his defense so that vacatur of his conviction and remand

for a new trial is required as to Count 1.4 See Ratzlaf, 510 U.S.

3
For example, a seller may know that his dealing in firearms
is illegal because he is a convicted felon and, as such, may not
even possess a firearm. See 18 U.S.C. § 922(g)(1) (Supp.1996).
However, such a seller—if he did not also know that he was
required to have a license to conduct his firearms business—would
not be guilty of a willful violation of § 922(a)(1)(A), even
though he was aware that his firearms dealings were illegal.
4
Sanchez sought reversal and dismissal of this count for
insufficiency of the evidence to convict him under a proper
application of § 922(a)(1)(A) or, "at least, for a new trial."
Remand for a new trial is the appropriate remedy where, as here,
the insufficiency of evidence is accompanied by trial court error
whose effect may have been to deprive the Government of an
opportunity or incentive to present evidence that might have
supplied the deficiency. See Lockhart v. Nelson, 488 U.S. 33,
42, 109 S.Ct. 285, 291-292, 102 L.Ed.2d 265 (1988) (remand for
new trial proper where erroneous admission of evidence may have
deterred Government from presenting other evidence that could
have supplied deficiency); United States v. Weems, 49 F.3d 528
(9th Cir.1995) (remand for new trial where erroneous jury
at ----, 114 S.Ct. at 663.

III.

Sanchez also argues that his conviction on Count 1 should be

vacated because the Government based its proof that he sold any

guns at all entirely on his own confession, which, he claims, was

not corroborated by any other evidence. In view of our vacatur and

remand of this count on other grounds for a new trial in which

additional evidence may be presented, we will not address this

assignment of error.

IV.

Sanchez also claims that certain of the Government's

statements in its rebuttal closing argument violated his due

process and rule-based rights and, accordingly, require a reversal

of his convictions on all counts. First, he claims that the

Government grossly distorted the facts in evidence. Second, he

contends that the Government's rebuttal closing violated

Fed.R.Crim.P. 29.1 because it did not merely respond to the

defense's closing, but introduced a new theory of the case. We

have carefully reviewed the challenged portions of the Government's

rebuttal closing and find no merit in these claims of error. The

instructions made missing evidence not apparently necessary);
United States v. Wacker, 72 F.3d 1453 (10th Cir.1995) (same).

Such situations are different from those in which the
insufficiency of evidence is inexplicable for any reason
other than that it was not available or that, if available,
it was not produced by the Government. In the latter
situations, the Double Jeopardy Clause requires dismissal to
protect against the Government oppression that would result
from allowing a "second bite" when the first bite was a full
and fair one. Burks v. United States, 437 U.S. 1, 98 S.Ct.
2141, 57 L.Ed.2d 1 (1978).
prosecutor was well within the bounds of propriety in arguing to

the jury that the most reasonable inference from the evidence of

Sanchez's impecunious state was that prospective purchasers from

him were fronting the money for his gun purchases, at odds with his

statement to Government agents that he financed the purchases

without any prior arrangements for resale. The argument was a

proper attack on the credibility of Sanchez's contrary account to

the agents. Nor was there any violation of Rule 29.1, which

confines the scope of any argument by the Government in reply to

defense closing argument to that which does "rebut." Sanchez's

contention is that the Government's rebuttal closing which raised

for the first time the "fronted-purchases" argument violated this

scope restriction. But it did not, being properly responsive to

defense counsel's closing argument that Sanchez was unaware of any

illegality in what he was doing. See United States v. Sarmiento,

744 F.2d 755, 765 (11th Cir.1984) (Rule 29.1 does not prevent the

introduction of new theories in rebuttal so long as they are

responsive to defense closing).

V.

Finally, Sanchez contests the district court's failure to

reduce his offense level by two points for "acceptance of

responsibility" under U.S.S.G. § 3E1.1. Because we have vacated

Sanchez's conviction on Count 1, we will consider his sentencing

arguments only as they relate to his convictions for making false

statements on ATF forms, Counts 2 through 10.

"The district court's determination of whether a defendant is

entitled to a reduction for acceptance of responsibility is a
finding of fact that is entitled to great deference on appeal and

will not be disturbed unless clearly erroneous." United States v.

Kendrick, 22 F.3d 1066, 1068 (11th Cir.1994); United States v.

Chukwura, 5 F.3d 1420, 1424 (11th Cir.1993), cert. denied --- U.S.

----, 115 S.Ct. 102, 130 L.Ed.2d 51 (1994); see U.S.S.G. § 3E1.1

app. note 5 ("The sentencing judge is in a unique position to

evaluate a defendant's acceptance of responsibility"). Because we

find no clear error here, we affirm the district court's denial of

the § 3E1.1 reduction.

In explaining his denial of Sanchez's requested reduction, the

district court noted "I went over the objections [to the PSI], and

I agree with the Government that the defendant is not entitled" to

the § 3E1.1 reduction. We interpret this statement as an adoption

of the Government's reasoning in its Response in Opposition to

Defendant's Objections to the Presentence Report (Response), which

was filed on the day of the sentencing hearing. In the Response,

the Government pointed out that Sanchez had not, in his signed

statement or otherwise, admitted that he knew he was acting

illegally. Instead, Sanchez had "put the government to its burden

of proof at trial" by contesting the crucial factual element of his

intent as to all charges. See § 3E1.1 app. note 2 ("This

adjustment is not intended to apply to a defendant who puts the

government to its burden of proof at trial by denying the essential

factual elements of guilt....") Indeed, Sanchez maintained

throughout the trial that he had never intentionally lied on the

4473 Forms, but that his use of a "residence address" where he no

longer lived was due to the form's vagueness. Thus, the Government
concluded that Sanchez's statement to the ATF and his arguments at

trial were inconsistent with acceptance of responsibility.

The district court implicitly adopted this reasoning in

denying Sanchez's requested reduction for acceptance of

responsibility. Because we cannot say that this was clear error,

we affirm Sanchez's sentence as to Counts 2 through 10.

VI.

Having found that the district court's erroneous instruction

as to the "willfulness" element of § 922(a)(1)(A) constituted

reversible error, we vacate Sanchez's conviction and sentence on

Count 1 and remand that count for a new trial. We affirm his

convictions and sentences on all other counts.

AFFIRMED in part; VACATED and REMANDED in part FOR NEW TRIAL.