(specially concurring):
I concur, but I believe that the record would justify a finding that Isaacs intended to deceive the seller, and I am satisfied that Isaacs is just the sort of person Congress had in mind when it enacted the statute. However, we are not at liberty to rewrite an act of Congress; and Isaacs had not been “indicted”. This is not a case in which we can read into the pending indictment the statutory definition; nor can we say that “ignorance of the law is no excuse.” The government has not alleged that Isaacs knew or consciously avoided knowing that “indictment includes information.” Cf., United States v. Jewell, 532 F.2d 697 (9th Cir. 1976) (en banc). Without some such allegation, there is no charge with matching proof that Isaacs knew he was speaking falsely.
The mens rea requirement of 18 U.S.C. § 922(a)(6), i. e. knowingly making a false statement, distinguishes this case from Schook v. United States, 337 F.2d 563 (8th Cir. 1964), and other “transportation of firearms” cases. Under the statutes involved in those cases, it was not critical to conviction for the accused to have actually known that reference to an “indictment” also covered an “information”. It is simply not necessary to question the logic of Schook in order to reverse Isaacs’ conviction.