United States Court of Appeals
For the First Circuit
No. 06-1751
UNITED STATES OF AMERICA,
Appellee,
v.
IVAN TELEGUZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Boudin, Chief Judge,
Lynch and Lipez, Circuit Judges.
William S. Smith for appellant.
Kevin O'Regan, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.
July 24, 2007
LYNCH, Circuit Judge. Ivan Teleguez of Lancaster,
Pennsylvania, participated in an interstate business, the selling
of firearms. He sold firearms to Carlos Ortiz, a cooperating
witness for the FBI in Springfield, Massachusetts. All told, over
a fifteen-month period ending in October 2002, Teleguez and his co-
defendants sold to Ortiz twenty-five firearms, thirteen of which
had obliterated serial numbers.
Teleguez was charged with federal conspiracies both to
deal firearms without a license, see 18 U.S.C. §§ 371,
922(a)(1)(A), and to possess firearms with obliterated serial
numbers, see id. §§ 371, 922(k), as well as three separate counts
of possession of firearms with obliterated serial numbers, see id.
§ 922(k). His co-defendants, Aleksei Safanov, Roman Zhirnov,
Andrey Buynovskiy, and Michael Quickel, all pled guilty, and
Quickel testified against Teleguez. A jury convicted Teleguez on
all counts. The district court sentenced Teleguez to fifty-one
months' imprisonment, to be followed by three years of supervised
release, and a special monetary assessment of $500.
Teleguez attacks his conviction, arguing that the
district court erred (1) in denying his request for an entrapment
instruction and in precluding him from arguing entrapment at
closing, (2) in denying his motion to dismiss the possession counts
on interstate commerce grounds, (3) in denying his motions to
suppress his post-arrest statement, and (4) in denying a motion for
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judgment of acquittal as a matter of law as to the possession
counts. We affirm. We adhere to our prior rule that 18 U.S.C.
§ 922(k) is a constitutional exercise of Congress's Commerce Clause
powers, see United States v. Diaz-Martinez, 71 F.3d 946, 953 (1st
Cir. 1995), and hold that this result is not overruled by Jones v.
United States, 529 U.S. 848 (2000), or United States v. Morrison,
529 U.S. 598 (2000).
I. FACTS
A. Ortiz's Firearms Purchases
Ortiz was paid by the FBI to assist in criminal
investigations. In this case, Ortiz received approximately
$80,000.
In the early summer of 2001, FBI Special Agent Robert
Lewis asked Ortiz to "keep an eye out and an ear out for criminal
activity amongst Russian individuals in the Springfield area."
Ortiz's inquiries of some members of the Russian community
ultimately led to the criminal firearms transactions charges in
this case. At various times, Ortiz represented that he had his own
customers for guns.
The first firearms transaction occurred in July 2001.
Ortiz went to a local gun store, where he was approached by
Buynovskiy. Buynovskiy asked Ortiz if he was interested in
purchasing some rifles. Ortiz was interested; he consulted the FBI
and then gave Buynovskiy a $200 deposit. On July 2, Buynovskiy and
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Zhirnov met with Ortiz in a parking lot, where Ortiz purchased two
rifles and ammunition for $1,800. The source of at least one of
these weapons was Teleguez. More than a year earlier, in the
spring of 2000, Teleguez had purchased one of these rifles from an
acquaintance in Pennsylvania.
The FBI investigation was interrupted by the events of
September 11, 2001, but then resumed in the spring of 2002. On
April 6, 2002, Ortiz purchased two firearms from Buynovskiy and
Safanov. He purchased an additional firearm from Safanov on May
20, 2002.
On June 24, 2002, Ortiz and Safanov, at Safanov's
suggestion, drove together to Pennsylvania to buy guns from
Teleguez. The two went to Teleguez's house in Ephrata,
Pennsylvania, where Ortiz purchased four firearms. The serial
number on one of the four firearms had been obliterated by
grinding. The two returned to Massachusetts with the firearms.
On July 16, 2002, Ortiz went to Safanov's apartment in
Springfield and purchased another five firearms. Serial numbers on
three of these firearms had been removed.
On August 25, 2002, Teleguez, who had traveled to
Massachusetts, met Ortiz in a Springfield parking lot and sold
Ortiz another eight firearms, six of which had their serial numbers
obliterated. Teleguez asked Ortiz to send him money for the
firearms by mail. The defendant gave Ortiz an envelope with his
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name and Pennsylvania address written on it. On August 27, 2002,
Ortiz instead sent Teleguez a wire transfer for $1,500 as
additional payment for the firearms purchased two days earlier.
On August 30, 2002, Teleguez again met with Ortiz in
Springfield. This time, defendant sold Ortiz two semi-automatic
pistols with obliterated serial numbers. Ortiz paid Teleguez
$1,200.
On October 3, 2002, at Teleguez's direction, Ortiz met
with Zhirnov in Springfield. Zhirnov sold Ortiz a firearm whose
serial number had been removed. The next day, Ortiz wired $850 to
Teleguez in payment for the firearm.
B. Quickel's Firearms Purchases for Teleguez
Quickel testified that in July and August 2002, he
purchased firearms for Teleguez, at defendant's request. Quickel
used his own identification at legitimate firearms stores in
Pennsylvania. Teleguez had told him that Teleguez could not
purchase the firearms in his own name. Typically, Teleguez went
with Quickel to the firearms stores, told Quickel which firearms to
buy, and gave Quickel money to purchase the firearms. Quickel
would carry the firearms out of the store himself, and then hand
them over to Teleguez. The defendant paid Quickel $100 for each
rifle and $200 for each pistol purchased.
The government introduced into evidence six transaction
records detailing Quickel's firearms purchases in Pennsylvania on
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behalf of Teleguez. The records showed that Quickel purchased
fifteen firearms from July 8 through August 28, 2002. All of the
firearms had serial numbers at the time of purchase.
ATF Special Agent Patrick Burns testified about the guns
Quickel purchased for Teleguez which were ultimately sold to Ortiz.
Burns testified that Ortiz purchased nine firearms that were
similar to firearms Quickel purchased for Teleguez. All nine of
the firearms had obliterated serial numbers when they were sold to
Ortiz. As to four of the firearms, the similarity to Quickel's
purchases was limited to the manufacturer and type of firearm. As
to the remaining five firearms, the government was able to raise
partial serial numbers which matched the serial numbers associated
with the firearms purchased by Quickel.
II. ANALYSIS
A. Denial of Request for Entrapment Instruction and
Preclusion from Arguing Entrapment at Closing
Teleguez's primary argument is that he was entitled to an
entrapment instruction because the evidence shows that Ortiz was an
insistent buyer who was doggedly persistent, and this amounted to
improper inducement of Teleguez. Teleguez also argues that the
district court erred in precluding him from arguing entrapment to
the jury at closing. Teleguez preserved his objections at trial;
we review the denial of the entrapment instruction de novo, United
States v. Sánchez-Berríos, 424 F.3d 65, 76 (1st Cir. 2005), and
review the limitations placed on defendant's closing argument for
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abuse of discretion, United States v. Wood, 982 F.2d 1, 4 (1st Cir.
1992).
The entrapment defense is not a doctrine of
constitutional dimension or one expressly created by statute.
United States v. Russell, 411 U.S. 423, 432-33 (1973); see also
United States v. Luisi, 482 F.3d 43, 52 (1st Cir. 2007). Rather,
it is a judicially created doctrine which recognizes that "Congress
could not have intended that its statutes were to be enforced by
tempting innocent persons into violations." Sherman v. United
States, 356 U.S. 369, 372 (1958).
The question is whether a reasonable jury could view the
evidence as establishing that defendant was entrapped. See United
States v. Rodriguez, 858 F.2d 809, 812 (1st Cir. 1988). If so,
Teleguez was entitled to an entrapment instruction; if not, there
was no error in the district court's denial of defendant's request.
The entrapment defense consists of two prongs. Luisi,
482 F.3d at 52. The first prong requires a showing of improper
government inducement. United States v. Gamache, 156 F.3d 1, 9
(1st Cir. 1998). The second prong requires that the defendant have
had a lack of predisposition to commit the offense. Id. Because
entrapment is a judicially created doctrine, courts have been
careful not to contravene congressional intent to punish those who
commit the offense; that, in turn, requires that the doctrine take
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into account the practical problems faced by federal law
enforcement. See Luisi, 482 F.3d at 52-53.
Our case law stating that a defendant has a low entry-
level burden for obtaining an entrapment instruction, Gamache, 156
F.3d at 9, should not be misunderstood (as defendant here
misunderstands). In assessing whether the entry-level burden for
an instruction has been met, we look at the evidence most
charitably to the defendant and determine whether it is sufficient
for a reasonable jury to conclude that there was entrapment. See
Rodriguez, 858 F.2d at 813.
In this case, no reasonable jury could conclude that
there was any improper government inducement. Defendant's argument
is based on an erroneous understanding of (1) what it takes to show
improper inducement, (2) the personal nature of the entrapment
defense, and (3) the scope of the record to be considered.
Acceptance of Teleguez's arguments would so water down
the concept of improper inducement as to delete the requirement of
impropriety from the equation. Admittedly, sometimes a judgment on
what is sufficient to make a plausible claim of improper inducement
can be a close call. Nonetheless, merely giving a defendant an
opportunity to commit a crime when the government puts forth an
enthusiastic and persistent buyer of illicit goods cannot be
improper inducement.
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Decisions which discuss the improper inducement
requirement often use the phrase that there must be "opportunity
plus," and then turn to the nature of the "plus." See, e.g.,
United States v. Capelton, 350 F.3d 231, 243 (1st Cir. 2003);
United States v. Vega, 102 F.3d 1301, 1305 (1st Cir. 1996).
Plucking phrases from the case law, Teleguez argues that the "plus"
factor is necessarily satisfied by evidence of government
manipulation or by forceful solicitation and dogged insistence. He
cites United States v. Gendron, 18 F.3d 955 (1st Cir. 1994), for
support. Gendron, however, is clear that sting operations
ordinarily do not involve improper inducement. See id. at 961; see
also Gamache, 156 F.3d at 9 ("A 'sting' operation is not improper
inducement if it merely provides an opportunity to commit a crime
. . . ."). Indeed, sting operations by their nature often involve
government manipulation, solicitation, and, at times, deceit. See,
e.g., Sánchez-Berríos, 424 F.3d at 71-72, 76-77.
Teleguez's argument that the evidence supported an
entrapment instruction rests on evidence to the following effect.
Teleguez argues that it was the government agent1 Ortiz who first
approached Teleguez and the co-defendants about purchasing
firearms. Teleguez also maintains that Ortiz was not simply a
buyer; he pretended to befriend several of the defendants. Ortiz
1
For entrapment purposes, an individual hired by the
government as a cooperating witness qualifies as a "government
agent." Luisi, 482 F.3d at 53.
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pressed hard to get a number of weapons from co-defendants, and to
get them quickly. Further, defendant says Ortiz made up stories
about why he needed the weapons and why he needed them so quickly.
These facts, however, whether standing alone or collectively, are
insufficient to show improper inducement.
Most of the evidence on which Teleguez relies to show
undue pressure was directed toward co-defendants, and was not
designed to induce the co-defendants to put pressure on Teleguez.
Entrapment is a personal defense; it is not additive to cover co-
defendants not targeted by the government agent. See Luisi, 482
F.3d at 54-55; United States v. Bradley, 820 F.2d 3, 8 (1st Cir.
1987). The justification for the entrapment doctrine simply does
not extend to pressure placed on co-defendants intended to affect
only those co-defendants' actions.2
2
This is not a case like Luisi where there was evidence
that
(1) a government agent specifically targeted
the defendant in order to induce him to commit
illegal conduct; (2) the agent acted through
the middleman after other government attempts
at inducing the defendant had failed; (3) the
government agent requested, encouraged, or
instructed the middleman to employ a specified
inducement, which could be found improper,
against the targeted defendant; (4) the
agent's actions led the middleman to do what
the government sought, even if the government
did not use improper means to influence the
middleman; and (5) as a result of the
middleman's inducement, the targeted defendant
in fact engaged in the illegal conduct.
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In the larger context of this case, the basis for an
entrapment instruction is even weaker. Before Ortiz and Teleguez
met for the first time on June 24, 2002 at Teleguez's home, Ortiz
had already bought two rifles from co-defendants Buynovskiy and
Zhernov, one of which had been previously owned by defendant.
In total, Ortiz completed eight firearms transactions
with Teleguez and his co-defendants. Over the course of these
transactions, Ortiz and Teleguez had three face-to-face meetings.
As the district court noted, when Ortiz visited defendant's house
in Pennsylvania, Teleguez stated almost immediately that he was
ready to do business. Within approximately one hour, Teleguez had
sold Ortiz four firearms. Two months later, on August 25, 2002,
the defendant traveled to Massachusetts and personally sold Ortiz
eight firearms. Five days later, he sold Ortiz another two
firearms, also in Massachusetts. There is no showing of any
resistance on Teleguez's part to selling weapons, much less any
resistance which was overcome by improper government pressure.
Defendant was an eager vendor of deadly weapons.
Having considered the broader record, we agree that
Teleguez did not make the requisite entry-level showing for an
entrapment instruction. Cf. United States v. Joost, 92 F.3d 7, 12-
14 (1st Cir. 1996) (holding that defendant was entitled to
entrapment instruction where jury could have found, inter alia,
Luisi, 482 F.3d at 55.
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that defendant resisted agents' requests, defendant employed a
general strategy of deflecting agents' requests, agents
deliberately created a financial dependency, and agents threatened
defendant's continued income). The district court properly denied
defendant's request for an instruction on entrapment.
As to the district court's decision to preclude Teleguez
from arguing entrapment at closing, we find no abuse of discretion.
See Wood, 982 F.2d at 4. The trial court "has broad discretion
over the scope of summations." United States v. Grabiec, 96 F.3d
549, 552 (1st Cir. 1996). After the close of evidence, having
already correctly determined that Teleguez was not entitled to an
entrapment instruction, the district court informed defense counsel
that he would be precluded from arguing entrapment in his closing
argument. Defense counsel initially believed that the district
court had prohibited him from arguing neutral facts that had been
developed in relation to the desired entrapment defense. The court
clarified, however, that it was only prohibiting defense counsel
from arguing a theory of entrapment; there was no limitation on
arguing facts. The district court's decision was well within its
discretion.
B. Denial of Motion To Dismiss, on Interstate Commerce
Grounds, Charges of Possession of a Firearm with an
Obliterated Serial Number
The district court denied Teleguez's pre-trial motion to
dismiss the charges brought against him under 18 U.S.C. § 922(k).
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Teleguez argues that dismissal of the charges under 18 U.S.C.
§ 922(k) was required both because § 922(k) involves an
impermissible exercise of Congress's Commerce Clause powers, and
because the evidence was insufficient to support a conviction under
the statute. Our review of legal questions is de novo, and we
review the entire record on Teleguez's sufficiency claim. See
United States v. García-Carrasquillo, 483 F.3d 124, 129 (1st Cir.
2007); United States v. Rodriguez, 457 F.3d 109, 113 (1st Cir.
2006).
Section 922(k) prohibits possession of firearms with
obliterated or altered serial numbers.3 The statutory text
requires proof that the firearm "has, at any time, been shipped or
transported in interstate or foreign commerce."4
3
18 U.S.C. § 922(k) provides:
It shall be unlawful for any person knowingly
to transport, ship, or receive, in interstate
or foreign commerce, any firearm which has had
the importer's or manufacturer's serial number
removed, obliterated, or altered or to possess
or receive any firearm which has had the
importer's or manufacturer's serial number
removed, obliterated, or altered and has, at
any time, been shipped or transported in
interstate or foreign commerce.
4
Teleguez cites a case from the Ninth Circuit, United
States v. Stewart, 348 F.3d 1132 (9th Cir. 2003), vacated, 545 U.S.
1112 (2005), to support his argument that § 922(k) falls outside
Congress's Commerce Clause powers and/or cannot constitutionally be
applied to him. Stewart, however, considered 18 U.S.C. § 922(o),
which -- unlike § 922(k) -- does not contain an express interstate
commerce element. See 18 U.S.C. § 922(o); Stewart, 348 F.3d at
1134. Further, on remand from the Supreme Court, the Ninth Circuit
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We have already held that § 922(k) is a constitutional
exercise of Congress's Commerce Clause powers. See Diaz-Martinez,
71 F.3d at 953. Teleguez argues, however, that in light of the
Supreme Court's more recent decisions in Jones, 529 U.S. 848, and
Morrison, 529 U.S. 598, we should revisit Diaz-Martinez and hold
that evidence that a firearm was manufactured in one state and
possessed by defendant in another state is insufficient to justify
a conviction under § 922(k). Teleguez mixes the question of
Congress's power to regulate with the different question of
sufficiency of the evidence.
Our opinion in Diaz-Martinez, which was decided after
United States v. Lopez, 514 U.S. 549 (1995),5 remains good law.
Other circuits, post-Lopez, have upheld § 922(k) against similar
attacks. See United States v. Baer, 235 F.3d 561, 563 (10th Cir.
2000); United States v. Mack, 164 F.3d 467, 473 (9th Cir. 1999).
Indeed, our sister circuits have held that virtually identical
reconsidered § 922(o) in light of Gonzales v. Raich, 545 U.S. 1
(2005), and held that the statute could be constitutionally applied
to Stewart's possession of homemade machine guns. United States v.
Stewart, 451 F.3d 1071, 1078 (9th Cir. 2006). Teleguez has failed
to note that the Ninth Circuit has, in fact, upheld § 922(k) on
interstate commerce grounds. United States v. Mack, 164 F.3d 467,
473 (9th Cir. 1999).
5
In Lopez, the Supreme Court held that the Gun-Free School
Zones Act of 1990, 18 U.S.C. § 922(q)(1)(A), which contained no
interstate commerce element, was beyond Congress's Commerce Clause
powers because gun possession in a local school zone did not
qualify as economic activity that substantially affected interstate
commerce. 514 U.S. at 561-62, 567-68.
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interstate commerce elements in other federal criminal statutes
survive challenges under Jones and Morrison. See, e.g., United
States v. Thompson, 359 F.3d 470, 480 (7th Cir.) (upholding 18
U.S.C. § 922(g)(1)), cert. denied, 543 U.S. 844 (2004); United
States v. Rousseau, 257 F.3d 925, 932-33 (9th Cir.) (reaffirming
constitutionality of 18 U.S.C. § 922(g)(8) and § 922(g)(1)), cert.
denied, 534 U.S. 1013 (2001); United States v. Dorris, 236 F.3d
582, 584-86 (10th Cir. 2000) (upholding 18 U.S.C. § 922(g)(1)),
cert. denied, 532 U.S. 986 (2001); United States v. Napier, 233
F.3d 394, 400-02 (6th Cir. 2000) (upholding 18 U.S.C. § 922(g)(8)).
The reasoning for upholding § 922(k) in the aftermath of
Jones and Morrison is the same as that provided in the cases cited
above. Congress has not exceeded the scope of its Commerce Clause
powers in enacting § 922(k) because the statute prohibits the
possession of firearms with obliterated serial numbers only if such
firearms have been "shipped or transported in interstate or foreign
commerce." So restricted by its own text, § 922(k) does not
present a constitutional problem -- Congress may permissibly
regulate the channels and instrumentalities of interstate commerce,
as well as activities that substantially affect interstate
commerce. See Lopez, 514 U.S. at 558-59; United States v. Morales-
De Jesús, 372 F.3d 6, 9 (1st Cir. 2004).
From the constitutional analysis, it follows that the
evidence was sufficient. The prosecution offered expert testimony
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that twenty-two of the twenty-five firearms at issue necessarily
had crossed state or foreign lines because they were originally
manufactured in other states or countries. The interstate commerce
argument is especially misplaced here, where Teleguez traveled from
his home in Pennsylvania, across a number of state lines, to sell
firearms to Ortiz in Massachusetts.
C. Denial of Motions To Suppress Post-Arrest Statement
After defendant had signed a voluntary and knowing waiver
of his Miranda rights, ATF agent Bernie Tuerler asked Teleguez how
many illegal guns he had and how many illegal guns he had sold.
Defendant did not respond. Teleguez was then asked who removed the
serial numbers and reblued6 the guns which he sold. Teleguez
answered, "Well, Alex is the one who reblued the guns and removed
the serial numbers." Only then did defendant say, "I think I'm
going to get a lawyer."7
The district court denied defendant's pre-trial motion to
suppress the statement that Alex was the one who reblued the guns
and removed the serial numbers.8 The court similarly denied
6
"Rebluing" is the process of refinishing the surface of
a firearm after the chemical finish of the firearm has been worn
off.
7
The trial judge instructed the jury not to draw any
inference from Teleguez's invocation of his right to counsel.
8
Teleguez asserts that the challenged statement was the
government's only evidence that he had knowledge that the serial
numbers on firearms had been altered or removed. This is not so.
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defendant's pre-admission and post-admission suppression motions at
trial. The court noted that the agent's questions were put to
Teleguez in "fairly quick succession" and concluded that
defendant's mere hesitation or non-response to previous questions
did not justify suppression. Our appellate review of the denials
of defendant's motions is bifurcated. We review findings of fact
for clear error; we review conclusions of law de novo. United
States v. Coplin, 463 F.3d 96, 100 (1st Cir. 2006).
Teleguez argues that there was a Miranda violation and
relies on the facts that (1) just before he made the challenged
statement he had not answered Tuerler's questions about how many
illegal guns he had and how many illegal guns he had sold, and (2)
just after the statement he said, "I think I'm going to get a
lawyer." See Miranda v. Arizona, 384 U.S. 436, 444-45 (1966).
Teleguez argues that his silence in response to questions about the
number of illegal guns was "tantamount" to the invocation of his
right to remain silent, and that his subsequent invocation of his
right to an attorney confirms that his earlier state of mind in not
answering questions was to exercise his Miranda rights, his prior
written waiver notwithstanding.
Miranda addresses two different rights: the right to
remain silent and the right to counsel. See id. at 444; Bui v.
DiPaolo, 170 F.3d 232, 239 (1st Cir. 1999). The record is clear
that Teleguez did not request counsel until after he made the
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statement, so his right to counsel is not at issue. That leaves
the question of whether he had invoked his right to remain silent.
He had not.
A defendant's choice, after signing a Miranda waiver, to
selectively answer questions, is not in itself an unequivocal
assertion of his right to remain silent. There is no other
evidence to support the argument that Teleguez asserted his right
to remain silent. See Bui, 170 F.3d at 239; cf. Davis v. United
States, 512 U.S. 452, 461-62 (1994) ("If the suspect's statement is
not an unambiguous or unequivocal request for counsel, the officers
have no obligation to stop questioning him.").
The district court correctly held that Teleguez's
statement was admissible.
D. Denial of Motion for Judgment of Acquittal
At the close of the evidence, the district court denied
Teleguez's motion for a judgment of acquittal as to the three
counts of possession of firearms with obliterated serial numbers.
The court rejected the argument that defendant did not know at the
time of possession that serial numbers had been removed from many
of the guns he sold to Ortiz. We review the matter de novo, see
United States v. O'Shea, 426 F.3d 475, 479 (1st Cir. 2005), and
affirm.
The statute, 18 U.S.C. § 922(k), requires the defendant
to have knowingly possessed firearms with obliterated serial
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numbers. See United States v. Hooker, 997 F.2d 67, 74 (5th Cir.
1993). Defendant argues that his statement that "Alex is the one
who reblued the guns and removed the serial numbers" is not a
statement that Teleguez had this knowledge at the time he possessed
the firearms. That is true, but it is hardly dispositive.
The government's case did not rest merely on Teleguez's
statement, so we do not face the abstract question of whether
inferences from defendant's statement would suffice to meet the
government's burden of proof. On August 25, 2002, Teleguez
personally sold six firearms with obliterated serial numbers to
Ortiz in Massachusetts. The same was true of the two firearms
defendant sold to Ortiz on August 30, 2002. Further, on October 3,
2002, Teleguez arranged for Zhernov to deliver to Ortiz another
firearm with an obliterated serial number, for which Teleguez
received $850. It is easy to infer that Teleguez was familiar with
the guns he was selling and knew quite well that the serial numbers
had been obliterated. This conclusion that Teleguez had the
requisite knowledge is further supported by Quickel's testimony
that he had purchased firearms with intact serial numbers for
Teleguez, and by Agent Burns's testimony explaining the
similarities between Quickel's purchases for Teleguez and numerous
firearms with obliterated serial numbers that defendant sold to
Ortiz. The evidence was sufficient.
The conviction is affirmed.
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