United States Court of Appeals
For the First Circuit
No. 06-2518
UNITED STATES OF AMERICA,
Appellee,
v.
Augustus Edgerton,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Lynch and Lipez, Circuit Judges
and Barbadoro,* District Judge
Ronald W. Bourget, for appellant.
F. Mark Terison, Senior Litigation Counsel, U.S. Attorney’s
Office, with whom Paula D. Silsby, United States Attorney, was on
brief for the appellee.
December 6, 2007
*
Of the District of New Hampshire, sitting by designation.
BARBADORO, District Judge. Defendant-Appellant, Augustus
Edgerton, was convicted of violating 18 U.S.C. § 922(a)(6) by
making a false statement to a firearms dealer during an attempt to
purchase a firearm. Edgerton argues on appeal that the trial judge
erred when he instructed the jury that it could convict Edgerton if
the government proved that he knowingly made a false statement
while attempting to purchase a firearm and either “the statement
was intended to or was likely to deceive the firearms dealer about
a fact material to the lawfulness of the sale.” Edgerton argues
that the instruction was improper because it permitted the jury to
convict without proof that he made the false statement with the
intention to deceive. We affirm.
I.
The facts are recited in the light most favorable to the
verdict because this appeal follows a conviction. United States v.
O’Shea, 426 F.3d 475, 477 (1st Cir. 2005).
On January 14, 2004, Lieutenant Daniel Pelletier of the
Houlton (Maine) police department personally served Edgerton with
a Temporary Order for Protection from Abuse issued by a local state
court judge. The temporary order prohibited Edgerton from
threatening, molesting, harassing, or otherwise disturbing the
peace of Victoria French, his intermittent girlfriend and mother of
his child. The temporary order notified Edgerton of a hearing
scheduled for February 2, 2004.
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At the hearing, which Edgerton did not attend, the state court
judge entered a permanent Order for Protection from Abuse, which
prohibited Edgerton from “threatening, assaulting, molesting,
attacking, harassing or otherwise abusing” French. The permanent
order stated that it was effective immediately and would remain in
effect until February 1, 2006. The order contained a notice, in
capital letters and underlined, bold type: “POSSESSION OF A FIREARM
OR AMMUNITION WHILE THIS ORDER IS IN EFFECT IS PROHIBITED UNDER
FEDERAL AND/OR STATE LAW IF ANY ONE OR MORE OF THE FOLLOWING BOXES
HAVE BEEN CHECKED: A-1, A-2, OR F.” The judge checked boxes A-1
and A-2.
Corporal Thomas Donahue of the Houlton Police Department
served the permanent order on Edgerton at his home on February 15,
2004. Donahue told Edgerton when he served the order that it
would remain in effect for two years. Donahue pointed out various
aspects of the order to Edgerton, including the bold, underlined,
capitalized language set forth above.
On April 1, 2004, Edgerton attempted to acquire a .45 caliber
semi-automatic handgun from a federally licensed firearms dealer,
MACS Trading Post, in Houlton, Maine. As with any attempted
purchase of a firearm from a licensed dealer, Edgerton was required
to fill out ATF Form 4473. Edgerton answered “No” to Question
12(h), which asks: “Are you subject to a court order restraining
you from harassing, stalking, or threatening your child or an
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intimate partner or child of such partner? (See Important Notice
7).” Notice 7 defined “intimate partner” as including individuals
who are parents of the purchaser’s child and individuals with whom
the defendant had ever cohabited.
In accordance with federal law, the firearms dealer contacted
the National Instant Criminal Background Check System to verify
that Edgerton was authorized to purchase the handgun. The dealer’s
request for approval was initially placed on delay status and was
ultimately denied six days later. A criminal investigation ensued
and Edgerton was indicted on July 12, 2005.
At trial, the government and Edgerton entered into a
stipulation agreeing that Victoria French and the defendant had
cohabited together in the past and that French is a parent of the
defendant’s child. The government also offered the testimony of
Erik Tall, a detective with the Bangor Police Department, and
Matthew Cox, the firearms dealer. Tall testified that Edgerton
admitted during his initial interview that he completed the entire
ATF Form 4473 himself, that he was aware of the permanent
protective order, and that he “just did not read the form.” The
firearms dealer testified that Edgerton filled out the form
himself, that he provided no assistance to Edgerton, and that he
gave Edgerton unlimited time to complete the application.
Edgerton testified in his own defense, stating that he
received the temporary protection order on January 15, 2004, but
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that French told him the matter had been dropped. Edgerton
admitted that he filled out the top of ATF Form 4473, but claimed
that Cox rushed him through the second part of the form, and that
Cox, not he, had filled out the answer to Question 12. Edgerton
nevertheless admitted that he signed the form and certified that
his answers on the form were correct.
The trial judge instructed the jury as follows on the elements
of a Section 922(a)(6) violation:
For you to find Mr. Edgerton guilty of the offense, you
must be satisfied that the government has proven each of
the following things beyond a reasonable doubt.
First, that Mr. Edgerton knowingly made a false
statement as charged in the indictment.
Second, that at the time he made the statement, Mr.
Edgerton was trying to buy a firearm from a
licensed dealer.
Third, that the statement was intended to or was
likely to deceive the firearm dealer about a fact
material to the lawfulness of the sale.
After charging the jury, the judge asked counsel if there were any
objections to the instructions, and both parties answered “No.”
Edgerton was convicted on March 8, 2006, and was later
sentenced to a 14-month prison term.
II.
Edgerton argues on appeal that the jury charge was improper
because it permitted the jury to convict without proof that he
acted with the intention to deceive. Because Edgerton failed to
register his objection with the trial court, we typically would
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review the charge only for plain error. United States v. Roberson,
459 F.3d 39, 45 (1st Cir. 2006), cert. denied, 127 S. Ct. 1261
(2007). Here, however, the standard of review is inconsequential
because the trial judge’s instructions correctly describe the
requisite mens rea.
Section 922(a)(6) requires proof that the defendant knowingly
made a false or fictitious statement. This requirement, however,
does not presuppose deceptive intent or even knowledge that one’s
conduct is unlawful. As this court noted in United States v.
Currier, “[s]ection 922(a)(6) does not require a showing that
appellant ‘knowingly’ violated the law; it simply requires proof
that appellant knowingly made a false statement.” 621 F.2d 7, 10
(1st Cir. 1980) (quoting Cody v. United States, 460 F.2d 34, 38
(8th Cir. 1972)) (quotation marks omitted).
Edgerton nevertheless argues that the statutory requirement
that a defendant must act knowingly is somehow undermined if a
defendant could be convicted of violating Section 922(a)(6) without
proof that he also acted with the intention to deceive. This
argument is belied by the statute’s plain language. In addition to
requiring that a defendant must knowingly make a false statement,
Section 922(a)(6) requires either that the defendant act with the
intention to deceive or that his false statement is likely to
deceive. Edgerton has not explained why Congress cannot choose to
punish a defendant who knowingly makes a false statement that is
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likely to deceive, regardless of whether the defendant is acting
with deceptive intent, and this is precisely what Congress has done
in Section 922(a)(6).
The trial judge’s instructions closely tracked the language of
Section 922(a)(6) and properly informed the jury that it could
convict if Edgerton knowingly made a false statement to a licensed
firearms dealer and his statement was likely to deceive. Deceptive
intent is not required if this standard is met.
AFFIRMED.
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