United States v. James Palmieri

21 F.3d 1265, 1994 U.S. App. LEXIS 10916, 1994 WL 117295
CourtCourt of Appeals for the Third Circuit
DecidedMay 11, 1994
Docket93-5134
StatusPublished
Cited by44 cases

This text of 21 F.3d 1265 (United States v. James Palmieri) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. James Palmieri, 21 F.3d 1265, 1994 U.S. App. LEXIS 10916, 1994 WL 117295 (3d Cir. 1994).

Opinions

OPINION OF THE COURT

NYGAARD, Circuit Judge.

James Palmieri appeals from his conviction on one count of knowingly engaging in the business of dealing in firearms without being licensed to do so, in violation of 18 U.S.C. §§ 922(a), 924(a), and one count of knowingly possessing and transferring a machine gun, in violation of 18 U.S.C. §§ 922(o), 924(a)(2). He contends that the district court erred (1) by precluding a defense based on his license as a collector of curios and relics, (2) in responding to a jury question regarding licenses for selling firearms, (3) in charging the jury on the machine gun element of the second count, (4) by admitting lay opinion and hearsay testimony relating to this element, and (5) in charging the jury on the intent requirement for the second count. We conclude that these assertions of error are without merit and will affirm.

I.

The facts are essentially undisputed. Pal-mieri met Ronald Lyman, an FBI special agent, and John Debenedictus, a paid informant, and sold Lyman three nine-millimeter semiautomatic pistols (a German Luger, a Belgian Browning and a French MAB) for $1,300. Although these weapons were manufactured during World War II, each was functional. The following week, Palmieri, Lyman and Debenedictus met again and Pal-mieri sold Lyman an M-l carbine semiautomatic rifle for $400. This weapon was a remanufactured World War II vintage firearm, but it was also functional and could be converted to be fully automatic.

Two weeks later, Palmieri, Lyman and De-benedictus once again met, and Palmieri sold Lyman a 7.92 millimeter Chinese type 26 machine gun for $5,000.1 Although at the [1268]*1268time of sale, Palmieri stated that the machine gun was fully operational and fully automatic, when FBI special agent Robert W. Murphy later examined the weapon, it was not operational. The machine gun was designed to fire in a fully automatic mode, but it was missing a required breechblock. The government and Palmieri dispute whether the machine gun was operational when Lyman purchased it. The weapon did, however, have a frame or receiver which is defined as “[t]hat part of a firearm which provides housing for the hammer, bolt or breechblock and firing mechanism_” 27 C.F.R. § 179.11 (1993). Palmieri met with Lyman and De-benedictus on several other occasions, but sold them no other firearms.

At trial, the government introduced tape-recorded offers by Palmieri to sell other weapons, store stolen goods and obtain counterfeit passports. Palmieri’s response to this evidence was that these offers were puffery or were misconstrued. During the relevant time period, Palmieri held a license from the Bureau of Alcohol, Tobacco and Firearms (“ATF”) as a collector of curios and relics. The jury found Palmieri guilty on one count of engaging in the business of dealing in firearms and one count of possessing and transferring a machine gun. The district court sentenced him to 27 months’ imprisonment on each count to be served concurrently.

• II.

Count one of the superseding indictment charged Palmieri with violating 18 U.S.C. § 922(a), which provides that:

(a) It shall be unlawful—
(1) for any person—
(A) except a licensed importer, licensed manufacturer, or licensed dealer, to engage in the business of importing, manufacturing, or dealing in firearms. ...

18 U.S.C.A. § 922(a)(1)(A) (West Supp.1993). The first element of a violation of § 922(a) is that the, defendant “engaged in the business” which, as applied to a dealer in firearms, is defined as

a person who devotes time, attention, and labor to dealing in firearms as a regular course' of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms_

Id. § 921(a)(21)(C).

Although the definition explicitly refers to economic interests as the principal purpose,2 and repetitiveness as the modus operandi, it does not establish a specific quantity or frequency requirement. In determining whether one is engaged in the business of dealing in firearms, the finder of fact must examine the intent of the actor and all circumstances surrounding the acts alleged to constitute engaging in business. This inquiry is not limited to the number of weapons sold or the timing of the sales. For example, the location of the sales, the timé and conditions under which the sales occur, the defendant’s behavior before, during and after the sales, the price charged for and characteristics of the firearms sold, and the intent of the seller are all potentially relevant indicators of whether one has “engaged in the business” of dealing.

A statutory exception to the definition of “engaged in the business” is set forth in 18 U.S.C. § 921(a)(21)(C), which provides that it

shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms _’

Id. § 921(a)(21)(C); see also. id. § 922(a)(22) (objective of livelihood and profit contrasted with improving or liquidating a personal firearms' collection). Hence, if Palmieri sold firearms to Lyman from his private collection, he had a defense under § 921(a)(21)(C) that these sales were “for the enhancement of a personal collection or for a hobby,” or constituted the sale of “all or part of his personal collection of firearms.” Once again, [1269]*1269however, there is no bright-line rule. The fact-finder must determine whether the transactions constitute hobby-related sales or engagement in the business of dealing from the nature of the sales and in light of their circumstances.

Whereas the first element of a § 922(a) violation addresses the character of the conduct, the second element focuses on the status of the defendant, namely, whether he or she is a licensed dealer. A “dealer” is statutorily defined as “any person engaged in the business of selling firearms at wholesale or retail,” id. § 921(a)(ll)(A), and a “collector” is defined as “any person who acquires, holds, or disposes of firearms as curios or relics....” Id. § 921(a)(13).3 Section 922(a) requires inquiry into both the defendant’s conduct and status. If the conduct constituted engaging in the business of dealing in firearms, then it is illegal unless the defendant is a licensed dealer. On the other hand, sales by a licensed or unlicensed collector from a personal collection in furtherance of a hobby are not illegal. Once the conduct is deemed equivalent to the business of dealing, however, collector status will not shield a defendant from liability under § 922(a).

The district court included the statutory exception to “engaged in the business,” see

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21 F.3d 1265, 1994 U.S. App. LEXIS 10916, 1994 WL 117295, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-james-palmieri-ca3-1994.