United States v. Patrick Carney (03-1735) Sean Carney (03-1736)

387 F.3d 436, 65 Fed. R. Serv. 608, 2004 U.S. App. LEXIS 21006, 2004 WL 2256048
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 8, 2004
Docket03-1735, 03-1736
StatusPublished
Cited by67 cases

This text of 387 F.3d 436 (United States v. Patrick Carney (03-1735) Sean Carney (03-1736)) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth 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. Patrick Carney (03-1735) Sean Carney (03-1736), 387 F.3d 436, 65 Fed. R. Serv. 608, 2004 U.S. App. LEXIS 21006, 2004 WL 2256048 (6th Cir. 2004).

Opinions

KRUPANSKY, J., delivered the opinion of the court, in which RYAN, J., joined. COLE, J. (pp. 453-56), delivered a separate dissenting opinion.

OPINION

KRUPANSKY, Circuit Judge.

The defendants-appellants Patrick Carney (“Patrick”) and Sean Carney (“Sean”), father and son respectively (collectively “the Carneys” or “the defendants”), both federally-licensed firearms dealers, have assailed their correlative jury convictions for multiple counts of (1) aiding and abetting the felonious utterance of knowingly false statements by customers in the defendants’ firearms transfer records (18 U.S.C. § 924(a)(1)(A)),1 and (2) the felonious creation or maintenance of willful omissions and/or falsehoods in their firearms transaction records regarding the name, age, and place of residence of firearms purchasers (18 U.S.C. § 922(b)(5)).2 [442]*442The defendants have framed five separate assignments of error, each of which they have alleged to be individually sufficient to invalidate some or all of their convictions.

During all times pertinent to the subject prosecutions, the Carneys operated “Carney’s Hunting and Shooter’s Supply,” a gun shop located in Warren, Michigan. Between February 17, 2000, and June 29, 2000, on at least nine distinct occasions, the Carneys sold automatic or semi-automatic handguns and rifles to David Johnson (a/k/a “Tone”) (“Johnson”), who, as a previously-convicted felon, was a person legally prohibited from purchasing or possessing firearms having an interstate or foreign commercial nexus. 18 U.S.C. § 922(g)(1). However, each sale had ostensibly been made instead to a female companion of Johnson’s, which unlawful weapons transfers were aided and abetted by the defendants via their willful acceptance and retention of fraudulent supporting documentation. During the course of his weapons-acquisition scam, Johnson used at least six different women as putative purchasers of firearms from the Carneys. Each of the “straw woman” purchasers had an unblemished criminal record and hence confronted no extraordinary legal restriction(s) on her liberty to purchase and/or possess firearms.

In each evidenced episode, Johnson adhered to an identical modus operandi Initially, he would drive his selected female co-conspirator to the Detroit Police headquarters to enable her submission of a written application for the required arms permit. Johnson would assist the woman with the completion of that form. After securing the weapons permit in the woman’s name, Johnson would transport her to the Carneys’ gun store, where he would select one or more firearms for purchase in the absence of any participation by his feminine cohort. Instead, his accomplice would idly pass the time by, for example, playing with the store owners’ pets, or smoking cigarettes while standing outside the storefront. After Johnson had selected his desired pieces, he would assist his companion with the completion of the legally-requisite ATF Form 4473.3 In each instance, that document falsely identified the woman, over her signature, as the ultimate buyer of the firearm(s). However, Johnson negotiated the purchase price of each firearm; paid, in cash, for each of the weapons purchased; and personally carried each purchased specimen out of the defendants’ store.

On November 29, 2001, a federal grand jury returned a thirty-nine count indictment against the Carney defendants, Johnson, and eight women; thirteen of those charges named the Carneys as alleged aiders and abettors in the making of false statements, violative of 18 U.S.C. § 924(a)(1)(A), by Johnson and his accomplices. The Carneys moved for dismissal of all charges against them, on the rationale that, as licensed firearms traders, they could not be charged under § 924(a)(1)(A), for alleged reasons examined below. The district court denied that [443]*443motion. See United States v. Johnson, 210 F.Supp.2d 889 (E.D.Mich.2002). Subsequently, on July 18, 2002, the grand jury issued a superseding indictment which restated the thirteen § 924(a)(1)(A) counts against the Carneys, but which also supe-rinduced six counts which alleged record-keeping offenses under 18 U.S.C. § 922(b)(5) against Sean plus four similar counts against Patrick.

Following a jury trial which, on November 4, 2002, resulted in the defense-friendly disposition of ten of the twenty-three counts stated against the Carneys via either “not guilty” verdicts or dismissals of counts by the district court as a matter of law for the insufficiency of supporting trial evidence, the Carneys proceeded to their second jury trial on the thirteen remaining counts against them (each of which had been the subject of a mistrial ruling in the initial trial forum). On March 6, 2008, the second jury convicted Sean on three counts which had alleged violations of § 924(a)(1)(A), and three additional counts which had stated offenses under § 922(b)(5);4 and it convicted Patrick on four charges of § 924(a)(1)(A) violations plus four counts undergirded by § 922(b)(5).5 Ultimately, the trial court [444]*444sentenced Sean to six concurrent twenty-seven-month terms of imprisonment, and imposed eight concurrent eighteen-month incarceration periods against Patrick. Following release from penal confinement, each defendant shall be supervised for two years.

As their initial alleged rationale for reversal of their convictions, the defendants have protested that the government erred, as a matter of law, by proceeding against them under section 924(a)(1)(A), a felony statute which, according to the defendants, should apply only against the maker(s) of knowingly false material statements to a firearms seller for inclusion within the seller’s legally-required transaction records but which, allegedly by the negative implication of its facial terms, cannot apply against the seller himself.6 See note 1 above. Instead, the defendants have argued that, because they were licensed arms dealers, the United States should have instead prosecuted them under 18 U.S.C. § 924(a)(3)(A), a misdemean- or rule which provides:

(a)(3) Any licensed dealer, licensed importer, licensed manufacturer, or licensed collector who knowingly—
(A) makes any false statement or representation with respect to the information required by the provisions of this chapter to be kept in the records of a person licensed under this subchapter
shall be fined under this title, imprisoned not more than one year, or both.

18 U.S.C. § 924(a)(3)(A). (Emphases added).

However, contrary to the defendants’ contention, the interplay of § 924(a)(1)(A) and § 924(a)(3)(A), respectively, does not

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Cite This Page — Counsel Stack

Bluebook (online)
387 F.3d 436, 65 Fed. R. Serv. 608, 2004 U.S. App. LEXIS 21006, 2004 WL 2256048, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-patrick-carney-03-1735-sean-carney-03-1736-ca6-2004.