Appeal from the United States District Court for the Southern District of Florida. (No. 93-456-CR). Jacob Mishler, Visiting Judge.
Before Tjoflat, Chief Judge, and Roney and Phillips,*fn* Senior Circuit Judges.
PHILLIPS, Senior Circuit Judge:
After a jury trial, Francisco Sanchez-Corcino (Sanchez) was convicted of one count of engaging in the business of dealing in firearms without a license, 18 U.S.C. §§ 922(a)(1)(A) (Supp.1996), 924(a)(1)(D) (Supp.1996) (Count 1), and of nine counts of making false statements with respect to information required to be kept on file by licensed firearms dealers, 18 U.S.C. § 924(a)(1)(A) (Supp.1996) (Counts 2 through 10). Sanchez appeals his convictions on all counts, as well as his sentence. As to Count 1, Sanchez claims that the district court erred in failing to instruct the jury that, in order to find that Sanchez "willfully" sold guns without a license, it had to conclude that Sanchez knew of the licensing requirement he was accused of violating. Because we agree that § 924(a)(1)(D)'s "willfulness" standard requires proof that the defendant knew of the licensing requirement and, nonetheless, intentionally violated it, we reverse Sanchez's conviction on Count 1 and remand it to the district court for a new trial. We affirm all of Sanchez's other convictions and their accompanying sentences.
Between April and September of 1993, Sanchez bought more than 150 handguns from two licensed firearms dealers in Miami. He purchased the guns in nine separate transactions, the first seven at Miami Police Supply Store, the last two at 27th Avenue Pawn Shop.
Each time he bought guns, Sanchez filled out an Alcohol, Tobacco, and Firearms (ATF) Form 4473. This form required Sanchez to give his name, date of birth, and other basic personal information, including his "Residence Address." On each form, Sanchez gave his correct name and biographical data, and he listed his address as 236 N.W. 24th Avenue, Miami, Florida.
After having purchased seven sets of handguns at Miami Police Supply Store, Sanchez began patronizing 27th Avenue Pawn, where, on his first visit, he bought twenty more guns. In connection with this sale, the store owner completed and sent to the ATF a "multiple gun purchase" form, which the ATF requires licensed sellers to complete whenever they sell more than one firearm in a single transaction. An ATF agent later called the owner and asked him to notify the ATF if Sanchez returned to the store. When Sanchez did return, he ordered thirteen more guns, and the owner, as promised, notified the ATF. ATF Agent Foster then set up surveillance outside the store. A few days later, Sanchez returned and picked up the thirteen guns; Agent Foster then arrested him.
The men drove to the ATF station where, after having been properly advised of his rights, Sanchez told ATF agents about his weapons activity. He then signed a written statement in which he admitted having purchased and resold at least 140 handguns. Also in this statement, Sanchez explained that he had begun buying guns for resale because he was unemployed and needed money. In describing his sales activities, Sanchez explained that he did not purchase the guns with specific buyers in mind, but that after he bought the guns, potential buyers would contact him via his beeper. He then would meet the buyers, whom he identified only as "latin males," in Miami's "Little Havana" district, where he would sell them the guns.
As to the address he used on the 4473 Forms, Sanchez explained that, although he had not lived at 236 N.W. 24th Avenue for about eight months, he had given that as his address for two reasons. First, it was the address on the Florida identification card he presented when he made the purchases, and, second, he had not yet established another permanent address.
A few days after the arrest, a grand jury returned a ten-count indictment against Sanchez. Count 1 charged him with engaging in the business of selling firearms without a license, a violation of 18 U.S.C. §§ 922(a)(1)(A) and 924(a)(1)(D). Counts 2 through 10 charged him with making false statements with respect to information required to be kept by licensed firearms sellers, in violation of 18 U.S.C. § 924(a)(1)(A). More specifically, these latter counts alleged that each time Sanchez filled out an ATF Form 4473, he knowingly gave a false residence address. Sanchez pleaded not guilty to all counts.
At trial, the Government presented the above-described evidence regarding Sanchez's purchase and resale of the handguns, including Sanchez's own signed statement to the ATF. It also presented testimony aimed at showing that, at the time he purchased the guns, Sanchez did not live at 236 N.W. 24th Avenue. At the close of the Government's case, and again at the close of all the evidence, Sanchez's attorney moved for a judgment of acquittal. As to Count 1, Sanchez's counsel argued that the Government had failed to prove that Sanchez had "willfully" engaged in the business of selling firearms without a license, as required by 18 U.S.C. § 924(a)(1)(D). More specifically, he argued that "there is no evidence by which a jury could rationally conclude that Francisco Sanchez was aware of the licensing requirements and that he sold these guns with the specific intent of circumventing or somehow violating that known legal duty." The district court denied Sanchez's motion as to Count 1, noting that Sanchez's "surreptitious[ ]" use of a beeper suggested that "he knew he was in an illegal business." The court similarly denied Sanchez's Rule 29 motion with respect to Counts 2 through 10.
Then at the charge conference, the parties and the court again presented their conflicting positions on the meaning of willfulness under § 924(a)(1)(D). The defense argued that
it's not sufficient if the government simply proves that this man knew of the generally unlawful nature of his conduct. The government must prove above and beyond that that he knew about the ...