Motion To Vacate Felony Conviction

 

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO UNITED STATES OF AMERICA PLAINTIFF,  VS. 

RICK  REESE, TERRI  TERRI REESE, AND  AND RYIN REESE DEFENDANTS.

§ § § § § § § § § § §

NO. 2:11-CR-2294-RB

DEFENDANTS’ JOINT MOTION TO VACATE FELONY CONVICTION, OR IN THE ALTERNATIVE, MOTION FOR VARIANCE  TO THE HONORABLE JUDGE OF SAID COURT: COME NOW, Defendants RICK   REESE,   TERRI  REESE,   AND  RYIN  REESE,  by and through court-appointed counsel, and file their Joint Motion to Vacate

Felony Conviction, or in the alternative, Motion for Variance, and would respectfully show the Court as follows: I. 

Introduction

On August 1, 2012, the jury returned a guilty verdict on Counts 7 and 8 against Ryin Reese, on Count 9 against Rick Reese, and on Count 10 against Terri Reese, finding each  with having aided and abetted a violation of 18 U.S.C. §  924(a)(1)(A),  having “executed an  ATF Form, Firearms Transaction Record, stating that the named purchaser was the actual purchaser of the firearm(s) listed, when in fact the Defendant knew the named purchaser  was purchasing the firearm(s) on behalf of another.” [Doc. 353] 18 U.S.C. § 924(a)(1)(A) reads, in pertinent part, as follows: Except as otherwise provided in this subsection …  whoever (A) knowingly makes any false statement or representation with respect to

the information required by this chapter to be kept in the records of a

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person licensed under this chapter … shall be fined under this title, imprisoned not more than five years, or both. Id. (Emphasis added).  added).  However, 18 U.S.C. § 924(a)(3) provides that: [a]ny licensed dealer  … who knowingly —(A) makes any false statement or representation with respect to the information required by the provisions of this chapter is to be kept in the records of a person licensed under this chapter … shall be fined under this title, imprisoned not more than one year, or both.”

Id. (Emphasis Id. (Emphasis added). Both subsection (a)(1) and subsection (a)(3) make it a crime to knowingly make the same false statement. The only difference between the two subsections is that subsection (a)(1) extends the prohibition to “whoever,” and subsection (a)(3) applies only to false statements or representations made by a licensed dealer. According to the plain language of the statute, subsection (a)(3) carves out an exception to (a)(1) making the same act, when committed by a licensed dealer, a misdemeanor. For these reasons, the Reeses respectfully submit their felony convictions should be vacated and they should be punished under the misdemeanor provisions of 18 U.S.C. §  924(a)(3). II. 

 Analysis

In United States v. Wegg , a case with facts very similar to the one at bar, the defendant  was sentenced sen tenced as a s a misdemeanant, not a felon. See Wegg , 919 F. Supp. 898 (E.D. Va. 1996). In Wegg , the defendant, who held a Federal Firearm License (FFL), had been found guilty of aiding and abetting the making of a false statement in violation 18 U.S.C. §§   2 and 924(a)(1)(A). Id . at 899. 899. After the verdict, the district court “raised the prospect that the defendant’s acts might not be punishable as felonies but rather misdemeanors[,]” and “ordered the parties to brief the subject prior to the preparation of the presentence report.” Id . at 901. In response to the briefing, the district court concluded that “[a] close analysis of 2

 

the statute and cases requires this Court to hold that licensed dealers cannot be prosecuted as principals  under   under the felony provisions for record keeping violations such as defendant’s.” Id . (emphasis added).  The government, however, argued that the licensed dealer could be prosecuted as an aider and abettor of another who could be prosecuted under the felony provision, and “the defendant ‘just so happened’ to be a licensed dealer, which should not shield him from felony liability.” Id . On the basis of case law and legislative history, the district court rejected the government argument, asserting that both “show[] that the statute was amended in 1986 to reduce licensed dealers’ record keeping violations to misdemeanors [and that] accomplice … liability should not be imposed under the felony provision where such would defeat the clear purposed of the 1986 amendments.” Id .  With respect to the statutory language, the district court observed that “straw purchases are often prosecuted under 18 U.S.C. §  924(a)(1)(A),  separate from any provision under §  922.”  Id . at 902. After quoting §  924(a)(1)(A) verbatim, the court asserted that “[a] misrepresentation as to whom the intended transferee actually is by the straw purchaser, the classic straw purchase, falls within this language.” Id . (Emphasis added). The court then observed, “Section 924 treats licensed dealers who do the same exact thing, however, differently[,] Section 924(a)(3) [being] one of the exceptions to the general provision of Section 924(a)(1)” and “provid[ing] only for a misdemeanor penalty.” Id . at 902-903. The court then concluded: It is axiomatic that where a statute describes an offense generally and attributes felony punishment to all violators except for an excepted group  who may only receive misdemeanor punishment, those in the excepted group may only be prosecuted for the misdemeanor. Under a literal reading of §  924,  then, when record keeping offenses concerning their own records are at issue, licensed dealers may only be prosecuted for a misdemeanor.

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Id . at 903.  Adding further emphasis to its conclusion that it has reached this result because of the statutory language constraints, the Court stated further:  The government cannot avoid the direct application of §  924(a)(3) by attempting to use a different provision in the same statute to punish the same behavior. While straw purchasers and intended purchasers of firearms who engage in the straw purchase may be liable for felony convictions, licensed dealers engaged in the same straw purchase may only be guilty of a misdemeanor. Why else would Congress have had nearly identical language under §  924(a)(1)(A) and (a)(3)(A)? Although such a distinction may seem unfair or illogical and counter-productive, this Court has previously recognized this distinction. Id .  Turning to legislative history, the court noted that “[t]he Percival Court proceeded to address the legislative history of §  924(a)(3), and stated that it was enacted as part of the Firearm Owners Protection Act [FOPA] …, which amended the Gun Control Act of 1986.” Id . at 904. In Percival , the government argued “that the legislative history … only referenced section 922(m),” without any reference to the record keeping requirement of section 922(b)(5) which was at issue in that case. Id .

Therefore, the government in Percival  

maintained that the felony provision of section 924(a)(1)(A) 924(a)(1)(A) applied. The defendant in Percival   countered, “point[ing] out that the Judiciary Committee report and debates with respect to [FOPA], were replete with references to the fact that penalties for record keeping  violations, in 922(b)(5) and 922(m), were being reduced to misdemeanors.” Id . Searching the legislative history for itself, the Wegg   Court concluded that the government’s narrow reading of the legislative history was not supported by the record. Id . at 904-905. On the other hand, the Wegg   Court was reluctant to conclude that the legislative history supported the proposition that all dealer-related record offenses had been reduced to misdemeanors and noted, “[l]ooking only at § 924, it is clear from the statutory language that

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licensed dealers involved in the same conduct are to be treated differently from other individuals in the very same transaction.” Id . at 905. Still, the court acknowledged that neither the statute nor the legislative history addressed specifically the issue of accomplice liability. To answer this question, the court turned to “general exceptions to accomplice liability exist[ing] under common law.” Id . at 907. Drawing on the exception that “one cannot be an accomplice if one’s conduct is ‘inevitably incident’ to the commission of the offense,” the court noted that “the licensed dealer’s participation in the sale is ‘inevitably incident’ to the straw purchase whether or not he has the knowledge that the sale is illegal.” Id . Thus, the court explained: explained:  A straw purchase could not occur but for the involvement of the dealer, much like adultery or statutory rape could not occur without the involvement of the “partner” or the under-age female. Furthermore, just as the criminal law may treat the customer of a prostitute differently from the prostitute by having a separate statute or an adulterer different from his or her “partner,” the present statute expressly treats sellers of guns different from purchasers. Id . For all of these reasons, the court held that “the defendant may only be sentenced under the misdemeanor provisions for the aiding and abetting counts for which he was convicted.” Id . The court sentenced the defendant accordingly. Id . at 910.  The Wegg   decision relied heavily on U.S. v. Percival , 727 F. Supp. 1015 (E.D. Va. 1990). Donald Percival was a licensed firearm dealer who was convicted of conspiracy to  violate the firearms laws of the United States, failure to record information pertaining to the sale of firearms by a licensed firearm dealer, and unlawful sale of firearms, in violation of 18 U.S.C. § 371, 922(b)(5) and 922(b)(3). Id . at 1016. 1016. After reviewing the plain language of the statutes and the legislative history, the Percival court ruled that Section 924(a)(3) set the punishment for all record-keeping offenses where the defendant was a licensed dealer or

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employee unless the record-keeping violation provided for a different punishment. Id.  Id.  at 1018. Likewise, the U.S. District Court for the Western District of North Carolina found a licensed dealer to have been improperly charged under the felony provision of Section 924(a) in a case where the dealer should have been charged under the misdemeanor Section 924(a)(3). See U.S. v. Dedrick, Dedrick, 665 F. Supp. 2d 535, 536-37 (W.D. N.C. 2009). The court reasoned as follows: “Reading the two statutory provisions together, it is clear that §  924(a)(3) is one of the exceptions to § 924(a)(1) that is explicitly contemplated by the text of that subsection.” Id . at 537. 537. The court went on to hold as follows: Since Congress has provided for different treatment of licensed firearms dealers in § 924(a)(3) and has specifically acknowledged in § 924(a)(1) that § 924(a)(1) does not apply when a more specific provision of subsection 924(a) “provides otherwise,” § 924(2(3) is the only provision of this subsection that can be used to charge licensed firearm dealers with the types of “knowing” record-keeping violations   contemplated by both § 924(a)(1) and § 924(a)(3). Id. (Emphasis added).  Just last year, the Eastern District of North Carolina followed Percival , Wegg ,  and Dedrick and held that prosecutors do not have the discretion to charge licensed dealers, including employees of such dealers, for knowingly making false statements on records that dealers are required to keep, but must prosecute such statements as misdemeanors under 924(a)(3). See U.S. v. Jackson , 2013 926 F. Supp.2d 691, 707, 711 (E.D. N.C. 2013). In In Jackson   Jackson , the government conceded that violations of § 924(a)(1)(A) subjected licensed dealers to misdemeanor punishment under § 924(a)(3). Id . at 707-08. The government argued that § 924(a)(3) only applied to statements of licensed dealers as dealers, not when they were acting in the capacity as purchasers. Id . at 708. The court rejected this argument, as well. Id .

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The government will likely argue that United States v. Rietzke , 279 F.3d 541 (7th  Cir.

2002), United States v. Choice , 201 F.3d 837 (6th Cir. 2000), United States v. Jarvouhey , 117 F.3d 440 (9th  Cir. 1997) 1997) should be followed. Defendants submit these cases are distinguishable. Consistent in these cases is the distinction between “willfully failing to keep records” and “aiding and abetting the knowingly false statements.”

Also, each of these these defendants was

charged with violating 18 U.S.C. § 922(b)(5) and/or 924(a)(1)(D). In Choice , the defendant entered a conditional plea to one count of “willful failure to make a record of a firearm sale in violation of 18 U.S.C. § 922(b)(5).” Choice   at 838. The court noted that the penalties for most violations of § 922 were contained in § 924, and that any licensed dealer who knowingly   “makes “makes any false statement or representation with respect to the information required …” is guilty of a misdemeanor. Id . (Emphasis added). The court contrasted the “willfully violates” language and noted such behavior is punishable as a felony. Id.  The court reviewed revi ewed the plain plai n language and held hel d that § 924(a)(3)(A) clearly clear ly applies only to licensed dealers who make false statements in connection with firearms sales, and not to those who fail to keep any records at all. Id . at 840 (citing  Jarvouhey , 117 F.3d at 442). Further, because § 924(a)(3)(A) refers only to knowing offenses, the court held Choice’s willful  violation was excluded from its scope. Id . (Emphasis added). Likewise, in  Jarvouhey , the defendant entered a conditional plea to selling semiautomatic weapons while willfully  failing   failing to keep records of the name, age, and residence of the purchaser, in violation of 18 U.S.C. § 922(b)(5). Jarvouhey 922(b)(5). Jarvouhey at 440 (Emphasis added). In his plea colloquy, Jarvouhey admitted that his failure to keep the required transaction records  was willful. Id . at 441. 441. The district court sentenced sentenced him pursuant to § 924(a)(1), 924(a)(1), reasoning that the provision applied to “whoever” willfully   violates a provision of chapter 18. Id . (Emphasis added). It further held that because he he pled guilty to a willful willful violation,  violation, not just a

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knowing one, and to failing to keep records, not to making false statements, he was subject to the felony provisions of § 924(a)(1). Id . at 442 (Emphasis added). Finally, in Rietzke , the defendant pleaded guilty to one count of willfully failing to keep records of the name, age and place of residence of the person to whom he sold a firearm in  violation of 18 U.S.C. §§ 922(b)(5) and 924(a)(1)(D). Rietzke  at   at 542. The court distinguished Wegg , noting that it focused on the similarity between § 924(a)(1)(A) and § 924(a)(3), both of  which punish a knowingly   false statement with respect to the require information of § 922(b)(5), and did not discuss willful behavior as required in § 924(a)(1)(D). Id . at 545 (Emphasis supplied). Because Rietzke was charged under § 924(a)(1)(D), 924(a)(1)(D), the prosecution  was required to prove that he was aware of the law and that he voluntarily and a nd intentionally  violated a known legal duty , an element it need not have proved had he been charged under § 924(a)(3). Id . The court noted the plain language of the statute clearly distinguishes between willful and knowing violations knowing  violations of the law and affirmed the district court’s imposition of felony punishment. Id . at 546 (Emphasis added). III. 

Conclusion

For all of these reasons, Defendants assert Rietzke ,  Choice   and  Jarvouhey   are distinguishable. Because Defendants were convicted of having aided and abetted a violation of 18 U.S.C. § 924(a)(1)(A), a “knowing” “knowing” violation rather than a “willful” violation, they urge the Court to follow the reasoning in Percival , Wegg , Dedrick and and Jackson   Jackson  by  by vacating the felony convictions and imposing punishment under § 924(a)(3). 924(a)(3). In the alternative, the Defendants request the Court grant a variance and impose sentence consistent with the misdemeanor provisions of § 924(a)(3).

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Respectfully submitted, /s/Cori A. Harbour-Valdez  /s/Cori  ___   CORI A. H ARBOUR -V  -V  ALDEZ   THE H ARBOUR L AW FIRM, P.C. P.O. Box 13268 El Paso, Texas 79913  Telephone: (915) 544-7600 Facsimile: (915) 975-8036 Email: [email protected]  Attorney for Rick Reese   /s/ Stephen E. Hosford   S TEPHEN E. HOSFORD  L AW OFFICES OF S TEPHEN E. HOSFORD, P.C. P.O. Box 420  Arrey, New Mexico 87930  Telephone: (575) 644-6068 Facsimile: (575) 267-3981  267-3981  Email: [email protected]  Attorney for Terri Terri Reese   /s/ Charles J. McElhinney   CHARLES J. MCELHINNEY    JOHNSON & MCELHINNEY , P.C. P.O. Box 413 Las Cruces, New Mexico 88004  Telephone: (575) 993-5963 Facsimile: (575) 993-5964 Email: [email protected]  Attorney for Ryin Ryin Reese  

CERTIFICATE OF SERVICE

I, Cori A. Harbour-Valdez, do certify that on September 8, 2014, I caused the instant document to be filed with the Clerk of the Court using the CM/ECF system that will serve all other parties entitled to service and notice. /s/Cori A. Harbour-Valdez  ___   /s/Cori Cori A. Harbour-Valdez 

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