Appeals Court Shoots Down Gun Sale Conviction

I found this one especially interesting because I know Ted Fries and I did not know anything about this case.  Hadn't even heard that he had been arrested.    Never bought a gun from him but I've met him and we have one or two mutual friends.  I would not have expected him to forget to ask about whether the guy had a license or to just assume that the buyer had dual residency in both States.  Talk about a close call!

I'm posting the whole article because I can't get the link to work.

Panel Calls Argument 'Absurd,' ... Shoots Down Gun Sale Conviction

http://at.law.com/dailyreportapp

Alyson M. Palmer

Daily Report

2013-08-20 ... 00:00:08.0

An Atlanta-based federal appeals court panel has tossed an illegal firearms
sale conviction, rapping prosecutors for failing to ask a witness "a simple
question" at trial and making an "absurd" argument on appeal.

At issue before the U.S. Court of Appeals for the Eleventh Circuit was a
Tallahassee, Fla., trial of a man caught in an undercover sting at a gun
show. The defendant was convicted of selling a firearm to an out-of-state
resident without having a federal license to deal in firearms.

The appeals court said the government needed to prove that the undercover
agent to whom the defendant made the sale also didn't have a license.

According to the Aug. 6 ruling, defendant Theodore Stewart Fries sold a
Kimber handgun to Bureau of Alcohol, Tobacco and Firearms Special Agent
William Lee Visnovske at an April 2010 gun show in Tallahassee. Visnovske
had approached Fries at an earlier show and identified himself as a
"Georgia boy" named "Peebo," adding that he came to Gainesville, Fla.,
about once a month to visit his brother, who was a student at the
University of Florida. Judge Charles Wilson of the Eleventh Circuit wrote
that at the time of the sale, Fries did not ask Visnovske to produce
identification or prove Visnovske's licensure status.

The statute that apparently tripped up the parties and the trial judge, 18
U.S.C. § 922(a)(5), makes it unlawful, with some exceptions, "for any
person (other than a licensed importer, licensed manufacturer, licensed
dealer, or licensed collector) to transfer, sell, trade, give, transport,
or deliver any firearm to any person (other than a licensed importer,
licensed manufacturer, licensed dealer, or licensed collector) who the
transferor knows or has reasonable cause to believe does not reside in ...
the State in which the transferor resides."

At the July 2011 trial in the case, Fries testified that, at the time of
the gun show, he thought the sale was legal, saying he thought Visnovske
qualified for dual residency, given his given his regular trips to Florida.
But a jury convicted Fries of violating that law. U.S. District Judge
Robert Hinkle sentenced Fries to two years' probation.

At trial, Assistant U.S. Attorney Jason Coody represented the government,
and Federal Public Defender Randolph Murrell represented Fries.

When Fries wanted to pursue an appeal, Assistant Federal Public Defender
Chet Kaufman filed with the Eleventh Circuit a so-called Anders brief,
named after the 1967 U.S. Supreme Court decision Anders v. California, 386
U.S. 728. It says an appointed defense attorney who finds a client's appeal
wholly frivolous should so advise the court.

But the Eleventh Circuit, in an order signed by Judge William Pryor Jr.,
directed Kaufman to examine whether the trial judge had effectively
relieved the government of proving an element of the crime. At issue was
the trial judge's instruction to jurors on § 922(a)(5). The trial judge
told the jurors that a sale to a licensed dealer is an "exception" to the
bar on selling to out-of-state residents. He said that "exception" was "not
involved" in Fries' case.

Fries hadn't objected to that instruction or asked the trial judge to
direct a verdict of acquittal. But, in keeping with the Eleventh Circuit's
directive, Kaufman filed a brief arguing that Fries' conviction should be
reversed because the jury instruction was erroneous and because there was
insufficient evidence presented at trial to show that Visnovkse did not
have a federal firearms license when Fries sold him the firearm in
question.

 Prosecutors argued in response—half-heartedly, as Wilson described it in
his opinion for the appellate panel—that "it can be argued" that the
government doesn't have to prove that both parties to a firearms
transaction lack a federal firearms license in order to obtain a conviction
under the statute.

Joined by Eleventh Circuit Chief Judge Edward Carnes and visiting Senior
Tenth Circuit Judge David Ebel, Wilson called the government's position an
"absurd" reading of the law. Wilson added that the language of the
indictment indicates the government reads the statute the same way he does.

Prosecutors argued that the jury still could have found that the government
met its burden of proof based on evidence that Fries thought he was selling
to an unlicensed buyer. For instance, the government pointed to remarks in
a recorded conversation between Fries and Visnovske to the effect that
Visnovske was a farmer for whom firearms was a hobby, not a business. But
Wilson said the panel was unpersuaded that Fries' subjective belief bore on
the question of whether Visnovske was actually unlicensed at the time of
the sale.

The government also argued that any error in not submitting evidence of
Visnovske's licensure status was harmless because, had Fries objected at
trial, the government could have proven the agent was unlicensed. But
Wilson said the appeals court could consider only the factual record before
it.

"It is no answer to say that the particular element at issue here—the
licensure status of the transferee for purposes of § 922(a)(5)—is
unimportant or somehow a technicality: our charge as arbiters of the law
does not turn upon the potential for intrigue presented by the particular
plot or cast of characters of a given case," wrote Wilson.

Carnes added a brief concurrence, noting that arguably Fries' failure to
object to the portion of the jury instruction saying transferring to a
licensed dealer is an exception to the criminal statute not involved in the
case means he stipulated that Visnovske wasn't a licensed dealer. But he
said the government hadn't argued that point to the appeals court, at least
as to the sufficiency of the evidence issue.

 Carnes added that, given the trial judge didn't go over proposed jury
instructions with the lawyers until after Visnovske testified, it could not
be said that Fries had lulled the government into failing to ask Visnovske
if he were a licensed dealer.

"Fries did not sucker punch the government," wrote Carnes. "Instead, it
knocked itself out of a valid conviction by not asking its witness a single
question the importance of which is obvious from the indictment's
allegation that Fries had transferred the firearm 'to a person not being a
licensed importer, manufacturer, dealer, and collector of firearms.' It is
not asking too much to expect a prosecutor, before a trial ends, to look at
the indictment to ensure that all of the elements alleged in it have been
proven."

Explaining his decision to declare his client's appeal frivolous, Kaufman
told the Daily Report, "Everybody in the case focused on one thing, and
that's whether the buyer of the firearm might have had dual residency. So
the judge wrote the jury instructions based on that and missed the element,
and the parties did the same thing."

Kaufman said that, as long as the government does not seek further
appellate review, his client cannot be retried.

"He's done," Kaufman said.

Robert Davies, the appellate chief for the U.S. attorney's office in the
Northern District of Florida, acknowledged the government had made a
mistake. "It was just a unique situation," Davies said, "and we felt, given
the instruction, that we had an argument that the district court should
still be affirmed."

"Given the totality of everything, we certainly view [the appeals court]'s
opinion as reasonable," he added.

Davies said the ruling should not pose problems for future prosecutions, as
ATF agents usually don't have federal firearms licenses. "It's not going to
be a problem in the future," said Davies. "All you have to do is ask the
question" to prove the agents aren't licensed.

 The case is United States v. Fries, No. 11-15724.