*1 STATES, Appellee, UNITED
Lesly PHANPHIL, Basic, Airman Force, Appellant. Air
U.S.
No. 01-0620.
Crim.App. No. 33484. Appeals
U.S. Court of
the Armed Forces.
Argued Dec. 2001.
Decided June 2002. *2 Appeals affirmed.
Court of Criminal granted of the follow- review We ing issues: APPELLANT’S I. WHETHER CRAWFORD, C.J., opinion delivered III PLEA TO CHARGE GUILTY GIERKE, EFFRON, BECAUSE IMPROVIDENT Court, WAS in which FAILED THE MILITARY JUDGE SULLIVAN, S.J., JJ., BAKER, joined. and THE FACTUAL TO DEVELOP concurring in result. opinion filed an FOR MATERIALITY PREDICATE Shelly Appellant: Captain Schools For W. THE OF THE LAWFULNESS OF Beverly B. Colonel (argued); Lieutenant SALE. Timothy W. and Lieutenant Colonel Knott THE MILITARY WHETHER II. (on brief). Murphy THE TO JUDGE’S INSTRUCTION Major I. Romer Appellee: Linette For THE MEMBERS REGARDING Dattilo, Anthony P. Lieu- (argued); Colonel MATERIALITY ELEMENT OF Smith, Major B. and tenant Colonel William ERROR. PLAIN WAS brief). (on Sigmon B. Lance pur- identity true hold that We to the lawful- of firearms is material chaser Judge delivered Chief CRAWFORD further hold the sale of firearms. We ness of opinion of Court. adequate military judged elicited an that the pleas, appellant his accordance with predicate support ad- to factual conspiring two sol- convicted of purchas- of the trae that the mission (A1C) (Airman and diers First Class Mathieu if there er also hold that was material. We Bros) (SPC) wife, Dorothy Specialist and his failing the court an error instruct 922(a)(1) Phanphil, to violate 18 USC materiality, it was harmless be- members ship- wrongfully engaging the business of yond a reasonable doubt. in for- ping, transporting, by purchasing eign or interstate commerce FACTS another, gen- violating a
weapons lawful for gov- regulation by improper use of eral his Basie a married Airman card, violating ernment travel and at who was stationed with financial debts 922(a)(6) by wrongfully making a false Base, A1C Peterson Air Force Colorado. likely or intended to de- written statement Mathieu, appellant, sug- worked with who to a fact ceive firearms dealer money at gested could make appellant of the sale of guns per gun purchasing rate of $50.00 81, 92, and violation Articles military. member of another Code of Justice Uniform 11, 1997, September A1C Mathieu (UCMJ), 881, 892, On §§ and 934. arranged appellant work and called at pleas, his was con- Contrary appellant wife, appellant, his and Bros meet with SPC composed general court-martial victed Appellant, at video store. a Blockbuster of an addi- of officer and enlisted members uniform, group and met with while still specification conspiring tional with A1C buying weapons making a $50 and discussed Mathieu, Bros, and to violate 18 SPC his wife want profit per weapon. SPC Bros by knowingly a false fear guns himself for likely to a firearms written statement deceive suspicions of the Bureau of would raise the respect to a material to the dealer with (ATF), Tobacco, Alcohol, and and Firearms firearms, in the sale of violation gun possible he arrest for his would face sen- supra. of Article The members appellant He smuggling into Haiti. told discharge, appellant tenced a dishonorable buy weapons, appellant in order to these years, and total forfei- confinement three military identification card authority needed his convening approved tures. The appel- going military After adjudged, the Air Force orders. the sentence as items, quarters get they lant’s these inquiry providence went into the Sports purchases. to Gart to make the appellant’s plea of guilty making a false dealer, ap- written statement to a firearms picked SPC out the he want- form, pellant testified that on the he he said buy, ed left the store with A1C was the actual firearms. He Mathieu, parking Ap- went lot. *3 admitted this false statement violated 18 pellant enough money did have and went 922(a)(6). pleading to addition get money pay to back out more to for the offense, guilty appel- aforementioned weapons. time, At this A1C Mathieu went pleaded guilty conspiracy lant also to a money back and counted out the still Mathieu, Bros, A1C SPC wife enough. They not have returned to the 922(a)(1) to violate 18 wrongfully car, waiting, where Bros SPC and ob- engaging in shipping, the business trans- money They tained more from him. then porting, or firearms in or appellant returned the store and filled out by purchasing weapons interstate commerce application purchase firearms, fill- another who was not a or licensed dealer ing form, in ATF Form appel- 4473. On that However, plea manufacturer. it is his of not lant certified that he conspiracy a people with the same knowing full well fire- that the 922(a)(6) same date to violate going arms would be to SPC Bros. The knowingly making a form false written statement states:
intended to deceive a licensed firearm dealer subject litigation. is the of this IMPORTANT NOTICES military judge’s providence in- 1. WARNING—The Federal quiry appellant about the unlawfulness require filling laws that the individual Sports, his false statement to Gart the follow- buying out this form be must the fire- ing colloquy place: took arm for himself or herself gift. or as a apologize, Honor, TC I Your one there’s Any buying individual who is not thing, that was that the state- firearm for himself or herself as material, had be and I real- gift, form, completes but who vio- you, ize that’s decision for Example: lates the law. Mr. Smith but— n court, make, asks Mr. purchase Jones to a firearm gives for Mr. Mr. Smith. Smith Mr. IMJ understand. money Jones the for the If firearm. TC It’s one form, elements.
Mr. Jones fills out this he will However, violate the law. if Mr. Jones Phanphil, MJ Airman when it talks buys a money firearm with his own specification, about—in the it talks give to birthday pres- Mr. Smith as a about the term with to a ent, may lawfully Mr. complete Jones “fact material” to the lawfulness A knowingly this form. licensee who the sale. What that term “fact ma- delivers a firearm to an individual who fact, important terial” means is an significant so, am buying is not fact. And what I the firearm himself or asking you guess you I is do think it gift herself violates the law important would have been an maintaining a false ATFF 4473. Sports for Gart to know who the Subsequent purchase to this trans- actual real was? pistols Bros, appellant fer of five to SPC Yes, ACC sir. Bros, discovered that SPC who like Haitian, and A1C Mathieu is a native So, you MJ with me that sending weapons these to Haiti. that information is a fact agreed more on behalf very important fact that Gart intercepted by Bros SPC but was law Sports in their line of business need- agents prior completing enforcement ed to know? second transaction. Yes, ACC sir. fact material tor with disposition sale or other you understand that Because if—do MJ under the firearm or ammunition of such they really selling to—if they if were chapter____ provisions of this they selling were thought you guns, in for when came of 18 USC Our examination have they probably wouldn’t sold plain and Con- begins text statute’s you. youDo understand them to passing the stat- legislative intent in gress’s that? ute. Yes, sir. ACC portion of principle purposes [this and Safe Crime Control Omnibus DISCUSSION aid in 1968] Act of are to Streets *4 I can in dis Issue be subdivided two of possible keep firearms out the hands (1) military judge the issues: whether tinct possess legally not entitled to of those predicate adequate an factual for the elicited background, age, criminal them because of (2) plea, appellant attempted to and whether incompetency, and to assist law enforce- or plead guilty not to conduct does violate in the States and their authorities 922(a). § sub-issue is 18 USC The second combating increasing the subdivisions in question impression of first for this Court. in prevalence of crime the United States. in or Appellant provided false information
der to obtain a (SPC Bros) who weapon may have for another individual been eligible [*] [*] right. purchase a firearm in his own There existing Federal controls over inter- question approaches at least of are two the in foreign state commerce and a false is material to the whether statement are sufficient to enable the States to not the sale. Several courts take of effectively cope with the firearms traffic § position the is violated through exer- within their own borders the by pur purchase” a “straw when the “actual police power. Only through cise of their eligible is the chaser” otherwise adequate over interstate Federal control See, Polk, weapon. e.g., United firearms, in and commerce Cir.1997)(“Thus, if the true in persons engaging the business over all purchaser lawfully purchase a can firearm manufacturing, or in importing, (under directly, liability a ‘straw with, problem can this be dealt attach.”). theory) purchase’ A does not sec regulation and effective and local State approach, adopt, is the ond we possible. the firearms traffic be made the true is “fact” 90-1097, S.Rep. reprinted at No. sale, regard material to the lawfulness of the at 2113-14. in 1968 U.S.C.C.A.N. purchaser. eligibility of the true less pro- Additionally, legislative history the provides as follows: vides: (a) It shall be unlawful— 922(a)(6) prohibits paragraph [§ ]
This
making of
statements or the use of
false
(both
any
knowingly) by
practice
deceitful
(6)
any person
person
acquisition
in
in
connection with
connection with
any
acquisition
attempted acquisition
attempted acquisition
or
of a firearm from
or
prohibition,
im-
invoke the
firearm or ammunition from a licensed
licensee. To
manufacturer,
practice
porter,
licensed
licensed
false
or deceitful
must
dealer,
collector,
sale
knowingly
or
be material
the lawfulness
licensed
any
provisions
make
fictitious oral written
the firearm under the
requirement
to furnish
title. The
that one who ob-
statement or
or exhibit
false, fictitious, misrepresented
from,
prop-
must
identifi-
tains a
licensee
firearm
cation,
likely
identify
in
erly
such
is inherent
intended or
to deceive
himself
manufacturer, dealer,
strengthened
importer,
prohibition.
or collec-
This is
provisions
recordkeeping
tial
questioning
sections
basis’
law and fact for
922(b)(5)
923(d)
Prater,
plea.”
as contained
(CMA 1991).
By falsely
title.
answering
8a
ATF Form
(em-
Id. at
at 2203
U.S.C.C.A.N.
Department
Treasury,
misled the
added).
phasis
responsible
agency
recordkeeping
recordkeeping provisions,
including
knowing
to whom which
are sold.
922(a)(6),
“place
emphasis
more
on the Thus,
buyer’s identity
the actual
is as much a
recordkeeping responsibilities of licensees material fact related
by requiring
[sellers]
that the licensee record
buyer’s
eligibility
sale as
to own or
identifying
information
him
submitted to
possess
By
weapon.
signing
ATF Form
purchaser____”
Id.
at
1968 4473, appellant acknowledged
U.S.C.C.A.N. at 2168. “[This Act] would also
punishable
false statement thereon was
as a
pertinent
authorize
release
information
felony.
buyer’s identity
The actual
is a rec
records,
from
obtained
the licensee’s
to State
required
kept
ord
to be
authorities,
and local
to assist them law-
922(b)(5).
representa
False statements or
enforcement activities.” Id.
tions that result
fictitious identifications of
prohibited.
the real
are
Id. at
recordkeeping provisions
These
are de-
*5
924(a)(1)(A);
§
generally
see
United States
signed to assist law enforcement
also
Nelson,
(11th Cir.2000);
v.
L.Ed.2d
concurring
violated when
element).
military judge effectively removed this ele
error
less
where no real contest on
underlying
simply
dispute
offense from the There
was no
at this trial on
members’ consideration.
underlying
this element of the
offense.
1970).
Military
contemplates
law
alleged
members will
members must find that
be instructed on
the elements
substantive
conspirators agreed to commit
offense
charged
offense which an accused is
with con
generally
defined
its essential elements. See
3-5-1,
spiring
para.
to commit. See
Yasbin,
(3rd