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United States v. Toner

decided: February 14, 1984.


Appeal on numerous grounds from judgments of conviction entered by the United States District Court for the Eastern District of New York, Platt, J., for violations of firearms statutes.

Oakes and Meskill, Circuit Judges, and Neaher, District Judge.*fn*

Author: Oakes

OAKES, Circuit Judge:

Colm Murphy and Vincent Toner appeal from convictions arising out of Murphy's purchase from an undercover FBI agent of twenty M-16 machine guns which the appellants planned to transport to Northern Ireland. Both Murphy and Toner were indicted for and convicted of three rather technical firearms offenses. Count One charged that the men received and possessed the machine guns unlawfully in that no written application was on file with the Secretary of the Treasury when the guns were transferred to them.*fn1 Count Two charged Murphy and Toner with receipt and possession of guns not registered to either of them in the National Firearms Registration and Transfer Record.*fn2 The third count charged the two men with conspiring to commit the foregoing offenses; the overt acts alleged were Murphy's purchase of the guns on July 21, 1982, and Toner's loading of them into the car that he was driving at that time. Murphy, who is a citizen of Northern Ireland, was also convicted of a fourth charge, that of being an illegal alien who received and possessed guns.*fn3

Trial was by jury in the United States District Court for the Eastern District of New York, Thomas J. Platt, Judge. Murphy received a sentence of concurrent terms of five years imprisonment on the first three charges, a concurrent term of two years imprisonment on the alien charge, and a fine of $10,000. Toner received a sentence of concurrent terms of 18 months imprisonment on his three charges and a fine of $7,500. In this shotgun type appeal, appellants, who are represented by separate counsel, raise a host of points which may be roughly grouped under eight headings. Finding none of them meritorious, we affirm.


In March, 1982, Colm Murphy was introduced to Sydney Kail, an FBI informant, at a Manhattan bar. Murphy told Kail that he was a member of the Irish National Liberation Army (INLA) interested in buying heavy military equipment. Murphy mentioned missiles, mortars and machine guns. Kail explained that he did not sell weapons, that he was only a middleman who would take Murphy to meet his "partner," a member of the Mafia who dealt in guns and arms. This "Mafia contact" was in fact Lindley DeVecchio, an FBI undercover agent with considerable experience in weapons.

On April 21, 1982, Murphy, Kail and DeVecchio met in the latter's FBI undercover car. A tape recorder was running. Murphy again stated his need to buy weapons, particularly heavy military equipment such as SAM-7 missiles or "something that is, has the capability of taking down ah a helicopter." When DeVecchio explained that he could not procure such items, the discussion turned to M-16 machine guns and Ingrams, which are small, hand held submachine guns. Murphy explained that he was interested in developing a weapons "connection" on the East Coast and stated that if he got a "decent deal" he would "be back with $180,000." The M-16s were for use "on the streets of Belfast . . . ."

Murphy and Agent DeVecchio met for the second time on June 2, 1983. Again, the meeting was in the agent's car, and again, a tape recorder was running as Murphy talked about his past purchases of arms and his need to do a "good faith" deal with DeVecchio. Murphy indicated an interest in a variety of weapons, but emphasized his need for M-16s. At a third meeting, about a month later, Murphy said "I need a deal and I guarantee ya I'll take everything you have once I can see the deal."

It was during this third meeting that Murphy and DeVecchio struck a deal. Murphy would buy twenty M-16 machine guns for $11,000. Murphy suggested Astoria, Queens, as the place where the actual delivery would occur, and traveler's checks as the payment medium. He indicated that he would have another person with him driving the car. Murphy and DeVecchio then drove to Astoria to choose the location, Murphy on the way stating to DeVecchio that he was an illegal alien. Murphy chose a MacDonald's restaurant as the site for the transaction. The evening of July 21, 1982 was set for the fourth meeting when delivery would be made.

On July 21, 1982, DeVecchio met Murphy at the Queens MacDonald's. Over a dozen FBI agents were in surveillance, one of whom, Special Agent Bruce Stephens, was posing as a Mafia body guard. The twenty machine guns were packed in boxes under the hatch trunk of DeVecchio's car. Before the deal could be consummated, however, Murphy saw what he thought were police in the vicinity,*fn4 and he moved the deal to a White Castle restaurant a few blocks away on Queens Boulevard. When DeVecchio and Stephens arrived there, Murphy introduced Toner as the man he had brought along to inspect the guns, and Toner then went to DeVecchio's car to count, inspect and load the M-16s into the car he had borrowed for the evening. Toner also took a package from the wheel well of his car from which Murphy extracted several thousand dollars in cash and traveler's checks. Murphy then paid DeVecchio, and Toner drove off.

Murphy was arrested as he signed over his last travelers' check. Toner was arrested after he had driven half a block with the guns inside his car.



Neither Murphy nor Toner argues overall insufficiency of the evidence. Murphy does maintain that the government failed to prove in connection with Count One that no written application was on file with the Secretary of the Treasury as required by 26 U.S.C. §§ 5812 and 5841.*fn5 Both Murphy and Toner claim they were denied a fair trial. Murphy's fair trial argument specifically points to the court's (1) denial of his alleged right to call one Michael Hanratty as a witness, (2) imposition of "unconstitutional" restriction on Murphy's cross-examination of the informant Kail and Agent DeVecchio, (3) denial of Murphy's alleged right to assert a so-called "post traumatic stress disorder" defense and (4) exclusion of evidence pertaining to Murphy's "susceptibility" to the FBI initiated inducements to purchase arms for the INLA cause. Toner's unfair trial claim is in two parts, one specific and one general. His specific allegation is that the court's charge to the jury on the key element of possession deprived him of a fair trial and an impartial jury. The general claim is that the trial court, in action and words, denied both appellants a fair trial by the appearance of partiality; in pressing this argument, some of the points urged by Murphy are relied upon.

Both Murphy and Toner also argue that the court's charge on entrapment was improper. Murphy maintains that it did not refer to his knowledge that the guns were unregistered, that there was no transfer application on file or even that there was a registration requirement, while Toner complains that the court improperly declined to charge entrapment as to him.

Both appellants allege violations of due process. Murphy argues the impropriety of the government enticing appellants to commit regulatory offenses; Toner refers to "excessive governmental inducement." Murphy also argues that he never had possession of the firearms, and that he is therefore entitled to dismissal of all the substantive counts, though not of the conspiracy count. He also argues that 18 U.S.C. App. § 1202(a)(5), the offense charged in Count Four, unconstitutionally contravenes the equal protection rights of illegal aliens. Toner argues that the failure to grant him a severance was reversible error in light of the highly prejudicial tape recordings of Murphy's conversations with DeVecchio. He also argues that the statutory exclusion of aliens from the jury venire is violative of both his and Murphy's Sixth and Fifth Amendment rights. We will discuss each of these contentions in the order set forth above.

I. Proof Regarding Count I.

Murphy argues that the government failed to meet its burden of proof on Count One. He claims that the government did not prove beyond a reasonable doubt that no written application was on file with the Secretary of the Treasury as required by 26 U.S.C. § 5812.*fn6 Murphy concedes, of course, that the government obtained a certificate from the Custodian of the National Firearms Registration and Transfer Record that "after diligent search of said record, [she] found no record that [any firearm] is registered to or has been acquired by lawful making, transfer or importation by Colm Murphy also known as Michael Colm Murphy," but he argues that this type of certification will not suffice to establish that there is no pending application on file with the Secretary of the Treasury. Rather, all that it establishes is that there is no approved application on file with the Secretary of Treasury. United States v. Stout, 667 F.2d 1347, 1352 (11th Cir. 1982)("firearms registry does not constitute, as required by Fed. R. Evid. 803(10), a 'regularly made and preserved record' of . . . pending applications for firearm transactions . . .").

Appellants are correct that the Custodian of Records cannot know whether a pending transfer application is on file. However, the charges underlying Count One require that people not receive firearms without a lawful transfer, and it is perfectly clear that a lawful transfer cannot occur unless an approved application is on file. The statute is unambiguous. Therefore, the Custodian's inability to account for pending applications is irrelevant in this case. Unlike Stout, the certificates here do not specify that Murphy and Toner failed to file an application, but only that the guns were not obtained by lawful transfer. This was made clear in ...

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