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United States v. Guarno

decided: May 13, 1987.

UNITED STATES OF AMERICA, APPELLEE,
v.
DENNIS J. GUARNO, DEFENDANT-APPELLANT



Appeal from a judgment of the United States District Court for the Northern District of New York (Thomas J. McAvoy, Judge), convicting appellant of six counts of violation of the federal firearms laws. Appellant challenges the admission of a confession contained in a cooperation agreement and of certain weapons, ammunition, and an ammunition clip.

Oakes, Cardamone, and Winter, Circuit Judges.

Author: Winter

WINTER, Circuit Judge:

Dennis J. Guarno appeals from his conviction in the Northern District of New York on three counts of possession of unregistered firearms in violation of 26 U.S.C. § 5861(d), two counts of receipt of firearms by a convicted felon in violation of 18 U.S.C. § 922(h), and one count of transferring a firearm without the approval of the Secretary of the Treasury in violation of 26 U.S.C. § 5861(e). Guarno challenges the admission at trial of a confession contained in a cooperation agreement he signed before his arrest and of certain weapons, ammunition, and an ammunition clip. We affirm.

BACKGROUND

On November 23, 1984, Guarno met Michael Andrello in the parking lot of a Holiday Inn in New Hartford, New York. During this meeting, Guarno gave Andrello a Beretta.22 caliber semi-automatic pistol and a suitable silencer. Unfortunately for Guarno, Andrello was a confidential informant for the Oneida County Violent Crime Task Force, and the meeting was thoroughly monitored by means of physical surveillance, audio and visual electronic recording, and still photography.

Three days later, Guarno was stopped while driving his car in Utica, New York, by two special agents of the federal Bureau of Alcohol, Tobacco and Firearms. They identified themselves to Guarno and asked to speak with him privately in a room at a local motel. Guarno agreed and followed the agents to the motel in his own car.

At the motel, the agents revealed to Guarno the very extensive evidence of his meeting with Andrello and explained that he could face imprisonment for as long as fifteen years as a result of the transaction. They promised that Guarno would be allowed to plead guilty to a lesser charge if he agreed to assist in an investigation of individuals suspected of violating the federal firearms laws.

The agents informed Guarno during this discussion that he was not under arrest and that he was free to consult a lawyer or to leave the motel room at any time. They also stated, however, that they would no longer be interested in his cooperation if he chose to discuss the matter with a lawyer. At no time during the meeting did Guarno express any desire to leave or to obtain legal counsel.

After considering the offer for about ten minutes, Guarno agreed to assist in the investigation. He then signed a cooperation agreement in which he admitted, inter alia, to having transferred the Beretta pistol and silencer to Andrello.

In response to questioning, Guarno indicated that he had weapons in his car and agreed to turn them over to the agents. These included a Charter Arms.22 caliber sawed-off rifle and suitable silencer attached to the rifle, and a Ruger.22 caliber semi-automatic pistol. The agents informed Guarno that he would not face additional charges as a result of his possession of these weapons so long as he honored the cooperation agreement.

After meeting with the agents, Guarno sought advice from an attorney. His counsel then informed the government that Guarno had changed his mind and would no longer assist in the investigation. Guarno was subsequently indicted on six counts of violation of the federal firearms laws based on his transfer of the Beretta pistol, and his possession of the weapons surrendered at the motel. Guarno was arrested on January 16, 1986. A search of the car he was driving at the time revealed ammunition and an ammunition clip suitable for the Charter Arms rifle.

The district court denied Guarno's motion to suppress, 642 F. Supp. 139, inter alia, the confession in the cooperation agreement, the firearms surrendered at the motel, and the ammunition clip and ammunition seized from his car when he was arrested. After a two-day non-jury trial, Guarno was found guilty on all six counts of the ...


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