Appeal by the government from an order entered in the United States District Court for the Western District of New York, John T. Curtin, Judge, granting the defendant's motion for a judgment of acquittal, after a jury verdict of guilty, on the charge of using false identification in connection with the acquisition of a firearm. Appeal by the defendant from an order denying her motion for a new trial on the charge of bail jumping. On the government's appeal, the judgment of the district court is reversed; on the defendant's appeal, the judgment of the district court is affirmed.
Friendly, Gurfein and Meskill, Circuit Judges.
On August 29, 1974, Lani M. Brozyna entered King's Department Store in Buffalo, New York. She selected a shotgun and told a department manager that she wanted to buy it. The department manager asked her to fill out a "Firearms Transaction Record," as required by federal law, 27 C.F.R. § 178.124, and he asked to see some identification. Brozyna produced a New York State motor vehicle registration belonging to Mrs. Dorothy Bernys and filled out the form in that name. When the form was complete, Brozyna tried to pay for the gun with a Master Charge credit card, which also belonged to Mrs. Bernys. She was again asked for identification, and she displayed both the registration and Mrs. Bernys' Social Security card. She signed a Master Charge slip, but when, after a routine check with Master Charge, her use of the card was questioned, Brozyna picked up the Social Security card and registration and left, abandoning the credit card and the shotgun.
A criminal complaint was filed on September 9, 1974, in the Western District of New York, charging Brozyna with using false identification "in connection with the attempted acquisition of a firearm." 18 U.S.C. § 922(a)(6).*fn1 Two days later, she was arrested, arraigned and released on $2,500 bond. A preliminary hearing was set for September 25, 1974. On the 25th, Brozyna appeared with counsel, but the hearing was adjourned to November 8, 1974. Neither Brozyna nor counsel appeared at that time. The case was adjourned for a second time, and November 15, 1974, was set as a date for the hearing. An arrest warrant was issued after Brozyna failed to appear on November 15. She was arrested in California on February 27, 1975, and was returned to the Western District. On March 13, 1975, an indictment was filed charging Brozyna with bail jumping, 18 U.S.C. § 3150, and using false identification "in connection with the acquisition of a firearm." Although it was clear to all concerned that the sale had not been completed, the indictment, unlike the original complaint, did not use the words "attempted acquisition."
The evidence at trial was clear and virtually uncontradicted. Brozyna took the stand in her own defense. She admitted putting false information on the "Firearms Transaction Record" and offered no justification for having done so. She also admitted that when she left for California she knew she had another court appearance to make. By way of justification, she explained that her love for her boyfriend and his children had required her to accompany him when he fled to California in order to avoid a jail term. The jury convicted her on both counts.
During the trial Brozyna moved to dismiss the false identification count on the ground that, although the facts may have disclosed the use of false identification "in connection with the attempted acquisition of a firearm," the indictment charged the use of false identification "in connection with the acquisition of a firearm." The district court reserved decision on the motion at that time. The motion was renewed after the trial in the form of a motion for a directed verdict of acquittal. After the jury returned with its guilty verdict, the district court granted the motion. The court held that the phrase "in connection with the acquisition" was not broad enough to encompass an "attempted acquisition" and this, the court apparently believed, created a material variance between the indictment and the proof at trial. The court explained that, although the facts of this case would have justified the submission of an attempt theory to the jury under Fed. R. Crim. P. 31(c),*fn2 the failure of the government to request such a charge precluded him from treating the case as if one had been given. The government appeals from the court's order granting this motion.*fn3 We reverse.
The district court erred in concluding that 18 U.S.C. § 922(a)(6) creates two separate crimes, "one 'in connection with the acquisition' and the other in connection with the 'attempted acquisition,'" of a firearm. The court appears to have been led into error by the language of the statute itself: the phrase "in connection with the acquisition or attempted acquisition of any firearm" invites analysis in terms of the law of attempt. This invitation is delusory. The statute creates a single offense, the gravamen of which is the use of deceit in order to obtain a firearm. As the Supreme Court explained in Huddleston v. United States, 415 U.S. 814, 824-25, 39 L. Ed. 2d 782, 94 S. Ct. 1262 (1974),
Section 922(a)(6) . . . was enacted as a means of providing adequate and truthful information about firearms transactions. Information drawn from records kept by dealers was a prime guarantee of the Act's effectiveness in keeping "these lethal weapons out of the hands of criminals, drug addicts, mentally disordered persons, juveniles, and other persons whose possession of them is too high a price in danger to us all to allow." 114 Cong. Rec. 13219 (1968) (remarks of Sen. Tydings). Thus, any false statement with respect to the eligibility of a person to obtain a firearm from a licensed dealer was made subject to a criminal penalty.
The phrase "in connection with the acquisition or attempted acquisition of any firearm" does not suggest an intent on the part of Congress to create separate offenses. Rather, it indicates that Congress deemed it to be immaterial whether the firearm was ultimately acquired. The legislative history contains no discussion of the meaning of the term "acquisition," id. at 826, but it is apparent that Congress decided to add "attempted acquisition" in order to close a potential loophole that might otherwise have been available to defendants such as Brozyna. Congress used both "acquisition" and "attempted acquisition" in order to treat them alike, not differently. This construction of the statute is bolstered by an examination of § 924 (a), which provides the penalty for violations of the deceit provisions of the Act. That section does not distinguish between, or even mention, cases where the weapon is acquired and those in which it is not; the penalty is the same in either situation. Thus, even aside from the implications of Rule 31 considered below, the trial court's instruction that the government needn't prove "that she actually acquired or came into possession of the firearm" was consistent with the statute, and the jury's guilty verdict was likewise consistent with the charge and with the proof offered at trial.
In order for a variance between an indictment and proof at trial to be fatal to the prosecution, it must "affect the substantial rights" of the accused. See Berger v. United States, 295 U.S. 78, 82, 79 L. Ed. 1314, 55 S. Ct. 629 (1935); United States v. Marin, 513 F.2d 974, 977 (2d Cir. 1975); United States v. D'Anna, 450 F.2d 1201, 1204 (2d Cir. 1971). A variance between an indictment that charges the use of false identification in connection with the acquisition of a firearm and proof at trial that false identification was used in connection with the attempted acquisition of a firearm does not "affect the substantial rights" of the accused because the distinction is unimportant for purposes of the statute.
Next we must consider whether the indictment here in question was sufficiently specific to fulfill its traditional purpose. Fed. R. Crim. P. 7(c) requires that an indictment "be a plain, concise and definite written statement of the essential facts constituting the offense charged." Although the federal courts long ago abandoned technical and formalized rules of criminal pleading, this degree of specificity in an indictment is still required. The basis for this requirement was explained in United States v. Silverman, 430 F.2d 106, 110 (2d Cir.), modified on other grounds, 439 F.2d 1198 (2d Cir. 1970), cert. denied, 402 U.S. 953, 91 S. Ct. 1619, 29 L. Ed. 2d 123 (1971):
This requirement performs three constitutionally required functions. It permits the accused "to be informed of the nature and cause of the accusation" as required by the Sixth Amendment. It prevents any person from being "subject for the same offence to be twice put in jeopardy of life or limb" as required by the Fifth Amendment. Finally, it preserves the protection given by the Fifth Amendment from being "held to ...