Appeals from judgments entered in the United States District Court for the Eastern District of New York following a jury trial before Mark A. Costantino, Judge, convicting defendants of firearms offenses, in violation of, inter alia, 18 U.S.C. §§ 371, 922(a)(1), and 2, and 26 U.S.C. §§ 5861(d) and (j). Affirmed.
Before: MESKILL and KEARSE, Circuit Judges, and METZNER, District Judge.*fn*
Defendants William Carter, Richard Doyle, Anthony Host, and Randy Wolfgang appeal from judgments entered in the United States District Court for the Eastern District of New York, after a jury trial before Mark. A. Costantino, Judge, convicting them of conspiring to engage in the business of dealing in firearms without a license, in violation of 18 U.S.C. § 371 (1982); engaging in the business of dealing in firearms without a license, in violation of 18 U.S.C. §§ 922(a)(1), 924(a), and 2 (1982); possessing and transporting in interstate commerce a machine gun not registered to any of the defendants, in violation of 26 U.S.C. §§ 5861(d), (j), and 5871 (1982), and 18 U.S.C. § 2; and convicting Host of possessing, as a prior convicted felon, a machine gun and other firearms that had been transported in interstate commerce, in violation of 18 U.S.C. App. § 1202(a)(1) (1982), and 18 U.S.C. § 3147(1) (1982). Carter, Doyle, and Host were sentenced to concurrent terms of imprisonment of seven, four, and five years, respectively, on each count on which they were convicted. Wolfgang was sentenced to a term of four years' imprisonment on each count on which he was convicted, to run concurrently, which sentence was suspended, and was placed on probation for a period of four years and fined $1000. On appeal, defendants contend principally that the evidence at trial was insufficient to establish that they had engaged in "dealing" in firearms within the meaning of 18 U.S.C. § 922(a)(1), and they challenge a number of the trial court's procedural and evidentiary rulings. Finding no merit in any of defendants' contentions, we affirm the judgments of conviction.
The evidence at trial, viewed in the light most favorable to the government, established the following events. In November 1984, Special Agent Rodney Davis of the Federal Bureau of Investigation ("FBI"), operating in an undercover capacity, was introduced to Wolfgang, who worked with Carter, his uncle, at the TLC Garage in Queens, New York. Wolfgang told Davis that he and Carter could sell Davis a variety of weapons, including machine guns and rocket launchers, that were stored in Pennsylvania. Wolfgang said that Davis would have to negotiate such transactions with Carter, and that Carter made the deals and distributed the proceeds.
During the next several months, Davis negotiated with Carter for the purchase of various weapons. Many of the negotiations were carried out in tape-recorded telephone conversations. Carter told Davis he could provide weapons, confirmed that his sources for guns were in Pennsylvania, and several times told Davis he had sold guns and other weapons to several other buyers.
Shortly after their first meeting, Carter sold Davis two semi-automatic rifles, one having an obliterated serial number, at a total price of $2,650. Agents of the FBI laboratory restored the obliterated serial number and traced that rifle to a gun shop owned by Host's wife and operated from their home in Lykens, Pennsylvania. Doyle was identified as another of Carter's sources after Carter referred to one of his sources as "Rich," said he had been trying to reach one of his sources at the latter's aunt's house in Pennsylvania, and toll records revealed a number of calls between the TLC Garage and the Pennsylvania home of Richard Doyle's aunt at times shortly before and following conversations between Carter and Davis.
On March 25, 1985, Carl Toth, an employee at the TLC Garage, told Davis that Carter had been trying to reach Davis. Later that night, Carter called Davis and stated that a sample gun, a machine gun that had been altered to fire automatically which he would sell to Davis for $2,500, was being brought from Pennsylvania to New York. That night, Pennsylvania police officers observed Wolfgang, Doyle, and Host in a house leased to Carter in Tremont, Pennsylvania. These three defendants left the house, with Host carrying a brown cardboard box under his arm, and drove eastward toward New York, On March 26, 1985, Davis went to the TLC Garage, where Carter sold him a machine gun that he took from the trunk of the car in which Wolfgang, Host, and Doyle had been seen in Pennsylvania the night before. The gun was inside a brown cardboard box that was similar to the box Host had been seen carrying the night before. Shortly after this sale, Carter was arrested; Wolfgang, Doyle, and Host, who were also at the TLC Garage, were arrested along with Carter.
On the day of the arrests, law enforcement officers searched Doyle's Pennsylvania home and seized, inter alia, a revolver with an obliterated serial number, a revolver and a shotgun that had been stolen, and a letter addressed to "Rich" containing a price list of various weapons. In July 1985, an agent of the Bureau of Alcohol, Tobacco and Firearms ("BATF") obtained a warrant for the search of Host's house, and seized, inter alia, eleven firearms from Host's bedroom. All of the seized items were admitted at trial.
The jury found all of the defendants guilty of conspiring to engage in the business of dealing in firearms without a license, in violation of 18 U.S.C. § 371; engaging in the business of dealing in firearms without a license, in violation of 18 U.S.C. §§ 922(a)(1), 924(a), and 2; possessing and transporting in interstate commerce a machine gun not registered to any of them, in violation of 26 U.S.C. §§ 5861(d), (j), and 5871, and 18 U.S.C. § 2; and found Host guilty of possessing, as a prior convicted felon, a machine gun and other firearms that had been transported in interstate commerce, in violation of 18 U.S.C. App. § 1202(a)(1), and 18 U.S.C. § 3147(1). Defendants were sentenced as described above, and these appeals followed.
Defendants' principal contention on appeal is that the evidence was insufficient to convict them of "dealing" in, or conspiring to "deal" in, firearms within the meaning of § 922(a)(1). Among defendants' other challenges to their convictions are (1) their contention that the court should not have allowed into evidence the fact that two of the weapons seized from Doyle's home were stolen; (2) their contention that the court should have excluded the tape recording of the conversation between Davis and Toth in which the latter stated that Carter had been trying to reach Davis; (3) Host's contention that the evidence was insufficient to establish that he had previously been convicted of a felony; and (4) Wolfgang's contention that the evidence was ...