United States v. Rietzke, John C. ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-1802
United States of America,
Plaintiff-Appellee,
v.
John C. Rietzke,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 00-CR-88--Rudolph T. Randa, Judge.
Argued October 24, 2001--Decided February 4, 2002
Before Harlington Wood, Jr., Coffey, and
Easterbrook, Circuit Judges.
Coffey, Circuit Judge. John Rietzke, a
federally licensed firearms dealer,
operated Grassel’s Guns in Greenfield,
Wisconsin, and was arrested after selling
guns to a convicted felon thru a straw
purchaser, an undercover agent of the
Bureau of Alcohol, Tobacco, and Firearms
(ATF). Rietzke pleaded guilty to one
count of "willfully fail[ing] to keep
records of the name, age and place of
residence of" the person to whom he had
sold or delivered a firearm, contrary to
18 U.S.C. sec. 922(b)(5) & 18 U.S.C. sec.
924(a)(1)(D). In his plea agreement
Rietzke preserved the right to appeal the
trial judge’s decision to convict and
sentence him under the statute’s felony
provision instead of its misdemeanor pro
vision, which he contends was created for
the purpose of treating licensed firearms
dealers more leniently, and he now so
appeals. We affirm.
I. Factual Background
John Rietzke, a federally licensed
firearms dealer, operated Grassel’s Guns
in Greenfield, Wisconsin. The Bureau of
Alcohol, Tobacco and Firearms (ATF) began
investigating Rietzke after receiving
information from a cooperating witness,
Mitchell Critton, that Rietzke had been
violating federal firearms laws. Critton
told ATF agents that Rietzke had sold
firearms to him several years before,
despite knowing that Critton was a
convicted felon. Critton told the agents
that he and Rietzke accomplished the
earlier sale through the use of a "straw
purchaser," someone who acts as an agent
or intermediary for another who is
ineligible to purchase the firearms
directly.
On December 3, 1999, ATF sent Critton to
Rietzke’s store in order that he might
negotiate a firearms purchase using a
straw purchaser. Rietzke recognized
Critton from their prior dealings, and
Critton reminded Rietzke of his felony
record. Critton then inquired of Rietzke
as to whether he could purchase a Beretta
pistol, if he could arrange to use his
girlfriend as a straw purchaser. Rietzke
agreed to the arrangement and commented
that he could not sell guns directly to
Critton.
On December 14, 1999, Critton returned
to Grassel’s Guns along with Robin
Broeske, an undercover ATF agent posing
as his girlfriend. Critton and Rietzke
discussed the purchase price of the gun
that Critton desired, and Rietzke
produced the appropriate ATF paperwork
for Broeske to complete. Rietzke
specifically instructed Broeske to answer
all the questions on the Handgun Hotline
form with a "yes," meaning that she was
eligible to purchase weapons. Broeske
completed the paperwork using the name
"Bobbie Day," her undercover name, and
Critton handed Rietzke $720 for the
purchase, leaving a small balance to be
paid when he took possession of the gun
after the federally mandated waiting
period.
On December 16, 1999, after the two-day,
federally-mandated waiting period,
Critton returned to the gun outlet in
order to pick up the pistol. At that time
Rietzke provided Critton with additional
paperwork for "Bobbie" to complete.
Critton left the store momentarily to
request that Agent Broeske, who had been
waiting in the car outside the store,
return to the store with him in order
that she might complete the forms and
Critton receive the firearm. Upon
Broeske’s entry into the store, Rietzke
instructed her to complete the paperwork
and directed her to answer the question
in the affirmative that inquired whether
she was the actual buyer of the gun.
While Broeske completed the paperwork,
Rietzke and Critton discussed the
ammunition he desired as well as the
potential purchase of additional
firearms. Rietzke ultimately agreed to
sell Critton an additional weapon, a MAK-
90 rifle. During Rietzke’s and Critton’s
negotiation, Broeske completed the
paperwork and left the store without
taking possession of the two
firearms.Instead, Critton paid Rietzke
the $389 balance for the weapons (which
had increased due to Critton’s purchase
of the additional weapon) and took
possession of and exited the store with
both the Beretta pistol as well as the
MAK-90 rifle.
During February and March 2000, Rietzke
agreed to sell two additional guns to
Critton again using "Bobbie Day" as a
straw purchaser. Documents obtained
during a government search warrant
revealed that Rietzke retained forms
completed and signed by "Bobbie Day" to
purchase the two guns described herein
and that Rietzke had made the proper
calls confirming that "Bobbie Day" was
not a convicted felon.
A grand jury sitting in the Eastern
District of Wisconsin on May 2, 2000,
returned a four-count indictment against
Rietzke. Counts one and three charged
Rietzke with knowingly selling firearms
to a convicted felon, 18 U.S.C. sec.
922(d), and counts two and four charged
him with "willfully fail[ing] to keep
records of the name, age and place of
residence of" the person to whom he sold
firearms, 18 U.S.C. sec. 922(b)(5) & 18
U.S.C. sec. 924(a)(1)(D). On May 30,
2000, Rietzke moved to dismiss the
indictment, arguing that it failed to
adequately set forth facts that
constituted a felony violation. In his
motion, Rietzke argued that, because he
was a licensed firearms dealer, sec.
922(b)(5) was punishable only as a
misdemeanor and that sec. 922(d) did not
prohibit the sale to convicted felons
using straw purchasers. In her report the
magistrate judge recommended to the trial
judge that the defendant’s motion be
denied and the trial judge adopted her
recommendation. The judge emphasized that
the charge to which Rietzke pleaded was
for willful violations of gun control
laws, which required a proof element
different from those found in 18 U.S.C.
sec. 924(a)(3) and 18 U.S.C. sec.
924(a)(1)(A). On August 30, 2000, Rietzke
entered a conditional plea agreement in
which he pleaded guilty to count two of
the indictment/1 but reserved the right
to challenge the trial judge’s
determination that the offense of
conviction was a felony rather than a
misdemeanor.
II. Issue
On appeal, Rietzke claims that the trial
judge committed error in punishing him
under the felony provision of sec.
924(a)(1)(D) for willful failure to
maintain records contrary to sec.
922(b)(5), rather than under the
misdemeanor provision of sec. 924(a)(3)
for being a licensed dealer who knowingly
makes a false statement or representation
with respect to the information required
to be kept in his records. We review de
novo the trial judge’s interpretation of
the statutory scheme. United States v.
Hoogenboom, 209 F.3d 665, 669 (7th Cir.
2000).
III. Analysis
Licensed firearms dealers are required
to maintain records of the persons to
whom they sell or deliver weapons.
Rietzke was convicted of violating sec.
922(b)(5), which provides in pertinent
part:
It shall be unlawful for any . . .
licensed dealer . . . to sell or deliver
. . . (5) any firearm . . . to any person
unless the licensee notes in his records,
required to be kept pursuant to section
923 of this chapter, the name, age, and
place of residence of such person . . .
.
Section 922(b)(5) does not itself
contain a penalty provision. Instead, the
penalty provision can be found in sec.
924(a), which contains both a felony and
a misdemeanor provision. The felony
provision, sec. 924(a)(1), provides that:
(a)(1)Except as otherwise provided in
this subsection, subsection (b), (c), or
(f) of this section, or in section 929,
whoever--
(A) knowingly makes any false statement
or representation with respect to the
information required by this chapter to
be kept in the records of a person
licensed under this chapter . . . ;
(D) willfully violates any other
provision of this chapter,
shall be fined under this title,
imprisoned not more than five years, or
both . . . .
On the other hand, sec. 924(a)(3)
provides for misdemeanor penalties for
licensed dealers who "knowingly make[ ]
any false statement or representation
with respect to the information required
by the provisions of this chapter to be
in the records of a person licensed under
this chapter . . . ."
Rietzke argues that by enacting sec.
924(a)(3) Congress elected to punish
firearms dealers who violate sec.
922(b)(5) more leniently than other
individuals, pointing out that sec.
924(a)(3) punishes violations of sec.
922(b)(5) as misdemeanors while sec.
924(a)(1)(A) punishes the same violations
as felonies. Rietzke assumes that,
because sec. 924(a)(3) and sec.
924(a)(1)(A) punish identical conduct,
Congress therefore intended to limit
prosecutorial discretion in selecting un
der which provision of the statute to
prosecute licensed firearms dealers.
Rietzke supports his argument by pointing
to United States v. Wegg, 919 F. Supp.
898, 901 (E.D. Va. 1996), which ruled
that sec. 924(a)(3) carved an exception
for licensed firearms dealers and thus
firearms dealers who violate sec.
922(b)(5) must be punished under the
misdemeanor provision rather than the
felony provision of the statute. Wegg
reasoned that because the statute
described "anoffense generally and
attribute[d] felony punishment to all
violators except for an excepted group .
. . those in the excepted group may only
be prosecuted for the misdemeanor." Wegg,
919 F. Supp. at 903.
Of course Wegg carries no binding
authority, nor do we even find it
remotely persuasive. A reading of Wegg
reveals that the defendant was convicted
of aiding and abetting in the making of
false statements with respect to a
firearms transaction, and not a willful
failure to keep records. See Wegg, 919 F.
Supp. at 899. Rietzke urges us to
conclude that his behavior was similar to
that of the defendant in Wegg and argues
that he did keep the required records--
albeit a record he admittedly knew to be
false--because he made a record
reflecting that "Bobbie Day" was the
purchaser of the guns. But sec. 922(b)(5)
makes it unlawful for a licensed dealer
to "sell or deliver" a firearm to any
person "unless the licensee notes in his
records . . . the name, age, and place of
residence of such person . . . ." 18
U.S.C. sec. 922(b)(5) (emphasis added).
Although Rietzke made a false statement
in his records that he sold two firearms
to "Bobbie Day," he failed to make any
record whatsoever regarding Mitchell
Critton, the person to whom he delivered
the weapons, from whom he received
payments of $720 and $389, and whom he
well knew to be the actual purchaser of
the two guns referred to herein. Cf.
United States v. Choice, 201 F.3d 837,
841 (6th Cir. 2000) (discussing the
difference between cases in which the
defendant is charged with falsifying a
record and cases in which the defendant
fails to keep records). The prosecutor,
relying on the plain language of the
statute, did exercise prosecutorial
discretion and charged Rietzke with a
violation of the felony provision
contained in sec. 924(a)(1)(D), for
willfully failing to keep a record
regarding his sale of weapons and their
delivery to Critton.
In any event, it matters little that
Rietzke now characterizes his conduct as
making a false record because the plea
agreement, which he knowingly and
voluntarily signed, and the indictment
under which he was charged plainly
charged him with the "willful failure to
keep records" regarding the person to
whom he sold or delivered firearms.
During the plea colloquy, the government
asserted in its offer a proof that
Rietzke failed to make any records for
the firearms he delivered to Mitchell
Critton other than the false records he
made reflecting that "Bobbie Day"
purchased the weapons, in spite of the
fact that he well knew he was required by
law to create a record for Critton. Thus,
the government established a factual
basis for the charge that Rietzke failed
to make a record for Mitchell Critton,
the person to whom he delivered and whom
he knew to be the actual purchaser of the
two firearms. Rietzke has not argued that
his guilty plea was not knowingly and
voluntarily made and thus cannot now
challenge the factual basis of his plea,
for a guilty plea admits, in legal
effect, the facts as charged. United
States v. Robinson, 14 F.3d 1200, 1205
(7th Cir. 1994).
Moreover, Wegg is not convincing because
it focused on the similarity between sec.
924(a)(1)(A) and sec. 924(a)(3), both of
which punish a knowingly false statement
with respect to the required information
of sec. 922(b)(5). Wegg never did
discuss, much less consider, the
distinction between sec. 924(a)(1)(D),
which requires willful behavior, and sec.
924(a)(3), which requires a lesser degree
of culpability. Section 924(a)(3)
prohibits licensed firearms dealers from
knowingly making false statements or
representations in violation of sec. 922.
Section 924(a)(1)(D), on the other hand,
punishes willful violations of sec. 922.
"The only reasonable distinction between
section 924(a)(1)’s ’knowingly’ and
’willfully’ standards is that the latter
requires knowledge of the law." United
States v. Obiechie, 38 F.3d 309, 315 (7th
Cir. 1994); see also Bryan v. United
States, 524 U.S. 184, 193 (1998). Thus in
charging Rietzke under sec. 924(a)(1)(D)
the prosecution was required to prove
that Rietzke was aware of the law and
that he voluntarily and intentionally
violated a known legal duty, an element
it need not have proved had he been
charged under sec. 924(a)(3). Thus it is
clear that, under the plain language of
the statute, sec. 924(a)(1)(D)-- under
which Rietzke entered his plea of guilty-
-and sec. 924(a)(3) punish different
conduct, and the prosecutor had the
discretion to determine under which
provision she wished to charge Critton.
Hence Rietzke’s claim that he should
have been charged under sec. 924(a)(3) is
contrary to the well-established
principles set forth in United States v.
Batchelder, 442 U.S. 114 (1979). The
Supreme Court has made clear that when
multiple criminal statutes apply to the
same conduct, the prosecutor has the
discretion to choose under which statute
to proceed. 442 U.S. 114; see also United
States v. Lov-It Creamery, Inc., 895 F.2d
410, 410 (7th Cir. 1990). Neither is a
defendant "’entitled to choose the
penalty scheme under which he will be
sentenced.’" United States v. Harbour,
809 F.2d 384, 392 (7th Cir. 1987)
(quoting Batchelder, 442 U.S. at 125). In
this case, the prosecutor in the exercise
of her prosecutorial discretion chose to
charge Rietzke under the felony provision
of the statute and not the misdemeanor
provision, and it was within her
discretion to do so.
Rietzke makes two unconvincing attempts
to remove his case from the ambit of
Batchelder. First, Rietzke argues that he
should have been punished under the
misdemeanor provision, rather than the
felony provision, because Congress
intended that firearms dealers be
punished more leniently than non-dealers
who also violate the statute and thus
limited prosecutorial discretion by
requiring that they charge licensed
firearms dealers under sec. 924(a)(3) and
not under sec. 922(a)(1). But nothing in
the statute or its legislative history
suggests such an intent. As noted
earlier, sec. 924(a)(1)(D) requires a
greater level of culpability than sec.
924(a)(3), willfulness. Nothing in sec.
924(a)(3) suggests that it is the sole
provision under which a licensed firearms
dealer can be charged. As such, the plain
language of the statute suggests only
that Congress intended to "allow for the
option of misdemeanor prosecution for
licensed dealers who make false
statements on ATF forms, while leaving
intact the felony prosecution structure
for those . . . whose flagrant and
repeated actions in accepting false ATF
forms from straw purchases . . . warrants
felony punishment." United States v. Al-
Muqsit, 191 F.3d 928, 935 (8th Cir.
1999), judgment vacated en banc as to an
unrelated defendant, 210 F.3d 820 (2000)
(emphasis added). Three of our sister
circuits that have reached the issue
agree. Al-Muqsit, 191 F.3d at 935;
Choice, 201 F.3d at 840-841; United
States v. Jarvouhey, 117 F.3d 440, 442
(9th Cir. 1997).
Further, the legislative history fails
to support Rietzke’s argument. In the
words of a sponsor, the Firearms Owners
Protection Act, which added sec.
924(a)(3), was intended to ensure that a
dealer would not be "subjected to harsh
felony penalties for technical violations
of the rigid record-keeping standards" of
the Act. 131 Cong. Rec. 18, 187
(19850(statement of Sen. Hatch). The
plain language of the statute clearly
distinguishes between willful and knowing
violations of the law, and the literal
meaning of a statute should be overridden
only in those rare cases, and this is not
one of them, where that meaning is
demonstrably at odds with the intentions
of the drafters. United States v. Ron
Pair Enters., Inc., 489 U.S. 235, 242
(1989).
Rietzke also argues that Batchelder does
not apply because a prosecutor may not
choose between two subsections of the
same statute. But such a rule makes no
sense, and an example will show why. The
statute governing the possession and
distribution of illegal drugs has
numerous subsections, many of which
overlap. 21 U.S.C. sec. 841. To suggest
that a prosecutor cannot exercise
discretion in the prosecution of a drug
dealer who distributes 2 kilograms of
heroin, and must proceed than sec.
841(b)(1)(B), which provides for a
maximum sentence of forty years, rather
than under 21 U.S.C. sec. 841(b)(1)(A),
which provides for a maximum term of
imprisonment of life, would be perverse.
We are not convinced with Rietzke’s
argument for he has failed to offer any
reason why Batchelder should so be
limited, and we remain convinced that
prosecutors must be free to determine
under which statute they proceed.
IV. Conclusion
Rietzke’s argument that he should have
been punished under sec. 924(a)(3) rather
than under sec. 924(a)(1)(D) must fail.
Prosecutors in their exercise of
prosecutorial discretion are entitled to
determine under which statute to proceed.
In this case, the prosecutor chose to
prosecute Rietzke under the applicable
felony provision, rather than the
misdemeanor provision.
AFFIRMED.
FOOTNOTE
/1 As part of the terms of the plea agreement, the
government agreed to dismiss the other three
counts at the time of sentencing, though the
court could consider them at the time of sentenc-
ing.