In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-2800

ARTICLE II GUN SHOP, INC., d/b/a GUN WORLD

Plaintiff-Appellant,

v.

ALBERTO GONZALES,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 C 4598—Matthew F. Kennelly, Judge.

____________

ARGUED JANUARY 11, 2006—DECIDED MARCH 20, 2006

____________

Before FLAUM, Chief Judge, and EASTERBROOK and

MANION, Circuit Judges.

FLAUM, Chief Judge. Article II Gun Shop, Inc., doing

business as Gun World (“Gun World”) had its federal license

to sell firearms revoked by the Bureau of Alcohol, Tobacco,

and Firearms (“ATF”), based on allegations that Gun World

willfully violated several reporting requirements of the Gun

Control Act of 1968, 18 U.S.C. § 921 et seq. (“Act”). Gun

World challenged ATF’s revocation decision in federal

district court, pursuant to 18 U.S.C. § 923(f)(3). The

government filed a motion for summary judgment, which

the district court granted. Gun World appeals. For the

following reasons, we affirm the opinion of the district

court.
2 No. 05-2800

I. Background

Gun World has been a federally licensed firearms dealer

since 1978. Barry Soskin (“Soskin”) is Gun World’s corporate president, secretary, treasurer, and sole director and

stockholder. He has held these positions since the store

opened in 1978.

ATF inspected Gun World in 1981, 1998, and 2000 for

compliance with the Gun Control Act and its implementing regulations. After each inspection, ATF cited Gun World

with violations of the Act, including violations of the Act’s

recordkeeping requirements. The Act requires a firearms

dealer to fill out a “Form 4473” (“Form”) whenever a firearm

is sold. See 27 C.F.R. § 478.124(c)(2). The Form is used to

record identifying information about gun purchasers and

the firearms they purchase, which allows firearms to be

traced and prevents transfer to persons prohibited from

possessing firearms. See id. The 1981 inspection report

showed that Gun World failed to properly complete 30

Forms. The 1998 inspection report showed that Gun World

failed to properly complete 34 Forms and failed to properly

maintain an acquisition and disposition book. See 27 C.F.R.

§ 425(e). The inspector who conducted the 1998 inspection

discussed the violations with Soskin and the corrective

actions Gun World would need to take.

The 2000 inspection report documented more violations: two separate straw sales; at least fifteen occasions on

which Gun World knowingly and willfully failed to obtain

and record information required on the Forms; at least

forty-nine occasions on which Gun World knowingly and

willfully transferred firearms to legal aliens without

obtaining required documentation; and at least fourteen

occasions on which Gun World knowingly and willfully

failed to record sales or dispositions of firearms in the

acquisition and disposition book within seven days of a

transfer.
No. 05-2800 3

On May 18, 2000, ATF’s Chicago Area Supervisor,

Nicholas Scouffas, warned Gun World that ATF was

contemplating revoking Gun World’s licence. On May 31,

2000, Gun World was given an opportunity to conference

with ATF and present evidence in support of its position

that its license should not be revoked. At the conference,

Gun World promised to take corrective actions to prevent

further violations. According to the government, however,

Gun World continued to violate the Act after the May 31

conference.

On July 22, 2002, ATF issued Gun World a notice that its

license was being revoked. The revocation was based on the

2000 inspection report and the store’s history of violations.

Gun World requested a hearing to review the revocation,

pursuant to 18 U.S.C. § 923(f)(2). The hearing took place on

January 29 and 30, 2003. The hearing officer sent ATF a

report summarizing the evidence introduced at the hearing

and his findings of fact, conclusions and recommendations.

Richard Alexander (“Alexander”), ATF’s Chicago Field

Division Director of Industry Operations, concluded from

the hearing officer’s report that Gun World had willfully

violated the Gun Control Act. On May 5, 2003, ATF issued

a final notice of revocation to Gun World.

Gun World filed a petition with the district court, seeking

de novo review of ATF’s decision. See 18 U.S.C. § 923(f)(3).

ATF filed a motion for partial summary judgment. ATF

sought summary judgment based on ATF’s finding that Gun

World knowingly and willfully failed to complete fifteen

Forms, in violation of 18 U.S.C. § 922(m). The district court

“disregard[ed] the other violations for which Gun World was

cited during the 2000 inspection and . . . decide[d] whether

the Form 4473 violations alone authorized ATF to revoke

Gun World’s license.” Gun World did not deny that the

fifteen violations occurred, but only that they were “willful.”

Alexander, the ATF director who approved the revocation

of Gun World’s license, signed a declaration on February 24,
4 No. 05-2800

2005, stating that he would have revoked Gun World’s

license based solely on the Form 4473 violations. Alexander’s declaration was based on the record of the proceedings

before the ATF, the hearing officer’s report, the evidence

considered by the hearing officer, and the initial and final

notices of revocation.

The district court granted ATF’s motion for summary

judgment, and Gun World appeals.

II. Discussion

Gun World raises three issues on appeal. First, Gun

World argues that the district court erred by admitting into

evidence ATF’s 1981 and 1998 inspection reports, because

the reports were not certified or sworn copies, as required

by Federal Rule of Civil Procedure 56(e). Second, Gun

World maintains that the district court should not have

considered the 1981 ATF inspection report, because there is

a five-year statute of limitations for any forfeiture proceeding. Third, Gun World argues that its

violations of the Gun Control Act were not “willful,” because

Gun World did not act with the intent to disobey or disregard the law. We are not persuaded by these arguments.

A. The 1981 and 1998 ATF Inspection Reports.

The district court based its decision in part on copies of

1981 and 1998 ATF inspection reports. The reports were

attached as exhibits to the affidavit of Thomas Karmgard

(“Karmgard”), an ATF attorney. Gun World argues that the

district court should not have looked to these reports to

evaluate the willfulness of the violations committed in 2000,

because the reports were not “sworn or certified copies,” as

required by Federal Rule of Civil Procedure 56(e). Federal

Rule of Civil Procedure 56(e) requires that, in cases involving summary judgment, “[s]worn or certified copies of all
No. 05-2800 5

papers or parts thereof referred to in an affidavit shall be

attached thereto or served therewith.” According to Gun

World, “because the [1981 and 1998 inspection] reports

themselves are not sworn or certified copies, they are not

available to support a motion for summary judgment,”

regardless of whether they were sufficiently authenticated

pursuant to Federal Rule of Evidence 901(b)(1).

In response, the government maintains that the reports need not be sworn or certified copies, because ATF did

not revoke Gun World’s license based on these reports;

instead, it based the revocation on the 2000 report, as

Alexander stated in his declaration. Additionally, the

government maintains that even if the reports should not

have been admitted, the error was harmless because Soskin

admitted under oath that Gun World had been cited by ATF

in 1981 and 1998 for violations of the Act.

The district court found that the reports were admissible,

and that Karmgard’s personal knowledge of the matters

underlying the reports was unnecessary to lay a foundation

for their admissibility. Instead, Karmgard’s affidavit

authenticates the reports as records of ATF. See FED. R.

EVID. 901(b)(1). The district court also pointed out that Gun

World does not dispute that the reports attached to the

affidavit are accurate copies of the originals.

The district court properly considered the reports. The

government submitted Karmgard’s sworn affidavit in

support of its motion for summary judgment. The affidavit authenticated the reports by establishing that

they are public reports, kept in a public office, where

reports of that type are kept. See FED. R. EVID. 901(b)(1)(7)

(“Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or

filed in a public office, or a purported public record, report,

statement, or data compilation, in any form, is from the

public office where items of this nature are kept.”).
6 No. 05-2800

Karmgard, as an agent of ATF, was competent to make such

a statement. He swore to the authenticity of the documents

attached to his affidavit, including the 1981 and 1998

reports. It was not necessary that he swear to personal

knowledge of facts contained in the reports. Public records

and reports are admissible as an exception to the hearsay

rule, once their authenticity is established. See FED. R.

EVID. 803(8).

Gun World emphasizes that there is a distinction between

a document’s authenticity and its admissibility, and argues

that while the reports were properly authenticated, they

still are not admissible. Gun World is correct that a document is not admissible simply because it has been authenticated. “To be admissible, documents must be authenticated

by and attached to an affidavit that meets the requirements

of Rule 56(e) and the affiant must be a person through

whom the exhibits could be admitted into evidence.” Scott

v. Edinburg, 346 F.3d 752, 760 n.7 (7th Cir. 2003) (quoting

10A Charles Alan Wright et al., Federal Practice & Procedure § 2722, at 379-80 & 382-84 (1998)). Those requirements have been met in this case: the reports were authenticated by Karmgard’s affidavit; the reports were attached

to his affidavit, which met the requirements of Rule 56(e);

and Karmgard is a person through whom the reports could

be admitted into evidence, because he is an agent of ATF

and is knowledgeable about ATF’s recordkeeping system.

Thus, the district court did not err by considering the

reports.

B. Statute of Limitations

Gun World also argues that consideration of the 1981

ATF report is barred by the 5-year statute of limitations

contained in 28 U.S.C. § 2462, which provides that “a

proceeding for the enforcement of any . . . forfeiture,
No. 05-2800 7

pecuniary or otherwise, shall not be entertained unless

commenced within five years from the date when the

claim first accrued.” Gun World claims that § 2462 applies to administrative proceedings as well as judicial

proceedings. Additionally, Gun World maintains that the

revocation of its license amounted to a “proceeding for the

enforcement” of a forfeiture. Gun World concludes that “[a]s

Gun World cannot be punished for acts/omissions in 1981,

the grant of summary judgment was improper to the extent

it was based upon the 1981 acts/omissions.”

The government responds that although “ATF could

not revoke Gun World’s license because of” the 1981 report,

“ATF and the district court were free to consider the 1981

report of violations as evidence that Gun World knew of its

obligations to correctly complete Forms 4473 for the guns it

sold.” According to the government, “[s]tatutes of limitation

put time limits on when actions may be brought; they are

not evidentiary rules that blind courts from consideration

of relevant facts.”

We, like the district court below, agree with the government. The revocation of Gun World’s license was

based on its violations of the Act in 2000. The “claim first

accrued” in 2000, when ATF made its 2000 report. The

action was commenced within five years of this time. The

fact that Gun World was also cited in 1981 and 1998 is

simply evidence that Gun World had knowledge of the Act’s

requirements; Gun World admits as much. There

is a distinction between acts that are prosecuted and

acts that would be barred by the statute of limitations

but are admissible to show that an act being prosecuted

actually occurred. Cf. United States v. Barnes, 230 F.3d 311,

315 (7th Cir. 2000) (“Relevant pre-limitations evidence is

admissible to show the existence of a scheme to complete an

illicit transaction.”); United States v. Wellman, 830 F.2d

1453, 1464 (7th Cir. 1987) (fact that mail fraud scheme and

acts committed in furtherance of it may have extended over
8 No. 05-2800

a period of time that was in part barred by the statute of

limitations did not preclude evidence of those acts from

being admitted to show that mailings occurring within the

statutory period were in furtherance of a scheme to defraud).

C. Willfulness

Gun World’s final argument is that the district court

erred by determining that Gun World’s violations of the

Gun Control Act were willful. The parties disagree as to the

meaning of “willfully” as used in 18 U.S.C. § 923(e). Gun

World argues that willfulness requires a “bad purpose to

disobey or to disregard the law.” According to Gun World,

ATF must show that Gun World’s acts were more than

“inadvertent error or technical mistakes.” Gun World

maintains that its de minimis number of violations in

light of its sales volume (in 2000, 12 of 880 Forms contained

errors) demonstrates that it did not act willfully. Finally,

Gun World maintains that the errors on its Forms were not

“material” because, in some cases, omitted information

could be found on other documents, or, in other cases, Gun

World employees knew the gun buyers and how they would

respond to skipped questions.

According to the government, Gun World acted willfully

if it “purposefully disregarded or was plainly indifferent to”

the law. The government emphasizes that nothing in the

Gun Control Act, its implementing regulations, or the case

law interpreting the Act creates an exception to revocation

for de minimis violations of the Act. Additionally, the

government notes that Soskin and other Gun World

employees admitted that they knew that Forms 4473

needed to be filled out completely and that ATF considered

these documents critical to enforcement of the Act.

Contrary to Gun World’s position, ATF is not required

to show that a gun vendor acted with a “bad purpose or evil
No. 05-2800 9

motive before a license may be revoked or a renewal

application denied.” Stein’s, Inc. v. Blumenthal, 649 F.2d

463, 467 (7th Cir. 1980). Instead, ATF must “prove that the

petitioner knew of his legal obligation and purposefully

disregarded or was plainly indifferent to the recordkeeping requirements.” Id. (internal citation omitted).

According to Gun World, the Supreme Court implicitly

overruled Stein’s in Bryan v. United States, 524 U.S. 184

(1998). Gun World argues that Bryan eliminated the

“plain indifference standard” and held that willfulness

requires a “bad purpose to disobey or to disregard the law.”

Gun World is incorrect. In Bryan, the defendant had been

convicted of conspiring to sell firearms without a license

and engaging in the sale of firearms without a license,

in violation of provisions of the Gun Control Act that

contained a willfulness requirement. See 18 U.S.C.

§§ 922(a)(1) and 924. The defendant claimed that he had no

knowledge of the Act’s requirements, so that his violations

could not be willful. The Court held that the defendant’s

bad purpose was sufficient to satisfy the willfulness requirement under the facts of that case, where the defendant had

used straw purchases, filed off guns’ serial numbers, and

sold guns on the black market. Bryan, 524 U.S. at 189, 194-

96.

The Bryan Court recognized that this Court in Stein’s

“stated that willfulness in § 923(d)(1) is satisfied by a

disregard of a known legal obligation.” Id. at 196-97. The

Court found that while cases like Stein’s “support the notion

that disregard of a known legal obligation is sufficient to

establish a willful violation, they in no way stand for the

proposition that it is required.” Id. at 197-98. The Bryan

Court did not hold that a showing of “bad purpose” is

required before ATF can revoke the license of a gun dealer

who violates the Act despite knowledge of its requirements.

Id. Rather, the Court simply held that a bad purpose may

be sufficient to demonstrate purposeful disregard for or
10 No. 05-2800

plain indifference to the law, where there is no evidence a

party was aware of the requirements of the law. In this

case, it is clear that Gun World was aware of its obligations

under the Act.

Additionally, we reject Gun World’s argument that

its mistakes were inadvertent and de minimis. The record

shows that Soskin was aware that the Act does not

allow any de minimis number of violations, and he was

obviously aware of the Act’s requirements after being

cited for numerous violations in the past. See Stein’s, 649

F.2d at 468 (“Evidence of repeated violations with knowledge of the law’s requirements has been held sufficient

to establish willfulness.” (citing Lewin v. Blumenthal,

590 F.2d 268 (8th Cir. 1979)). Even after Gun World was

warned in 2000 that its license could be revoked based

on its violations, Gun World continued violating the Act. Cf.

Breit & Johnson Sporting Goods, Inc. v. Ashcroft, 320 F.

Supp. 2d 671, 678-80 (N.D. Ill. 2004) (firearms dealer’s

repeated violations of the Gun Control Act’s recordkeeping requirements, even after two ATF warning conferences,

sufficient to establish “willfulness”). Gun World tries to

explain why each of its violations was immaterial—either

because the information sought on a Form could be found on

another form or because it could be discovered by talking to

Gun World employees. These explanations are irrelevant.

The revocation provision applies regardless of whether a

firearms dealer’s failure to comply with the Act actually

results in illegal possession or usage of a firearm or an

inability to track a firearm that has been sold.

III. Conclusion

For the foregoing reasons, we AFFIRM the opinion of the

district court.
No. 05-2800 11

MANION, Circuit Judge, dissenting. Because I conclude that the government is not entitled to summary

judgment, I respectfully dissent. The central question here

is whether Gun World’s recordkeeping violations were

willful under 18 U.S.C. § 923(e). I agree with the court that

this question is governed by Stein’s, Inc., v. Blumenthal, 649

F.2d 463, 467 (7th Cir. 1980). Thus, to show willfulness and

succeed in revoking Gun World’s dealer license, the government must “prove that [Gun World] knew of [its] legal

obligation and purposefully disregarded or was plainly

indifferent to the recordkeeping requirements.” Id. (internal

quotation omitted). Gun World has taken the first half of

the willfulness test, i.e., knowledge, off the table; it conceded that it knew of its duty to fully complete the government’s firearm transaction forms. It is also important to

note that the government and this court regard the 1981

and 1998 reports simply as evidence of Gun World’s knowledge of the Act’s requirements. This dispute therefore turns

on whether Gun World acted with purposeful disregard or

plain indifference when it left a small number of boxes

blank on 12 of the 880 forms it filled out between January

1999 and February 2000.

The government’s evidence on this crucial point, viewed

in a light most favorable to Gun World, as it must be in this

situation, fails to show that the government is entitled to

summary judgment. See United States v. Rode Corp., 996

F.2d 174, 178 (7th Cir. 1993); Fed. R. Civ. P. 56(c). The

evidence supporting the government’s summary judgment

motion is confined to a few spaces left blank on 12 forms.

During the period in question, Gun World was responsible

for some 51,240 pieces of information on the 880 forms, and

it omitted 19 of those pieces. On its face, that appears to be

a very positive compliance ratio: 51,221 out of 51,240

(99.96%). Gun World’s substantial compliance on the 12

forms in question and total compliance on the rest is a

strong indicator that Gun World was not disregarding or
12 No. 05-2800

being indifferent to its obligations. If, with the 12 forms, the

government had submitted an affidavit from an informant,

for example, attesting to the fact that Gun World left a box

blank at the informant’s request, then the summary

judgment would be appropriate. Here, however, there are

only the forms themselves, and, in a light most favorable to

Gun World, these 12 substantially-completed forms upon

which the government seeks to revoke Gun World’s license,

do not prove, for summary judgment purposes, that

Gun World purposefully disregarded or was plainly indifferent to the recordkeeping requirements. One willful violation

could put them out of business, but several inadvertent ones

should not.

To bolster its case, the government cites its 1981 and

1998 inspection reports, contending that the past violations

recounted therein and the corresponding warnings establish

Gun World’s knowledge of its recordkeeping obligations.

However, Gun World does not dispute the knowledge prong

of the willfulness test, and the admission of those reports

was only to evidence knowledge. In any event, these past

violations as well as later Gun World lapses (i.e., after

February 2000) raised by the government do not conclusively show that the 12 violations for which the government

seeks to revoke Gun World’s license were triggered by

purposeful disregard or plain indifference. A rational trier

of fact could find, that despite other shortcomings, the 12

violations were caused by something less than purposeful

disregard or plain indifference, such as a genuine mistake

that, despite all diligence, slipped through undetected. Cf.

Groh v. Ramirez, 540 U.S. 551, 556 (2004) (Kennedy, J.,

dissenting) (“Every lawyer and every judge can recite

examples of documents that they wrote, checked, and

doublechecked, but that still contained glaring errors.”).

The entire willfulness inquiry of § 923(e) illustrates

that this is not a strict liability situation, and, thus, cases

built upon nothing more than repeated omissions should not
No. 05-2800 13

automatically result in revocation at the summary judgment stage. Here, the evidence and all reasonable inferences therefrom, viewed in a light most favorable to Gun

World, do not prove that Gun World purposefully disregarded or was plainly indifferent to the

recordkeeping requirements. It is a factual question to be

resolve at a trial/evidentiary hearing in accordance with

18 U.S.C. § 923(f)(3). See Stein’s, 649 F.2d at 466 (explaining when a “trial de novo” is appropriate). I would thus

reverse the grant of summary judgment.

I should note that apparently this case began with much

more than has been funneled into this appeal. As the

court mentions, the 2000 inspection report detailed a

number of violations, including two straw sales, not at issue

here. These are significant accusations which may explain

why the ATF engaged in such an extensive investigation.

But all of these charges were effectively dropped, leaving a

case involving 19 blank spaces on 880 forms. The ATF

director by declaration assured the court that he would

have revoked Gun World’s license solely on these 19 Form

4473 violations. There may be good reasons to revoke the

license that Gun World has held for over 25 years, but

because the Form 4473 violations are the only basis for

revocation, the government must present actual evidence of

willfulness, or else the trier of fact should decide.
14 No. 05-2800

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—3-20-06