2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-19-2008

USA v. Soto

Precedential or Non-Precedential: Precedential

Docket No. 07-2643

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 07-2643

 

UNITED STATES OF AMERICA

v.

TONY SOTO,

Appellant

 

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal No. 06-cr-00328-2)

District Judge: Hon. John R. Padova

 

Argued June 5, 2008

BEFORE: AMBRO, CHAGARES and COWEN,

Circuit Judges

(Filed: August 19, 2008)

Daniel I. Siegel, Esq. (Argued)
2

Office of the Federal Public Defender

704 King Street

First Federal Plaza, Suite 110

Wilmington, DE 19801

Counsel for Appellant

Eric B. Henson, Esq. (Argued)

Robert A. Zauzmer, Esq.

Office of the United States Attorney

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

 

OPINION

 

COWEN, Circuit Judge.

In November 2006, a jury found Tony Soto guilty of four

counts of aiding and abetting his girlfriend, Theresa Brown, in

making false statements to a federal firearms licensee in

violation of 18 U.S.C. § 924(a)(1)(A) & § 2. Soto appeals his

conviction. We will affirm.

I.

Fred Delia owns and operates a gun shop in Philadelphia,

Pennsylvania, and has a federal firearms license. When a

person buys a gun at his store, he is required to fill out a 4473
3

form. On the form, Question 12A asks the person purchasing

the gun who is the “actual buyer” of the firearm. Specifically,

the question asks, “Are you the actual buyer of the firearm(s)

listed on this form? Warning: You are not the actual buyer if

you are acquiring the firearm(s) on behalf of another person. If

you are not the actual buyer, the dealer cannot transfer the

firearm(s) to you.” (App. 42.) 

On December 2, 2004, Brown bought a firearm from

Delia at his gun shop. At the time of the purchase, two males

accompanied her. The men looked at the firearms and did most

of the talking with Delia. According to Delia, Brown did not

know what she was doing with respect to firearms. Eventually,

Brown purchased a shotgun. At the time of purchase, she filled

out a 4473 form, and certified that she was the “actual buyer” of

the firearm. Brown also purchased firearms under similar

circumstances on March 29, 2005, and again on April 1, 2005,

from Delia at his store. As with the December 2, 2004

purchase, Brown certified on a 4473 form that she was the

“actual buyer” of the firearms. 

The circumstances of these three purchases made Delia

suspicious. Subsequently, he contacted the Bureau of Alcohol,

Tobacco and Firearms (ATF), and indicated that he believed

that Brown was a “straw purchaser” of the firearms. A “straw

purchaser” is someone who states that she is buying a firearm

for herself when, in actuality, she is buying it for someone else.

Following up on this tip, ATF agents set up surveillance at

Delia’s gun shop and at Brown’s home. On April 6, 2005,

agents observed Brown leave her home and get into a taxi with

two males. One of the males was later identified as Soto. The

taxi drove to Delia’s gun shop where Brown purchased a
4

firearm. She again certified on a 4473 form that she was the

“actual buyer.” After leaving the store, ATF agents eventually

detained all three individuals and took them to headquarters for

questioning. 

After being given his Miranda warnings, Soto told

investigators that he was Brown’s boyfriend. He admitted

acting as protection for Brown on several occasions when she

went to Delia’s gun shop to purchase firearms. Soto admitted

that the firearms were purchased so that they could be resold to

drug dealers. Soto was paid $100 for his services, and Brown

was paid $250. 

In June 2006, Soto was indicted on four counts of aiding

and abetting Brown in making false statements to a federal

firearms licensee. The government’s case at trial included

testimony from Delia, Brown and the investigator who

conducted Soto’s interrogation. The jury convicted Soto on all

four counts. He was sentenced to thirty-three months’

imprisonment, to be followed by three years of supervised

release. Soto timely filed a notice of appeal. 

On appeal, Soto makes several arguments. First, he

argues that the evidence produced at trial was insufficient to

establish that he aided and abetted Brown in making false

statements with respect to the false statements on the 4473

forms. Second, he asserts that the jury should have decided the

issue of whether the information that was falsely answered by

Brown was required to be kept in the records by Delia. Third,

Soto argues that even if the trial judge properly decided the

second issue, Brown’s false statement that she was the “actual

buyer” of the firearms was not required by law to be kept in

Delia’s records. 
5

II.

We have appellate jurisdiction pursuant to 28 U.S.C.

§ 1291. “We apply a particularly deferential standard of review

when deciding whether a jury verdict rests on legally sufficient

evidence.” See United States v. Dent, 149 F.3d 180, 187 (3d

Cir. 1998). In examining a sufficiency of the evidence claim,

“‘[i]t is not for us to weigh the evidence or to determine the

credibility of witnesses.’” Id. (quoting United States v. Voigt,

89 F.3d 1050, 1080 (3d Cir. 1996)). Rather, we “view the

evidence in the light most favorable to the government, and will

sustain the verdict if any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.”

See id. (internal quotation marks and citations omitted). A

claim for insufficiency of the evidence places an very heavy

burden on the appellant. See id. When reviewing a question of

law, or a District Court’s interpretation of a statute, we exercise

plenary review. See, e.g., United States v. Rivera Constr. Co.,

863 F.2d 293, 295 n.3 (3d Cir. 1988). 

III.

A. Sufficiency of the Evidence

Soto claims that the evidence produced at trial was

insufficient to support his conviction. Specifically, he asserts

that he was unaware that form 4473 would ask Brown if she

was the “actual buyer.” He argues that because he was not on

notice of this “actual buyer” question, the evidence produced at

trial does not support the inference of the culpable knowledge

necessary to support the conviction of aiding and abetting. We

disagree.
6

In order to convict a defendant of aiding and abetting the

commission of a crime, the government must prove: (1) that the

substantive crime has been committed; and (2) that the

defendant charged with aiding and abetting knew of the

commission of the substantive offense and acted with the intent

to facilitate it. See United States v. Dixon, 658 F.2d 181, 189

n.17 (3d Cir. 1981).

In order to aid and abet . . . a

defendant must do more than

associate with individuals involved

in the criminal venture. (He must)

participate in (the criminal

enterprise) as something he wishes

to bring about and that he seeks by

his action to make succeed . . .

Mere presence at the scene of the

crime, even in the company of one

or more of the principal

wrongdoers, does not alone make

one an “aider and abettor,” unless

the jury is convinced beyond a

reasonable doubt that (the)

defendant (did) something to

forward the crime and that he was

a participant rather than merely a

knowing spectator.

Id. at 189 (internal quotation marks and citations omitted).

With respect to aiding and abetting, “[i]nferences from

established facts are accepted methods of proof when no direct

evidence is available so long as there exists a logical and
7

convincing connection between the facts established and the

conclusion inferred.” United States v. Cartwright, 359 F.3d

281, 287 (3d Cir. 2004) (internal quotation marks and citations

omitted). 

Soto was convicted of aiding and abetting Brown in

making false statements to a federal firearms licensee in

violation of 18 U.S.C. § 924(a)(1)(A). Section 924(a)(1)(A)

states that whoever:

knowingly makes any false

statement or representation with

respect to the information required

by this chapter to be kept in the

records of the person licensed

under this chapter or in applying

for any license or exemption or

relief from disability under the

provisions of this chapter; shall be

fined under this title, imprisoned

not more than five years, or both. 

As noted by the District Court in denying Soto’s motion

for judgment of acquittal, the evidence produced at trial

revealed that Soto escorted Brown to Delia’s gun shop on

several occasions. He was present in the store with her at the

time of these purchases and actively involved himself in the

purchase of the firearms. Indeed, he was paid $100 in his role

as protection for Brown. He knew that the guns were not for

her, and that they were going to be resold to drug dealers. In

this case, Soto was more than merely a knowing spectator. He

was actively involved in the gun purchase process and

participated in the criminal enterprise. He actively involved
8

himself in the “straw purchase,” and knew that Brown was a

“straw purchaser.”

A similar case arose in United States v. Abfalter, 340

F.3d 646 (8th Cir. 2003). In that case, Michael Williams had

his girlfriend, Roxanne Abfalter, buy firearms for him over a

period of two months because he was a convicted felon.

Williams was present when Abfalter made these purchases.

Williams handled the firearms and negotiated a sale price at the

gun store. At the time of each purchase, Abfalter completed a

4473 form, and affirmed that she was the “actual buyer” of the

firearm. After he was arrested, Williams confessed that he

convinced Abfalter to purchase the firearms for him because he

was a convicted felon. He was then going to resell the firearms

for a profit. See id. at 650.

Among his other crimes, Williams was convicted of

aiding and abetting Abfalter in making false statements in

firearms transactions in violation of 18 U.S.C. § 924(a)(1)(A)

and § 2. See id. at 653. Based on the evidence produced at trial

as outlined above, the Court of Appeals for the Eighth Circuit

determined that this evidence was sufficient to uphold Williams’

conviction for aiding and abetting Abfalter in the making of

false statements in violation of § 924(a)(1)(A).

The circumstances of Williams conviction in Abfalter,

and Soto’s conviction in this case, are quite similar. In both

cases, the alleged aider and abetter was intimately involved in

the firearms purchases. Both Williams and Soto were present

at the time of the firearms purchases, and the evidence indicated

that both Williams and Soto had a history with their “straw

purchaser.” 
9

Soto does not cite to any case which holds that to be

convicted of aiding and abetting a violation of § 924(a)(1)(A),

the government must offer proof that the defendant expressly

knew that the “straw purchaser” was falsely certifying to a

specific question on the 4473 form, and that he specifically

instructed his “straw purchaser” to lie to that particular question.

Indeed, circumstantial evidence can be sufficient to uphold an

aiding and abetting conviction. See, e.g., United States v. Leon,

739 F.2d 885, 891 (3d Cir. 1984) (noting that record contained

sufficient circumstantial evidence for the jury to find the

defendant guilty of aiding and abetting the substantive crimes

charged). Instead, Soto relies heavily on our decision in

Cartwright, 359 F.3d 281, in asserting that the evidence against

him was insufficient. In Cartwright, we examined whether there

was sufficient evidence regarding a conviction for aiding and

abetting the distribution of cocaine. Cartwright is

distinguishable. 

In Cartwright, a sting operation evolved when Prince

Muhammed El agreed to cooperate with law enforcement

authorities to set up a cocaine purchase. Muhammed El

contacted Rashine Ellis to purchase the cocaine. Ellis

subsequently contacted her supplier, Osiris Jackson, for the

purchase. The cocaine purchase took place in a parking lot.

When arriving at the parking lot, Ellis contacted Jackson using

her two-way text messaging service. Jackson approached Ellis’

vehicle and asked if Muhammed El had the money. After

Muhammed El stated that he had the money for the purchase,

Jackson exited the vehicle and walked to a different parking lot

that was not under government surveillance. Several minutes

later, Jackson returned from the other parking lot holding a bag.

A person later identified as Cartwright was seen walking
10

alongside Jackson. The two men were speaking to each other.

Jackson walked to Ellis’ car and Cartwright stopped in front of

a store approximately 100 feet from Ellis’ car. After entering

Ellis’ car, Jackson showed Muhammed El the cocaine.

Government agents then converged on the car. Subsequently,

the agents observed Cartwright enter a nearby store “fairly

quickly.” Agents followed Cartwright into the store. They

recovered a loaded semi-automatic weapon, a cell phone and a

two-way texting devise similar to one recovered from Jackson.

See id. at 283-85.

Cartwright was convicted of aiding and abetting the

distribution of cocaine in violation of 21 U.S. C. § 841 and 18

U.S.C. § 2. On appeal, Cartwright argued that the evidence

produced at trial was insufficient to support his conviction. At

the outset, we noted that the threshold question was whether

Cartwright knew that the subject matter of the transaction was

a controlled substance, rather than some other form of

contraband. See Cartwright, 359 F.3d at 287. In addition to

concluding that the government failed to present direct evidence

that Cartwright knew that he was involved in a drug transaction,

we also concluded that the government failed to show a logical

and convincing connection between the facts established and the

conclusion inferred. See id. at 288. Specifically, we stated that

the government only showed that:

(1) Cartwright made his first

appearance in the breezeway at the

same time that Jackson was

observed carrying the shopping bag

containing the cocaine; (2)

Cartwright walked side-by-side
11

with Jackson through the

breezeway and the two were

observed talking to each other; (3)

Cartwright possessed a semiautomatic firearm, a cellular phone,

$180 in cash, and a Motorola

Timeport two-way text messaging

device; and (4) Cartwright did not

possess any keys to a vehicle of his

own. 

Id. We determined that, “in the absence of any evidence

indicating a substance of the conversation with Jackson, any

evidence of a prior relationship with Jackson, or any other direct

evidence indicating Cartwright’s knowledge, the jury could only

speculate as to Cartwright’s knowledge.” Id. at 289. Thus, we

concluded that this speculation was insufficient to infer a

conclusion that Cartwright had knowledge of the transaction.

Id. 

Unlike Cartwright, Soto had intimate knowledge of the

“straw purchase.” Furthermore, the evidence in this case

indicated that Soto and Brown had a prior relationship. Soto

knew that the firearms were not for Brown, yet he allowed her

to fill out the purchase paperwork. Furthermore, he was present

in the gun store at the time she purchased these firearms. Soto

was clearly part of the criminal enterprise. He was paid for his

services to act as protection for Brown in the purchase of the

firearms. Viewing this evidence in the light most favorable to

the government, we find that this evidence was legally sufficient

to support the conviction because there existed a logical and

convincing conclusion between the facts established and the
12

conclusion inferred that Soto aided and abetted Brown in

violating § 924(a)(1)(A). 

B. “Required by this chapter”

Soto makes two arguments with respect to this issue. First, he

asserts that the issue of whether the “required by this chapter”

language under Section 924(a)(1)(A) was an issue that had to be

decided by the jury instead of the judge. Second, Soto argues

that even if the District Court properly determined that the issue

was not one for the jury, the “actual buyer” question on form

4473 was not required to be kept by the federal firearms

licensee. For the following reasons, we reject each of these

arguments. 

1. The “required by this chapter” issue was a legal issue

At trial, the District Court instructed the jury that:

You’ve heard testimony, you have

evidence before you that a federal

firearms licensee is required to

keep the information pertaining to

the actual buyer. You’ve heard that

testimony and you heard testimony

that statements were made within

the context of transactions that

involved the acquisition of a

firearm.

So that it is incumbent upon the

Government to prove beyond a

reasonable doubt that the false

statement or statements were made
13

with respect to the information

required to be kept in the records of

a licensed firearms dealer, and you

are instructed, I do tell you and

instruct you, that a licensed firearm

dealer is required by federal

regulation to record each gun sale

on an ATF Form 4473, which

requires the name, address, and

other information concerning the

transferee, the person who is

actually purchasing the gun. And

you are further instructed that a

licensed firearms dealer is required

by federal regulation to retain each

Form 4473 obtained in the course

of transferring custody of firearms

. . . The information required to be

kept in the records of the of a

licensed federal firearms dealer

includes, as I have told you, the

actual buyer’s identity. And a

straw purchaser is not the actual

buyer of the a firearm where a

straw purchase is taking place.

(App. 182-83.) Soto asserts that the trial judge should have

allowed the jury to decide whether the “actual buyer” question

was information required by the statute to be kept by the federal

firearms licensee in his records. He relies heavily on the

Supreme Court’s decision in United States v. Gaudin, 515 U.S.
 1

 At the time, 18 U.S.C. § 1001 stated that:

Whoever, in any matter within the

jurisdiction of any department or

agency of the United States

knowingly and willfully falsifies,

conceals or covers up by any trick,

scheme, or devise a material fact, or

makes any false, fictitious or

fraudulent statements or

representations, or makes or uses

any false writing or document

knowing the same to contain any

false, fictitious or fraudulent

statement or entry, shall be fined

under this title or imprisoned not

more than five years, or both.

14

506 (1995), to support this argument. Gaudin is not applicable

in this case. 

In Gaudin, the defendant was convicted of making

material false statements in a matter within the jurisdiction of a

federal agency in violation of 18 U.S.C. § 1001.1

 The issue

presented in Gaudin was whether it was constitutional for the

trial judge to refuse to submit the question of materiality to the

jury. See 515 U.S. at 507. Ultimately, the Supreme Court held

that “[t]he Constitution gives a criminal defendant the right to

have a jury determine, beyond a reasonable doubt, his guilt of

every element of the crime with which he is charged. The trial
15

judge’s refusal to allow the jury to pass on the ‘materiality’ of

Gaudin’s false statements infringed that right.” Id. at 522-23.

Unlike the factual determination of whether the

statements in Gaudin were material, whether the 4473 form, and

its contents, were “required by this chapter” to be kept by the

federal firearms licencee was purely a legal matter. This legal

issue was within the province of the trial judge to decide. Cf.

Gares v. Willingboro Twp., 90 F.3d 720, 734 (3d Cir. 1996)

(noting that issues of statutory interpretation are pure legal

issues). We reject Soto’s first argument that the “required by

this chapter” language in § 924(a)(1)(A) was an issue that had

to be decided by the jury. 

2. The “actual buyer” question was information that was

 required to be kept by the federal firearms licensee 

Soto asserts that the District Court erred when it

determined that the “actual buyer” question in form 4473 is

required to be kept by the federal firearms licensee pursuant to

Chapter 44 of Title 18. At least one other Circuit Court has

squarely addressed this issue. See United States v. Nelson, 221

F.3d 1206 (11th Cir. 2000). In Nelson, the issue was whether

the identity of the “actual buyer” of the firearm was the type of

information that federal firearms dealers are required to keep in

their records. See id. at 1209. As noted by the Court of

Appeals for the Eleventh Circuit, “[s]everal provisions in

Chapter 44 of Title 18 of the United States Code, which is the

chapter referred to in § 924(a)(1)(A), require licensed firearms

dealers to keep records containing information about the

identity of individuals who buy firearms.” Id. For example, 18

U.S.C. § 922(b)(5) makes clear that the information that these

records must contain includes, at a minimum, the name, age and
16

place of residence of any individual who purchases a firearm.

Section 922(s)(3) requires that the licensed dealer obtain a

statement from the transferee which includes a description of

the type of identification used. Additionally, section

923(g)(1)(A) states that, “[e]ach licensed importer, licensed

manufacturer and licensed dealer shall maintain such records of

importation, production, shipment, receipt, sale, or other

disposition of firearms at his place of business for such period,

and in such form, as the Attorney General may by regulations

prescribe.” Among the regulations promulgated by the Attorney

General are the legal requirements that each federally licensed

firearm dealer record each sale on the 4473 form, see 27 C.F.R.

§ 478.124(a), and that each federally licensed firearm dealer

retain the 4473 form in his records. See 27 C.F.R. § 478.124(b).

In Nelson, the Court of Appeals for the Eleventh Circuit

noted that “information about the actual buyer’s identity is

necessary in order for the firearms dealer to ascertain whether

the potential purchaser is in fact eligible to purchase a firearm

under Chapter 44.” 221 F.3d at 1209 (citing 18 U.S.C.

§ 922(b)(1)-(3) (making it unlawful for licensed dealers to sell

firearms to individuals who are ineligible to purchase them as

a result of restrictions imposed under state law or due to the

individual’s age or out of state residence)). The court explained

that, “[i]f an ineligible buyer could simply use a ‘straw man’ or

agent to obtain a firearm from a licensed dealer, the statutory

scheme would be too easily defeated.” Id. The Court of

Appeals for the Eleventh Circuit determined that § 924(a)(1)(A)

applied to situations involving “straw purchases.” See id. at

1210. 
17

We agree with the reasoning and holding in Nelson, and

find that § 924(a)(1)(A) applies to the circumstances of the

“straw purchases” presented in this case. As previously stated,

the statute makes clear that the federal firearms licensee must

keep records of sales of firearms on forms that the Attorney

General prescribes. See 18 U.S.C. § 924(g)(1)(A). Among the

regulations prescribed by the Attorney General is the

requirement that the licensee have each firearm applicant fill out

form 4473, which includes the “actual buyer” question that

Brown falsely certified in this case, and that the firearms

licensee keep that form in his records. See 27 C.F.R.

§ 478.124(a)-(b). We conclude that the information Brown

falsely answered on form 4473 was information that was

“required by this chapter” to be kept in the records by the

federal firearms licensee as stated in § 924(a)(1)(A). As noted

by the court in Nelson, to conclude otherwise would too easily

defeat the statutory scheme. See 221 F.3d at 1209. 

IV.

For the reasons outlined above, we will affirm.