                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             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Precedential or Non-Precedential: Precedential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)
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

                               2
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

                                3
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.

                               4
                                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.


                                5
        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

                                6
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

                              7
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.”


                               8
       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

                                 9
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

                               10
              with Jackson through the
              breezeway and the two were
              observed talking to each other; (3)
              Cartwright possessed a semi-
              automatic 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

                               11
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

                               12
              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.


                               13
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



 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
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

                               15
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.



                               16
        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.




                               17
