96 Cal. Daily Op. Serv. 3958, 96 Daily Journal D.A.R. 6451 United States of America v. Mary Peggy Moore, United States of America v. Lee Roy Wiley

84 F.3d 1567 96 Cal. Daily Op. Serv. 3958 , 96 Daily Journal D.A.R. 6451 UNITED STATES of America, Plaintiff-Appellee, v. Mary Peggy MOORE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Lee Roy WILEY, Defendant-Appellant. Nos. 94-30453, 94-30454. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 16, 1995. Decided June 4, 1996. David Z. Nevin, Nevin, Kofoed & Herzfeld, Boise, Idaho, for defendant-appellant Mary Peggy Moore. Thomas J. McCabe, Westberg, McCabe & Collins, Boise, Idaho, for defendant-appellant Lee Roy Wiley. George W. Breitsameter, Assistant United States Attorney, Boise, Idaho, for plaintiff-appellee. Appeals from the United States District Court For the District of Idaho, Justin L. Quackenbush, District Judge, Presiding. D.C. No. CR-94-0018-JLQ. Before: REINHARDT, TROTT and TASHIMA, * Circuit Judges. Opinion by Judge TASHIMA; Concurrence by Judge REINHARDT; Dissent by Judge TROTT. TASHIMA, Circuit Judge: 1 These are consolidated appeals by appellants Mary Peggy Moore ("Moore") and Lee Roy Wiley ("Wiley") (collectively "defendants") from their convictions for making a false statement in connection with the…

Dissenting:

I

The Straw Man Purchase

At the time of the purchase of the firearm at issue, Mary Peggy Moore most certainly had the legal authority to buy it for her 14 year old son, had she chosen to do so. The government has never disputed this proposition. 1 Federal and Idaho law both would have accommodated such a purchase. All she had to do was exercise her judgment in favor of the purchase, walk into the store, place her name on the required form in the box marked “transferee,” put her or her son’s money on the counter, and give the gun to her son. Under these circumstances, she probably would not have had to touch the gun herself to make the transaction valid. This is the essence of the transaction Idaho and Congress had in mind when they conditioned the eligibility of juveniles to acquire a firearm on the approving judgment and involvement of a parent or guardian. The sine qua non of a juvenile’s eligibility to acquire a firearm is the genuine approval of a parent or a guardian. Without such approval and involvement, a juvenile is ineligible for this privilege.

In the case before us, however, Mrs. Moore turned down such a straightforward acquisition because she knew her…

Opinion by Judge TASHIMA; Concurrence by Judge REINHARDT; Dissent by Judge TROTT.

These are consolidated appeals by appellants Mary Peggy Moore (“Moore”) and Lee Roy Wiley (“Wiley”) (collectively “defendants”) from their convictions for making a false statement in connection with the purchase of a firearm under the Gun Control Act of 1968 (“GCA”), 18 U.S.C. § 922 (a)(6), and for conspiracy, 18 U.S.C. § 371 , to violate the GCA Moore also appeals from her sentence. Defendants contend, inter alia, that the government’s proof was insufficient as a matter of law to constitute a crime. We agree and therefore reverse their convictions.

BACKGROUND AND FACTS

On January 20, 1994, Bobby Moore (“Bobby”), a juvenile, shot and killed an Idaho police officer with a .25 caliber handgun. The officer’s death generated a large amount of publicity. The publicity resulted in a commitment to investigate and charge, if possible, those individuals responsible for providing Bobby with the weapon.

On September 2, 1993, Bobby, and a friend entered the Little Bit of Everything Pawnshop, a federally-licensed firearms dealer, to “look around.” Bobby was 14 years of age and his friend was 15. While…

concurring:

I agree fully with Judge Tashima’s opinion. I note only that Congress, not the courts, has the authority to determine whether children may possess dangerous weapons if their parents consent. For better or for worse, it has said that they may. Surely, we cannot undo that legislative judgment. In this case, the mother’s consent was manifest. In fact, she communicated it directly to the weapons dealer. Whatever her inner reservations may have been, she gave her consent when it counted most — at the time of the sale. Thus, under the law, none of the charged offenses occurred.