United States v. Zisha Wajcman, 842 F.2d 1293, 4th Cir. (1988)
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Scribd Government DocsUnited States v. Zisha Wajcman, 842 F.2d 1293, 4th Cir. (1988)
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Scribd Government Docs842 F.
2d 1293
Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of
unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Zisha WAJCMAN, Defendant-Appellant.
No. 87-5576.
United States Court of Appeals, Fourth Circuit.
Submitted Jan. 12, 1988.
Decided March 7, 1988.
Peter D. Eliades; Eliades & Eliades, on brief, for appellant.
Henry E. Hudson, United States Attorney; N.G. Metcalf, Assistant United
States Attorney; Virginia A. Adkins; Bonnie L. Anderson, Student
Assistants to the United States Attorney, on brief, for appellee.
Before ERVIN and CHAPMAN, Circuit Judges, and BULLOCK, United
States District Judge for the Middle District of North Carolina, sitting by
designation.
PER CURIAM:
Appellant Zisha Wajcman, a New York resident, traveled to Virginia in August
1986 and January 1987. On both occasions, he purchased a number of guns
from several gun dealers by falsely identifying himself as a Virginia resident.
On April 21, 1987, he was convicted on four counts of making false statements
intended to deceive a licensed firearms dealer in violation of 18 U.S.C. Sec.
922(a)(6). We affirm.
On August 29, 1986, Wajcman purchased six handguns from Southern Gun
World in Chesterfield County, Virginia. He presented a Virginia driver's license
listing his name and address as Thomas Whiteman, 1847 West Grace Street,
Richmond, Virginia. Betty Furniss, the store manager, used the information to
fill out Federal Form 4473, which Wajcman then signed. The same day, he
bought five handguns from Virginia Police Equipment Company, also in
Chesterfield County. There, he gave the same information to Hildie Weiss,
which was used to fill out the same federal form.
On January 16, 1987, Wajcman returned to Southern Gun World and attempted
to cash a check for $750.00. Furniss refused to cash it because it was made out
to someone other than Thomas Whiteman. The next day, Wajcman purchased
three handguns from Bob Moats Sportshop in Chesterfield County. He used a
different Virginia driver's license identifying him as Thomas Grover Whalen,
710 North Washington Street, Alexandria, Virginia, to fill out form 4473. On
January 18, Wajcman returned to Virginia Police Equipment Company and
purchased ten handguns from Weiss. To make this purchase, he used the
Whalen license with its Alexandria address.
Finally, on January 19, Wajcman made a third visit to Southern Gun World and
unsuccessfully attempted to cash the $750.00 check again. Virginia State
Trooper Larry Thompson observed this event and had a license check run on
Wajcman's car after he left. Later that morning, Trooper Thompson saw
Wajcman again at the area office of the state police where he was trying to
acquire a second form of identification. After following him to the parking lot,
Thompson asked for his license. Wajcman did not produce one, but identified
himself as Thomas Whalen. Further investigation and a search of his car
yielded thirteen firearms, a variety of papers and identification, and several
yellow pages torn from a telephone directory which contained ads for firearms
dealers. Wajcman was indicted on four counts for making false statements
intended to deceive a licensed firearms dealer.
At trial, the government presented evidence of these events. In addition, John
Brayley, owner and supervisor of a small apartment complex at 1847 Grace
Street, Richmond, testified that he had never leased an apartment to a Thomas
Whiteman and had never seen Wajcman. Employees of the Immigration and
Naturalization Service and the Department of Health and Human Services
testified that their records indicated that Wajcman lived in Brooklyn, New
York, for purposes of his immigration status and disability benefits. Finally,
Bob Patel, owner of the Royal Inn Motel in Chesterfield, testified that
Wajcman, using the name Thomas Whiteman, was a registered guest on
August 26-29, 1986, and January 14-18, 1987. He also stated that Wajcman
gave his address as 3094 Brighton 5th Street, Brooklyn, New York. Wajcman
presented no evidence.
6
On appeal, Wajcman argues that the government failed to prove that the
Alexandria address he used for the two January purchases was false. The
government counters that residency, not address, is the material fact, and that
the evidence of a New York residence was sufficient to show a false statement.
Wajcman also asserts two evidentiary errors.
In reviewing the sufficiency of the evidence, we look to "whether, viewing the
evidence in the light most favorable to the government, any rational trier of
facts could have found the defendant guilty beyond a reasonable doubt." United
States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir.1982) (emphasis in original).
We consider both circumstantial and direct evidence in this review. Id.
18 U.S.C. Sec. 922(a)(6)1 prohibits buyers from making false statements that
are material to the lawfulness of a firearm purchase. The material fact involved
in this case is the residency of Wajcman, not his address. See United States v.
Benton, 329 F.Supp. 331, 332 (D.N.H.1971); see also, United States v.
Behenna, 552 F.2d 573, 575-76 (4th Cir.1977) (proof of statement of false
address does not satisfy indictment charging statement of false residency).
Residence means the state in which a person has a regular home or place of
abode. United States v. Hawkins, 794 F.2d 589 (11th Cir.1986).
In this case, the government did not show that the Alexandria address was false.
It did show that Wajcman was not a Virginia resident by introducing evidence
showing that he was a New York resident. This included his address as listed
with the Immigration and Naturalization Service, the address where his social
security disability payments were sent, the address he used in registering at the
Royal Inn Motel in January 1987, and the address on various items found in his
car. The government also proved that the Richmond address he used in the two
August purchases was false, which strengthens the inference that he was not a
Virginia resident. Finally, there is nothing in the record that tends to show
Virginia residency. This evidence is sufficient for a rational trier of fact to find
beyond a reasonable doubt that Wajcman was not a Virginia resident in January
1987.
10
Wajcman asserts evidentiary errors in the admission of the "yellow pages" ads
found in the trunk of his car and testimony that the guns he bought were not
hunting weapons. Although the relevance of this evidence is limited, at best, so
is the prejudice. Any error regarding it is harmless.
11
The evidence is sufficient to show that Wajcman falsely stated his residency by
using a Virginia driver's license with an Alexandria address. Therefore, his
conviction under 18 U.S.C. Sec. 922(a)(6) is
12
AFFIRMED.
Sec. 922 Unlawful acts
(a) It shall be unlawful-***
(6) for any person in connection with the acquisition or attempted acquisition of
any firearm or ammunition from a licensed importer, licensed manufacturer,
licensed dealer, or licensed collector, knowingly to make any false or fictitious
oral or written statement or to furnish or exhibit any false, fictitious, or
misrepresented identification, intended or likely to deceive such importer,
manufacturer, dealer, or collector with respect to any fact material to the
lawfulness of the sale or other disposition of such firearm or ammunition under
the provisions of this chapter;
