Top State Court Considers Knowledge of Indictment

By Richard Weatheringon

Plain and unambiguous words can have powerful meaning in the law, and where words are used in conjunction, the bar that the government must clear to obtain a conviction may be considerably higher.

Recently, after a pawn customer was convicted of making a false statement when attempting to purchase a handgun, the Virginia Supreme Court was asked to consider whether the false statement had been made both “willfully and intentionally.”

On June 12, 2006, a man, whose first name was Russell, was arrested in the City of Newport News, Va., on a felony warrant charging him with possession of marijuana with intent to distribute. The general district court continued the case several times while Russell remained free on bond, having waived preliminary hearing.

On Sept. 18, 2007, Russell’s counsel sent him a letter informing him that his marijuana case was “certified to the Grand Jury” and that his trial date would be set on November 13.

Counsel further stated that he would advise Russell of the trial date when it had been set and invited Russell to call if he had any questions.
On November 7, counsel wrote a second letter to Russell stating: “This letter is to advise you that your trial date has been pre set for Jan. 11, 2008 at 10:00 A.M. in the Newport News Circuit Court. Your presence is required in court on that date.” Counsel attached a handwritten note to the letter: “Please give me a call to discuss case.” Russell failed to call his counsel as requested.

On Nov. 13, 2007, the grand jury in the City of Newport News indicted Russell for possession of marijuana with intent to distribute.

Applies for Pistol

Two days later, on November 15, Russell entered a pawnshop in a nearby town and applied for the purchase of a .40 caliber semi automatic pistol.

As required by law, he filled out and signed a form prepared by the Bureau of Alcohol, Tobacco, Firearms and Explosives of the United States Department of Justice. The form contained warnings that violations of the gun laws and making a false statement on the form were crimes punishable as felonies. Question 11(b) on the form asked: “Are you under indictment or information in any court for a felony, or any other crime, for which the judge could imprison you for more than one year?” (An information is a formal accusation of a crime by a prosecutor.)
Russell wrote “No” in answer to that question. There was nothing to indicate that Russell, at the time he executed the ATF form, was aware that the Newport News grand jury had returned an indictment against him two days earlier.

An officer of the Virginia State Police made a routine check of Russell’s criminal history before the gun purchase could be completed.
He discovered the recent Newport News indictment and reported it to the pawnshop proprietor, who cancelled the sale. The officer obtained a warrant for Russell’s arrest on a charge of making a false statement on a firearm purchase form in violation of Virginia Code Section 18.2 308.2:2.

Russell was indicted for that offense in the Circuit Court. At a bench trial, the commonwealth introduced the ATF form, the Newport News indictment, documents establishing Russell’s identity, and the testimony of the pawnshop proprietor and the police officer who had examined Russell’s records.

The commonwealth then rested, and the defense made a motion to strike the evidence, which the court denied. Russell then testified in his own defense. On direct examination, he said that he was unaware of the Newport News indictment when he signed the ATF form and that it had first been shown to him only three days before trial.

Russell stated that he understood only that he had been charged with a felony, that his counsel was going to get a trial date set, and that a trial date was then set for January. Russell said that he was not familiar with the criminal justice system, never having been arrested before the marijuana case, and that he had no legal training. On cross examination, Russell testified the he did not know what the term “indictment” meant when he executed the ATF form.

Both parties rested, and defense counsel made a renewed motion to strike the evidence, which the court again denied. The court ultimately found Russell guilty, with the judge stating: “I think the evidence shows that he knew what was going on.”

Appeals Conviction

Russell appealed his conviction to the Court of Appeals. A divided panel affirmed his conviction. The Court of Appeals then granted a rehearing before the full court and again affirmed his conviction, with two judges joining in a separate concurring opinion.

Russell then appealed to the Virginia Supreme Court, claiming that the evidence was not sufficient to support a conviction of “willfully and intentionally making a materially false statement” on the form executed in connection with the purchase of a firearm from the pawnshop in violation of Code Section 18.2 308.2:2(K).

Where there is a challenge to the sufficiency of the evidence, the Supreme Court said it reviews the evidence in the light most favorable to the prevailing party, including any inferences the fact finder may reasonably have drawn from the facts proved. The judgment of the trial court is presumed to be correct and will not be set aside unless it is plainly wrong or without evidence to support it.

Nevertheless, said the court, when an appeal presents the question whether the facts proved, and the legitimate inferences drawn from them, fall within the language of a statute, the court must construe the statutory language to answer the question. That function presents a pure question of law, which the court considers with a fresh view on appeal.

Code Section 18.2 308.2:2(K) provides: Any person willfully and intentionally making a materially false statement on the consent form required in subsection B or C or on such firearm transaction records as may be required by federal law, shall be guilty of a Class 5 felony.
It is undisputed, said the Supreme Court, that the ATF form is one required under this statute and that Russell’s answer to question 11(b) on that form was, in fact, false. The sole question remaining, said the court, was whether Russell made this false statement “willfully and intentionally” so as to bring it within the statute under which he was convicted.

Both Words Vital

Because the statute uses the two adverbs conjunctively, both words together define an element of the crime. Stated differently, if the commonwealth failed to prove beyond a reasonable doubt that Russell’s conduct was both willful and intentional, the evidence was insufficient to support a conviction.

The court noted that the word “willfully” was a word of many meanings whose construction often depends upon context. The renowned Judge Learned Hand of the United States Court of Appeals for the Second Circuit was quoted as observing, off the bench, that “willfully” was an awful word, one of the most troublesome words in a statute that he knew. Thus, to answer the question presented by Russell’s appeal, the Supreme Court said it suffices to focus upon the word “intentionally.”

The Supreme Court pointed out that in the Sixth Edition of Black’s Law Dictionary, “intentional” was defined as: “Determination to act in a certain way or to do a certain thing.” The adverb “intentionally” is defined as: “To do something purposely and not accidentally.”

The Supreme Court said it presumes that the General Assembly chooses its words with care when it frames a statute. When statutory terms are plain and unambiguous, the court applies them according to their plain meaning, without resorting to the rules of statutory construction.
The court said it perceived no ambiguity in the word “intentionally.” By coupling it with “willfully,” the General Assembly removed any ambiguity that would have resulted from the use of “willfully” alone.

By using the two words in conjunction, it was clear, noted the Supreme Court, that the General Assembly intended to impose upon the Commonwealth a very strict standard of knowledge in prosecutions for violations of Code Section 18.2 308.2:2(K).

The Virginia Court of Appeals, in the majority opinion as the full court, applied the federal standard, which holds that the knowledge element is satisfied by the actual knowledge of the statement’s falsity as well as any “deliberate disregard for its truth or falsity with a conscious purpose to avoid learning the truth.”

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