IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA

PLAINTIFF,

VS. NO. 2:11-CR-2294-RB

RICK REESE, TERRI REESE, AND
RYIN REESE

DEFENDANTS.

DEFENDANTS JOINT MOTION TO VACATE FELONY CONVICTION,
OR IN THE ALTERNATIVE, MOTION FOR VARIANCE

TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW, Defendants RICK REESE, TERRI REESE, AND RYIN
REESE, by and through court-appointed counsel, and file their Joint Motion to Vacate
Felony Conviction, or in the alternative, Motion for Variance, and would respectfully show
the Court as follows:
I. Introduction
On August 1, 2012, the jury returned a guilty verdict on Counts 7 and 8 against Ryin
Reese, on Count 9 against Rick Reese, and on Count 10 against Terri Reese, finding each
with having aided and abetted a violation of 18 U.S.C. 924(a)(1)(A), having executed an
ATF Form, Firearms Transaction Record, stating that the named purchaser was the actual
purchaser of the firearm(s) listed, when in fact the Defendant knew the named purchaser
was purchasing the firearm(s) on behalf of another. [Doc. 353]
18 U.S.C. 924(a)(1)(A) reads, in pertinent part, as follows:
Except as otherwise provided in this subsection whoever (A)
knowingly makes any false statement or representation with respect to
the information required by this chapter to be kept in the records of a
1
person licensed under this chapter shall be fined under this title,
imprisoned not more than five years, or both.

Id. (Emphasis added).

However, 18 U.S.C. 924(a)(3) provides that:
[a]ny licensed dealer who knowingly(A) makes any false
statement or representation with respect to the information required by
the provisions of this chapter is to be kept in the records of a person
licensed under this chapter shall be fined under this title, imprisoned
not more than one year, or both.

Id. (Emphasis added).

Both subsection (a)(1) and subsection (a)(3) make it a crime to knowingly make the
same false statement. The only difference between the two subsections is that subsection
(a)(1) extends the prohibition to whoever, and subsection (a)(3) applies only to false
statements or representations made by a licensed dealer. According to the plain language of
the statute, subsection (a)(3) carves out an exception to (a)(1) making the same act, when
committed by a licensed dealer, a misdemeanor. For these reasons, the Reeses respectfully
submit their felony convictions should be vacated and they should be punished under the
misdemeanor provisions of 18 U.S.C. 924(a)(3).
II. Analysis
In United States v. Wegg, a case with facts very similar to the one at bar, the defendant
was sentenced as a misdemeanant, not a felon. See Wegg, 919 F. Supp. 898 (E.D. Va. 1996).
In Wegg, the defendant, who held a Federal Firearm License (FFL), had been found guilty of
aiding and abetting the making of a false statement in violation 18 U.S.C. 2 and
924(a)(1)(A). Id. at 899. After the verdict, the district court raised the prospect that the
defendants acts might not be punishable as felonies but rather misdemeanors[,] and
ordered the parties to brief the subject prior to the preparation of the presentence report.
Id. at 901. In response to the briefing, the district court concluded that [a] close analysis of
2
the statute and cases requires this Court to hold that licensed dealers cannot be prosecuted
as principals under the felony provisions for record keeping violations such as defendants.
Id. (emphasis added).
The government, however, argued that the licensed dealer could be prosecuted as an
aider and abettor of another who could be prosecuted under the felony provision, and the
defendant just so happened to be a licensed dealer, which should not shield him from
felony liability. Id. On the basis of case law and legislative history, the district court rejected
the government argument, asserting that both show[] that the statute was amended in 1986
to reduce licensed dealers record keeping violations to misdemeanors [and that] accomplice
liability should not be imposed under the felony provision where such would defeat the
clear purposed of the 1986 amendments. Id.
With respect to the statutory language, the district court observed that straw
purchases are often prosecuted under 18 U.S.C. 924(a)(1)(A), separate from any provision
under 922. Id. at 902. After quoting 924(a)(1)(A) verbatim, the court asserted that [a]
misrepresentation as to whom the intended transferee actually is by the straw purchaser,
the classic straw purchase, falls within this language. Id. (Emphasis added). The court then
observed, Section 924 treats licensed dealers who do the same exact thing, however,
differently[,] Section 924(a)(3) [being] one of the exceptions to the general provision of
Section 924(a)(1) and provid[ing] only for a misdemeanor penalty. Id. at 902-903. The
court then concluded:
It is axiomatic that where a statute describes an offense generally and
attributes felony punishment to all violators except for an excepted group
who may only receive misdemeanor punishment, those in the excepted
group may only be prosecuted for the misdemeanor. Under a literal
reading of 924, then, when record keeping offenses concerning their
own records are at issue, licensed dealers may only be prosecuted for a
misdemeanor.

3
Id. at 903.
Adding further emphasis to its conclusion that it has reached this result because of
the statutory language constraints, the Court stated further:
The government cannot avoid the direct application of 924(a)(3) by
attempting to use a different provision in the same statute to punish the
same behavior. While straw purchasers and intended purchasers of
firearms who engage in the straw purchase may be liable for felony
convictions, licensed dealers engaged in the same straw purchase may only
be guilty of a misdemeanor. Why else would Congress have had nearly
identical language under 924(a)(1)(A) and (a)(3)(A)? Although such a
distinction may seem unfair or illogical and counter-productive, this Court
has previously recognized this distinction.

Id.
Turning to legislative history, the court noted that [t]he Percival Court proceeded to
address the legislative history of 924(a)(3), and stated that it was enacted as part of the
Firearm Owners Protection Act [FOPA] , which amended the Gun Control Act of 1986.
Id. at 904. In Percival, the government argued that the legislative history only referenced
section 922(m), without any reference to the record keeping requirement of section
922(b)(5) which was at issue in that case. Id. Therefore, the government in Percival
maintained that the felony provision of section 924(a)(1)(A) applied. The defendant in
Percival countered, point[ing] out that the Judiciary Committee report and debates with
respect to [FOPA], were replete with references to the fact that penalties for record keeping
violations, in 922(b)(5) and 922(m), were being reduced to misdemeanors. Id.
Searching the legislative history for itself, the Wegg Court concluded that the
governments narrow reading of the legislative history was not supported by the record. Id. at
904-905. On the other hand, the Wegg Court was reluctant to conclude that the legislative
history supported the proposition that all dealer-related record offenses had been reduced to
misdemeanors and noted, [l]ooking only at 924, it is clear from the statutory language that
4
licensed dealers involved in the same conduct are to be treated differently from other
individuals in the very same transaction. Id. at 905.
Still, the court acknowledged that neither the statute nor the legislative history
addressed specifically the issue of accomplice liability. To answer this question, the court
turned to general exceptions to accomplice liability exist[ing] under common law. Id. at
907. Drawing on the exception that one cannot be an accomplice if ones conduct is
inevitably incident to the commission of the offense, the court noted that the licensed
dealers participation in the sale is inevitably incident to the straw purchase whether or not
he has the knowledge that the sale is illegal. Id. Thus, the court explained:
A straw purchase could not occur but for the involvement of the dealer,
much like adultery or statutory rape could not occur without the
involvement of the partner or the under-age female. Furthermore, just
as the criminal law may treat the customer of a prostitute differently from
the prostitute by having a separate statute or an adulterer different from
his or her partner, the present statute expressly treats sellers of guns
different from purchasers.

Id.
For all of these reasons, the court held that the defendant may only be sentenced
under the misdemeanor provisions for the aiding and abetting counts for which he was
convicted. Id. The court sentenced the defendant accordingly. Id. at 910.
The Wegg decision relied heavily on U.S. v. Percival, 727 F. Supp. 1015 (E.D. Va.
1990). Donald Percival was a licensed firearm dealer who was convicted of conspiracy to
violate the firearms laws of the United States, failure to record information pertaining to the
sale of firearms by a licensed firearm dealer, and unlawful sale of firearms, in violation of 18
U.S.C. 371, 922(b)(5) and 922(b)(3). Id. at 1016. After reviewing the plain language of the
statutes and the legislative history, the Percival court ruled that Section 924(a)(3) set the
punishment for all record-keeping offenses where the defendant was a licensed dealer or
5
employee unless the record-keeping violation provided for a different punishment. Id. at
1018.
Likewise, the U.S. District Court for the Western District of North Carolina found a
licensed dealer to have been improperly charged under the felony provision of Section
924(a) in a case where the dealer should have been charged under the misdemeanor Section
924(a)(3). See U.S. v. Dedrick, 665 F. Supp. 2d 535, 536-37 (W.D. N.C. 2009). The court
reasoned as follows: Reading the two statutory provisions together, it is clear that
924(a)(3) is one of the exceptions to 924(a)(1) that is explicitly contemplated by the text of
that subsection. Id. at 537. The court went on to hold as follows:
Since Congress has provided for different treatment of licensed firearms
dealers in 924(a)(3) and has specifically acknowledged in 924(a)(1) that
924(a)(1) does not apply when a more specific provision of subsection
924(a) provides otherwise, 924(2(3) is the only provision of this
subsection that can be used to charge licensed firearm dealers with
the types of knowing record-keeping violations contemplated by
both 924(a)(1) and 924(a)(3).

Id. (Emphasis added).

Just last year, the Eastern District of North Carolina followed Percival, Wegg, and
Dedrick and held that prosecutors do not have the discretion to charge licensed dealers,
including employees of such dealers, for knowingly making false statements on records that
dealers are required to keep, but must prosecute such statements as misdemeanors under
924(a)(3). See U.S. v. Jackson, 2013 926 F. Supp.2d 691, 707, 711 (E.D. N.C. 2013). In Jackson,
the government conceded that violations of 924(a)(1)(A) subjected licensed dealers to
misdemeanor punishment under 924(a)(3). Id. at 707-08. The government argued that
924(a)(3) only applied to statements of licensed dealers as dealers, not when they were acting
in the capacity as purchasers. Id. at 708. The court rejected this argument, as well. Id.

6
The government will likely argue that United States v. Rietzke, 279 F.3d 541 (7
th
Cir.
2002), United States v. Choice, 201 F.3d 837 (6
th
Cir. 2000), United States v. Jarvouhey, 117 F.3d
440 (9
th
Cir. 1997) should be followed. Defendants submit these cases are distinguishable.
Consistent in these cases is the distinction between willfully failing to keep records and
aiding and abetting the knowingly false statements. Also, each of these defendants was
charged with violating 18 U.S.C. 922(b)(5) and/or 924(a)(1)(D).
In Choice, the defendant entered a conditional plea to one count of willful failure to
make a record of a firearm sale in violation of 18 U.S.C. 922(b)(5). Choice at 838. The
court noted that the penalties for most violations of 922 were contained in 924, and that
any licensed dealer who knowingly makes any false statement or representation with respect
to the information required is guilty of a misdemeanor. Id. (Emphasis added). The court
contrasted the willfully violates language and noted such behavior is punishable as a
felony. Id. The court reviewed the plain language and held that 924(a)(3)(A) clearly applies
only to licensed dealers who make false statements in connection with firearms sales, and not
to those who fail to keep any records at all. Id. at 840 (citing Jarvouhey, 117 F.3d at 442).
Further, because 924(a)(3)(A) refers only to knowing offenses, the court held Choices willful
violation was excluded from its scope. Id. (Emphasis added).
Likewise, in Jarvouhey, the defendant entered a conditional plea to selling semi-
automatic weapons while willfully failing to keep records of the name, age, and residence of
the purchaser, in violation of 18 U.S.C. 922(b)(5). Jarvouhey at 440 (Emphasis added). In his
plea colloquy, Jarvouhey admitted that his failure to keep the required transaction records
was willful. Id. at 441. The district court sentenced him pursuant to 924(a)(1), reasoning
that the provision applied to whoever willfully violates a provision of chapter 18. Id.
(Emphasis added). It further held that because he pled guilty to a willful violation, not just a
7
knowing one, and to failing to keep records, not to making false statements, he was subject to
the felony provisions of 924(a)(1). Id. at 442 (Emphasis added).
Finally, in Rietzke, the defendant pleaded guilty to one count of willfully failing to keep
records of the name, age and place of residence of the person to whom he sold a firearm in
violation of 18 U.S.C. 922(b)(5) and 924(a)(1)(D). Rietzke at 542. The court distinguished
Wegg, noting that it focused on the similarity between 924(a)(1)(A) and 924(a)(3), both of
which punish a knowingly false statement with respect to the require information of
922(b)(5), and did not discuss willful behavior as required in 924(a)(1)(D). Id. at 545
(Emphasis supplied). Because Rietzke was charged under 924(a)(1)(D), the prosecution
was required to prove that he was aware of the law and that he voluntarily and intentionally
violated a known legal duty, an element it need not have proved had he been charged under
924(a)(3). Id. The court noted the plain language of the statute clearly distinguishes between
willful and knowing violations of the law and affirmed the district courts imposition of felony
punishment. Id. at 546 (Emphasis added).
III. Conclusion
For all of these reasons, Defendants assert Rietzke, Choice and Jarvouhey are
distinguishable. Because Defendants were convicted of having aided and abetted a violation
of 18 U.S.C. 924(a)(1)(A), a knowing violation rather than a willful violation, they urge
the Court to follow the reasoning in Percival, Wegg, Dedrick and Jackson by vacating the felony
convictions and imposing punishment under 924(a)(3). In the alternative, the Defendants
request the Court grant a variance and impose sentence consistent with the misdemeanor
provisions of 924(a)(3).


8
Respectfully submitted,

/s/Cori A. Harbour-Valdez___
CORI A. HARBOUR-VALDEZ
THE HARBOUR LAW FIRM, P.C.
P.O. Box 13268
El Paso, Texas 79913
Telephone: (915) 544-7600
Facsimile: (915) 975-8036
Email: cori@harbourlaw.net
Attorney for Rick Reese

/s/ Stephen E. Hosford
STEPHEN E. HOSFORD
LAW OFFICES OF STEPHEN E. HOSFORD, P.C.
P.O. Box 420
Arrey, New Mexico 87930
Telephone: (575) 644-6068
Facsimile: (575) 267-3981
Email: sehosford@gmail.com
Attorney for Terri Reese

/s/ Charles J. McElhinney
CHARLES J. MCELHINNEY
JOHNSON & MCELHINNEY, P.C.
P.O. Box 413
Las Cruces, New Mexico 88004
Telephone: (575) 993-5963
Facsimile: (575) 993-5964
Email: cjm.jmclawfirm@gmail.com
Attorney for Ryin Reese


CERTIFICATE OF SERVICE

I, Cori A. Harbour-Valdez, do certify that on September 8, 2014, I caused the instant
document to be filed with the Clerk of the Court using the CM/ECF system that will serve
all other parties entitled to service and notice.

/s/Cori A. Harbour-Valdez___
Cori A. Harbour-Valdez



9