United States of America v. Hiram Abiff M C Cullough

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3285
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
H IRAM A BIFF M C C ULLOUGH ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 4:01CR40080-001-JPG—J. Phil Gilbert, Judge.
____________
A RGUED J ULY 9, 2003—D ECIDED O CTOBER 30, 2003
____________
Before B AUER , C OFFEY , and M ANION , Circuit Judges.
B AUER , Circuit Judge. A jury found Hiram Abiff
McCullough guilty of five counts of willfully selling firearms
without recording the name, age, and residence of the
buyer, 18 U.S.C. §§ 922(b)(5), 924(a)(1)(D), and one count of
aiding and abetting another in willfully engaging in the
business of dealing firearms without a license, 18 U.S.C.
§§ 922(a)(1)(A), 924(a)(1)(D). McCullough sought to submit
to the jury an instruction that a recordkeeping offense
under 18 U.S.C. § 922(m) is a lesser-included offense of
§ 922(b)(5). The district court refused to submit the instruc-
tion, and McCullough appeals. Because the district court

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2 No. 02-3285
should have instructed the jury that § 922(m) is a lesser-
included offense of § 922(b)(5), we reverse McCullough’s five
convictions under § 922(b)(5) and remand the case for
further proceedings.
I.
McCullough, a licensed firearms dealer, operated a gun
shop that ATF agents began investigating in 2001. Dean
West was a regular customer at McCullough’s shop, and
ATF agents had recently arrested West for dealing in
firearms without a license. West cooperated with the agents
and agreed to make several “controlled buys” at
McCullough’s shop. Under the direction of the ATF agents,
West on five occasions purchased used firearms on display
at McCullough’s shop. McCullough did not complete ATF
form 4473 for any of the five transactions. Because a
licensed dealer must complete ATF form 4473 whenever
selling a firearm, 27 C.F.R. § 478.124(a), ATF agents
obtained a search warrant and interviewed McCullough
after advising him of his Miranda rights.
During the interview McCullough explained that West
would purchase used firearms from his store in two ways.
The first and most common way was that a customer with
a firearm to sell would approach McCullough, and he would
call West, who would come to the store and buy the firearm
directly from the customer. Alternatively, if West could not
come to the shop to purchase the firearm, McCullough
would hold the used firearm for him. If the customer
wanted to purchase a new firearm, McCullough would
charge only the difference between the price of the new
firearm and the value of the used firearm, in anticipation
that West would pay the difference. McCullough explained
in the interview that he did not believe that he needed to
record the transactions of the used firearms:

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No. 02-3285 3
RN [Special Agent Robert Nosbisch]: Ok. And there was
also instance [sic] where the individual would come
here, leave the gun with you. You would sell the gun to
Dean West and you would collect the money. Is that
correct?
HM [Hiram McCullough]: Yes. I was acting as, it was
a, a made up deal. You know. The deal was made and
uh the guy couldn’t wait around, so I collected the
money.
RN: Ok. Why did you not put these—
HM: It was less than twenty-four hours. That’s the only
thing where I’m really screwed up I guess, the twenty-
four hour thing.
RN: When someone left a gun here?
HM: Yeah.
RN: Ok. But do you understand that any guns that
come, any gun that comes in your store is required to be
put on your books if you’re selling it. Or the transaction
occurs where someone else acquires a gun. You under-
stand that?
HM: I’m going to be honest with you.
RN: Un huh.
HM. I did not understand. I thought the twenty-four
hour thing was in there. I apologize.
RN: No, no that’s (inaudible).
HM: I really thought the twenty-four hour thing cov-
ered my butt.
Later at trial McCullough elaborated on the “twenty-four
hour” rule, which he understood to mean that “if a gun did
not stay in the building by the end of the business day on
the following day, . . . [y]ou didn’t have to disclose those
firearms in your books.”

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4 No. 02-3285
At trial McCullough testified regarding his policy of not
accepting “trade-ins,” i.e., used firearms that customers
wanted to exchange for new firearms. He explained that in
the early 1990s he decided to stop accepting them because
his wife “almost got shot” by a used firearm that a customer
had altered by doing a “trigger job on it.” McCullough
admitted that he would sometimes hold used firearms for
West, but he emphasized that he never made a profit on
those transactions. He testified that he believed that he did
not have to complete ATF form 4473 for those transactions
because he did not consider the used guns to be his “prop-
erty.” Additionally, he testified that he thought that he did
not have to record those transactions based on the “24-hour
rule.”
McCullough also called as witnesses several customers
who originally owned the used firearms that were the
subjects of the controlled buys. For example, Steve Paddick
owned a Taurus .44 Magnum that West purchased during
the fourth controlled buy. Paddick testified that he brought
the Taurus to McCullough’s shop and that McCullough told
him that he would try to help sell it. Paddick then put a
price of $450 on the Taurus and left it at the shop. About
two weeks later Paddick received a call from West, who
offered to pay $425 for the Taurus. Paddick agreed to that
price, and West went to McCullough’s shop to purchase the
Taurus.
At the end of the trial McCullough asked the court to
submit to the jury an instruction explaining that a
recordkeeping offense under § 922(m) is a lesser-included
offense of § 922(b)(5). The district court heard arguments
from counsel and compared the statutes side-by-side.
Section 922(b)(5), the charged offense, provides that
(b) It shall be unlawful for any licensed importer,
licensed manufacturer, licensed dealer, or licensed
collector to sell or deliver—
. . .

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No. 02-3285 5
(5) any firearm or armor-piercing ammunition to any
person unless the licensee notes in his records, required
to be kept pursuant to section 923 of this chapter, the
name, age, and place of residence of such person if the
person is an individual, or the identity and principal
and local places of business of such person if the person
is a corporation or other business entity.
The scienter requirement for § 922(b)(5) is found in
§ 924(a)(1)(D):
(a)(1) Except as otherwise provided in this subsection,
subsection (b), (c), or (f) of this section, or in section
929, whoever—
. . .
(D) willfully violates any other provision of this chapter,
shall be fined under this title, imprisoned not more
than five years, or both.
(Emphasis added). The offense for which McCullough
sought a jury instruction, § 922(m), provides that
It shall be unlawful for any licensed importer, licensed
manufacturer, licensed dealer, or licensed collector
knowingly to make a false entry in, to fail to make
appropriate entry in, or to fail to properly maintain, any
record which he is required to keep pursuant to section
923 of this chapter or regulations promulgated thereun-
der.
A violation of § 922(m) is punished as a misdemeanor
pursuant to § 924(a)(3)(B).
After comparing the elements of each offense, the district
court concluded that § 922(m) is not a lesser-included
offense of § 922(b)(5) because § 922(m) can be violated in
ways that would not violate § 922(b)(5). Nevertheless, the
court was “given pause because it [was] hard pressed to
conceive how a defendant’s failure to note a firearm pur-

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6 No. 02-3285
chaser’s name, age or place of residence in his records could
ever not constitute a failure to ‘make appropriate entry in’
[sic] a record under the law as it now stands.” The court
went on to hold that, although § 922(m) is not a lesser-
included offense of the § 922(b)(5), “if it was a lesser
included offense, there was sufficient evidence to give that
[instruction] to the jury.”
II.
McCullough argues that the district court erred in
refusing to instruct the jury that § 922(m) is a lesser-
included offense of § 922(b)(5). He also contends that, in any
event, § 922(b)(5) is punishable as a misdemeanor, not a
felony, and at the very least we should remand the case for
resentencing.
A. Lesser-included offense
To be entitled to an instruction regarding a lesser-in-
cluded offense, a defendant must establish that (1) the
offense on which he seeks an instruction is a lesser-included
offense of the one charged, and (2) a rational jury could find
him guilty of the lesser offense but not guilty of the greater
offense. Schmuck v. United States, 489 U.S. 705, 716 & n.8
(1989). We review the first prong of that test de novo and
the second prong for an abuse of discretion. United States
v. Harrison, 55 F.3d 163, 167 (5th Cir. 1995); United States
v. Vaandering, 50 F.3d 696, 703 (9th Cir. 1995); see also
United States v. Hill, 196 F.3d 806, 807-08 (7th Cir. 1999)
(discussing only the second prong).
The district court held that McCullough failed to satisfy
the first prong of the test because the elements of § 922(m)
are not a subset of the elements of § 922(b)(5). Under
Federal Rule of Criminal Procedure 31(c), a jury may find
the defendant guilty of “an offense necessarily included in

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No. 02-3285 7
the offense charged.” To determine whether a particular
offense is “necessarily included” in the charged offense,
courts apply the “elements” test, which holds that a lesser
offense is necessarily included in the charged offense if its
elements are a subset of the elements of the charged
offense. Schmuck, 489 U.S. at 716. An offense is not a
lesser-included one if it contains an element that is not
required by the greater offense. Id. In making this determi-
nation, we must compare “the statutory elements of the
offenses in question, and not . . . [the] conduct proved at
trial.” Id. at 716-17.
No court has analyzed whether § 922(m) is a lesser-
included offense of § 922(b)(5), and we will approach the
issue by comparing the statutes side-by-side. The elements
of an offense charged under § 922(b)(5) are:
(1) that the defendant is a licensed dealer;
(2) that the defendant sold a firearm to a person;
(3) without noting in his required records the name,
age, and place of residence of the person; and
(4) that the defendant did so willfully.
The elements of an offense charged under § 922(m) are:
(1) that the defendant is a licensed dealer;
(2) that the defendant made a false entry in, failed to
make an appropriate entry in, or failed to properly
maintain his required records; and
(3) that the defendant did so knowingly.
We see three differences between § 922(b)(5) and § 922(m)
that we must analyze to determine whether § 922(m) is a
lesser-included offense, and we will discuss first the most
complex difference. One element of § 922(b)(5) is that the
defendant failed to record the name, age, and place of
residence of the buyer. The corresponding element of

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8 No. 02-3285
1 The government argued before the district court that the
elements of these two offenses are different because they refer to
different records required to be kept under 18 U.S.C. § 923.
(continued...)
§ 922(m) is that the defendant made a false entry in, failed
to make an appropriate entry in, or failed to properly
maintain the required records. Obviously, the text of these
elements are literally different, but the “elements” test is
not so narrow that it does not encompass the normal
principles of statutory construction. See Carter v. United
States, 530 U.S. 255, 262-63 (2000) (agreeing that the
elements test requires more than a mere “textual compari-
son” of the statutes in question and applying “normal
principles of statutory construction”); Rutledge v. United
States, 517 U.S. 292, 300 (1996) (concluding that conspiracy
under 21 U.S.C. § 846 is a lesser-included offense of a
continuing criminal enterprise under 21 U.S.C. § 848
because the elements of conspiracy require the same proof
as the “in concert” requirement of § 848).
The government argues that § 922(m) cannot be a lesser-
included offense of § 922(b)(5) because there are “multiple
events which could trigger a violation of § 922(m)” that
would not violate § 922(b)(5). While that may be true, the
government ignores the fact that it is impossible for a
defendant to violate § 922(b)(5) without also violating
§ 922(m). See Schmuck, 489 U.S. at 719 (approving cases
holding that “the lesser [offense] must be such that it is
impossible to commit the greater offense without first
having committed the lesser” (internal quotation marks and
citation omitted)); United States v. Chanthadara, 230 F.3d
1237, 1257-58 (10th Cir. 2000). It is impossible for a
firearms dealer to fail to record the name, age, and resi-
dence of a buyer (the greater offense) without also failing to
make an appropriate entry in his records or failing to
properly maintain his records. 1 The mere fact that it is

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No. 02-3285 9
1 (...continued)
According to the government, the required record for § 922(b)(5)
is ATF form 4473, which must be completed whenever a dealer
sells a firearm. The required record for § 922(m), the government
argued, is an “acquisition or disposition book.” This argument,
which the government has abandoned on appeal, lacks merit
because a licensed dealer violates § 922(m) by failing to make an
appropriate entry in “any record which he is required to keep
pursuant to section 923 of this chapter or regulations promulgated
thereunder.” (Emphasis added). Thus, the government is incorrect
that § 922(m) refers only to records in an “acquisition or disposi-
tion book,” and ATF form 4473 qualifies as “any record” because
it is a record required to be kept pursuant to 27 C.F.R.
§ 478.124(a).
possible to violate § 922(m) (the lesser offense) without
violating § 922(b)(5), such as by failing to record the serial
number of the firearm, should not prevent it from being a
lesser-included offense because § 922(m) does not require
proof of those other possibilities if the government has
proven a violation of § 922(b)(5). See Schmuck, 489 U.S. at
716 (“Where the lesser offense requires an element not
required for the greater offense, no instruction is to be given
under Rule 31(c).” (Emphasis added)).
To put it another way, insofar as the statutory elements
are concerned, proof of the greater offense invariably will
prove the lesser offense. See id. at 717 (rejecting the
inherent relationship approach because under that test
“proof of one offense does not invariably require proof of the
other”). Once the government has put forth the evidence
necessary to satisfy each essential element of § 922(b)(5), it
need not provide additional evidence to prove a violation of
§ 922(m). Thus, concluding that § 922(m) is a lesser-in-
cluded offense of § 922(b)(5) would not run afoul of
Schmuck’s concern that a defendant not be exposed to a
charge whose elements were not contained in the indict-
ment. See id at 717-18. But that is not to say that we need

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10 No. 02-3285
2 The dissenting judge did not disagree with the majority on this
point, concluding only that “I think it is an open question whether
the elements test precludes a charge on a lesser offense that
requires ‘A or B’ when the greater offense requires merely ‘A.’ ”
Alfisi, 308 F.3d at 161 n.3 (Sack, J., dissenting).
to look to the facts at trial to determine whether § 922(m)
is a lesser-included offense of § 922(b)(5). See id. at 716-17
(rejecting the approach of the inherent relationship test,
which requires a court to consider the conduct proved at
trial). A court can determine from looking at the statutes
side-by-side that the failure to record the name, age, and
residence of a buyer would violate both § 922(b)(5) and
§ 922(m).
We found only one federal case that addresses the issue
of a lesser offense that can be violated in multiple ways, at
least one of which would not violate the greater offense. See
United States v. Alfisi, 308 F.3d 144, 152 n.6 (2d Cir. 2002).
In Alfisi the greater offense was bribery of a public official,
18 U.S.C. § 201(b)(1)(A), which includes as an element the
promise or delivery of a benefit to a present or future public
official, id. at 161 n.3 (Sack, J., dissenting). The lesser
offense of making an illegal gratuity, 18 U.S.C.
§ 201(c)(1)(A), includes as an element the promise or
delivery of a benefit to a present, future, or past official, id.
The majority held that the fact that the lesser offense
included an alternative not required by the greater offense
did not preclude it from being a lesser-included offense
because the other two alternatives were subsets of the
greater offense. 2 The court pointed to Rutledge, 517 U.S. at
300, which holds that 21 U.S.C. § 846 is a lesser-included
offense of 21 U.S.C. § 848 even though just one of the two
alternative means of violating § 846 can give rise to a
violation of § 848. The Alfisi court reasoned that, because
Congress could have enacted separate criminal statutes to
reach the conspiracies and the attempts punished under

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No. 02-3285 11
§ 846, it would be “an unnecessary and formalistic require-
ment on how Congress drafts criminal statutes” to hold that
the presence of alternative means of satisfying an element
would preclude a statute from being a lesser-included
offense. Alfisi, 308 F.3d at 152 n.6. We agree with the
reasoning in Alfisi and join the Second Circuit in holding
that alternative means of satisfying an element in a lesser
offense does not preclude it from being a lesser-included
offense. We thus conclude that the first difference between
§ 922(b)(5) and § 922(m) does not preclude § 922(m) from
being a lesser-included offense.
The remaining two differences between § 922(b)(5) and
§ 922(m) are more straightforward. Section 922(b)(5)
requires a sale or delivery of a firearm, while § 922(m) does
not. The government relies heavily on this difference in
support of its argument that § 922(m) is not a lesser-
included offense, but that difference is irrelevant because
what matters is whether the lesser offense, not the greater
one, has an additional element. Schmuck, 489 U.S. at 716;
United States v. Boyles, 57 F.3d 535, 544 (7th Cir. 1995).
Obviously, a greater offense will always have at least one
additional element not found in the lesser-included offense.
Otherwise, the two crimes would be the same.
The final difference between the two statutes is that the
charged offense requires that the defendant act “willfully,”
while the lesser offense, § 922(m), requires that the defen-
dant act “knowingly.” But that difference does not preclude
§ 922(m) from being a lesser-included offense because the
“knowingly” standard is a subset of the “willfully” standard.
In the context of the statutes in question, to act “knowingly”
the defendant need only “inten[d] to do the act that is
proscribed by law,” United States v. Obiechie, 38 F.3d 309,
315 (7th Cir. 1994), while to act “willfully” the defendant
must also have “acted with knowledge that his conduct was
unlawful,” Bryan v. United States, 524 U.S. 184, 193 (1998).
Thus, “the only reasonable distinction between . . . [the]

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12 No. 02-3285
‘knowingly’ and ‘willfully’ standards is that the latter
requires knowledge of the law.” Obiechie, 38 F.3d at 315;
accord Bryan, 524 U.S. at 193; United States v. Rietzke, 279
F.3d 541, 545 (7th Cir. 2002). Accordingly, the “knowingly”
standard requires nothing more than the “willfully” stan-
dard, and the different mental states does not prevent
§ 922(m) from being a lesser-included offense of § 922(b)(5).
See United States v. Browner, 889 F.2d 549, 553 & n.3 (5th
Cir. 1989) (concluding that Schmuck did not intend to
“uproot” the traditional rule that a difference “in the level
of culpability” between offenses does not preclude one from
being a lesser-included of the other). The government does
not contend otherwise. Thus, the three differences between
§ 922(b)(5) and § 922(m) do not prevent § 922(m) from being
a lesser-included offense, and the first prong of the test for
instructing the jury is therefore satisfied.
As for the second prong, a district court must instruct the
jury regarding a lesser-included offense only if a rational
jury could have found the defendant guilty of the lesser
offense but not guilty of greater offense. Schmuck, 489 U.S.
at 716 n.8; United States v. Chrismon, 965 F.2d 1465, 1476
(7th Cir. 1992). “[T]he issue with respect to this second
prerequisite is whether the proof of the element necessary
for the greater crime but not for the lesser crime is suffi-
ciently in dispute.” Chrismon, 965 F.2d at 1476-77 (internal
quotation marks and citation omitted).
The district court concluded that if § 922(m) was a lesser-
included offense of § 922(b)(5), then “there was sufficient
evidence to give that [instruction] to the jury.” The govern-
ment does not challenge that holding and fails to even
mention the second prong of the test for instructing the jury
on lesser-included offenses. But even if the government had
challenged this part of the district court’s decision, we
would review it only for an abuse of discretion. Hill, 196
F.3d at 807-08.

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No. 02-3285 13
The two elements necessary for § 922(b)(5), but not
required for § 922(m), are (1) the sale or delivery of a
firearm; and (2) knowledge of the law, i.e., the difference
between acting “willfully” and “knowingly.” It was not an
abuse of discretion for the district court to conclude that
these elements were sufficiently in dispute such that the
jury rationally could find McCullough guilty of § 922(m) and
not guilty of § 922(b)(5). At trial McCullough testified that
he did not consider the trade-ins as his own property, and
he pointed to the fact that he did not make a profit on those
firearms. Thus, the jury could have concluded that those
transactions did not constitute a “sale or delivery” of a
firearm. Additionally, at trial and in his interview with the
ATF agents, McCullough explained that he believed that he
did not need to complete ATF form 4473 for the trade-ins
because of the “24-hour rule.” Thus, the jury could have
concluded that McCullough did not have “knowledge of the
law” and did not act willfully. Accordingly, McCullough
presented evidence to sufficiently dispute the two elements
required by § 922(b)(5), but not for § 922(m), and he
therefore satisfied the second prong of the test for instruct-
ing the jury regarding a lesser-included offense.
One might argue that the jury obviously felt that there
was sufficient evidence to convict McCullough of the greater
offense because that is exactly what the jury did. The jury,
however, was never given the option to convict McCullough
of anything less than § 922(b)(5). “[W]here the jury suspects
that the defendant is plainly guilty of some offense, but one
of the elements of the charged offense remains in doubt, in
the absence of a lesser offense instruction, the jury will
likely fail to give full effect to the reasonable-doubt stan-
dard, resolving its doubts in favor of conviction.” Schmuck,
489 U.S. at 717 n.9. Thus, because § 922(m) is a lesser-
included offense of § 922(b)(5) and because McCullough
presented evidence such that a rational jury could find him
not guilty of the greater offense and guilty of the lesser, the

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14 No. 02-3285
district court erred in failing to instruct the jury to consider
§ 922(m) as a lesser-included offense.
B. Sentencing Issue
Finally, McCullough contends that the district court
erroneously sentenced him under the felony provision in 18
U.S.C. § 924(a)(1)(D) because, he argues, Congress intended
that all recordkeeping offenses committed by licensed
firearms dealers be punished as misdemeanors pursuant to
18 U.S.C. § 924(a)(3). He relies on several district court
cases but simply fails to accept that we have already
rejected this argument. See Rietzke, 279 F.3d at 543-47.
McCullough attempts to distinguish Rietzke on the ground
that the defendant in that case pleaded guilty; this court, he
says, merely held “that you get what you plead to.”
McCullough, however, misconstrues our decision. Rietzke
does not hold that a defendant’s guilty plea is the control-
ling factor in whether he should be sentenced under
§ 924(a)(1)(D) or § 924(a)(3). Rather, Rietzke concluded that
“[p]rosecutors in their exercise of prosecutorial discretion
are entitled to determine under which statute to proceed.”
Id. at 547. Thus, we rejected the theory that McCullough
now embraces, and McCullough offers no argument not
already considered and rejected in Rietzke.
III.
Because the district court erroneously concluded
that § 922(m) is not a lesser-included offense of § 922(b)(5)
and thus did not so instruct the jury, we R EVERSE
McCullough’s five convictions under § 922(b)(5) and
R EMAND the case to the district court. Additionally, because
McCullough does not challenge his conviction for aiding and
abetting another in willfully engaging in the business
of dealing firearms without a license, 18 U.S.C.
§§ 922(a)(1)(A), 924(a)(1)(D), we A FFIRM that conviction.

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No. 02-3285 15
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-30-03

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