The sun was beginning to set as Marinelli wheeled his red Chevy Blazer into Monaco's two-story Chardon Road home. There were already a few cars in the turnaround driveway relatives arriving for a party for Monaco's mother, Mary, who was celebrating her 59th birthday.
Monaco was in a good mood as he and Marinelli unloaded boxes of guns from the back of the truck. Christmas was right around the corner, and earlier in the day he had picked up $700 selling a Sig Sauer 9 mm handgun. The two men carried the boxes into the house, which was festooned with party decorations, Christmas lights, and a tree. About fifteen of Monaco's relatives were there aunts and uncles, his two children, his parents, and his grandmother.
The two men went directly to the deadbolted spare room, where Monaco keeps all his firearms and ammunition. His collection included nearly 35 weapons valued at more than $25,000. After putting the guns away and locking the heavy door behind, Monaco turned to Marinelli and said, "Tony, come have something to drink." Marinelli gladly joined the celebration, sipping drinks, nibbling on shrimp cocktail, and swapping stories with the family.
"So we're drinking a little bit, getting ready to eat, and Tony's sitting on that couch," Monaco recalls, pointing to an L-shaped couch near a window that looks out on his maple-tree-filled yard. "He says, "Lou, there's some ATF [Bureau of Alcohol, Tobacco, and Firearms] guys coming up your front lawn.' I said, "Lou, don't even joke about that. That's nothing to joke about.'"
Only Marinelli wasn't joking. Two ATF agents were on Monaco's front lawn. Moments later, they were knocking on the door and handing Monaco a search warrant.
Monaco was well-versed in the more infamous ATF stories. It was agents from the ATF, the U.S. Treasury Department agency charged with enforcing federal gun laws, who raided the doomed Branch Davidian compound in Waco, Texas. ATF agents were also involved in an ill-fated standoff with extremist Randy Weaver in Ruby Ridge, Idaho, that left Weaver's son and wife dead.
Now, with darkness gathering and dinner hot on the table, more than a dozen ATF agents were on Monaco's lawn. Some were dressed in street clothes, but others had bulletproof vests over all-black uniforms with holsters strapped to their thighs. And they wanted Monaco and Marinelli to step outside.
"In my life I've never even had a misdemeanor," says forty-year-old Monaco, sitting in his kitchen with his son's art project hanging over a plate of homemade chocolate chip cookies. "I had a speeding ticket in 1982. I was a clean individual, and here they are with a search warrant. I'm in absolute shock."
The agents made it clear the party was over. They told the guests to leave and produced another warrant, asking Marinelli, now 49, to accompany them to his Willowick home so they could search it for firearms, financial records, and literature about gun shows. Meanwhile, in Euclid, ATF agents were already searching Marinucci's condominium.
"They take over my house," Monaco says. "For two hours I have to sit on the couch with an armed guard standing over me. My own home has been taken over, and they're tearing through here like flies on shit."
Two and a half years later, the events of that day still infuriate Monaco, who doesn't exactly fit the bill of an anti-government extremist. He's wearing gold jewelry and a black Boston concert T-shirt, and Celine Dion is on the videotape in his VCR. His living room is decorated with pictures of his children playing softball and making their First Communion.
"My two kids come out crying, saying they've been kicked out of their rooms by guys in black uniforms," fumes Monaco. "My 87-year-old grandmother is shaking like a leaf, asking, "What's going on?' There's agents roaming around, going through the China cabinet, going through my wife's underwear drawer. You can't imagine."
Some people would have a difficult time imagining what federal agents found inside the locked room where Monaco keeps his gun collection. Photographs later submitted as evidence show a cramped space stuffed with ammunition, gun clips, shotguns, handguns, and rifles enough firepower to outfit a band of guerrillas.
The ATF confiscated 21 firearms, $4,440 in cash including fourteen $50 bills that undercover agents had used to purchase a gun from Monaco and scraps of paper listing Monaco's gun sales and inventory. Federal agents also took thirteen guns from Marinucci that night and six more from Marinelli, targeting weapons that had been displayed at the gun shows. The men were told they were being investigated for selling firearms at gun shows without a license.
Monaco is still incredulous. "Everybody who goes to gun shows doesn't have a license," he says without a trace of irony.
Perhaps only abortion is a more polarizing issue in America today than gun control. In the collective wake of Columbine and Jonesboro, Charlton Heston and the Brady Bill, the National Rifle Association and the Long Island Massacre, nearly everyone who has a feeling on gun control has a strong feeling on gun control. Zealots on both sides see an America without guns as a nation without violence or a nation ripe for government repression, depending on their political leanings.
The truth, of course, lies somewhere in between. Perhaps no case illustrates that better than the 27-month saga that is United States of America v. John Marinucci, Louis Monaco, and Tony Marinelli. Their story encapsulates the convoluted state of gun laws in this country, a vague, crazy-quilt pastiche that in some cases requires a license to sell a .22 caliber peashooter, but in others allows people to sell semi-automatic assault weapons without filling out so much as a one-page bill of sale.
Just a Hobby
How the U.S. Attorney's Office in Cleveland, which has more than its share of well-educated, supremely slick lawyers, ever ended up prosecuting a losing case against three likable but underwhelming schleps is debatable. Sources close to the case say government attorneys were confident, but defense attorney Jay Milano isn't so sure.
"The ATF began an investigation, and like any other bureaucracy in the federal government, once it starts, it's gotta go somewhere," he says. "The bureaucrats stuck with an investigation needed a statistic. Otherwise they would have said, "There's nothing here.' These aren't traditional criminals we're dealing with."
Marinucci, Monaco, and Marinelli got into gun collecting the way most American boys do their fathers were collectors. Monaco met Marinucci and his uncle, Tony Marinelli, in the mid-1980s through a co-worker. The three men found they had common interests and would meet over a few beers or hold family get-togethers. They also began attending gun shows together.
"I was into guns before I was into cars," Monaco says. "At the gun shows, we're there socializing with everybody who's into the same things we are. None of us bowled. None of us golfed. This was our hobby."
When ATF agents began watching Marinucci, Monaco, and Marinelli in March 1996, the gun-collecting trio was already familiar with the agency and vice versa. In 1992 all three men had testified against Arthur Franklin, a gun dealer who was thought to be falsifying federal firearms records. Monaco recounted two trades with Franklin for Chinese-made SKS rifles, neither accompanied by an ATF gun registration form. Monaco testified that Franklin's name was raised in connection to obtaining C-4 explosives, and that Franklin "did not seem to have any ethics or morals, and would sell a firearm to anyone if they had the money."
During the course of that investigation, ATF agent Kevin McGrath told Monaco that he would need a federal license to sell firearms if he continued buying and selling guns from his collection. Monaco, then the used-car manager at Tony LaRiche Chevrolet in Willoughby Hills, maintains McGrath only made a "suggestion." Either way, the advice didn't take. Monaco told the agent that he was a gun collector, rather than a gun dealer, and as such was not required to be licensed.
Little did Monaco know what a role semantics would play in his life nearly seven years later.
Over the next four years, the three men pursued their hobby and lived relatively quiet lives. Monaco bought part of Bedford Buggies, a used-car dealership, and anted up $500 to get his six-year-old son a lifetime membership in the NRA. (Monaco, Marinucci, and Marinelli are all lifetime members of the NRA and the Ohio Gun Collectors' Association.) Marinelli continued driving his UPS route in Willowick, where he still lives with his wife of 27 years and where they raised their five children. Marinucci, a married father of three, went on disability from his job as a Pepsi driver after being diagnosed with toxic ulcerative colitis. In July 1995 doctors surgically rebuilt his intestines.
Nearly one year later August 24, 1996 the trio was in Tallmadge, manning a table at the Summit County gun show with 26 of their firearms on display. Stated ATF policy is that agents do not routinely cruise gun shows looking for violations. But they will respond to specific complaints, and earlier in the year the ATF had received a tip that Marinucci was dealing firearms without a license. The agents headed to Tallmadge to investigate.
An undercover agent watched as Marinucci sold one of his guns. At no point did Marinucci process any paperwork; nor did he do a background check on the buyer. The transaction was in cash, with no taxes or mandatory waiting period. As far as anyone except Marinucci and the buyer knew, the exchange of cold cash for cold steel never took place.
When he got back to the office, the agent ran a check with the ATF's regulatory enforcement division. John Marinucci did not have a federal license to deal firearms. Time to pull out a new manila folder and mark the header "Marinucci."
The ATF agents in Middleburg Heights just had a new investigation on their hands.
Step Right Up
In hindsight, there are some questions about whether the investigation should ever have been launched.
The defendants point to the unheard-of 27-month wait between the raids and their indictment, and a series of increasingly generous plea bargains offered by the government, as proof that they were victims of capricious prosecution. The U.S. Attorney's Office refuses to comment on the case, and the ATF will not discuss specifics.
Pat Berarducci, the ATF's Cleveland spokesman, notes that his agency is only one of many players when a case heads to trial. "I think it's often too easy to blame an agent when you don't particularly like a law or you don't like the way a law is enforced," he says. "We can only enforce the laws as they are given to us. It's really not up to us to determine how the laws should be written."
Certainly polling data suggest that the majority of Americans have reservations about an unchecked cash-and-carry system for buying and selling firearms at what Monaco calls "a flea market for guns." Dozens of criminals have bought guns at gun shows, including Branch Davidian leader David Koresh and Oklahoma City bomber Timothy McVeigh. Part of the arsenal wielded by the gunmen who killed twelve students and a teacher at Columbine High School in April was obtained at a gun show.
And it's all completely legal.
Federal law states that anyone who makes a livelihood selling firearms must be licensed. There are about 72,000 people across the country who, to use the legal definition, "devote time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms."
When a dealer sells a firearm, he is required to fill out a 4473 form. The one-page yellow sheet, which lists information about the buyer and his purchase, is kept by the firearms dealer and subject to audit by the ATF. The form must be completed regardless of where the sale takes place a gun dealer's storefront shop, a gun show, or a backyard barbecue.
But there are loopholes. Not every person who sells one of the 230 million guns in the U.S. is required to be licensed. There is an exception critics say, created to placate the NRA made for gun collectors, which the federal government defines as "a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement, or personal collection, or for a hobby, or who sells all or part of his personal collection of firearms."
Notice how there is no distinction between what constitutes a gun collection and what constitutes an arsenal? The statute carefully avoids an objective number that would define a personal collection versus a professional inventory. There's also no differentiation between various types of weapons.
"Someone can call [himself] a private collector and set up a table at a gun show, and sell two or five or ten or fifty handguns without having to run a background check or observe a waiting period," says Nancy Hwa, a spokeswoman for Handgun Control Inc., a Washington-based gun-control lobbying group. "That's the basic loophole we have this double standard for private sellers and federally licensed sellers."
When gun collectors in Ohio sell firearms from their personal collections, all they are required to do is verify that the purchaser is an Ohio resident and over the age of 21 (or eighteen, if the sale is for a rifle). This is usually done with a quick check of a driver's license, like a bouncer carding bar patrons. There is no background check, no waiting period, no form tracking the gun.
Even McGrath, the ATF agent, admitted in a deposition that the subtleties between a gun dealer and a gun collector can be cloudy. "I think each case is handled on an individual basis," he said. "I don't think there is one cut-and-dry, in-stone determination."
The law might be confusing, but there was nothing equivocal about the ATF investigation, which swung into high gear one week after agents observed Marinucci. On September 7, 1996, undercover agents observed him again at a gun show in Medina, displaying more than twenty handguns and two rifles. This time they also watched Marinelli and Monaco participate. The investigation had just expanded to three people.
At six feet, six inches and 320 pounds, Marinucci, then thirty, would be tough to miss. He had eight handguns carefully laid on the table, including a .38 caliber revolver. The ATF agent gave a paid informant $500 in prerecorded government buy money. The informant asked Marinucci how much he was asking for the gun. Marinucci wanted $300. The informant offered $250. They finally settled on $280.
As the informant counted out the money, he mentioned to Marinucci that he was glad he wouldn't be required to fill out any paperwork, because he had been in trouble with the law. (The Gun Control Act of 1968 prohibits certain people from owning firearms, including convicted felons.) According to evidence from the trial, "Marinucci stated he wished [the informant] wouldn't have told him that, because now he couldn't sell him the firearm, because he didn't want to go to jail for ten years."
Marinucci says he refused to sell the gun, because "I chose not to allow my firearms to fall into the hands of anyone who I had any clue was involved in any illegal activity."
Adds Monaco: "[Marinucci] wouldn't even bite when they had cash in their fists."
The undercover agent and the informant went away without a gun, but the investigation went forward. The ATF ran a check on Monaco and Marinelli, and found that they, like Marinucci, did not have federal firearms licenses.
Three weeks after Marinucci turned down the first undercover sale, ATF agents David Hayes and Larry Brock approached the trio at the Summit County gun show in Tallmadge, where they had 27 handguns and two rifles spread across three tables. The agents asked Marinucci and Monaco about a .38 caliber revolver and settled on a sales price of $380. No forms were filled out. Monaco checked Hayes's driver's license, and the agent left with the gun.
This pattern was repeated six more times over the fall of 1996. Monaco sold a Sig Sauer P228 9 mm pistol for $750 in Medina. Marinucci sold a Colt .38 caliber pistol for $500 in Tallmadge. Monaco sold a Ruger .357 caliber revolver for $350 in Medina. Marinucci sold a .22 caliber pistol for $300 in Tallmadge. Monaco sold a Beretta .38 caliber pistol for $400 in Tallmadge. And on December 15, Monaco and Marinelli sold a Sig Sauer P226 9 mm handgun for $700 in Tallmadge.
"These aren't crime guns, Saturday night specials. This is high-quality merchandise," Marinucci says. In fact, Richard Walters, a gun collector who promoted many of the gun shows the trio attended, agreed with defense attorney Laurence Turbow when the lawyer compared a Sig Sauer to a Rolls-Royce in terms of quality.
A few hours after the December 15 sale, ATF agents came knocking at the homes of Marinucci, Monaco, and Marinelli.
Shove Your Deal
Monaco peppered ATF agents with a litany of obscenities as they searched his house, while Marinucci yelled that the agents had no right to be in his home. But the drama of the search and seizures was followed by an incongruously long period of silence. Marinucci and Monaco retained colorful defense lawyer Jay Milano, while Marinelli hired attorney Laurence Turbow.
Then they waited. For eighteen months.
"A year goes by and nothing happens. A year and a half goes by. Nothing," Monaco says. "It's eating on you like a black cloud."
Milano began making inquiries about getting back his clients' property. According to Milano, Assistant U.S. District Attorney Christa Brunst responded by offering a deal: Plead guilty to felony charges of conspiracy and illegal firearms dealing, give up their firearms, and the trio would not have to serve time in jail.
"You do not need a federal firearms license to buy, sell, or trade as a hobby or to improve your collection, or if you want to sell off all or part of your collection," Marinucci says, repeating the statutory loophole nearly verbatim. "It's plain as day. There was absolutely no way we'd accept a deal."
Milano says Brunst came back a few months later with a new deal: Let the government keep the firearms, and Marinucci, Monaco, and Marinelli would not be charged. The case would simply go away.
Acting against Milano's advice, Marinucci gave a succinct answer: "We told them to go shove it."
"For clients to say, "Charge me if you want, I want vindication,' that's the rarest of all cases," Milano says. "For people to actually stand on principle and risk going to jail is something that lawyers never recommend."
While Milano was advising his clients to take the deal, the government was running a comprehensive and time-consuming trace on each of the forty weapons that were seized. Also, Assistant U.S. Attorney J. Matthew Cain replaced Brunst as the case's lead attorney when the latter went on maternity leave, further adding to the delay.
But early this year, several things happened in quick succession. As of February 1, more than two years after their homes were raided and firearms and money seized, Marinucci, Monaco, and Marinelli still had not been formally charged. Milano made a formal inquiry with the ATF as to how his clients could get back their guns. The next day, the government gathered its evidence and began the indictment review process. Six days later, Milano filed a formal request that the seized property be returned. On February 10, the Feds responded by indicting Marinucci, Monaco, and Marinelli on one count of conspiracy and seven counts of illegal firearms dealing.
The three men remain convinced they were indicted simply because they pressured the government to return their property, a point the government flatly denies. Milano is unsure. "It could be coincidence, but the timing is certainly suspect," he says from his law office overlooking the Rocky River Reservation. "How do you wait two years and three months, and then indict in six days?"
Guns Buy Sell Trade
As their trial approached this spring, Marinucci, Monaco, and Marinelli searched for additional help. Marinucci says they asked everyone from the NRA to the Ohio Gun Collectors' Association to the American Civil Liberties Union for legal assistance, but their pleas fell on deaf ears.
If found guilty, the three men could have gone to federal prison for up to ten years, though their sentences would probably be ten to eighteen months. Monaco says he was under so much pressure that he could not concentrate on work. In March, he quit his job as a used-car manager at Crestmont Cadillac in Beachwood.
"I'm thinking about how my family is going to survive while I'm in prison," says Monaco. "We're making arrangements, moving money from CDs to a checking account so my wife can pay the bills. I'm focusing on being locked up for something I didn't do wrong. It's a hell of a thing, let me tell you. It's the first time in my life when I felt helpless, that I couldn't protect my family."
And so the case of the United States of America v. Marinucci, Monaco, and Marinelli was finally heard in June at the federal courthouse on Superior Avenue. The trial lasted five and a half days, and if it proved anything, it's how loosely worded the statute is that defines legal requirements to sell guns.
Evidence introduced by the government certainly raises questions about Marinucci's claim that these were simply three friends engaged in a benign, perfectly legal hobby. In grainy black-and-white video footage surreptitiously recorded by ATF agents, Marinucci can clearly be heard hawking his firearms with come-ons like "No taxes, no Brady Bill, you don't have to wait" and "Four [$400] out the door."
Several tapes show Marinucci standing in front of a Galil machine gun, an Israeli-made firearm classified as an assault weapon by the federal government. It is illegal to import new Galils. But because of provisions written into gun-control laws, those already here can still be transferred or sold.
Marinucci is shown pushing a .22 caliber Magnum handgun that can hold thirty rounds. "No tax, no papers, right out the door," he is caught saying on the videotape. "If you're looking for a nice thirty-shot handgun, there's no other one like it." Later he adds, "These are real hard to get because of the ban. The government says you're not allowed to have it. There's no paperwork on it."
Marinucci correctly notes that all of his aforementioned actions are completely legal. He says he was simply enticing buyers, and that he would never sell a gun to anyone he thought was anything but a collector.
Speaking just seven weeks after the shootings at Columbine High School in Colorado, Cain opened the trial by ignoring the rhetoric around gun control. "Nobody wants the government to interfere with [the] right to bear arms," he said in his opening argument. "But that's not what this case is about. There is no political issue involved."
Instead, Cain asked jurors to view it as a regulatory case, with the government licensing firearms dealers the same way it licenses barbers, insurance agents, and doctors. He argued that, instead of being gun collectors, Marinucci, Monaco, and Marinelli were de facto gun dealers. And rather than apply for a federal firearms license and deal with the restrictions that come with it the three men simply ignored the law.
Cain produced a business card Marinelli handed out that read: "Guns New Used Buy Sell Trade." He showed a list seized from Monaco's house with the various makes of guns he owned. Each one sold was crossed out and a sale price listed next to it, calling into question Milano's claim that the only guns the trio sold during the ATF's investigation were to undercover agents and informants. Cain also called witnesses and provided sales information suggesting the men turned tidy profits from buying and reselling firearms.
"These defendants have agreed that complying with the rules will shrink their profits," Cain argued. "It's easier to sell guns if you don't require the customer to certify he's not a convicted felon. It's easier to sell firearms if you don't have a waiting period. It's more profitable if you can deliver the gun today, right here out the door.
"What we will suggest here, plainly, is that this ain't no hobby," he argued. Cain noted the three men had amassed "high-powered, large-capacity, semi-automatic, very concealable handguns" and then "declared to themselves and the world I'm a collector, I'm a collector."
But at least one witness called by the government, no less said that's exactly what Marinucci, Monaco, and Marinelli were. Richard Walters, the collector and gun show organizer, testified that the three men on trial were regularly at his shows, plopping down $35 each for tables. He noted that the trio sat together and took turns manning each others' tables.
While his testimony bolstered the government's conspiracy charge, Walters also described the gun shows as social events. Among the five hundred or so tables operated by other gun collectors, he testified, Marinucci, Monaco, and Marinelli were nothing special.
"They didn't seem anything out of the ordinary to me," Walters said.
Out of Control
In the end, after a three-month ATF investigation, the seizure of forty weapons, a combined $57,000 in legal defense fees, and eight days of trial and deliberation, that's essentially what the jury decided: Marinucci, Monaco, and Marinelli were nothing out of the ordinary. They were acquitted on all eight charges.
"All the sales were to ATF agents, they were all legal guns to sell, [and] they were all high-quality merchandise that collectors might sell," says Turbow, Marinelli's attorney. "[The government] was trying to use the criminal statute to legislate. Whatever your opinion is on gun control, these guys followed the rules.
"If the government wants every gun to be registered," Turbow adds, "then change the law. In fact, when this trial was going on, Congress was discussing doing that. And in the end, they didn't."
That's true. In the wake of the Columbine shootings, Congress debated a series of proposals that would have made it more difficult to obtain firearms at gun shows. One of the provisions that garnered attention was a bill sponsored by Senator Frank Lautenberg, a New Jersey Democrat, that would have put unprecedented restrictions on both dealers and collectors selling at gun shows, including background checks and a three-day waiting period. Lautenberg's bill passed in the Senate by one vote. But a similar proposal was rejected in the House of Representatives.
For Marinucci, Monaco, and Marinelli, such Capitol Hill rumblings are far from their minds. Marinucci, who is president of his condominium association, says he is weighing a civil suit against the ATF, though such a lawsuit is nearly impossible to win. All three are still waiting to have their firearms returned, but have otherwise moved on with their lives. Still, it's clear the ordeal has soured them on the ATF, if not the entire federal government.
"I don't want to come across as somebody who is anti-government. I'm anti-control," says Marinucci, a gold crucifix dangling from his neck. "On one end there's the loony-tunes who are anti-government. The other end of the spectrum is the ATF, who'll hurt, maim, or kill anybody in their way."
Marinucci is given to overstatement he calls their case "a total injustice against humanity." But there's no doubting his sincerity. The same is true of Monaco and Marinelli. Living comfortable, nondescript lives on the East Side, all three come across as fairly regular guys one might see at a PTA meeting or at the local Independence Day parade. But whatever flag-waving sensibilities they once had seem to be long gone.
"I keep a gun for protection," Monaco says. "I have insurance and a burglar alarm. Against the common thief, I'm protected. But against your own government, all that gets thrown out the window. I'd be better off if common thugs were at my door instead of my own government."
Three more people in this town will go to their graves convinced they've been victimized by a meddling federal government. It's not even in the same ballpark as Ruby Ridge or Waco, but try telling that to John Marinucci, Lou Monaco, and Tony Marinelli.
"I've lived forty years living the right way," Monaco says. "I taught my kids to be honest, to be hard workers, and now I'm gonna let the ATF turn me into a criminal? I couldn't see giving in."
He lets loose a haughty grin and slaps his hands on the kitchen table for emphasis. "The bottom line is that they couldn't find anything wrong."
And under the current law, it's difficult to see a situation where the Feds could prove anyone is guilty of anything when it comes to dealing guns. The gun shows remain unregulated bazaars of firepower, which is exactly how the honest gun collectors like Monaco want it. But the bad guys like it too.
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