United States of America, Plaintiff-appellant, v. Terry Oliver Walker, Defendant-appellee, 489 F.2d 1353 (7th Cir. 1974)

The district court dismissed an indictment charging that defendant, a convicted felon, had received a firearm 'in commerce and affecting commerce,' in violation of 18 U.S.C. App. 1202(a).¹  352 F. Supp. 113. The government's appeal raises two questions: (1) whether, since the dismissal was based on facts not set forth in the indictment, the order is appealable; and (2) whether, since defendant's possession of the firearm was unrelated to its earlier interstate shipment, the indictment charged an offense.

The indictment is drafted in the language of the statute.²  After discovery indicated that the firearm had only crossed a state line on one occasion several months before it came into his possession, defendant moved to dismiss the indictment. In response to that motion, the government stipulated to the following facts:

On March 1, 1970, the gun was shipped from Miami, Florida, to a retailer in Alton, Illinois. Six months later the retailer sold it to a pawnbroker, who resold it to a third party. After that party discovered that the gun was missing, it was found in defendant's possession. There is no suggestion that defendant had any connection with the interstate shipment or with either of the subsequent sales. Thus, the government has stipulated that its evidence will simply establish (a) that defendant is a convicted felon, and (b) that he possessed a firearm which had previously moved in interstate commerce.

The district court considered these facts in the light of the Supreme Court's opinion in United States v. Bass, 404 U.S. 336, 92 S. Ct. 515, 30 L. Ed. 2d 488. The district judge noted that the Court had rejected the government's original interpretation of the statute, namely, that no nexus between a receipt or possession and interstate commerce need be shown; the district judge then concluded that since this defendant's possession was neither in commerce, nor had any effect on commerce, the nexus required by the Bass rationale was not present. He rejected the government's argument that the case was controlled by dicta in the Bass opinion,³  relying instead on the thrust of the Court's reasoning which requires an unambiguous expression of congressional intent before state criminal jurisdiction may be duplicated by federal regulation under the commerce clause.

We first consider the jurisdictional issue and then the Bass opinion.

The government invokes our jurisdiction under the Criminal Appeals Act, 18 U.S.C. 3731, as amended effective January 2, 1971. 84 Stat. 1880, 1890.⁴  That amendment cured the statutory objection to our jurisdiction that we reviewed en banc in Ponto,⁵  Grochowski⁶  and Gustavson.⁷  However, that amendment could not overcome the alternative ground for decision in those cases, namely, that dismissals predicated on facts not set forth in the indictment were actually acquittals from which appeal was foreclosed by the double jeopardy clause of the Constitution. See United States v. McCreery, 473 F.2d 1381 (7th Cir. 1973).

The Ponto 'acquittal' rationale is inapplicable here. In each of the cases in which that rationale was applied, the alleged offense was a refusal to submit to induction into the Armed Forces in violation of 50 U.S.C. App. 462. Under that statutory scheme, judicial review of the classification process is normally unavailable until the registrant is required to defend a criminal charge.⁸  In such cases, determination of guilt or innocence typically turns on an analysis of the defendant's Selective Service file. Ponto holds that the judge's ruling on the merits of the defense which is most typically asserted at trial is, in effect, an acquittal whether the ruling is made after or before the jury is impaneled.

The rulings in Ponto, Grochowski, Gustavson and McCreery did not involve the sufficiency of the government's charge. As those opinions respectively stressed, each of the dismissals sustained the merits of an affirmative defense.⁹  In the case before us, however, the government's stipulation is a particularization of the general allegation in the indictment. By revealing the facts it is prepared to prove, the government has, in effect, narrowed the charge in the indictment. The question decided by the district court was whether the indictment, as so limited, describes a violation of 1202(a). It is clear that a dismissal based on a determination of the sufficiency of the charge, as limited by this type of stipulation, is subject to appellate review. See United States v. Fruehauf, 365 U.S. 146, 157-158, 81 S. Ct. 547, 5 L. Ed. 2d 476.

We therefore hold that the rationale of Ponto does not defeat our jurisdiction.

It is fair to state the issue on the merits as whether the Supreme Court's dicta describing the reach of the receipt offense in 1202(a) really means what it appears to say. Four other circuits have recognized that the language of the Bass opinion is directly applicable to facts comparable to those before us.¹⁰  The problem which the district court's decision identifies, however, is whether the apparent meaning of that language is consistent with the reasoning which led the Court to reject the government's original construction of the statute.

The government had construed the statute as broadly covering every possession or receipt of a firearm by a convicted felon. That construction had been accepted by five circuits, but, in Bass, the Second was persuaded to construe the statute more narrowly to avoid the constitutional issue that would otherwise exist.¹¹  In this case the district court felt that a comparable constitutional problem is presented by the application of the statute to these facts. For it is conceded that defendant's possession was not in commerce and did not affect commerce. There would appear to be no greater constitutional support for the application of the statute to cases like this than for applying it to every possession of a firearm by a convicted felon.¹² 

It is quite clear, however, that the Bass decision does not evidence any doubt by the Supreme Court with respect to the power of Congress to prohibit all such possessions. Its opinion makes no reference to the constitutional question which troubled the Second Circuit.¹³  Moreover, as the Court's decision in Perez v. United States, 402 U.S. 146, 91 S. Ct. 1357, 28 L. Ed. 2d 686, demonstrates, the constitutional support for the statute is provided by the congressional evaluation of the category of transactions of which this is a part,¹⁴  rather than a judicial evaluation of the significance of the particular transaction before it.¹⁵  The district court's concern with the constitutionality of the statute as applied here was misplaced.

The Supreme Court's rejection of the argument that there need be no nexus whatever between interstate commerce and a felon's possession or receipt of a firearm did, however, rest on guides to construction of federal criminal statutes which also support defendant here. As in Rewis v. United States, 401 U.S. 808, 91 S. Ct. 1056, 28 L. Ed. 2d 493, the Court resolved the ambiguity in a federal criminal statute in favor of lenity and of avoiding a significant change in the Federal-State balance not clearly required by the statement of Congress' purpose.¹⁶  The Court's broad description of the receipt offense would also seem to offend those important policies. Nevertheless, the entire opinion demonstrates that Mr. Justice Marshall's choice of language was deliberate and precise.

In Bass, the government had argued that 1202, enacted as a part of Title VII, and 922(g) and (h), enacted as a part of Title IV of the same statute, would be substantially redundant if an interstate commerce nexus were required for both sections. Although the Court did not accept this argument, it did adopt a construction which minimized the extent of the redundancy. It held that 'Title VII complements Title IV by punishing a broader class of behavior' 404 U.S. at 342, 92 S. Ct. at 520. Unlike Title IV. Title VII is not limited to the sending or receiving of firearms 'as part of an interstate transaction.' Id. at 343, 92 S. Ct. at 520.

Similarly, the Court expressly stated that the receipt offense is 'significantly broader in reach' than the possession offense. Id. at 350, 92 S. Ct. 515. Apparently possession is not proscribed unless the gun is 'moving interstate or on an interstate facility, or if the possession affects commerce.' Id. at 350, 92 S. Ct. at 524. The differentiation between possession and receipt plainly indicates that no direct connection with commerce is required for the latter offense. Thus, as in other criminal statutes cited by the Court, a federal jurisdictional fact, which may well be extraneous to the basic policy of the statute, is an essential element of the offense.¹⁷ 

Finally, the Court expressly noted that the considerations of federalism and lenity did not require it to adopt the narrowest possible reading of the statute, since its broad reading appropriately reflected the basic legislative purpose of restricting firearm-related activity of convicted felons. Id. at 351, 92 S. Ct. 515. Thus, even if the broad reach of the receipt offense proscribed by 1202 is arguably almost as extensive as if the government had prevailed in Bass, the Court's reading does require proof of a jurisdictional fact relevant 'to federal criminal jurisdiction alone.' Id. at 351, 92 S. Ct. 515. Since that fact is alleged in this indictment, even as limited by the government's stipulation, the dismissal was improper.

Reversed and remanded.

WILLIAM J. CAMPBELL, Senior District Judge (concurring).

I reluctantly concur in reversing the dismissal of this indictment, and do so only because I consider United States v. Bass, 404 U.S. 336, 92 S. Ct. 515, 30 L. Ed. 2d 488 (1971) as allowing no other result under the facts here presented. In Bass, 'the Government proceeded on the assumption that 1202(a) (1) bans all possessions and receipts of firearms by convicted felons, and that no connection with interstate commerce had to be demonstrated in individual cases.' 404 U.S. at 338, 92 S. Ct. at 517. Applying principles of statutory construction, the Court held the phrase 'in commerce or affecting commerce' related not only to conduct involving transportation of firearms, but also to instances in which the defendant is charged with either receiving or possessing firearms.

Mr. Justice Marshall, speaking for the Court, then continued:

'There is a second principle supporting today's result: unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance . . .. In traditionally sensitive areas, such as ligislation affecting the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision . . .. In the instant case, the broad construction urged by the Government renders traditionally local criminal conduct a matter of federal enforcement and would also involve a substantial extension of federal police resources. Absent proof of some interstate commerce nexus in each case, 1202(a) dramatically intrudes upon traditional state criminal jurisdiction . . .. Absent a clearer statement of intention from Congress than is present here, we do not interpret 1202(a) to reach the 'mere possession' of firearms.'

Mr. Justice Brennan's brief concurring opinion indicates that he would have said no more, and had Mr. Justice Marshall done so, I would affirm the district court's dismissal of this indictment. However, the Court's opinion continues with the statement that 'we conclude that the Government meets its burden here (i.e., with respect to the offense of 'receiving' a firearm) if it demonstrates that the firearm received has previously traveled in interstate commerce.'¹⁸ 404 U.S. at 350, 92 S. Ct. 523. Footnote 18 of the Opinion advises that 'this reading preserves a significant difference between the 'receipt' offenses of Title IV and Title VII. See supra at 342-343.' At page 343, 92 S. Ct. at page 520 of the Opinion, the Court notes that, unlike 1202(a), Title IV is 'limited to the sending or receiving of firearms as part of an interstate transportation.' See also, footnote 10, 404 U.S. at 343, 92 S. Ct. at 520.

This 'significant difference' leads to only one conclusion: That if a firearm has ever traveled in interstate commerce previous to the time defendant 'receives' it, his receipt of that firearm is proscribed by 1202(a) (1), even if the defendant's receipt of the weapon involved a wholly intrastate transaction.

While this conclusion is dictated by the specific language of the Bass decision, I find its implications entirely inconsistent with all that Justice Marshall had to say regarding the need for a 'clearer statement of intention from Congress' before the court would construe 1202(a) as requiring no 'interstate commerce nexus in each case', a statutory construction which, in the Court's view, 'dramatically intrudes on traditional state jurisdiction.' It is difficult to conceive of an instance in which a person charged with possession of a firearm may not also be charged with receiving it. And if all the Government need demonstrate is that the 'firearm received has previously traveled in interstate commerce', 1202(a) effectively proscribes virtually all acts involving possession or receipt of firearms by a person previously convicted of a felony. If the defendant is charged with having received the weapon in any state other than the state wherein it was manufactured, the firearm will necessarily have previously traveled in interstate commerce.

The fortuitous circumstances which would have to exist to render 1202(a) (1) inapplicable are so unlikely that, in practice, the statute 'renders traditionally local criminal concuct a matter of federal enforcement', a change in the 'federal-state balance' which Justice Marshall had indicated would not be recognized 'absent a clearer statement of intention from Congress'.