428 F.2d 654 (9th Cir. 1970), 24432, United States v. Thoresen

Docket Nº:24432, 24433.
Citation:428 F.2d 654
Party Name:UNITED STATES of America, Appellee, v. William Erness THORESEN, Appellant. UNITED STATES of America, Appellee, v. Louise Banich THORESEN, Appellant.
Case Date:June 08, 1970
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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428 F.2d 654 (9th Cir. 1970)

UNITED STATES of America, Appellee,


William Erness THORESEN, Appellant.

UNITED STATES of America, Appellee,


Louise Banich THORESEN, Appellant.

Nos. 24432, 24433.

United States Court of Appeals, Ninth Circuit.

June 8, 1970

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John H. Westover (argued), of O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, Phoenix, Ariz., David C. Schutter (argued), of Honolulu, Hawaii, Urban A. Lester (argued), of Ford, Ayer, Horan & Lester, Washington, D.C., for appellants.

Jerrold M. Ladar, Asst. U.S. Atty., Chief, Criminal Division; Cecil F. Poole, U.S. Atty., San Francisco, Cal., for appellee.

Before HAMLEY, DUNIWAY and ELY, Circuit Judges.

HAMLEY, Circuit Judge:

William E. Thoresen III (Thoresen), and his wife, Louise B. Thoresen, appeal separately from their convictions, after a joint non-jury trial, of 1967 violations of section 2(e) of the Federal Firearms Act. 1 Section 2(e) read as follows:

'(e) It shall be unlawful for any person who is under indictment or who has been convicted of a crime punishable by imprisonment for a term exceeding one year or who is a fugutive from justice to ship, transport, or cause to be shipped or transported in interstate or foreign commerce any firearm or ammunition.'

Thoresen was convicted under counts one and five of a ten-count indictment returned on March 6, 1968. Counts one and five charged that on February 24 and March 15, 1967, respectively, Thoresen violated section 2(e) by shipping described rifles in interstate commerce after he had been convicted of a crime punishable by imprisonment for a term exceeding one year.

The prior conviction referred to in counts one and five, obtained upon a plea of guilty to grand larceny, was entered in the Superior Court of Hancock County, Maine, in September 1959. The grand larceny conviction involved the theft of six travel posters, having an assigned value of $150, from the Bar Harbor, Maine, terminal of the Canadian National Railway's Nova Scotia ferry.

Mrs. Thoresen was convicted under counts one and two of the same indictment. Count one, described above, charged Mrs. Thoresen as well as her husband as a principal. But in her case the antecedent event that triggered section 2(e) was not a prior conviction. Instead, it was, as charged in count one, that at the times in question (February 14 and March 15, 1967) she was under

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indictment for two offenses punishable by imprisonment for a term exceeding one year. Count one describes the prior indictment as follows:

'* * * Indictment, No. 205-67, returned by the Grand Jury of the County of Queens, State of New York, filed in the Supreme Court of Queens County, Criminal Term, on February 8, 1967, charging Louise Thoresen 'of the crime of possessing dangerous weapons as a felony' further described in said indictment as possession of 'a quantity of bombs and bomb shells,' and in count two thereof, with a violation of Section 1894 of the Penal Law of New York, a felony; * * *'

The second count charged Mrs. Thoresen as an aider and abetter. The grand jury therein alleged that on January 30, 1967, after Thoresen had been convicted of grand larceny (the Maine conviction), he violated section 2(e) by shipping a quantity of ammunition in interstate commerce, and that, contrary to 18 U.S.C. § 2, Mrs. Thoresen knowingly aided and abetted her husband in this conduct.

Constitutionality of Section 2(e) as Applied to Thoresen

Thoresen argues that applying section 2(e) to him creates an irrational classification which deprives him of due process of law. He contends that while Congress may prohibit persons who have a dangerous propensity to misuse firearms from shipping weapons and ammunition in interstate commerce, such a propensity may not rationally be inferred from prior convictions of crimes having nothing to do with violence or with the use of weapons or ammunition.

The Due Process Clause of the Fifth Amendment provides essentially the same safeguard against invidious and unjustifiable discrimination in federal laws as the Equal Protection Clause of the Fourteenth Amendment does in the case of state laws. See Shapiro v. Thompson, 394 U.S. 618, 642, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Schneider v. Rusk, 377 U.S. 163, 168, 84 S.Ct. 1187, 12 L.Ed.2d 218 (1964); Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884 (1954). It follows that the equal protection principles referred to below apply to Thoresen's due process attack on section 2(e) of the Federal Firearms Act.

When legislative classifications threaten basic civil rights, the Equal Protection Clause requires 'some overriding statutory purpose,' and the lines drawn in such statutes are subject to 'the most rigid scrutiny.' E.g., Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322 (1969) (right to travel); Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968) (familial relationships); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (miscegenation laws); Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965) (right to vote); McLaughlin v. Florida,379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964) (laws forbidding interracial cohabitation); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) (right to criminal appeal); Skinner v. Oklahoma, ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942) (right to procreate). Classifications drawn along racial lines are particularly 'constitutionally suspect.' E.g., Loving v. Virginia, supra; McLaughlin v. Florida, supra; Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944).

On the other hand, 'in applying the Equal Protection Clause to social and economic legislation, we give great latitude to the legislature in making classifications.' Levy v. Louisiana, 391 U.S. at 71, 88 S.Ct. at 1511. In these areas, '(a) statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.' McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961). See also Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491, text following note 16 (1970); Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955); Railway Express Agency, Inc. v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533 (1949) .

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Cf. Morey v. Doud, 354 U.S. 457, 77 S.Ct. 1344, 1 L.Ed.2d 1485 (1957).

In our opinion, the right to ship weapons and ammunition interstate is not a basic civil right on the order of the right to vote or some of the other rights mentioned above. Laws designed to regulate this conduct are analogous to the economic and social welfare regulations given constitutional approval in the McGowan and Dandridge cases above which involved Sunday closing laws and maximum limits on welfare aid, respectively. Accordingly, we must uphold the classification scheme set up in the Federal Firearms Act if we find that it has any rational basis.

With these constitutional principles in mind, we turn to a consideration of Thoresen's contention that section 2(e), quoted above, as applied to him deprived him of due process.

As originally enacted in 1938, section 2(e) proscribed the shipping or transportation in interstate commerce of any firearms or ammunition by a fugitive from justice or by any person under indictment for, or who has been convicted of, 'a crime of violence.'

The purpose of Congress in enacting this statute was to 'eliminate the gun from the crooks' hands, while interfering as little as possible with the law-a-biding citizen * * *.' S.Rep.No. 82, 75th Cong., 1st Sess. 2 (1937). In 1938, Congress thought that this could be done by prohibiting those who had been indicted or convicted of crimes of violence from transporting weapons and ammunition in interstate commerce. See Cases v. United States, 131 F.2d 916, 921 (1st Cir. 1942); United States v. Platt, 31 F.Supp. 788, 790 (S.D.Tex.1940).

The 1938 version of the Federal Firearms Act apparently did not prove to be as effective as Congress had expected. In recommending that section 2(e) and other portions of the Act be amended in 1961, the House Committee on Ways and Means reported that in the late 1950's and early 1960's 'the infiltration of racketeering into society and the exploding crime rate have increasingly become a cause for national concern.' 2 U.S.Code Cong. and Admin.News, p. 3068, 87th Cong. 1st Sess. (1961). This committee report stated that new laws were needed 'so the Federal Government can better assist local authorities in the common assault against crime.' Id. 2

Responding to this view of the problem, Congress passed an act 'To strengthen the Federal Firearms Act,' Act of Oct. 3, 1961, Pub.L.No. 87-342, 75 Stat. 757. Section 2 of this 1961 amendment deleted the words 'crime of violence' in section 2(d), (e) and (f) of the 1938 Act and inserted, in lieu thereof, the words 'crime punishable by imprisonment for a term exceeding one year.' The Senate committee report referred to in note 2 states that this legislation was introduced at the request of the Attorney General as an integral part of an anti-crime legislative program. The Senate report added that the amendment 'would make it more difficult for the criminal elements of our society to obtain firearms.'

A year and a half before Thoresen committed the offenses in question, the Federal Firearms Act was once more amended. Act of Sept. 15, 1965, Pub.L. No. 89-184, 79 Stat. 788. The 1965 legislation added a section 10 to the Federal Firearms Act. New section 10 provided a procedure whereby one convicted of a crime that did not involve the use of a firearm or other weapon or a violation of the Federal Firearms Act could seek relief from the disability established in section...

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