431 U.S. 563 (1977), 75-1344, Scarborough v. United States

Docket Nº:No. 75-1344
Citation:431 U.S. 563, 97 S.Ct. 1963, 52 L.Ed.2d 582
Party Name:Scarborough v. United States
Case Date:June 06, 1977
Court:United States Supreme Court

Page 563

431 U.S. 563 (1977)

97 S.Ct. 1963, 52 L.Ed.2d 582



United States

No. 75-1344

United States Supreme Court

June 6, 1977

Argued March 2, 1977




In a prosecution for possession of a firearm in violation of the provision of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.App. § 1202(a), making it a crime for a convicted felon to possess "in commerce or affecting commerce" any firearm, proof that the possessed firearm previously traveled at some time in interstate commerce held sufficient to satisfy the statutorily required nexus between possession and commerce. This is so, where, as in this case, the firearm in question traveled in interstate commerce before the accused became a convicted felon; the nexus need not be "contemporaneous" with the possession. Both the text and legislative history of the statute show a congressional intent to require no more than the minimal nexus that the firearm have been, at some time, in interstate commerce and to outlaw possession broadly, with little concern for when the nexus with commerce occurred. Pp. 567-577.

539 F.2d 331, affirmed.

MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, BLACKMUN, POWELL, and STEVENS, JJ., joined. STEWART, J., filed a dissenting opinion, post, p. 578. REHNQUIST, J., took no part in the consideration or decision of the case.

MARSHALL, J., lead opinion

MR. JUSTICE MARSHALL delivered the opinion of the Court.

Petitioner was convicted of possessing a firearm in violation of Title VII of the Omnibus Crime Control and Safe Streets

Page 564

[97 S.Ct. 1964] Act of 1968 (Omnibus Crime Control Act), 18 U.S.C.App. §§ 1201-1203. The statute provides, in pertinent part:

Any person who --

(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony . . .

* * * *

and who receives, possesses, or transports in commerce or affecting commerce . . . any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.

18 U.S.C.App. § 1202(a).1 The issue in this case is whether proof that the possessed firearm previously traveled in interstate commerce is sufficient to satisfy the statutorily required nexus between the possession of a firearm by a convicted felon and commerce.


In 1972, petitioner pleaded guilty in the Circuit Court of Fairfax County, Va. to the felony of possession of narcotics with intent to distribute. A year later, in August, 1973, law

Page 565

enforcement officials, in the execution of a search warrant for narcotics, seized four firearms from petitioner's bedroom. Petitioner was subsequently charged with both receipt and possession of the four firearms in violation of 18 U.S.C.App. § 1202(a)(1).

In a jury trial in the Eastern District of Virginia, the Government offered evidence to show that all of the seized weapons had traveled in interstate commerce. All the dates established for such interstate travel were prior to the date petitioner became a convicted felon.2 The Government made no attempt to prove that the petitioner acquired these weapons after his conviction.3 Holding such proof necessary for a receipt conviction, the judge, at the close of the Government's case, granted petitioner's motion for a judgment of acquittal on that part of the indictment charging receipt.

Petitioner's defense to the possession charge was two-fold. As a matter of fact, he contended that, by the time of his conviction, he no longer possessed the firearms. His claim was that, to avoid violating this statute, he had transferred these guns to his wife prior to pleading guilty to the narcotics felony. Secondly, he argued that, as a matter of law, proof that the

Page 566

guns had at some time traveled in interstate commerce did not provide an adequate nexus between the possession and commerce. In furtherance of this defense, petitioner requested that the jury be instructed as follows:

In order for the defendant to be found guilty of the crime with which he is charged, it is incumbent upon the [97 S.Ct. 1965] Government to demonstrate a nexus between the "possession" of the firearms and interstate commerce. For example, a person "possesses" in commerce or affecting commerce if at the time of the offense the firearms were moving interstate or on an interstate facility, or if the "possession" affected commerce. It is not enough that the Government merely show that the firearms at some time had traveled in interstate commerce. . . .

App. 1213. The judge rejected this instruction. Instead he informed the

The government may meet its burden of proving a connection between commerce and the possession of a firearm by a convicted felon if it is demonstrated that the firearm possessed by a convicted felon had previously traveled in interstate commerce.

* * * *

It is not necessary that the government prove that the defendant purchased the gun in some state other than that where he was found with it or that he carried it across the state line, nor must the government prove who did purchase the gun.

Id. at 14.

Petitioner was found guilty, and he appealed. The Court of Appeals for the Fourth Circuit affirmed. 539 F.2d 331. It held that the interstate commerce nexus requirement of the possession offense was satisfied by proof that the firearm petitioner possessed had previously traveled in interstate commerce.

Page 567

In view of the split among the Circuits on this issue,4 we granted certiorari. 429 U.S. 815 (1976).5 We affirm.


Our first encounter with Title VII of the Omnibus Crime Control Act came in United States v. Bass, 404 U.S. 336 (1971). There, we had to decide whether the statutory phrase "in commerce or affecting commerce" in § 1202(a) applied to "possesses" and "receives," as well as to "transports." We noted that the statute was not a model of clarity. On the one hand, we found "significant support" in the legislative history for the contention that the statute "reaches the mere possession of guns without any showing of an interstate commerce nexus" in individual cases. 404 U.S. at 345-346. On the other hand, we could not ignore Congress' inserting the phrase "in commerce or affecting commerce" in the statute. Id. at 345. The phrase clearly modified "transport"

Page 568

and we could find no sensible explanation for requiring a nexus only for transport. Id. at 340. Faced with this ambiguity,6 the Court adopted the narrower reading that the phrase modified all three offenses. We found this result dictated by two principles of statutory interpretation: first, that "ambiguity concerning the ambit of criminal statutes should be resolved in [97 S.Ct. 1966] favor of lenity," Rewis v. United States, 401 U.S. 808, 812 (1971), and second, that "unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance," Bass, supra at 349. Since, "[a]bsent proof of some interstate commerce nexus in each case, § 1202(a) dramatically intrudes upon traditional state criminal jurisdiction," 404 U.S. at 350, we were unwilling to conclude, without a "clearer statement of intention," ibid., that Congress meant to dispense entirely with a nexus requirement in individual cases.

It was unnecessary in Bass for us to decide what would constitute an adequate nexus with commerce, as the Government had made no attempt to show any nexus at all. While we did suggest some possibilities,7 the present case presents the first opportunity to focus on the question with the benefit of full briefing and argument.

The Government's position is that, to establish a nexus with interstate commerce, it need prove only that the firearm possessed by the convicted felon traveled at some time in interstate commerce. The petitioner contends, however, that the nexus must be "contemporaneous" with the possession, that the statute proscribes "only crimes with a present connection to commerce." Brief for Petitioner 9. He suggests that, at the time of the offense, the possessor must be engaging

Page 569

in commerce or must be carrying the gun at an interstate facility. Tr. of Oral Arg. 11. At oral argument, he suggested an alternative theory -- that one can be convicted for possession without any proof of a present connection with commerce so long as the firearm was acquired after conviction. Id. at 15.

In our effort to resolve the dispute, we turn first to the text of the statute. Petitioner contends that the meaning can be readily determined from the face of the statute, at least when it is contrasted with Title IV of the Omnibus Crime Control Act, another title dealing with gun control.8 He points to one section of Title IV, 18 U.S.C. § 922(h), arguing, in reliance on our decision in Barrett v. United States, 423 U.S. 212 (1976), that this section shows how Congress can, if it chooses, specify an offense based on firearms that have previously traveled in commerce. In § 922(h), Congress employed the present perfect tense, as it prohibited a convicted felon from receiving a firearm "which has been shipped or transported in interstate or foreign commerce." This choice of tense led us to conclude in Barrett that Congress clearly "denot[ed] an act that has been completed." 423 U.S. at 216. Thus, petitioner argues, since Congress knows how to specify completed transactions, its failure to use that language in the present statute must mean that it wanted to reach only ongoing transactions.

The essential difficulty with this argument is...

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