United States v. Synnes, 20438.

Citation438 F.2d 764
Decision Date01 February 1971
Docket NumberNo. 20438.,20438.
PartiesUNITED STATES of America, Appellee, v. Dale Einar SYNNES, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

John W. Harrigan, Minneapolis, Minn., for appellant.

Robert G. Renner, U. S. Atty., Peter J. Thompson, Asst. U. S. Atty., Minneapolis, Minn., for appellee.

Before MEHAFFY and HEANEY, Circuit Judges, and MEREDITH, District Judge.

HEANEY, Circuit Judge.

This appeal, along with United States v. Wiley, 438 F.2d 773 (8th Cir. 1971), and United States v. Taylor, 438 F.2d 774 (8th Cir. 1971), also decided today, presents to our Court for the first time the issues of the proper construction and the constitutionality of § 1202 (a) (1) of the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. 90-351, 82 Stat. 197. This section provides:

"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, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both."

We affirm the judgment of conviction in each case.

We select Synnes as the case for a detailed opinion because it raises a double jeopardy issue not presented in Wiley or Taylor.

Defendant, Dale Einar Synnes, was charged with violation of § 1202(a) (1) by a federal grand jury on January 17, 1970. He waived trial by jury, and was tried in the United States District Court for the District of Minnesota. Two Minneapolis police officers testified that they arrested the defendant on August 15, 1969, and that he was in possession of a .38 caliber Smith & Wesson pistol at the time of his arrest. Records showing that the defendant had a prior felony conviction in the State of Minnesota were received in evidence.

The defendant presented no witnesses. Both sides stipulated that the defendant had previously been convicted under a Minneapolis city ordinance for being in possession of a firearm while a convicted felon, and that the prior conviction was based on the same evidence as that presented in the case being tried. The defendant was found guilty and sentenced to imprisonment for one year.

In each of the three cases under consideration, the government takes the position that it is necessary to show only (1) the knowing and willing (2) possession of a firearm (3) by a previously convicted felon. The defendants argue that these elements are insufficient to support a conviction, for two reasons:

(1) the statute specifically requires that the receipt, possession or transportation be in or affecting interstate commerce; and

(2) if the statute is not so interpreted, it is unconstitutional as an invalid exercise of power by Congress under the Commerce Clause.

The Courts of Appeals are in conflict on the question whether it is necessary to show a specific connection between interstate commerce and the particular act of receipt, possession or transportation being charged. The Fourth and Ninth Circuits have both held, in per curiam opinions, that the government need not prove that the firearm possessed by a defendant was in commerce or that his possession of it affected commerce. They further held the statute to be a valid exercise of congressional power. United States v. Cabbler, 429 F.2d 577 (4th Cir.), cert. denied, 400 U.S. 901, 91 S.Ct. 138, 27 L.Ed.2d 138 (1970); United States v. Daniels, 431 F.2d 697 (9th Cir. 1970). However, the Second Circuit, in United States v. Bass, 434 F.2d 1296 (1970), held that to avoid serious constitutional problems, § 1202(a) should be interpreted to include a requirement that receipt and possession, as well as transportation, be shown in each case to have been "in commerce or affecting commerce."1

Since the construction of statutes depends to some extent upon the constitutional options available,2 we turn first to the problem of determining whether Congress is empowered to prohibit mere receipt or possession of a firearm by a felon.

The Commerce Clause of the Constitution, Art. I, § 8, cl. 3, combined with the Necessary and Proper Clause, Art. I, § 8, cl. 18, gives to Congress the power to regulate both interstate commerce and any intrastate activity which "* * * exerts a substantial economic effect on interstate commerce * * *." Wickard v. Filburn, 317 U.S. 111, 125, 63 S.Ct. 82, 89, 87 L.Ed. 122 (1942). See also, Katzenback v. McClung, 379 U.S. 294, 85 S.Ct. 377, 13 L.Ed. 290 (1964); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964). As Justice Black stated in his concurring opinion in Heart of Atlanta Motel:

"* * * This Court has steadfastly followed, and indeed has emphasized time and time again, that Congress has ample power to protect interstate commerce from activities adversely and injuriously affecting it, which but for this adverse effect on interstate commerce would be beyond the power of Congress to regulate."

379 U.S. at 272, 85 S.Ct. at 365 (Emphasis added.).

In determining whether the legislation in question is within the limits set out above, we examine: (1) whether Congress had a rational basis for finding that receipt or possession of a firearm by a convicted felon affects commerce, and (2) if it had such a basis, whether the means it selected to protect commerce are reasonable and appropriate. See, Heart of Atlanta Motel, Inc. v. United States, supra at 258-259, 85 S.Ct. 348; White v. United States, 399 F.2d 813, 823 (8th Cir. 1968).

The Second Circuit in United States v. Bass, supra, found the statute so lacking in specific legislative history and findings as to make it impossible to say that Congress had a rational basis for finding that receipt or possession of a firearm by a convicted felon affects interstate commerce. We disagree.

It is clear that Congress relied to some extent on the Commerce Clause for authority in promulgating § 1202.3 The introductory section to the statutory scheme, § 1201, states:

"The Congress hereby finds and declares that the receipt, possession or transportation of a firearm by felons * * * constitutes —
"(1) a burden on commerce or threat affecting the free flow of commerce, * * *"

While no extensive debate or hearings were held in relation to the statute, we think it clear that Congress had before it sufficient data from which it could determine that the required nexus existed between interstate commerce and possession of a firearm by a convicted felon.4 For example, The Challenge of Crime in a Free Society, a report by the President's Commission on Law Enforcement and Administration of Justice, published in February, 1967, estimated the economic cost of homicide at $750,000,000 per year; of robbery, burglary, larceny and auto theft at over $600,000,000 annually. Yearly private and public expenditures for crime prevention, detection and correction were estimated to exceed $6,000,000,000. Without question, these appalling costs substantially burden interstate commerce. The Report went on to indicate that in 1965, 5,600 murders, 34,700 aggravated assaults and the vast majority of the 68,400 armed robberies were committed by means of firearms. It is self-evident that such widespread, firearm-related crime does have a substantial impact on interstate commerce. Finally, the Report indicates the special danger represented by a convicted felon:

"The most striking fact about offenders who have been convicted of the common serious crimes of violence and theft is how often many of them continue committing crimes."

The Challenge of Crime in a Free Society, supra at 45.

Data available subsequent to the passage of § 1202 reaffirm the nexus between interstate commerce and possession of a firearm by a felon. J. Edgar Hoover, in Crime in the United States (1969), indicates that nearly seventy-five percent of all persons arrested for robbery have prior criminal convictions. Firearms and Violence in American Life (1969), a staff report to the National Commission on the Causes and Prevention of Violence, states that "Robbery is a crime made infinitely more possible by having a gun." The same report indicates that an assault with a firearm is five times as likely to be fatal as one with a knife.

While these data may not be as precise or particular as might be desired, we find it impossible to say that Congress had no rational basis for finding that receipt or possession of a firearm by a convicted felon affects commerce.

Having found a rational nexus between the regulated activity and interstate commerce, we cannot say that the proscriptions of § 1202(a) (1) are unreasonable or inappropriate means for eliminating the evil perceived by Congress. Again, our viewpoint must be relative rather than absolute; the exercise of congressional power need not coincide with what we believe to be the optimum choice of available alternatives. It need only be reasonable and appropriate. Heart of Atlanta, Motel, Inc. v. United States, supra; United States v. Perez, 426 F.2d 1073 (2nd Cir.), cert. granted, 400 U.S. 915, 91 S.Ct. 175, 27 L.Ed.2d 154 (1970). Therefore, while licensing or registration systems or a more limited prohibition may also pass constitutional muster, we find it both reasonable and appropriate for Congress to prohibit convicted felons from possessing or receiving firearms.

It must be conceded that Congress' regulatory power under the Commerce Clause has been construed liberally, and expanded to meet the needs of our increasingly complex society. Maryland v. Wirtz, 392 U.S. 183, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968); Katzenbach v. McClung, supra; Heart of Atlanta Motel, Inc. v. United States, supra; Wickard v. Filburn, supra; United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L. Ed.2d 609 (1941). Various Circuit Courts have recently upheld the constitutionality of statutes which prohibit, without requiring the prosecution to...

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