440 F.2d 144 (6th Cir. 1971), 20488, Stevens v. United States

Docket Nº:20488.
Citation:440 F.2d 144
Party Name:Frank James STEVENS, Defendant-Appellant, v. UNITED STATES of America, Plaintiff-Appellee.
Case Date:March 22, 1971
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 144

440 F.2d 144 (6th Cir. 1971)

Frank James STEVENS, Defendant-Appellant,


UNITED STATES of America, Plaintiff-Appellee.

No. 20488.

United States Court of Appeals, Sixth Circuit.

March 22, 1971

Page 145

Paul E. Braden (Court Appointed), Corbin, Ky., for appellant.

Robert E. Rawlins, Lexington, Ky., Eugene E. Siler, Jr., U.S. Atty., Lexington, Ky., on the brief, for appellee.

Before PHILLIPS, Chief Judge, and EDWARDS and CELEBREZZE, Circuit judges.

PHILLIPS, Chief Judge.

Two questions are presented on this appeal: (1) Is possession of a firearm by a person previously convicted of a felony a violation of federal criminal law when the indictment does not charge and the evidence does not establish that the firearm was in commerce or affected commerce? (2) If so, did Congress have the power to enact such a statute? We answer both questions in the affirmative and uphold the conviction of Frank James Stevens for violation of 18 U.S.C. App. § 1202(a)(1).

This statute, which was enacted as a part of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968, is in pertinent part as follows:

'§ 1202(a) 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.' 18 U.S.C. App. § 1202.

The indictment under which Stevens was convicted charged:

'That on or about the 26th day of December, 1969, in Harlan County, in the Eastern District of Kentucky,


having been convicted in a state court, to-wit, the Harlan Circuit Court, Harlan, Kentucky, on or about June 16, 1958, of a felony, that is, armed assault with intent to rob, in violation of the laws of the Commonwealth of Kentucky, and having been convicted in a state court, to-wit, the Oldham Circuit Court, LaGrange, Kentucky, on or about May 28, 1962, of a felony, that is, voluntary manslaughter in violation of the laws of the Commonwealth of Kentucky, willfully and knowingly possessed a firearm, that is, a 9mm Astra, Semi-automatic pistol, Serial No. 87270.'

Stevens concedes that sufficient evidence was presented at the trial to prove every fact alleged in the indictment. It is contended, however, that the conviction

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must be set aside because the indictment does not allege and the evidence does not establish that the possession of the firearm by Stevens was 'in commerce or affecting commerce.' A motion to dismiss the indictment on this ground was overruled by District Judge Bernard T. Moynahan, Jr.

The first question presents an issue of statutory construction: Whether the phrase 'in commerce or affecting commerce' modifies the word 'possesses' in the statute, and is, therefore, an element of the crime which must be charged and proved.

The second question presents an issue of constitutional law: Whether Congress has the power to make it a crime for a convicted felon to possess a firearm without proof of a connection between such possession and interstate commerce.

1) Interpretation of the Statute

The cardinal rule of statutory construction is that a statute must be construed, if possible, so as to give effect to the intent of Congress. Hudson Distributors, Inc. v. Eli Lilly & Co., 377 U.S. 386, 395, 84 S.Ct. 1273, 12 L.Ed.2d 394; Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 215, 82 S.Ct. 1328, 8 L.Ed.2d 440; Commissioner of Internal Revenue v. Bilder, 369 U.S. 499, 504, n. 5, 82 S.Ct. 881, 8 L.Ed.2d 65. Although other rules of construction may be used when legislative intent cannot be ascertained with certainty, none of the rules of statutory construction should be applied to accord a meaning to a statute contrary to clearly expressed legislative intent. See, e.g., United States v. An Article of Drug . . . Bacto-Unidisk, 394 U.S. 784, 801, 89 S.Ct. 1410, 22 L.Ed.2d 726; United States v. Standard Oil Co., 384 U.S. 224-225, 86 S.Ct. 1427, 16 L.Ed.2d 492; United States v. Zacks, 375 U.S. 59, 69, 84 S.Ct. 178, 11 L.Ed.2d 128.

We first examine both the language of the statute and its legislative history to determine whether there is a clear expression of Congressional intent.

a) The Language of the Statute

Stevens contends that the phrase 'in commerce or affecting commerce' qualifies not only the word 'transports,' but also the words 'receives' and 'possesses.' The Government contends that this phrase modifies only the word 'transports.'

The language and punctuation of the statute are entirely consistent with the Government's position as to its interpretation. Stevens' position is weakened by the fact that the draftsmen of the statute did not place a comma immediately after the word 'transports' and preceding the subject phrase. A comma so placed, in the absence of clear Congressional intent to the contrary, undoubtedly would support the construction advocated by Stevens. The absence of a comma after the word 'transports' becomes more significant in light of the draftsmen's use of a comma immediately prior to the phrase 'after the date of enactment of this Act' to indicate that this phrase was intended to modify each of the three words 'receives,' 'possesses,' and 'transports.'

Although the punctuation of the statute supports the interpretation urged by the Government, we do not base our decision on this ground. It is sufficient to find, as we do, that the phraseology and punctuation of the statute readily accommodate the construction urged by the Government if a clear expression of Congressional intent to that effect is found in the legislative history.

b) The Legislative History

On July 17, 1967, the House Committee on the Judiciary reported out H.R. 5037, a crime control bill entitled 'Law Enforcement and Criminal Justice Assistance Act of 1967.' H.R.Rep.No.488, 90th Cong., 1st Sess. (1967). On August 8, 1967, this bill was passed by the House by a vote of 378 to 23 and sent to the

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Senate. 113 Cong.Rec. 21860 (1967). 1 The bill did not contain 18 U.S.C. App. § 1202, at that time.

On April 29, 1968, the Senate Committee on the Judiciary reported out S. 917, a crime control bill entitled 'Omnibus Crime Control and Safe Streets Act of 1967.' S.Rep.No.1097, 90th Cong., 2d Sess. (1968). The bill did not contain § 1202 when it was reported out by the committee.

On May 23, 1968, a new Title VII containing the language of 18 U.S.C. App.§ 1202, was added to S. 917 in an amendment offered and agreed to by voice vote on the floor of the Senate. 114 Cong.Rec. 14,775 (1968). After disposition of all amendments offered to S. 917, the Senate voted to amend H.R. 5037 by striking the text of the bill and substituting therefor the text of S. 917, as amended. Id. at 14798. On the same day, May 23, 1968, the Senate passed H.R. 5037, as amended, by a vote of 72 to 4, and returned it to the House. Id. at 14,798.

On June 5, 1968, the House rejected by a vote of 318 to 60 a motion to disagree with the Senate amendment to H.R. 5037 and thereby determined to vote on the bill without further committee study. 114 Cong.Rec. 16077 (1968). The following day, June 6, 1968, the House passed H.R. 5037, as amended by the Senate by a vote of 369 to 46. Id. at 16,300. H.R. 5037, now entitled 'Omnibus Crime Control and Safe Streets Act of 1968,' was signed into law by the President on June 19, 1968, designated as Pub.L. 90-351, 82 Stat. 197.

Since no Congressional committee studied § 1202 prior to its enactment, there is no committee report to aid in a determination of the legislative intent. The entire legislative history of the statute is contained in the pages of the Congressional Record. It is not, however, the quantity of legislative history which is important in determining legislative intent, but the quality and clarity of the insight it provides.

On May 17, 1968, the amendment adding Title VII, including the language of § 1202, to the Act, was first presented on the Senate Floor. Senator Long of Louisiana, its sponsor, explained the amendment as follows:

'I have prepared an amendment which I will offer at an appropriate time, simply setting forth the fact that anybody who has been convicted of a felony or discharged from the Armed Forces for conditions other than honorable, has been adjudged by a court of the United States or State to be mentally incompetent, or, if he is a citizen of the United States, who has renounced his citizenship, or, if he is an alien, who is illegally and unlawfully in the United States he is not permitted to possess a firearm, and he would be punished by a sentence not to exceed 2 years in the penitentiary or a $10,000 fine, or both.

'It might be well to analyze, for a moment, the logic involved. When a man has been convicted of a felony, unless-- as this bill sets forth-- he has been expressly pardoned by the President and the pardon states that the person is to be permitted to possess firearms in the future, that man would have no right to possess firearms. He would be punished criminally if he is found in possession of them.' 114 Cong.Rec. 13,868 (1968).

On May 23, 1968, the day Senator Long's amendment was agreed to by the Senate and immediately before the Senate passed H.R. 5037, as amended, with 76 Senators voting, the following explanation and discussion of the amendment occurred:

'Mr. LONG of Louisiana. Mr. President, the amendment has been on the desks of Senators for several days. I had it printed in the RECORD some time ago.

'What the...

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