Ball v. United States, 84-5004

• Decision Date: 26 March 1985
• Docket Number: No. 84-5004,84-5004
• Parties: Truman Lewis BALL, Petitioner, v. UNITED STATES
• Court: U.S. Supreme Court

470 U.S. 856

105 S.Ct. 1668

84 L.Ed.2d 740

Truman Lewis BALL, Petitioner,

v UNITED STATES.

No. 84-5004.

Argued Jan. 9, 1985.

Decided March 26, 1985.

Syllabus

Petitioner, a previously convicted felon, was arrested when the police found him in possession of another person's revolver that was reported missing; he reportedly threatened a neighbor with the revolver, and tried unsuccessfully to sell it. Petitioner was then indicted on charges of receiving a firearm in violation of 18 U.S.C. § 922(h)(1) and for possessing it in violation of 18 U.S.C.App. § 1202(a)(1). He was convicted in Federal District Court on both counts and sentenced to consecutive terms of imprisonment on the respective counts. The Court of Appeals remanded the case to the District Court with instructions to modify the sentences to make them concurrent.

Held: Congress did not intend a convicted felon, in petitioner's position, to be punished under both § 922(h) and § 1202(a)(1). Congress recognized that a felon who receives a firearm inevitably also possesses it, and therefore did not intend to subject that person to two convictions for the same criminal act; the legislative history supports this reading of congressional intent. While the Government may seek a multiple-count indictment against a felon for violations of §§ 922(h) and 1202(a)(1) involving the same weapon where a single act establishes the receipt and the possession, the defendant may not suffer two convictions or sentences on that indictment. If the jury returns guilty verdicts for each count, the trial court should enter judgment on only one count. The remedy of ordering one of the sentences to be served concurrently with the other cannot be squared with Congress' intention. Pp. 859-865.

734 F.2d 965 (CA4 1984) vacated and remanded.

Jo S. Widener, Bristol, Va., for petitioner.

Andrew J. Pincus, New York City, for respondent, pro hac vice, by special leave of Court.

Chief Justice BURGER delivered the opinion of the Court.

We granted certiorari to decide whether a felon possessing a firearm may be convicted and concurrently sentenced under 18 U.S.C. § 922(h)(1), for receiving that firearm, and under 18 U.S.C.App. § 1202(a)(1) for possessing the same weapon. 469 U.S. 816, 105 S.Ct. 82, 83 L.Ed.2d 30 (1984).

I

After driving around Honaker, Virginia, with several acquaintances, including petitioner Truman Ball, Hubert Romans discovered that his .32-caliber nickel-plated Rossi revolver was missing from the back seat of his car.¹ He reported the incident to the Russell County Sheriff's Department. Subsequently, a neighbor notified the Sheriff that Ball had threatened him with a pistol matching the description of Romans' revolver. Later that same day, the police located Ball at another neighbor's home where Ball had tried unsuccessfully to sell the revolver. When the police told Ball he was under arrest, Ball fled but was promptly apprehended with Romans' revolver in his possession.

Ball, a previously convicted felon,² was indicted on charges of receiving a firearm shipped in interstate commerce, 18 U.S.C. §§ 922(h)(1) and 924(a), and possessing that firearm, 18 U.S.C.App. § 1202(a)(1).³ It is conceded that both counts rest on the same conduct. Ball was convicted on both counts ⁴ by a jury in the Western District of Virginia and sentenced to consecutive terms of three years' imprisonment on the receipt count and two years' imprisonment on the possession count, the latter sentence suspended with two years' probation.

On appeal Ball challenged the validity of the consecutive sentences. The Government conceded that under United States v. Burton, 629 F.2d 975 (CA4 1980), cert. denied, 450 U.S. 968, 101 S.Ct. 1487, 67 L.Ed.2d 618 (1981), consecutive sentences could not be imposed for unlawful receipt and unlawful possession of the same firearm, when the unlawful possession was incident to its unlawful receipt. The Court of Appeals accepted this concession and adhered to its statement in Burton that "Congress in these firearms statutes created separate offenses, but did not authorize pyramiding penalties." 734 F.2d 965, 966 (CA4 1984) (citing Burton, supra, at 977). The Court of Appeals remanded the case to the District Court with instructions to modify the sentences to make them concurrent.

The application of the firearms statutes, § 922(h)(1) and § 1202(a)(1), charging a convicted felon with receiving and possessing the same gun, has produced conflicting decisions among the Courts of Appeals.⁵ We granted certiorari to resolve this conflict. We reverse.

II

This case requires the Court once again to resolve the "partial redundancy" of §§ 922(h) and 1202(a), provisions of Titles IV and VII, respectively, of the Omnibus Crime Control and Safe Streets Act of 1968. E.g., United States v. Batchelder, 442 U.S. 114, 118, 99 S.Ct. 2198, 2201, 60 L.Ed.2d 755 (1979); United States v. Bass, 404 U.S. 336, 341-343, and n. 9, 92 S.Ct. 515, 519-520, and n. 9, 30 L.Ed.2d 488 (1971). In these two Titles of the Omnibus Act, Congress sought to control the interstate traffic and availability of firearms. Although Congress' purposes are obvious, courts understandably have had difficulty applying the overlapping provisions of the Act. This case affords an opportunity to address the application of Titles IV and VII to one set of circumstances—where a single act is relied upon to establish a convicted felon's unlawful receipt and his unlawful possession of the same firearm.⁶

It is clear that a convicted felon may be prosecuted simultaneously for violations of §§ 922(h) and 1202(a) involving the same firearm. This Court has long acknowledged the Government's broad discretion to conduct criminal prosecutions, including its power to select the charges to be brought in a particular case. E.g., United States v. Goodwin, 457 U.S. 368, 382, 102 S.Ct. 2485, 2493, 73 L.Ed.2d 74 (1982); Confiscation Cases, 7 Wall. 454, 457-459, 19 L.Ed. 196 (1869).

In Batchelder, this Court recognized that §§ 922(h) and 1202(a) proscribed similar conduct where the defendant is a convicted felon, but concluded that

"each substantive statute, in conjunction with its own sentencing provision, operates independently of the other." 442 U.S., at 118, 99 S.Ct., at 2201.

This Court rejected the argument that § 1202(a) impliedly repealed § 922(h) with respect to acts covered by both provisions, noting that both the statutory language and the legislative history showed that the two provisions were to be applied independently. See id., at 118-121, 99 S.Ct., at 2201-2203.⁷ Under these circumstances there is no bar to the Government's proceeding with prosecution simultaneously under the two statutes.⁸

B

To say that a convicted felon may be prosecuted simultaneously for violation of §§ 922(h) and 1202(a), however, is not to say that he may be convicted and punished for two offenses. Congress can be read as allowing charges under two different statutes with conviction and sentence confined to one. Indeed, "[a]ll guides to legislative intent," United States v. Woodward, 469 U.S. 105, 109, 105 S.Ct. 611-613, 83 L.Ed.2d 518 (1985), show that Congress intended a felon in Ball's position to be convicted and punished for only one of the two offenses if the possession of the firearm is incidental to receiving it.

This Court has consistently relied on the test of statutory construction stated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), to determine whether Congress intended the same conduct to be punishable under two criminal provisions. The appropriate inquiry under Blockburger is "whether each provision requires proof of a fact which the other does not." See, e.g., United States v. Woodward, supra, at 107, 105 S.Ct., at 612; Albernaz v. United States, 450 U.S. 333, 337, 101 S.Ct. 1137, 1141, 67 L.Ed.2d 275 (1981); Whalen v. United States, 445 U.S. 684, 691-692, 100 S.Ct. 1432, 1437, 1438, 63 L.Ed.2d 715 (1980). The assumption underlying the Blockburger rule is that Congress ordinarily does not intend to punish the same offense under two different statutes.

For purposes of applying the Blockburger test in this setting as a means of ascertaining congressional intent, "punishment" must be the equivalent of a criminal conviction and not simply the imposition of sentence. Congress could not have intended to allow two convictions for the same conduct, even if sentenced under only one; Congress does not create criminal offenses having no sentencing component. See United States v. Hudson & Goodwin, 7 Cranch 32, 34, 3 L.Ed. 259 (1812); Tennessee v. Davis, 10 OTTO 257, 275, 100 U.S. 257, 275, 25 L.Ed. 648 (1880) (Clifford, J., dissent- ing). Cf. Fed.Rule Crim.Proc. 32(b)(1), which provides that the sentence is a necessary component of a "judgment of conviction."

Applying this rule to the firearms statutes, it is clear that Congress did not intend to subject felons to two convictions; proof of illegal receipt of a firearm necessarily includes proof of illegal possession of that weapon. "[W]hen received, a firearm is necessarily possessed." United States v. Martin, 732 F.2d 591, 592 (CA7 1984).⁹ In other words, Congress seems clearly to have recognized that a felon who receives a firearm must also possess it, and thus had no intention of subjecting that person to two convictions for the same criminal act.

The legislative history of §§ 922(h) and 1202(a) supports this reading of congressional intent. Titles IV and VII, enacted together as components of the Omnibus Act,¹⁰ disclose "Congress' worry about the easy availability of firearms, especially to those persons who pose a threat to community peace." Lewis v. United States, 445 U.S. 55, 66, 100 S.Ct. 915, 921, 63 L.Ed.2d 198 (1980). Accordingly, "[e]ach [Title] seeks to keep a firearm from 'any person . . . who has been convicted' of a felony. . . ." Id., at 64, 100 S.Ct., at 920.

Section 922(h), the receipt statute, is part of a " 'carefully...