United States v. Ruffin, 73-1379

• Citation: 490 F.2d 557
• Decision Date: 16 January 1974
• Docket Number: 73-1380.,No. 73-1379,73-1379
• Parties: UNITED STATES of America, Appellee, v. Thomas J. RUFFIN, Appellant. UNITED STATES of America, Appellee, v. Ralph S. RUFFIN, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

490 F.2d 557 (1974)

UNITED STATES of America, Appellee, v. Thomas J. RUFFIN, Appellant.

UNITED STATES of America, Appellee, v. Ralph S. RUFFIN, Appellant.

Nos. 73-1379, 73-1380.

United States Court of Appeals, Eighth Circuit.

Submitted November 14, 1973.

Decided January 16, 1974.

James A. Bell, St. Louis, Mo., for appellant.

Richard S. Stolker, Atty., Dept. of Justice, Washington, D.C., for appellee.

Before VAN OOSTERHOUT, Senior Circuit Judge, and LAY and HEANEY, Circuit Judges.

LAY, Circuit Judge.

Defendants T. J. Ruffin and Ralph Ruffin were convicted on separate counts of receiving and concealing firearms in violation of 18 U.S.C. §§ 922(h) and (j).¹ Ralph Ruffin received concurrent terms of three years' imprisonment on each count. T. J. Ruffin was sentenced to concurrent terms of four years' imprisonment on each count.

Defendants on appeal contend that the evidence failed to establish the necessary nexus with interstate commerce. We agree and reverse the convictions.²

On February 23, 1972, defendants were stopped by police officers in St. Louis, Missouri, driving a 1968 black Ford LTD, after the car had been observed running a stop sign. According to the government's evidence, T. J. Ruffin was sitting on the passenger's side, Ralph Ruffin was driving and Frank Cooley Hearing, now deceased, was in the back seat. Officers testified at trial that T. J. Ruffin reached into his overcoat and withdrew a revolver with his left hand and a large automatic with his right hand. He passed both of these guns to the driver, Ralph Ruffin, who was observed taking them with his right hand and dropping them down on the floorboard. Thereafter, Ralph reached into his own waistband and withdrew a nickel plated revolver and also placed that on the floorboard. Upon a search the officers found three guns underneath the front seat.³

It was stipulated that both defendants had been previously convicted of crimes punishable by a term of imprisonment exceeding one year. T. J. Ruffin was charged in Count One with receiving a .357 caliber magnum revolver, model security six, Serial No. 150-04758, and Ralph Ruffin in Count Two with receiving the same gun. It was stipulated that this gun was shipped on July 6, 1971, from the manufacturer in South Port, Connecticut, to a destination in LaMesa, Texas, by common carrier, and had been stolen from the carrier between July 9, 1971, and July 23, 1971, in Centreville, Illinois. Under Count Three, the concealment charge under which both defendants were found guilty, the gun involved was a Colt .45 caliber automatic pistol, government model, Serial No. 333933-C, which was stipulated as having been stolen from the trunk of an automobile belonging to an East St. Louis police officer in Collinsville, Illinois, on January 12, 1972.

THE RECEIVING COUNTS

Section 922(h) is part of Title IV of the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L.No.90-351. This section makes it unlawful for certain classes of persons to receive a firearm "which has been shipped or transported in interstate or foreign commerce." The government's proof showed only that the revolver had been previously shipped from Connecticut to Texas and stolen in Illinois some seven months prior to the time the weapon was found in the defendants' possession. In construing Title VII of the same Act, the Supreme Court in United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), rejected the argument that Title IV and Title VII are redundant. Instead, the Court found significant differences between the two, both as to classes of people covered and, most relevant here, classes of behavior reached. Although the Court left open the exact reach of Title IV (Bass, supra at 343 n. 10, 92 S.Ct. at 520), it noted that "Title IV apparently does not reach possessions or intrastate transactions at all, even those with an interstate commerce nexus, but is limited to the sending or receiving of firearms as part of an interstate transportation." Id. at 342-343, 92 S.Ct. at 520 (emphasis added).

In construing 18 U.S.C. § 1202(a) (part of Title VII), the Supreme Court was faced with the requirement that the receipt, possession, or transportation be "in commerce or affecting commerce." The Court concluded that this requirement was satisfied if the government "demonstrates that the firearm received has previously traveled in interstate commerce." Id. at 350, 92 S.Ct. at 524 (emphasis added). And, of significance to the present case, the Court noted that "this reading of Title VII preserves a significant difference between the `receipt' offenses under Title IV and Title VII." Id. at 350 n. 18, 92 S.Ct. at 524.

Thus, we conclude that it is not sufficient under § 922(h) for the government to prove that the firearm had at some remote time previously traveled in interstate commerce. As pointed out in Bass, Title IV is primarily concerned with the transportation of firearms. Accordingly, for a receipt to be cognizable under § 922(h), the government must show that at the time the gun was received it was part of an interstate transportation. The proof in this case, as well as the court's instruction,⁴ was inadequate to meet this test. Accord, United States v. Craven, 478 F.2d 1329, 1336 (6th Cir. 1973).⁵ The government showed only that the gun had been stolen in Illinois from an interstate carrier and that it was found some seven months later in defendants' possession in Missouri.

As recognized in Bass, this construction comports with the interpretation given the predecessor of § 922(h), 15 U.S.C. § 902(f).⁶ The statutory language of § 902(f) relating to the interstate commerce requirement remained unchanged in § 922(h). In Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943), where the Court held unconstitutional the statutory presumption in § 902(f), it was stated:

Both courts below held that the offense created by the Act is confined to the receipt of firearms or ammunition as a part of interstate transportation and does not extent to the receipt, in an intrastate transaction, of such articles which, at some prior time, have been transported interstate. The Government agrees that this construction is correct.

Id. at 466, 63 S.Ct. at 1244.

THE CONCEALMENT COUNT

Count III, charging each defendant with concealing the automatic, arises under § 922(j) of Title IV. That section applies to a firearm "which is moving as, which is a part of, or which constitutes, interstate or foreign commerce." At trial, the government's evidence showed that the gun had been stolen in Illinois on January 12, 1972, and was found in defendants' possession in Missouri on February 23, 1972.

We are unable to find any court decision which has construed the interstate commerce language of § 922(j). However, we find the only reasonable construction of § 922(j), like § 922(h), requires proof of transactions that are a part of an interstate transaction. The statutory language clearly requires a continuing relationship with interstate commerce at the time of the alleged concealment. The fundamental issue is whether the government has carried its burden of proof that the gun was still moving or was still part of interstate commerce at the time defendants concealed it. If the gun had come to rest in Missouri, after it was stolen in Illinois on January 12, 1972, the interstate character of the transaction would be over, and defendants could not be found guilty of any federal crime. Cf. United States v. Bass, 404 U.S. 336, 349-350, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971); Bollenbach v. United States, 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350 (1946).

The language relating to interstate commerce under § 922(j) is virtually identical to the earlier language of the National Stolen Property Act, and its successor statutes, 18 U.S.C. §§ 2313 and 2315.⁷ We look to the judicial construction of these acts for guidance.

In Booth v. United States, 154 F.2d 73 (9th Cir. 1946), the defendant was charged under the National Stolen Property Act with conspiracy to receive, conceal and store stolen stock certificates. The evidence established that the stock had been stolen from Seattle, Washington, and transported to California, where the defendant came into possession.

The court reversed the conviction, on the basis of the following instruction which it found erroneous:

If you believe beyond a reasonable doubt that the defendants or any of them had unexplained possession in California of the securities involved, recently after their theft in Washington, you may infer from their possession that these securities were still a part of interstate commerce.

That is to say, if the jury believes the securities were stolen and entered into the flow of interstate commerce as such, and there being no evidence of an intermediate sale to a purchaser and that said securities came into the unexplained possession of the defendants, knowing said securities to be stolen property, you may infer that the securities at the time they came into possession of the defendants were still in interstate commerce.⁸

Booth, supra at 75.

The Ninth Circuit found no logical basis upon which the inference could be supported.

In Schwachter v. United States, 237 F.2d 640 (6th Cir. 1956), the defendant was convicted of selling an automobile moving in interstate commerce under 18 U.S.C. § 2313. The Sixth Circuit reversed, because of the trial court's failure to submit the interstate commerce question to the jury. The court noted that:

It is recognized that the interstate movement of a car does not necessarily cease when the car stops and transportation of it into the other state ends. The sale thereafter may be an incident to the theft and transportation and so tied up with it as to constitute the final step of a continuous unlawful scheme. . . . But its character of being a part of interstate commerce does not continue indefinitely after its transportation ends. After a period of time and

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