U.S. v. Haddad, 77-1411

• Decision Date: 10 August 1977
• Docket Number: No. 77-1411,77-1411
• Citation: 558 F.2d 968
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Harry HADDAD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 968

558 F.2d 968

UNITED STATES of America, Plaintiff-Appellee, v. Harry HADDAD, Defendant-Appellant.

No. 77-1411.

United States Court of Appeals, Ninth Circuit.

Aug. 10, 1977.

Harry Haddad, pro se.

Lawrence J. Semenza, U. S. Atty., Leland E. Lutfy, Asst. U. S. Atty., Las Vegas, Nev., submitted for plaintiff-appellee.

Kenneth C. Cory, Federal Public Defender, Daniel Markoff, Asst. Federal Public Defender, Las Vegas, Nev., on brief for defendant-appellant.

Appeal from the United States District Court for the District of Nevada.

Before BARNES, WALLACE and SNEED, Circuit Judges.

SNEED, Circuit Judge:

Appellant Harry Haddad was convicted of one count of receipt by a felon of a firearm which has been shipped or transported in interstate commerce in violation of 18 U.S.C. § 922(h)(1). ¹ On appeal, he contends that Congress did not intend for the statute to reach his conduct, and if it did, then it exceeded its power under the commerce clause. Furthermore, he asserts that the statute is unconstitutionally vague. He also challenges the trial court's finding that he lacked standing to attack the validity of the search which produced the firearm and that this search deprived him of his Fourth Amendment protection from unreasonable searches. We reject appellant's arguments and affirm the judgment of the trial court.

I.

FACTS.

Appellant was a registered guest at the Sands Hotel in Las Vegas, Nevada on September 27, 1976. That evening, in a manner which remains unclear, he received a pistol from Russell Angione, an investigator for the Clark County Public Defender. This pistol had traveled in interstate commerce from Springfield, Massachusetts to Las Vegas, Nevada, in June of 1971. It is undisputed that in 1970, appellant had been convicted in Connecticut of four counts of blackmail and sentenced to serve concurrent terms of six to ten years imprisonment.

That same evening, Sergeant James Palmer of the Sands Hotel Security was notified that appellant had been seen carrying a gun in the hotel. He found appellant in the hotel lobby at about 9:30 p. m. and told him not to carry a gun on the hotel premises. Appellant admitted to having a gun in his hotel room. Shortly thereafter, appellant left the hotel.

At approximately 10:00 p. m., Sergeant Dave Hansen of the Las Vegas Metropolitan Police Department, during a routine check of the casino, was also advised that appellant had been seen carrying a gun. He secured a key to appellant's hotel room and met with Palmer. They went to appellant's room and made a visual search of it to ascertain whether appellant was actually there.

Appellant returned to the hotel at approximately 11:00 p. m. Bucky Harris, the assistant casino manager, observed him carrying what appeared to be a pistol stuck inside his waistband. Harris testified that appellant admitted to him that he was carrying a pistol. Harris then informed Palmer of these developments, and Palmer placed appellant under surveillance. He observed appellant enter the elevator and go to the fourteenth floor, whereon his room was located. Approximately six or seven minutes later, appellant returned to the lobby and entered the Pavilion Bar.

Palmer then called Hansen to inform him of appellant's return to the hotel. When Hansen arrived, he and Palmer approached appellant and Hansen gave him a pat-down search which did not produce a gun. Appellant became unruly, so Hansen handcuffed him and placed him under arrest for disorderly conduct.

Hansen suggested to appellant that he leave town to avoid further problems. Appellant decided to check out of the hotel, which he did, and was then read a trespass warning to the effect that if he returned to the hotel it would be considered a trespass under Nev.Rev.Stat. § 207.200 and he would be subject to arrest. Appellant also went to a cashier's cage where he withdrew approximately $13,000 ² which he had left there for safekeeping.

As appellant was withdrawing his money, Lieutenant Charleboix of the Las Vegas Metropolitan Police Department arrived. Charleboix, Hansen and Palmer, with appellant in tow, then searched appellant's room for the gun without success.

Charleboix and Hansen next drove appellant to a neighboring casino where appellant paid an outstanding debt. During the course of conversations between appellant and the police officers, appellant agreed to leave town. Accordingly, Charleboix and Hansen took appellant to the airport where he purchased a ticket to Los Angeles. The officers escorted him through the security checkpoint and released him from custody.

Meanwhile, Palmer returned to the hallway outside appellant's former room to look for the weapon. There he met the hotel maid who let him into the room as she entered to clean it. Palmer took this opportunity to search the room again, whereupon he found a 9 mm. Smith and Wesson automatic pistol hidden under a bedspread. Palmer notified the police of his discovery, and they rearrested appellant at the airport.

II.

CHALLENGES TO THE STATUTE.

A. Scope of the Statute.

The interstate movement of the subject firearm occurred over five years prior to appellant's receipt in a transaction with which appellant had no connection. He contends that because he did not receive the firearm directly from interstate commerce and the interstate movement of the firearm was removed in time from his receipt, his conduct was beyond the intended scope of the statute. His argument must fail in light of the recent Supreme Court decision in United States v. Barrett, 423 U.S. 212, 96 S.Ct. 498, 46 L.Ed.2d 450 (1976), where the Court held that section 922(h) applied to the receipt of a firearm by a felon in an intrastate transaction which was preceded by an interstate transaction.

Appellant attempts to distinguish Barrett on the ground that it involved the purchase from a retailer who dealt in interstate commerce, whereas he received a firearm from a private party who had no connection with interstate commerce. Barrett may not be read so narrowly. The Court cited three reasons for its holding, all of which apply with equal force to the facts before us. First, the statutory language "is without ambiguity". Id. at 216, 96 S.Ct. 498, 501. This language places within the reach of the statute the receipt of any firearm which "has been shipped or transported in interstate or foreign commerce." There is no reason to limit this language to direct interstate receipt or receipt from one who deals in interstate firearm transactions. Second, the Court noted that the structure of the Gun Control Act of 1968, of which section 922(h) is a part indicates an intent not merely to prohibit certain interstate transactions in firearms, but to remove firearms from the hands of persons Congress felt were dangerous, to wit, felons. The Court listed as its third reason the legislative history of the Gun Control Act and of Title IV of the Omnibus Crime Control and Safe Streets Act of 1968, which the Gun Control Act amended. This legislative history also supports the interpretation of the Congressional intent derived from the structure of the Act. The proximity of the felons receipt of the firearm to interstate commerce has little relationship to the accomplishment of the statutory goal. Appellant's receipt of the pistol clearly falls within the intended reach of section 922(h). See also Scarborough v. United States, --- U.S. ----, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977).

B. Constitutionality of the Statute.

1. The Commerce Clause.

Having rejected appellant's first statutory argument, we turn now to his second in which he claims that the application of section 922(h) to his receipt of the subject firearm exceeds the bounds of the commerce clause. He argues that his receipt of the firearm five years after its interstate movement neither bears any relationship to nor affects interstate commerce and thus is beyond the reach of Congress under the commerce clause. We disagree. We hold that section 922(h) as applied here is constitutional.

Although Barrett does not directly address appellant's constitutional argument, its holding by implication rejects it. In Barrett, the Court was faced with recent dictum in United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971) which suggested that section 922(h) applied only to the receipt of any firearm or ammunition as a part of an interstate transaction. The source of this dictum was Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943), where the Court in interpreting the predecessor of section 922(h) stated:

(T)he Act is confined to the receipt of firearms or ammunition as a part of interstate transportation and does not extend to the receipt, in an intrastate transaction, of such articles which, at some prior time, have been transported interstate.

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

As already indicated, the Court refused to accept this interpretation and held that section 922(h) does apply to the intrastate receipt of a firearm which previously had traveled interstate. Inasmuch as the Court would not have interpreted section 922(h) in an unconstitutional manner, see Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348, 56 S.Ct. 466, 80 L.Ed. 396 (1936) (concurring opinion of Justice Brandeis), it follows that a prior interstate transfer of a firearm provides a sufficient interstate nexus to justify federal proscription of its subsequent receipt by a felon.

This conclusion is supported by United States v. Bass, supra. In Bass, the Court explained the necessary interstate nexus for 18 U.S.C.App. § 1202(a), which proscribes receipt by, among others, a felon of any firearm "in commerce or affecting commerce." The requisite nexus consisted of a showing that "the firearm received has previously traveled in interstate commerce." United States v. Bass, 404 U.S. at 350, 92 S.Ct. at 524; see United States v. Lathan, 531 F.2d 955 (9th Cir. 1976); United States v. Giannoni, 472 F.2d 136 (9th...