851 F.2d 492 (1st Cir. 1988), 87-1704, United States v. Gillies

Docket Nº:87-1704.
Citation:851 F.2d 492
Party Name:UNITED STATES of America, Appellee, v. John J. GILLIES, Jr., Defendant, Appellant.
Case Date:July 07, 1988
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 492

851 F.2d 492 (1st Cir. 1988)

UNITED STATES of America, Appellee,


John J. GILLIES, Jr., Defendant, Appellant.

No. 87-1704.

United States Court of Appeals, First Circuit

July 7, 1988

Page 493

Barbara A.H. Smith with whom Davis, Robinson & Smith, Boston, Mass., was on brief, for defendant, appellant.

S. Theodore Merritt, Asst. U.S. Atty., with whom Frank L. McNamara, Jr., U.S. Atty., Boston, Mass., was on brief, for appellee.

Before BOWNES, BREYER and TORRUELLA, Circuit Judges.

BREYER, Circuit Judge.

After a "jury-waived" trial, a federal district court judge convicted the appellant, James J. Gillies, Jr., of violating federal laws that provide strict punishments for previously convicted felons who possess firearms. 18 U.S.C. Secs. 922(g)(1) (1982 & Supp. IV 1986) (see Appendix A); 924(e) (1982 & Supp. IV 1986) (see Appendix B). Gillies, in this appeal, makes several, rather technical, arguments: that his conduct falls outside the letter of the statute; that the indictment was defective; that the government failed to prove three prior convictions. We have found these arguments unconvincing.

1. Gillies claims that the relevant substantive statutory language does not cover his conduct. The statute, in relevant part, makes it:

unlawful for any person--

(1) who has been convicted ... of a crime punishable by imprisonment for a term exceeding one year;

* * *

to ship or transport in interstate or foreign commerce, any firearm or ammunition; or to possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

Sec. 922(g) (emphasis added). The evidence showed that Gillies, on December 23, 1986, possessed, in Massachusetts, a gun that, in 1977, had travelled from Brazil to Florida. Gillies says that this evidence does not show that he "possess[ed] in or affecting commerce, any firearm." In his view, the underlined words "affecting commerce" have a limited meaning; they do not cover simple in-state possession of a gun that, sometime in the past, arrived from out of state. We do not agree.

For one thing, the words "affecting commerce" are jurisdictional words of art, typically signalling a congressional intent to exercise its Commerce Clause power broadly, perhaps as far as the Constitution permits. See, e.g., Heart of Atlanta Motel v. United States, 379 U.S. 241, 258, 85 S.Ct. 348, 358, 13 L.Ed.2d 258 (1964) (interpreting statute regulating all activity that "affects [interstate] commerce" as showing congressional intent to reach as far as the Commerce Clause permits, and holding the Commerce Clause does permit Congress to forbid a policy of segregation even at a local hotel); National Labor Relations Board v. Fainblatt, 306 U.S. 601, 606-07, 59 S.Ct. 668, 671-72, 83 L.Ed. 1014 (1939) (interpreting term "affecting commerce" found in 29 U.S.C. Sec. 152(7) broadly to include Congress's full powers under Commerce Clause); H.R.Rep. No. 1107, 93d Cong., 2d Sess. 29-31 (1974) (explaining that purpose of amendment to 15 U.S.C. Sec. 45 changing jurisdiction of Federal Trade Commission ("FTC") from activities "in commerce" to activities "in or affecting interstate commerce" is to expand FTC jurisdiction to maximum extent permitted by Commerce Clause), reprinted in 1974 U.S.Code Cong. & Ad.News 7702, 7712-13; H.R.Rep. No. 871, 96th Cong., 2d. Sess. 4-7 (1980) (explaining amendment to Sec. 7 of the Clayton Act, 15 U.S.C. Sec. 18, changing its coverage from business activities "engaged in" interstate commerce to those "affecting commerce," thereby expanding Clayton Act's coverage to maximum permitted under the Commerce Clause and overruling United States v. American Building Maintenance Industries, 422 U.S. 271, 95 S.Ct. 2150, 45 L.Ed.2d 177 (1975)), reprinted in 1980 U.S.Code Cong. & Ad.News 2732, 2735-37. See also 15 U.S.C. Sec. 78l (g)(1) (1982) (securities regulation); 15 U.S.C. Sec. 2006(c)(1) (1982) (automobile labelling); 17 U.S.C. Sec. 910(a) (Supp. II 1984) (copyright enforcement); 42 U.S.C. Secs. 6303(c), 6325(d) (1982) (energy conservation);

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49 U.S.C.App. Sec. 2503(3) (Supp. II 1984) (motor carrier safety).

Moreover, in the modern cases that rest upon an expansive view of Congress's constitutional Commerce Clause powers, the Supreme Court has made clear that the constitutionally necessary effect upon interstate commerce includes the cumulative impact of many instances of single events of the type that Congress sought to regulate. See Heart of Atlanta Motel, 379 U.S. at 254-59, 85 S.Ct. at 355-59, and cases cited therein. Against this background, one can read the language "possess in or affecting commerce, any firearm" as serving a jurisdictional purpose, making clear that Congress wished to exercise its Commerce Clause power broadly in order to achieve a crime-control objective, namely, stopping convicted felons from possessing guns. If so, the effect on commerce to which Congress refers could include the effect that permitting (or forbidding) a person or persons of this sort to possess interstate guns will have on interstate commerce, Congress's object being to show not necessarily an injury to commerce, but rather simply to show some effect for jurisdictional reasons. As so read, the word "affecting" would include past or present effects; it would include possession of a gun that did travel interstate before the felon possessed it. Scarborough v. United States, 431 U.S. 563, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977).

For another thing, the legislative history of the statute suggests that Congress intended this very result. The relevant House Judiciary Committee Report, for example, said that the effect of the new law is to prohibit persons:

from receiving, possessing, or transporting firearms in interstate or foreign commerce or firearms which have been shipped or transported in interstate or foreign commerce if they are or have been:

(1) under indictment for or convicted of a felony....

H.R.Rep. No. 495, 99th Cong., 2d Sess. 23 (1980) (emphasis added; footnote deleted), reprinted in 1986 U.S.Code Cong. & Ad.News 1327, 1349. Moreover, Congress enacted this statute after the Supreme Court had held that these very words, "possess ... in commerce or affecting commerce ... any firearm" carry this interpretation. In Scarborough, 431 U.S. at 563, 97 S.Ct. at 1963, when interpreting a statutory predecessor of Sec. 922(g), Sec. 1202(a) of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968 ("Title VII"), Pub.L. No. 90-351, Title VII, Secs. 1201-03, 82 Stat. 197, 236, repealed by Firearm Owner's Protection Act, Pub.L. No. 99-308, Sec. 104(b), 100 Stat. 449, 459 (1986), the Court reconsidered dicta that it had written in United States v. Bass, 404 U.S. 336, 350, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1972), that appeared to give the words a limited meaning. In Bass, 404 U.S. at 350, 92 S.Ct. at 524, the Court wrote:

[f]or example, a person "possesses ... in commerce or affecting commerce" if at the time of the offense the gun was moving interstate or on an interstate facility, or if the possession affects commerce.

In Scarborough, the Court looked more closely at Title VII's legislative history, quoting, among other things, sponsoring Senator Long's remarks:

I have prepared an amendment ... simply setting forth the fact that anybody who has been convicted of a felony ... is not permitted to possess a firearm.

It places the burden and the punishment on the kind of people who have no business possessing firearms in the event they come into possession of them....

114 Cong.Rec. 13868-69 (1968), quoted in Scarborough, 431 U.S. at 572-73, 97 S.Ct. at 1967-68. The Scarborough court then rejected the defendant's contentions that Congress did not intend to punish possession of a firearm unless the gun had moved in interstate commerce at or near the time of possession. It held instead that a felon who possessed a gun violated the statute as long as the gun previously had travelled in interstate commerce. Such an interpretation "captures the essence of Congress' intent, striking at the possession of weapons by people 'who have no business possessing

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[them].' " Scarborough, 431 U.S. at 577, 97 S.Ct. at 1970 (citation omitted).

Of course, Scarborough considered Title VII, while the statute before us is a later statute. But it is a successor statute to Title VII. The House Judiciary Committee explicitly said that Sec. 922(g), the section here at issue:

combines in one section ... all of the offenses related to sale of firearms to unqualified persons and offenses of receipt, possession and transport of firearms by unqualified persons (or their employees) now divided between Title I of the Gun Control Act (18 U.S.C. 922(d), (g), and (h)) and Title VII of the Omnibus Crime Control and Safe Streets Act (19 U.S.C. 1202(a) and (b))....

H.R.Rep. No. 495 at 23 (emphasis in original), reprinted in 1986 U.S.Code Cong. & Ad.News at 1349. An examination of the predecessor statute shows that the "transport" and "receipt" language (not here at issue) likely came from Title IV of the Omnibus Crime Control and Safe Streets Act of 1968 ("Title IV"), Pub.L. No. 90-351, Title IV, Sec. 902, 82 Stat. 197, 228, amended by Gun Control Act of 1968, Pub.L. No. 90-618, Title I, Sec. 102, 82 Stat. 1216, amended by Pub.L. No. 97-377, Title I, Sec. 165(a), 96 Stat. 1923 (1982), amended by Firearm Owner's Protection Act, Pub.L. No. 99-408, Sec. 2, 100 Stat. 920 (1986), while the "possession" language came from Title VII. We have no good reason to think that Congress, when picking up the language of Title VII, intended to reject Scarborough 's authoritative interpretation, particularly in light of the House...

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