Bryant v. United States
Decision Date | 29 June 1972 |
Docket Number | No. 71-1596.,71-1596. |
Parties | Glenn Allen BRYANT, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Eighth Circuit |
Eugene D. Bromblett, El Dordo, Ark., court-appointed counsel for appellant.
Bethel B. Larey, U. S. Atty., and James A. Gutensohn, Asst. U. S. Atty., Fort Smith, Ark., for appellee.
Before VOGEL, LAY and BRIGHT, Circuit Judges.
Glenn Allen Bryant, defendant-appellant, was, after a jury trial, convicted on both counts of a two-count indictment charging him in Count I with violation of the National Firearms Registration Act, 26 U.S.C.A. §§ 5845(a), 5861(d) and 5871, and in Count II with being a convicted felon in possession of a firearm in violation of 18 U.S.C.A. App. § 1202(a). Appellant was sentenced to serve five years on Count I and two years on Count II, the sentences to run concurrently.
On appeal, Bryant alleges the following errors:
For the reasons stated below, we reverse appellant's conviction on Count II, but affirm his conviction on Count I.
We consider first appellant's contention that the trial court erred in not dismissing Count II of the indictment for failure to allege a connection with interstate commerce. Appellant relies, of course, upon the recent Supreme Court decision of United States v. Bass, 1971, 404 U.S. 336, at page 347, 92 S.Ct. 515, at page 522, 30 L.Ed.2d 488, at pages 496-497, wherein the court stated:
Here, as in Bass, the indictment failed to charge that the firearm in question had been in or had affected commerce. The government, while conceding that "this point is probably well taken in view of United States v. Bass, contends, nevertheless, that * * * the interstate transportation, while not alleged in this present case, was proven and the jury so found." Such an inference is impermissible. The requisite elements of a crime must be stated with sufficient certainty in the indictment. United States v. Mooney, 8 Cir., 1969, 417 F.2d 936, cert. denied, 1970, 397 U.S. 1029, 90 S.Ct. 1280, 25 L.Ed.2d 541; Spinelli v. United States, 8 Cir., 1967, 382 F.2d 871, rev'd on other grounds, 1969, 393 U.S. 410, 89 S.Ct. 584, 21 L. Ed.2d 637; Friedman v. United States, 8 Cir., 1965, 347 F.2d 697, cert. denied, 1965, 382 U.S. 946, 86 S.Ct. 407, 15 L. Ed.2d 354; Rood v. United States, 8 Cir., 1965, 340 F.2d 506, cert. denied, 1965, 381 U.S. 906, 85 S.Ct. 1452, 14 L. Ed. 287, F.R.Crim.P. 7(c), 18 U.S.C.A.
In fairness to the trial court, we must point out that the Supreme Court's decision in Bass was handed down subsequent to the trial of this case, and that prior to Bass this court had held in United States v. Synnes, 8 Cir., 1971, 438 F.2d 764, 771, vacated, 1972, 404 U. S. 1009, 92 S.Ct. 687, 30 L.Ed.2d 657, proof that possession occurred in commerce or affecting commerce was not an element of the offense. Note, however, our post-Bass decisions in United States v. Harris, 8 Cir., 1972, 456 F.2d 62 and United States v. Matthews (a/k/a Bumsy Matthews), 8 Cir., 1972, 453 F.2d 1237. The judgment of conviction in Count II is accordingly reversed.
Appellant's next contention is that there was insufficient evidence to prove that he intended to violate the National Firearms Registration Act.
In United States v. Freed, 1971, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356, the Supreme Court held that a National Firearms Registration Act violation does not require specific intent; all that is required to convict is knowing possession of the prohibited item. See, also, United States v. Robinson, 8 Cir., 1971, 448 F.2d 715; Milentz v. United States, 8 Cir., 1971, 446 F.2d 111.
Despite the absence of specific intent requirement, the trial court permitted appellant to introduce evidence tending to negate any intent to violate the Act, and in addition, gave several instructions to the jury on the matter of criminal intent. We find no error on appellant's second contention.
We consider next appellant's third contention that the trial court prejudiced him in asking certain questions of a defense witness. The witness in question, Ira Morrison, who is now an Iowa judge, had been prosecuting attorney for Washington County, Iowa. He had received two telephone calls from a lady friend of the appellant, advising him that the appellant and a co-defendant in an Iowa criminal prosecution were en route into Arkansas, that they had a gun and "* * * other means that they would use to keep a witness from testifying." She stated to Morrison, "* * * that they were willing to use whatever means necessary to eliminate the testimony of these witnesses." In trying to clarify Mrs. Davison's role in the events leading to appellant's arrest, the following dialogue took place:
Subsequently under cross-examination by the prosecuting attorney, Judge Morrison was asked:
It is apparent that twice the witness indicated inability to answer the Court's question. Even if the question itself were improper, we fail to see where under these circumstances the appellant is in any way prejudiced. It is one of the chief duties...
To continue reading
Request your trial-
Johnson v. Wyrick
...of abuse, its discretion will not be overturned." United States v. Pruitt, 487 F.2d 1241, 1246 (8th Cir. 1973); Bryant v. United States, 462 F.2d 433, 436 (8th Cir. 1972); United States v. Turchick, 451 F.2d 333, 339 (8th Cir. 1971). The determinative question is ". . . whether the argument......
-
Ex parte Garcia
...affecting commerce" is an element of the offense of possession by a felon that must be alleged as well as proven. See Bryant v. United States, 462 F.2d 433 (8th Cir. 1972); United States v. Fiorito, 465 F.2d 431 (7th Cir. 1972). 6 We are convinced by the foregoing authorities that the phras......
-
U.S. v. Delay
...has broad discretion in controlling closing arguments. United States v. Pruitt, 487 F.2d 1241, 1246 (8th Cir. 1973); Bryant v. United States, 462 F.2d 433, 436 (8th Cir.), cert. denied, 409 U.S. 949, 93 S.Ct. 271, 34 L.Ed.2d 220 (1972); United States v. Turchick, 451 F.2d 333, 339 (8th Cir.......
-
Gregg v. Wyrick, Civ. A. No. 73CV432-W-3-R.
...of abuse, its discretion will not be overturned." United States v. Pruitt, 487 F.2d 1241, 1246 (8th Cir. 1973); Bryant v. United States, 462 F.2d 433, 436 (8th Cir. 1972); United States v. Turchick, 451 F.2d 333, 339 (8th Cir. 1971). The determinative question is ". . . whether the argument......