Mandina v. United States

• Decision Date: 08 February 1973
• Docket Number: No. 72-1474.,72-1474.
• Citation: 472 F.2d 1110
• Parties: Sam Frank MANDINA, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

472 F.2d 1110 (1973)

Sam Frank MANDINA, Appellant, v. UNITED STATES of America, Appellee.

No. 72-1474.

United States Court of Appeals, Eighth Circuit.

Submitted January 11, 1973.

Decided February 8, 1973.

David F. Yates, St. Louis, Mo., for appellant.

Joel S. Gallay, Atty., Crim. Div., U.S. Dept. of Justice, Washington, D. C., for appellee.

Before LAY, HEANEY and STEPHENSON, Circuit Judges.

STEPHENSON, Circuit Judge.

This appeal presents the question of whether 18 U.S.C. § 922(a)(1) requires as an essential element of the offense of unlawful dealing in firearms or ammunition an allegation and proof such activities were in interstate or foreign commerce. Appellant (Mandina) asserts in the alternative that if the statute applies to wholly intrastate activities then Congress has exceeded its constitutional authority and the statute is unconstitutional.

Mandina was charged by indictment with engaging "in the business of dealing in firearms and ammunition without being licensed to do so." After an initial plea of not guilty to the charge, Mandina informed the trial court that he desired to change his plea to guilty but preserve his right to challenge on appeal the constitutionality of § 922(a)(1). By leave of court, Mandina moved to dismiss the indictment on the grounds previously mentioned. The motion was denied and Mandina, upon his plea of guilty, received a sentence of 5 years.

STATUTORY INTERPRETATION

The gun control statute in question reads:

§ 922. Unlawful acts

(a) It shall be unlawful—

(1) for any person, except a licensed importer, licensed manufacturer, or licensed dealer, to engage in the business of importing, manufacturing, or dealing in firearms or ammunition, or in the course of such business to ship, transport, or receive any firearm or ammunition in interstate or foreign commerce;

The indictment did not make any reference to Mandina's activities as a dealer as having been conducted in interstate commerce. Mandina contends that in order to charge a violation under the section, there must be a specific allegation that the unlawful activities were in interstate commerce. Appellant's construction of the statute is, therefore, that the qualifying phrase "in interstate or foreign commerce" applies to engaging in the business of importing, manufacturing or dealing, as well as shipping, transporting or receiving firearms. Under this construction, an unlicensed dealer whose business encompassed solely intrastate sales of firearms and ammunition would not be a violation of the statute.

Mandina relies upon United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), where the Supreme Court was required to interpret § 1202(a)(1) of the Omnibus Crime Control and Safe Streets Act of 1968. Section 1202(a)(1) provided that anyone convicted of a felony "and who receives, possesses, or transports in commerce or affecting commerce . . . any firearm . . . ." The specific question before the Court was whether the Government must allege and prove that a felon possessing a firearm did so "in commerce or affecting commerce." The Court held that the qualifying phrase "in commerce or affecting commerce" applied to the entire antecedent phrase "receives, possesses or transports" and not solely to "transports." In so holding the Court determined that the statute was ambiguous and the underlying legislative history meager and unclear, and adopted "the natural construction of the language."

Unlike the statute in Bass, § 922(a)(1) is not ambiguous nor is its underlying legislative history equivocal. It is stated in the disjunctive and contains two clearly separate prohibitions. Qualifying words or clauses refer to the next preceding antecedent except when evident sense and meaning require a different construction. K. Llewellyn, The Common Law Tradition, 527 (1960). The first phrase prohibits the engaging in the business of importing, manufacturing or dealing in firearms or ammunition without a license. The second proscribes the shipping, transport or receipt of firearms or ammunition in interstate or foreign commerce by an unlicensed importer, manufacturer or dealer.

Additionally, the legislative history of § 922(a)(1) specifically shows that Congress intended to proscribe unlicensed intrastate dealing in firearms. "Thus, Section 922(a)(1) makes it clear that a license is required for an intrastate business as well as an interstate business." H.R.Rep.No.1577, 90th Cong.2d Sess., 1968 U.S.Code Cong. & Admin. News, p. 4418. See also, S.Rep.No.1097, 90th Cong.2d Sess., 1968 U.S.Code & Admin.News, pp. 2114, 2202.

We hold that § 922(a)(1) prohibits unlicensed intrastate dealing in firearms or ammunition and that a showing that Mandina's dealings in firearms were in interstate or foreign commerce was not required.¹Accord, United States v. Redus, 469 F.2d 185 (CA9 1972) and United States v. Ruisi, 460 F.2d 153 (CA2 1972). See also United States v. Fancher, 323 F.Supp. 1069 (D.S.D.1971) and United States v. Gross, 313 F.Supp. 1330 (S.D.Ind.1970). For a similar holding under § 922(a)(6) see United States v. O'Neill, 467 F.2d 1372 (CA2 1972); United States v. Nichols, 466 F.2d 998 (CA5 1972), and United States v. Garner, 465 F.2d 265 (CA7 1972).

CONSTITUTIONALITY OF § 922(a)(1)

Mandina also contends that if § 922(a)(1) applies to dealers who deal exclusively in intrastate commerce, it is unconstitutional.

Congress may impose criminal sanctions for the purpose of regulating purely intrastate activities which substantially affect interstate commerce. Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971), Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964) and United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609 (1941). Congress may consider the cumulative impact on commerce of those activities as a class and once it is determined that a given class of intrastate activities substantially affects interstate commerce, specific proof that an isolated activity with the class sought to be regulated need not be shown. Maryland v. Wirtz, 392 U.S. 183, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968) and Katzenbach v. McClung, 379 U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964). See United States v. Dawson, 467 F.2d 668 (CA8 1972). And if Congress had (1) a rational basis for its finding that the activity affects commerce and (2) the means selected to combat the evil are reasonable and appropriate, our constitutional inquiry is at an end. Heart of Atlanta Motel, Inc., supra, 379 U.S. at 258, 85 S.Ct. 348 and Dawson, supra, 467 F.2d at 671.

The legislative history underlying the Gun Control Act of 1968 is extensive and clearly discloses the Congress' concern for the "increasing rate of crime and lawlessness and the growing use of firearms in violent crime." "The subject legislation responds to widespread national concern that existing Federal control over the sale and shipment of firearms across State lines is grossly inadequate."² 1968 U.S.Code Cong. & Admin.News, supra, at 4410-4435. Congress specifically found that:

The existing Federal controls over interstate and foreign commerce in firearms are not sufficient to

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