U.S. v. Batchelder

Decision Date25 January 1978
Docket NumberNo. 77-1819,77-1819
Citation581 F.2d 626
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Milton Dean BATCHELDER, Defendant-Appellant. . Heard
CourtU.S. Court of Appeals — Seventh Circuit

Appeal from S. Ill., Northern Division, Robert D. Morgan, Judge.

Charles A. Bellows, Chicago, Ill., for defendant-appellant.

John C. Carver, Asst. U. S. Atty., Springfield, Ill., for plaintiff-appellee.

Before CUMMINGS and BAUER, Circuit Judges, and McMILLEN, District Judge. *

CUMMINGS, Circuit Judge.

In March 1977, defendant was indicted under 18 U.S.C. § 922(h) on the ground that he was a previously convicted felon who, on July 31, 1975, received a .38 caliber pistol which had previously been transported in interstate commerce. A jury found defendant guilty and he received a five-year sentence. Although defendant raises five issues in seeking a new trial, his most impressive point on appeal is that his constitutional rights were violated because he received a five-year sentence under 18 U.S.C. § 922(h) whereas the identical offense is proscribed by 18 U.S.C.App. § 1202(a), which carries a lesser penalty.

The essential facts that gave rise in his indictment under Section 922 can be stated briefly. On July 22, 1975, Russell Koch, Special Agent with the Treasury Department's Bureau of Alcohol, Tobacco and Firearms, went in an undercover capacity to Carl's Bar in Bellevue, Illinois, accompanied by an informant. Defendant was tending bar inside. Although the testimony at trial differed on who instigated the conversation, there was no dispute that Koch discussed with defendant a purchase of one or two firearms which were in defendant's possession and that nine days later he sold Koch a .38 caliber revolver. The parties stipulated before trial that the revolver had been shipped in interstate commerce in 1948 and that the defendant in 1960 was convicted of a crime punishable by imprisonment for a term exceeding one year. 1 He was tried and convicted under Section 922(h), which prohibits convicted felons from receiving firearms that have traveled in interstate commerce.

I. The Choice Between the 2-Year Sentence and the 5-Year Sentence

Because Section 1202 was part of a "last minute" amendment that was "hastily passed, with little discussion, no hearings, and no report" (United States v. Bass, 404 U.S. 336, 344, 92 S.Ct. 515, 520, 30 L.Ed.2d 488), it has posed several difficult problems of interpretation. See, E. g., United States v. Bass, supra; Stevens v. United States, 440 F.2d 144 (6th Cir. 1971). The problem posed here is that both 18 U.S.C.App. § 1202(a) and 18 U.S.C. § 922(h) prohibit one who has been convicted of a felony from receiving a firearm that previously traveled in interstate commerce but provide different penalties for that offense.

Section 922(h), reenacted as part of Title IV State Firearms Control Assistance of the Omnibus Crime Control and Safe Streets Act of 1968, provides:

"It shall be unlawful for any person

(1) who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

to receive any firearm or ammunition which has been shipped or transported in interstate commerce."

Section 924(a) of the same statute provides for violations of Section 922 a maximum fine of $5,000 and a maximum imprisonment term of five years; defendant received the five-year maximum sentence.

18 U.S.C.App. § 1202(a), passed for the first time as Title VII Unlawful Possession or Receipt of Firearms of the same Omnibus Act, provides:

"Any person who

(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, * * * and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both."

Defendant's argument is that two statutes that proscribe the same offense and require identical proof 2 cannot subject an offender to different penalties. Apparently this argument has two dimensions, one based on statutory interpretation and the other based on potential constitutional impediments. We consider each in turn and conclude that it is impermissible to sentence a defendant for five years under Section 922(h) when he could receive only a two-year maximum sentence under Section 1202(a).

A. Statutory Interpretation

Section 922(h) had its origin in Section 2(f) of the Federal Firearms Act of 1938, 52 Stat. 1250, 1251. Section 5 of that statute made the penalty a $2,000 maximum fine or imprisonment for not more than five years, or both. 52 Stat. 1252. See 1968 U.S.Code Congressional and Administrative News pp. 2112, 2205, 2207 (1968). The statute was included as part of the Act that eventually was passed under the title of the Omnibus Crime Control and Safe Streets Act of 1968.

Although Section 922(h) was a part of that Act from its introduction in the House in 1967 through June of 1968 when the Act passed both Houses and was signed into law, Section 1202 was, as the Supreme Court described, a product of a last-minute amendment. See generally Stevens v. United States, 440 F.2d 144 (6th Cir. 1971). After the Act had passed the House and had been reported to the Senate by the Senate Committee on the Judiciary, on the day the Senate version of the Act passed the Senate Section 1202 was offered from the floor as an amendment by Senator Long. 114 Congressional Record 14775 (1968). No specific mention of Section 922 was made in the brief debate that followed, but one general reference to Title IV does appear. Senator Dodd asked whether Senator Long's amendment was a substitute for Title IV and Senator Long replied (Id. at 14774):

"Mr. Long of Louisiana. This amendment would take nothing from the bill. I applaud what the committee did. This would add to the fine work the committee did in this area."

After the Act passed the Senate, the House reconsidered it in light of the Senate's changes before the bill, including both Sections 922(h) and 1202(a), was signed into law in June of 1968. In explaining Senator Long's amendment to the House, Congressman Machen said that "this provision is necessary to a coordinated attack on crime and also (is) a good complement to the gun control legislation contained in Title IV." Id. at 16286.

This brief legislative history leaves a perplexing problem of statutory construction. While it could be argued that the legislators' comments indicate that Congress intended the two titles to coexist, it is hard to imagine, and nothing in the history suggests, that the legislators if they were focusing upon these Sections could have considered Section 1202 a "good complement" to Section 922. Because we therefore find the legislative history inconclusive, 3 our determination of what meaning to give to two inconsistent provisions in the same Act rests on the application of three general principles of statutory construction. First is the principle, recently reaffirmed in United States v. Bass, 404 U.S. 336, 347-349, 92 S.Ct. 515, 30 L.Ed.2d 488, and applied in a discussion of these same two titles of the hastily amended Omnibus Act, that ambiguity concerning the interpretation of criminal legislation should be resolved in favor of lenity. 4 While this principle usually is applied to the interpretation of individual statutes whose phrasing is ambiguous, it also seems helpful when as here two separate parts of the same Act arguably contradict each other and therefore leave the intent of the legislators ambiguous. See 2A Sutherland's Statutory Construction § 47.02.

To the extent that the individual sections of the Omnibus Act instead are regarded as separate enactments, a second principle of statutory construction comes into play: that a later-enacted statute can under certain circumstances serve as an implied repeal of an earlier statute. Applying this principle, it can be argued that Senator Long's amendment Section 1202(a) is Congress' last word on the issue of penalty because it was added to the bill after Section 922 and because it was first enacted in 1968 while Section 922 dates back 30 years earlier. While implied repeals are disfavored particularly in the absence of a manifest intent to repeal, the conflict between the two sections and the broad coverage of Section 1202 lend some support under these circumstances to the notion that the penalty in Section 1202 should predominate. See generally Radzanower v. Touche Ross & Co., 426 U.S. 148, 154, 96 S.Ct. 1989, 48 L.Ed.2d 540.

Although these first two principles cannot be applied to these facts without some difficulty, the third and in this case most important principle seems to apply with full force. That principle is that when a "serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided." Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598. See United States ex rel Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 408, 29 S.Ct. 527, 53 L.Ed. 836. Because, as outlined in the next part of this opinion, the constitutionality of inconsistent penalties is open to serious question, this third principle, together with whatever persuasive force can be drawn from the first two principles, leads us to construe the Omnibus Act as limiting imprisonment to a maximum of two years for the offense of receiving a firearm by a convicted felon. 5 Accord, United States v. Hairston, 437 F.Supp. 33 (N.D.Ill.1977).

B. Constitutional Issues

Justice Black's forceful dissenting opinion in Berra v. United States, 351 U.S. 131, 76 S.Ct. 685, 100 L.Ed. 1013, joined by Justice Douglas, touches on several important constitutional protections implicated by a...

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