U.S. v. Bell

• Decision Date: 06 October 1975
• Docket Number: D,No. 187,187
• Citation: 524 F.2d 202
• Parties: UNITED STATES of America, Appellee, v. Marce BELL, Defendant-Appellant. ocket 75-1207.
• Court: U.S. Court of Appeals — Second Circuit

Page 202

524 F.2d 202

UNITED STATES of America, Appellee, v. Marce BELL, Defendant-Appellant.

No. 187, Docket 75-1207.

United States Court of Appeals, Second Circuit.

Argued Sept. 5, 1975.

Decided Oct. 6, 1975.

Frederick P. Hafetz, Goldman & Hafetz, New York City, for defendant-appellant.

Jeremy G. Epstein, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., S. D. N. Y., John D. Gordan, III, Asst. U. S. Atty., of counsel), for appellee.

Before KAUFMAN, Chief Judge, and MULLIGAN and GURFEIN, Circuit Judges.

MULLIGAN, Circuit Judge:

The defendant Marce Bell appeals from a judgment of conviction entered on May 19, 1975 in the United States District Court for the Southern District of New York after a one-day non-jury trial before the Hon. Dudley B. Bonsal, United States District Judge. Bell was charged in a one count indictment with receiving, possessing and transporting in commerce or affecting commerce a firearm after having been convicted of a felony in violation of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. App. § 1202(a). Upon his conviction he was sentenced to a term of two years' imprisonment and is presently free on bail pending appeal.

I

On October 7, 1974 agents of the New York Drug Enforcement Task Force obtained a warrant to search Bell's apartment in the Bronx. The affidavit in support of the warrant indicated that a reliable informant had observed 10 ounces of heroin at that location. Bell was also observed by the informant to be carrying a .38 caliber revolver. The Task Force set up a surveillance team at the Bell apartment house and observed him and a woman companion leave the building and approach his car which was parked across the street and which carried New Jersey license plates. While Bell was reaching into the trunk to change a flat tire he was approached by an agent who noticed a bulge in Bell's waistband. The agent knew that Bell was reported to be armed and reached for the object which proved to be a loaded .38 caliber revolver. Bell was arrested and given the appropriate warnings. Bell's motion to suppress the gun was denied below and no suppression issue has been raised on this appeal. Bell was then taken to his apartment and the search warrant was executed. At that time Bell advised the agents that he had purchased the gun in Virginia several years before. He repeated this admission to an Assistant United States Attorney in an interview on October 8, 1974 just prior to his arraignment. The revolver bore the legend "I.N.A., Made in Brazil." There was evidence below that I.N.A. was an abbreviation for "Industrial National Arms," a Brazilian corporation now defunct and its records destroyed. It is not disputed that Bell had been previously convicted of manslaughter in the Supreme Court, New York County and was sentenced to imprisonment for a term of five to seven years.

Hence, the only issue on this appeal is whether Bell's possession of a gun which was manufactured in Brazil and purchased in Virginia some years before constitutes a sufficient nexus with interstate commerce to come within the language of the statute, 18 U.S.C. App. § 1202(a).

II

The language of the statute which is pertinent to the inquiry 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 . . . any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.

The court was first called upon to construe the statute in United States v. Bass, 434 F.2d 1296 (2d Cir. 1970). In that case the Government urged that the phrase "in commerce or affecting commerce" modified "transports" alone but had no application to "receives" or "possesses." This court, which characterized the legislative history of the statute as "unedifying and inadequate," 434 F.2d at 1298, rejected the Government's interpretation which we had indicated would create serious constitutional doubts. We concluded that receipt and possession as well as transportation of the firearm must be shown to have been "in commerce or affecting commerce." Since the Government had offered no proof of any interstate movement, there was in Bass no occasion to discuss the question now before us, i. e., what degree of interstate commerce involvement is necessary to sustain a conviction.

The holding of this court in Bass was affirmed on appeal in United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), with Mr. Justice Marshall writing the opinion for the Court in which Justices Douglas, Stewart and White concurred fully; Justice Brennan concurred in part, and Justice Blackmun filed a dissenting opinion in which Chief Justice Burger joined. The majority, although characterizing the statute as ambiguous (the Government in fact conceded that it was not a model of logic or clarity), held that an interstate nexus was required for all three offenses proscribed transportation, receipt and possession. The Court did not reach the constitutional issue raised below but grounded its holding on two policies: first, in construing a criminal statute any ambiguity should be resolved in favor of lenity and secondly, that absent a clear manifestation of intent, Congress will not be deemed to have defined as a federal crime that conduct which is readily denounced as criminal by the States.

Mr. Justice Marshall then proceeded in Part III of the opinion by way of dicta to discuss what interstate nexus must be established with respect to the "possession" and "receipt" offenses. The discussion of the Court follows:

The Government can obviously meet its burden in a variety of ways. We note only some of these. For 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. Significantly broader in reach, however, is the offense of "receiv(ing) . . . in commerce or affecting commerce," for we conclude that the Government meets its burden here if it demonstrates that the firearm received has previously traveled in interstate commerce. This is not the narrowest possible reading of the statute, but canons of clear statement and strict construction do "not mean that every criminal statute must be given the narrowest possible meaning in complete disregard of the purpose of the legislature." United States v. Bramblett, 348 U.S. 503, 510, 75 S.Ct. 504, 508, 99 L.Ed. 594 (1955). We have resolved the basic uncertainty about the statute in favor of the narrow reading, concluding that "in commerce or affecting commerce" is part of the offense of possessing or receiving a firearm. But, given the evils that prompted the statute and the basic legislative purpose of restricting the firearm-related activity of convicted felons, the readings we give to the commerce requirement, although not all narrow, are appropriate. And consistent with our regard for the sensitive relation between federal and state criminal jurisdiction, our reading preserves as an element of all the offenses a requirement suited to federal criminal jurisdiction alone.

404 U.S. at 350-51, 92 S.Ct. at 524 (footnote omitted).

Mr. Justice Brennan disassociated himself from Part III of the opinion, noting that no question of the quantum of evidence necessary to establish the Government's prima facie case was before the Court. Mr. Justice Blackmun in his dissenting opinion noted that five other circuits had disagreed with the Second Circuit on this point. ¹ He argued that no interstate nexus at all was necessary for the possession and receipt offenses and therefore would have proceeded to the constitutional issue. Since Bass, this circuit has not been provided the pleasure of further opportunities to interpret § 1202(a).

The appellant places principal reliance upon the language of Part III of the Supreme Court's majority opinion which draws a distinction between a felon's possession of a gun in interstate commerce and his receipt of the weapon. Although it is conceded that the statute covers three separate offenses (possession, receipt and transportation), Judge Bonsal found Bell guilty only of "possession" which narrows the issue before us. In Bass, Mr. Justice Marshall stated that a felon possesses a firearm within the statute if at the time of the offense the gun was moving in interstate commerce or on an interstate facility. 404 U.S. at 350, 92 S.Ct. 515. There was obviously no contemporaneous interstate transportation here. The gun had been purchased in Virginia several years ago and had come to rest in New York. Although Bell's car carried New Jersey plates, it was also equipped with a flat tire and in any event there was no proof that Bell was about to embark on an interstate trip. The Marshall opinion, while offering the moving in commerce or on an interstate facility as examples, further noted that the Government might "meet its burden in a variety of ways." While this comment opens the door somewhat, the opinion proceeds rapidly to close it in discussing the "receipt" offense, which it characterized as significantly broader in reach. The opinion indicated that the Government meets its burden in a receipt case if it can establish that the firearm "has previously traveled in interstate commerce." The message seems clear a contemporaneous interstate nexus is necessary for a possession conviction but interstate transportation at some prior point suffices where the offense charged is receipt of a weapon. Since receipt here was in Virginia and not the Southern District of New York, Judge Bonsal properly could only find the possession offense applicable. If the distinction made in Part III of Bass is followed, it would seem that Bell's conviction of possession must be reversed.

III

The Government's first response is that Mr. Justice...