U.S. v. Graves

• Citation: 554 F.2d 65
• Decision Date: 18 March 1977
• Docket Number: No. 75-2015,75-2015
• Parties: UNITED STATES of America v. Bennie GRAVES, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 65

554 F.2d 65

UNITED STATES of America v. Bennie GRAVES, Appellant.

No. 75-2015.

United States Court of Appeals,

Third Circuit.

Argued Feb. 11, 1976.

Reargued Before the Court En Banc Nov. 4, 1976.

Decided March 2, 1977.

As Amended March 18, 1977.

Paul D. Boas, Berlin, Boas, Isaacson, Logan, Rosenfield & Sharon, Pittsburgh, Pa., for appellant.

Blair A. Griffith, U. S. Atty., Judith K. Giltenboth, Asst. U. S. Atty., H. Bartow Farr, Asst. to the Sol. Gen., Washington, D. C., for appellee.

Argued Feb. 11, 1976.

Before ALDISERT, GIBBONS and ROSENN, Circuit Judges.

Reargued Nov. 4, 1976.

Before SEITZ, Chief Judge, and VAN DUSEN, ALDISERT, ADAMS, GIBBONS, ROSENN, HUNTER, WEIS and GARTH, Circuit Judges.

OPINION OF THE COURT

ADAMS, Circuit Judge.

At stake in the present appeal is the vitality of several key provisions of the Gun Control Act of 1968, ¹ a statutory program which restricts the right to bear arms of convicted felons and other persons of dangerous propensities. ² Two principal issues pertaining to the Act confront the Court. First, we must determine whether Congress contemplated the use of an outstanding criminal conviction as a predicate for a firearms violation where the defendant questions the constitutionality of the prior conviction but failed to challenge it prior to the proceedings involving the weapons offense. If such a conviction was intended to be so utilized, we then must decide whether there is any constitutional impediment to the regulatory regimen provided by Congress.

I.

In July, 1972, defendant Bennie Graves was indicted on two counts for violating provisions of the Gun Control Act. The first count alleged that Graves had abridged 18 U.S.C. §§ 922(a)(6) ³ and 924(a) ⁴ in connection with the purchase of a shotgun when he certified on a firearms registration form that he had not been convicted of a crime punishable by imprisonment for a term of at least one year although, in fact, he knew that he had been. The second count of the indictment charged Graves with contravening 18 U.S.C. Appendix § 1202(a) ⁵ because, after having been convicted of a felony, he willfully and knowingly received and possessed a shotgun that had moved in interstate commerce.

Underlying the firearms indictment was a state conviction for larceny of an automobile. In April, 1971, a state court had found Graves guilty of that crime, an offense punishable by a term of imprisonment exceeding one year. Graves never sought to overturn his state conviction either by direct appeal or by any mode of collateral attack. Nor did he attempt to expunge it from his record through a pardon or to seek administrative relief from the strictures of the Act.

Immediately prior to his trial on the firearms charges, Graves moved to dismiss the indictment, claiming that the outstanding state conviction had not been constitutionally obtained. Graves grounded his motion on the proposition that, when arrested for auto larceny, he was seventeen years old; that the offense thus could have been disposed of by juvenile authorities; but that the juvenile court, after a hearing, decided to transfer the case to the adult criminal court, where Graves ultimately was convicted.

In the pretrial motion in the present case, Graves asserted that, at the hearing preceding transfer of the larceny charge to the adult court, he had been denied certain procedural safeguards mandated by due process and explicated by the Supreme Court in Kent v. United States. ⁶ Graves claimed, therefore, that his conviction for auto larceny was constitutionally defective and hence could not contribute to liability under the firearms statutes. The district court did not agree with that contention and refused to dismiss the indictment.

A trial then was held before the district judge sitting without a jury. Graves and the prosecution stipulated the basic facts pertaining to the acquisition and subsequent possession of the shotgun. ⁷ Upon entry of the stipulation, Graves moved for a judgment of acquittal, reiterating, in essence, the arguments that he had proffered in his pretrial motion to quash the indictment. The government responded that any constitutional infirmities in a prior conviction that had not yet been expunged could not constitute a defense to the firearms charges. Moreover, the government insisted that no proof as to the validity of the outstanding conviction was necessary for the present prosecution.

Subsequently, in May, 1975, the district judge, consonant with his denial of the pretrial motion, found Graves guilty on both counts, and sentenced him to prison under the Federal Youth Corrections Act. ⁸ Graves then filed an appeal which was heard by a panel of this Court. Thereafter, the case was set down for rehearing before the Court in banc.

We now affirm the guilty verdicts on both counts.

II.

To ascertain whether Congress intended that an outstanding felony conviction could lead to liability under the firearms statutes, even though a defendant asserts constitutional flaws in the prior conviction, we must examine those materials which may afford insight into Congressional intent: (a) the language of the statutes, (b) the legislative history, and (c) the opinions of other courts which have endeavored to interpret the statutes.

These materials suggest that the legislative draftsmen desired persons with extant, though arguably unconstitutional, convictions to forbear from the purchase and possession of firearms until their convictions are voided by the courts or until they are freed from such disability by executive action. Failure to so refrain was intended to subject such persons to the penalties specified in the Act. Congress, in our view, did not expect disputes over the constitutional validity of a prior conviction to intrude upon trials of federal weapons offenses, at least in the type of factual context presented by this case.

A. THE STATUTORY PROGRAM.

Our inquiry opens with an examination of the provisions under which Graves was charged and the overarching statutory program within which they operate. ⁹ The enactments alleged to have been violated fall within two separate titles of the Gun Control Act: 18 U.S.C. App. § 1202(a) is found in Title VII, and 18 U.S.C. §§ 922(a)(6) and 924(a) comprise part of Title IV. ¹⁰ Coverage of these titles overlaps; each one limits the right of convicted felons and certain other persons to receive or transport guns. ¹¹ Nevertheless, the two titles are not wholly congruent. With minor exceptions, only Title VII directly regulates the possession of firearms by the named individuals. Title IV, unlike Title VII, bars false statements by participants in weapons transactions.

1. Title VII: 18 U.S.C. App. § 1202(a)

Section 1202 proscribes the possession, receipt or transportation, in interstate commerce, of firearms by classes of persons that Congress deemed likely to misuse them. Those covered include convicted felons, mental incompetents, dishonorable dischargees from the armed forces, individuals who renounce their citizenship, and illegal aliens. ¹² And there are only limited exemptions to the coverage of the Act. A convicted felon, for example, may become immunized from statutory liability if he secures a pardon expressly authorizing him to carry weapons. ¹³

On its face, § 1202 affords insight into Congressional intent with respect to the problems raised by this case. The provision speaks to the person who "has been convicted by a court . . . of a felony." It contains no requirement that the conviction be obtained in any particular manner. Thus, textually, it is the fact of conviction which calls into play the disability imposed by Title VII.

We note also that § 1202, despite its location within the federal criminal code, is essentially regulatory in nature. It is unlike most other criminal laws which proscribe acts that are in themselves pernicious, e. g., kidnapping, theft or embezzlement. By contrast, the receipt or possession of firearms does not constitute conduct that is inherently harmful. As a result, Congress has not interdicted such behavior altogether. Rather, what the legislative authors have done is to impose controls on activities involving weapons.

The Congressional declaration set forth in § 1201 voices concern regarding the deleterious effects of firearms use by persons with possibly dangerous inclinations. ¹⁴ Not surprisingly, the prohibitions established by Title VII are somewhat sweeping, indicating that the draftsmen desired to regulate individuals having even the slightest potential for threatening community safety. We cannot say certainly on the record before us that it was unreasonable for Congress to have believed that a person with an outstanding felony conviction, even one that has been attacked as unconstitutional, may be somewhat more likely than the average citizen to utilize a gun improperly. And the statutory terms suggest that an outstanding conviction may contribute to liability under Title VII and its central provision, § 1202.

2. Title IV: 18 U.S.C. §§ 922(a)(6) and 924(a)

Section 922(a)(6) declares that it is unlawful for any person "knowingly to make any false or fictitious oral or written statement . . ." in connection with the acquisition of firearms. ¹⁵ While this provision in itself does not oblige a prospective gun purchaser to divulge any criminal infractions on his record, the Treasury Department requires, as a precondition to acquisition of a weapon, completion of an application form on which the purchaser must state whether he ever has been convicted of a crime punishable by imprisonment for more than one year. ¹⁶ To deny an outstanding felony conviction on such form would appear to subject the purchaser of firearms to liability under § 922(a)(6). Section 924(a) delineates the penalties for making the false representations in the acquisition or transfer of weapons.

Under the legislation, comprehensive records are to be kept with respect to all...