U.S. v. Kinsley, s. 75-1114

• Decision Date: 27 June 1975
• Docket Number: Nos. 75-1114,75-1119,s. 75-1114
• Citation: 518 F.2d 665
• Parties: UNITED STATES of America, Appellee, v. Edwin KINSLEY, Appellant. UNITED STATES of America, Appellee, v. Michael GUERRA, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 665

518 F.2d 665

UNITED STATES of America, Appellee, v. Edwin KINSLEY, Appellant.

UNITED STATES of America, Appellee, v. Michael GUERRA, Appellant.

Nos. 75-1114, 75-1119.

United States Court of Appeals Eighth Circuit.

Submitted May 16, 1975.

Decided June 27, 1975.

Joseph Stalmack, Jr., Hammond, Ind., for Edwin Kinsley.

Michael Guerra, pro se.

Robert L. Sikma, Asst. U. S. Atty., Sioux City, Iowa, for appellee.

Before MATTHES, Senior Circuit Judge, LAY, Circuit Judge, and REGAN, District Judge. ^*

MATTHES, Senior Circuit Judge.

Edwin Kinsley and Michael Guerra take these appeals from the denial by the district court of their motions under Rule 35, Fed.R.Crim.P., to correct their sentences.

Appellants (and one James Marihart) were convicted on all counts of a four-count indictment charging them, as previously convicted felons, with the unlawful possession of firearms in violation of 18 U.S.C. App. § 1202(a)(1). ¹ Each count involved a separate firearm. The proof at trial showed that appellants were in possession of the four firearms at a single time and place. The district court imposed the maximum two-year term on each count, and provided that the terms of three of the four counts would run consecutively. Thus, for their single act of simultaneously possessing four firearms, appellants were found guilty of four offenses and sentenced to a term of imprisonment of six years. We affirmed the judgment of conviction. United States v. Marihart, 492 F.2d 897 (8th Cir.), cert. denied, 419 U.S. 827, 95 S.Ct. 46, 42 L.Ed.2d 51 (1974). ²

Appellants then filed separate motions under Rule 35, Fed.R.Crim.P., to correct their sentences. They contended that the singular act of possessing the four firearms constituted only a single violation of § 1202(a), and that a term of imprisonment in excess of two years was thus illegal. The district court characterized the question as "an extremely close one," but proceeded to deny the motions for Rule 35 relief. The court found that the congressional purpose was one of minimizing the danger to society created by the possession of firearms by certain classes of people, and that Congress intended that this purpose be effectuated by making each firearm a unit of prosecution.

The appeals from the denial of relief by the district court were consolidated in this court for argument and opinion. We are faced with the single issue of whether the language of § 1202(a)(1), defining as a criminal offense the receipt, possession, or transportation in commerce by a previously convicted felon of "any firearm," allows the government to treat each of several firearms simultaneously possessed as a separate unit of prosecution.

A. THE ALLOWABLE UNIT OF PROSECUTION: GENERALLY.

The allowable unit of prosecution for a federal offense is set by Congress. When Congress fails to set the unit of prosecution with clarity, doubt as to congressional intent is resolved in favor of lenity for the accused. This settled rule of federal criminal law has received its most celebrated expression in Bell v. United States, 349 U.S 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955). Bell presented the issue of whether the simultaneous interstate transportation of two women in violation of the Mann Act (making unlawful the interstate transportation of "any woman or girl" for immoral purposes) constituted two offenses or only one. Finding the legislative intent ambiguous, the Court stated:

About only one aspect of the problem can one be dogmatic. When Congress has the will it has no difficulty in expressing it when it has the will, that is, of defining what it desires to make the unit of prosecution and, more particularly, to make each stick in a faggot a single criminal unit. When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity.

349 U.S. at 83, 75 S.Ct. at 622.

The Bell rule of construction is founded on the dual considerations that criminal legislation must provide fair warning and that the legislature and not the courts should define criminal activity. United States v. Bass, 404 U.S. 336, 348, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). In implementing these considerations, the courts have not hesitated to apply the rule of lenity to a wide variety of legislative contexts in which Congress has failed to clearly indicate the allowable unit of prosecution. See, e.g., Castle v. United States, 368 U.S. 13, 82 S.Ct. 123, 7 L.Ed.2d 75 (1961) (unlawful transportation of five falsely made money orders; held, one offense); Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958) (discharge of gun wounding two federal officers; held, one assault); United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260 (1952) (wage and hour violations as to numerous employees over several weeks: held, single course of conduct constitutes only one offense); United States v. Deaton, 468 F.2d 541 (5th Cir. 1972), cert. denied, 410 U.S. 934, 93 S.Ct. 1386, 35 L.Ed.2d 597 (1973) (simultaneous harboring of two prisoners; held, one offense); United States v. Melville, 309 F.Supp. 774 (S.D.N.Y.1970) (interference and obstruction of national defense by attempting to destroy three Army trucks; held, one offense).

Significantly, in many of the cases in which the courts have found a Bell -type ambiguity, the object of the offense has been prefaced by the word "any." Seemingly this is because "any" may be said to fully encompass (i.e., not necessarily exclude any part of) plural activity, and thus fails to unambiguously define the unit of prosecution in singular terms. See, e.g., Ladner v. United States, supra (statute provided: "Whoever shall forcibly * * * interfere with any person * * *"); Bell v. United States, supra (whoever knowingly transports "any woman or girl"); United States v. Deaton, supra ("Whoever * * * harbors * * * any prisoner * * *"); ³ Parmagini v. United States, 42 F.2d 721 (9th Cir. 1930, cert. denied, 283 U.S. 818, 51 S.Ct. 344, 75 L.Ed. 1434 (1931) ("any narcotic drug"; held, single concealment of two different drugs a single offense); Braden v. United States, 270 F. 441 (8th Cir. 1920) ("any of the aforesaid drugs"; held, possession of four different drugs a single offense); ⁴ United States v. Melville, supra ("whoever * * * destroys * * * any national-defense material * * *); United States v. Martin, 302 F.Supp. 498 (W.D.Pa.1969), aff'd 428 F.2d 1140 (3rd Cir.), cert. denied, 400 U.S. 960, 91 S.Ct. 361, 27 L.Ed.2d 269 (1970) ("any narcotic drug"; held, single transaction involving both heroin and cocaine constitutes a single offense). But see Ebeling v. Morgan, 237 U.S. 625, 35 S.Ct. 710, 59 L.Ed. 1151 (1915) ("whoever shall tear * * * any mail bag * * *"; held, tearing of each mail bag a separate offense). On the present authoritativeness of Parmagini v. United States, supra, and Braden v. United States, supra, compare United States v. Busch, 64 F.2d 27 (2nd Cir.), cert. denied, 290 U.S. 627, 54 S.Ct. 65, 78 L.Ed. 546 (1933), with United States v. Martin, supra.

B. THE ALLOWABLE UNIT OF PROSECUTION: 18 U.S.C. App. § 1202(a).

The question in the instant case thus narrows to whether the allowable unit of prosecution under § 1202(a) should be deemed ambiguous. In this inquiry, three general sources may be looked to: statutory language, legislative history, and the statutory scheme.

1. Statutory Language.

The statutory language of § 1202(a) is similar to that deemed ambiguous in Bell : as the statute in Bell defined the object of the offense as "any woman or girl," § 1202(a) defines the object of the offense as "any firearm." As noted in the earlier discussion, the word "any" has typically been found ambiguous in connection with the allowable unit of prosecution.

Recognizing this ambiguity, the Seventh Circuit has held that § 1202(a) makes the simultaneous possession of several weapons only one offense. United States v. Calhoun, 510 F.2d 861 (7th Cir. 1975). Similar results have been reached in cases concerning violations of other firearms statutes containing similar language. See McFarland v. Pickett, 469 F.2d 1277 (7th Cir. 1972) (construing 18 U.S.C. § 922(j)); ⁵ United States v. Carty, 447 F.2d 964 (5th Cir. 1971) (construing 18 U.S.C. § 922(i)). ⁶

The government urges that the seemingly ambiguous language of § 1202(a) is rendered unambiguous by the preceding statutory section, 18 U.S.C. App. § 1201. In § 1201, entitled "Congressional findings and declaration," Congress makes the finding that a felon's receipt, possession, or transportation of "a firearm" provides a sufficient basis for the exercise of legislative power. ⁷ On the strength of this section, the government would have us distinguish the judicial construction given analogous firearms provisions and the direct authority of the Seventh Circuit's holding in United States v. Calhoun, supra.

We cannot agree that this findings and declaration section renders unambiguous the subsequent definition of the offense in § 1202(a). It does not necessarily follow that, because possession of a single firearm is sufficient to constitute the evil legislated against, Congress thereby intended that felons in simultaneous possession of more than one firearm should be deemed to have committed multiple offenses. Moreover, we are reluctant to substitute the prefatory language of § 1201 for the language actually used in § 1202(a) to define the criminal offense. In short, while we find the language of § 1201 relevant, we think it insufficient to eliminate the ambiguity in § 1202(a).

We conclude that the language of § 1202(a), defining as the object of the offense "any firearm," must be deemed ambiguous on the issue of whether a single firearm is the unit of prosecution. As discussed above, this conclusion reflects the effect typically given the word "any," and is in accord with the cases construing § 1202(a) and closely analogous firearms provisions....