U.S. v. Malone, 75-2636
Decision Date | 17 June 1976 |
Docket Number | No. 75-2636,75-2636 |
Citation | 538 F.2d 250 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Edward Thomas MALONE, Defendant-Appellant. |
Court | U.S. Court of Appeals — Ninth Circuit |
Before MERRILL and WRIGHT, Circuit Judges, and RENFREW, * District Judge.
Appellant was convicted on two counts of possession of a firearm by a felon. (18 U.S.C. App. § 1202(a)(1)). On appeal he contends that the government failed to prove that there was sufficient nexus between his possession and interstate commerce. We agree and reverse the convictions.
The indictment charged that appellant "knowingly possessed and received" two firearms on or about November 22, 1974. The parties stipulated that the weapons had moved in interstate commerce some six and 18 months respectively before this date. No further evidence was adduced to prove a connection between appellant's possession of the firearm and interstate commerce.
The court found him guilty on two counts of possession, not of receipt of the firearms. While the stipulation might have been sufficient to meet the government's burden in a receiving case, it is not sufficient to establish the nexus with interstate commerce required in a possession case. United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971); United States v. Lathan, 531 F.2d 955 (9th Cir. 1976); United States v. Cassity, 509 F.2d 682 (9th Cir. 1974).
While we recognize that the distinction between the interstate nexus required in possession as opposed to receipt offenses is not drawn in the statute with convincing clarity, we are bound to follow our holding in Cassity. We are less reluctant after reviewing the Second Circuit's recent treatment of the issue in United States v. Bell, 524 F.2d 202 (2d Cir. 1975). In a well reasoned opinion the court examined the statutory history of the offenses, the origin of the distinction as developed in Bass, its treatment in the lower courts, and the principles of federalism which support maintenance of the distinction before concluding that the Bass dictum should be heeded. We agree.
REVERSED AND REMANDED.
The question before the Court is whether the distinction should be perpetuated between the showing of interstate commerce necessary under 18 U.S.C. App. § 1202(a) for a prosecution for receipt of a firearm by a felon, on the one hand, and a prosecution for possession of a firearm by a felon, on the other. Section 1202(a) was enacted as part of an amendment to the Omnibus Crime Control and Safe Streets Act of 1968 and provides in relevant part:
The critical phrase is "who receives, possesses, or transports in commerce or affecting commerce," a phrase which has already undergone the scrutiny of the Supreme Court in United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971).
The question in Bass was whether the verbs "receives" and "possesses" are modified by the phrase "in commerce or affecting commerce". The Supreme Court answered the question affirmatively, holding that "the phrase 'in commerce or affecting commerce' is part of all three offenses * * *." 404 U.S. at 347, 92 S.Ct. at 522. In resolving the question before it, the Court discussed several other issues not necessary to its decision. Those dicta have created difficulties of interpretation in later cases, including the instant one. 1 Most relevant to the issue before this Court is language in the Bass decision concerning the proof required of the Government to satisfy the "in commerce or affecting commerce" element of Section 1202(a). Bass was a five-to-two decision but, on this question of the quantum of proof necessary, Justice Brennan expressly withheld opinion. The following dictum, therefore, is supported by only four Justices and is completely unsupported by the statutory language or the legislative history:
404 U.S. at 350, 92 S.Ct. at 524 (emphasis added) (footnote omitted).
This dictum has created wholesale confusion in the Courts of Appeals and lies at the heart of appellant's argument in the instant case.
In United States v. Cassity, 509 F.2d 682 (9 Cir. 1974), this Court reviewed a "possession" conviction under Section 1202(a)(1). In a rather terse opinion, the Court quoted the above passage from Bass and, on that basis, distinguished the earlier decision of this Court in United States v. Giannoni, 472 F.2d 136 (9 Cir.), cert. denied, 411 U.S. 935, 93 S.Ct. 1911, 36 L.Ed.2d 396 (1973). In Giannoni, this Court had affirmed the conviction of a felon who "received" a gun in the course of stealing it from a gun shop, despite the fact that the gun had ended its travel in interstate commerce thirteen years earlier. The Cassity court based its distinction on the fact that Giannoni, involved a prosecution for receipt rather than for possession. It is unclear exactly what proof the Cassity court would have found to be sufficient. In setting out the facts of the case, the Court made the following statement concerning the gun in question:
In concluding that the Government had not met its burden of proof, the Court made the following observation:
Other circuits have struggled with the Bass dictum, reaching various accommodations with it. This is not a case in which the citation of authority is of much value. Some cases support my position. See, e. g., United States v. Kenner, 508 F.2d 409 (4 Cir. 1974), cert. denied, 421 U.S. 917, 95 S.Ct. 1578, 43 L.Ed. 783 (1975). Other cases support the position of the majority. See, e, g., United States v. Bell, 524 F.2d 202 (2 Cir. 1975), a case relying in large part on our decision in Cassity. 2 In my view, no persuasive arguments in favor of following the Bass dictum have been advanced.
The anomaly of the majority position is pointed out by the following hypothetical situation. Let us suppose that in addition to the facts of the present case, there had been another felon who received the firearms in question and then immediately transferred them to appellant. The majority would have upheld the conviction of the felon who received the firearms but would have reversed the conviction of the appellant. 3 Such a result is not only contrary to the plain and unambiguous language of the statute but flies in the face of the congressional intent. 4
Despite the recent vintage of Cassity, its rule is wrong, contrary to legislative intent, and defies common sense. The artificial distinction between the required showing of interstate commerce in the case of possession of a firearm as distinguished from the receipt of a firearm must be eliminated. I would suggest a hearing en banc for this case so that this Court could overrule Cassity and apply the statute as Congress intended and enacted it.
For these reasons I respectfully dissent.
* Honorable Charles Renfrew, United States District Judge of the Northern District of California, sitting by designation.
1 In Barrett v. United States, 423 U.S. 212, at 221-224, 96 S.Ct. 498, 46 L.Ed.2d 450 (1976), the Supreme Court expressly disavowed dicta in Bass concerning the interpretation of 18 U.S.C. § 922(h), a part of the Gun Control Act of 1968, Title IV of the Omnibus Crime Control and Safe Streets Act of 1968. The Court brushed aside the interpretation of Title IV suggested in Bass as "just another observation made in passing as the Court proceeded to consider § 1202(a)." Id. at 223, 96 S.Ct. at 504 (emphasis added).
2 To the extent that Bell relies on Cassity, Bell is dubious authority in the context of a suggestion that Cassity be reconsidered.
3 The Court of Appeals for the Eighth Circuit has attempted to blunt the distinction without ignoring it. In United States v. Haley, 500 F.2d 302 (8 Cir. 1974), the court reviewed a conviction under Section 1202(a)(1) for receipt of a firearm by a felon. The...
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