U.S. v. Moore

• Decision Date: 20 November 1978
• Docket Number: No. 77-1727,77-1727
• Citation: 586 F.2d 1029
• Parties: UNITED STATES of America, Appellant, v. Cecil B. MOORE, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1029

586 F.2d 1029

UNITED STATES of America, Appellant, v. Cecil B. MOORE, Appellee.

No. 77-1727.

United States Court of Appeals Fourth Circuit.

Argued Nov. 9, 1977.

Decided Nov. 20, 1978.

Robert McDermott, Jr., Asst. U. S. Atty., Alexandria, Va., Donald G. Stouffer, Third Year Law Student (William B. Cummings, U. S. Atty., Justin W. Williams, Asst. U. S. Atty., and Gerald A. Toner, Sp. Asst. U. S. Atty., Alexandria, Va., on brief), for appellant.

Jack S. Rhoades, Alexandria, Va. (Jack B. Stevens, Howard, Stevens, Lynch, Cake & Howard, Alexandria, Va., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, FIELD, Senior Circuit Judge, and WIDENER, Circuit Judge.

HAYNSWORTH, Chief Judge:

The defendant, a lawyer and member of the Philadelphia City Council, was convicted of a petty offense and fined $25 upon a charge that he had in his possession in his brief case a loaded revolver as he attempted to go through a check point preliminarily to boarding a plane at Washington National Airport. At the trial before a magistrate, he sought to defend upon the ground that he had thought that he had placed the loaded revolver in a suitcase which he had earlier checked at a ticket counter and that it was not in the brief case. The brief case contained only currency and the loaded revolver, and the defendant had resisted inspection of his brief case. The magistrate before whom he was tried found as a fact that the defendant did know the loaded revolver was in the brief case.

The conviction was for "willfully and knowingly" violating a regulation proscribing the possession of a weapon at the Washington National Airport. ¹

On appeal, the district judge held that there was no proof of willfulness. He stated "We have to assume that the 'willfully' was inserted . . . for some purpose. And willfully means voluntarily and intentionally and with the specific intent to do something you knew the law forbids."

The United States has brought the appeal here.

I.

Initially, we are met with a contention that the district court's direction of acquittal is not reviewable here because not expressly authorized by Congress. See United States v. Sanges, 144 U.S. 310, 12 S.Ct. 609, 36 L.Ed. 445 (1892).

In 18 U.S.C. § 3731, Congress has provided for appeals by the United States in criminal cases from orders of a district court dismissing an indictment or information unless the double jeopardy clause of the Constitution prohibits further prosecution. Moore suggests the statute is inapplicable because he was prosecuted on a violation notice and not upon an indictment of a grand jury or an information filed by the United States Attorney. With respect to misdemeanors and petty offenses committed on the Washington National Airport, a federal enclave, however, the violation notice is the functional equivalent of an indictment or an information. Moreover, in United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975), the Supreme Court reviewed the legislative history of the appeal statute and concluded that "Congress was determined to avoid creating nonconstitutional bars to the government's right to appeal." Id. at 339, 95 S.Ct. at 1019. Thus Wilson foreclosed all further inquiry about the reach of the statute; only the constitutionality of the allowance of an appeal remains relevant. See Sanabria v. United States, 437 U.S. 54, 63, 98 S.Ct. 2170, 2178 n. 16, 57 L.Ed.2d 43 (1978); United States v. Martin Linen Supply Co., 430 U.S. 564, 568, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977); United States v. Burroughs, 537 F.2d 1156, 1157 (4th Cir. 1976).

The district court in this case could not and did not conduct a trial De novo. It sat solely as an appellate court with the power to pass on questions of law. See Fed.R.Proc. for the Trial of Minor Offenses Before U. S. Magistrates 8(d). Indeed, the review of the magistrate's findings and conclusions supplied by the district court was identical in nature to the review we must undertake on this appeal. See United States v. Peck, 545 F.2d 962, 964 (5th Cir. 1977). Since, "it is well settled that an appellate court's order reversing a conviction is subject to further review even when the appellate court has ordered the indictment dismissed and the defendant discharged," United States v. Wilson, 420 U.S. at 345, 95 S.Ct. at 1022, the defendant's double jeopardy argument must fail.

II.

The regulations do require that a punishable violation be committed with willfulness and knowledge, but the district court read too much into the word "willfully" when he concluded that use of the term required that the United States prove that his possession of the gun in the brief case be with a "specific intent to do something he knew the law forbids," a requirement that could be satisfied only by proof that he intended to employ the weapon in some other criminal conduct or that he knew of the existence and force of the regulation.

The regulation's requirement that it be done knowingly means that it must be proven that the defendant knew that the weapon was in the brief case, as the magistrate found. ² The requirement that it be done willfully, in its ordinary connotation, means no more than that the act be done voluntarily. There would be no punishable violation, for instance, if an armed person were arrested and brought by police involuntarily on to the airport. Clearly the proof showed that the defendant was acting voluntarily, and in that sense, willfully, as he sought to board a plane for Philadelphia. Thus the dilemma the district judge thought he faced in ascribing some meaning to the term "willful" did not require the interpretation he gave it or the acquittal of the defendant.

Once before we have had occasion to consider the "knowingly and willfully" language contained in the National Airport regulations. In Finn v. United States, 256 F.2d 304 (4 Cir., 1958), an appeal from a prosecution for public profanity, the defendant challenged an indictment for failing to specifically charge knowledge or willfulness. In that case, this court stated:

The answer to the question raised here depends on the meaning of "knowingly and willfully" in the particular statute. The words have no single fixed and uniform meaning. "Willful" has been held to be "a word of many...