U.S. v. Powers

• Decision Date: 28 February 1978
• Docket Number: No. 77-1796,77-1796
• Citation: 572 F.2d 146
• Parties: 3 Fed. R. Evid. Serv. 231 UNITED STATES of America, Appellee, v. William F. POWERS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 146

572 F.2d 146

3 Fed. R. Evid. Serv. 231

UNITED STATES of America, Appellee, v. William F. POWERS, Appellant.

No. 77-1796.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 9, 1978.

Decided Feb. 28, 1978.

James A. Daugherty, St. Louis, Mo., for appellant.

James J. Barta, Asst. U. S. Atty., St. Louis, Mo., for appellee; Robert D. Kingsland, U. S. Atty., St. Louis, Mo., on the brief.

Before GIBSON, Chief Judge, and ROSS and WEBSTER, ^* Circuit Judges.

ROSS, Circuit Judge.

The appellant William F. Powers challenges his four count conviction under 18 U.S.C. § 922(h)(1) and 924(a). Powers, a previously convicted felon under Missouri law, was charged with the unlawful receipt of firearms which had been transported in interstate commerce. Powers raises a multitude of issues, seventeen in all, one of which we find merits an alteration of the judgment of conviction. ¹ Accordingly, we affirm as to counts one and two, and order that counts three and four be dismissed.

Under count one Powers was charged with the unlawful receipt of one Revelation 30-30 caliber rifle. According to the trial testimony, Powers received this rifle from Mr. Clyde Brown, who then resided in Leasburg, Missouri. On November 8, 1976, after Powers had finished helping Brown on a remodeling project on Brown's trailer, Powers asked Brown if he could borrow Brown's "deer rifle" for the deer season which opened the next day. Brown agreed to the loan, and also testified that at that time he had no knowledge that Powers, whom he had known one or two months, was a convicted felon.

Powers was subsequently stopped on November 12, 1976, by assistant police chief Taylor of the Sullivan, Missouri police department at approximately 9:30 p. m., after Taylor had received a radio call directing him to stop Powers and advising him that Powers might have a firearm in the vehicle. After the stop the Crawford County sheriff's department then took Powers into custody; officer Giles of that department testified that Powers told Giles, after Giles advised Powers of his rights, that Powers had acquired the gun from Clyde Brown. Giles took the firearm from the local police officer, and later contacted agents of the Alcohol, Tobacco, and Firearms Department concerning Powers' arrest. The government adduced evidence that the firearm, taken from Powers in Missouri, had been manufactured in Massachusetts.

Counts two, three, and four relate to the unlawful receipt of three other firearms by Powers: a Marlin .22 caliber rifle, a Remington 25.06 caliber rifle, and a Winchester 30-30 caliber rifle. According to the testimony of government witness Dennis Busby, Powers approached Busby, on or about December 18, 1976, and requested Busby's help in transporting these three firearms in Busby's vehicle from Leasburg to St. Louis, where Powers had plans to sell them. Busby testified that Powers revealed that he had acquired the guns by theft from the Larry Miller residence in Leasburg.

Thereafter Busby notified the Cuba, Missouri chief of police, as well as the highway patrol, of the fact that Powers had approached him; the police chief suggested that Busby go through with the plan as Powers had suggested. Powers and Busby met at a tavern and then drove to a thicket where the rifles were hidden; Powers placed the guns in Busby's vehicle, and the two left. Later as Powers and Busby drove onto the Interstate, the officers whom Busby had contacted stopped the vehicle as prearranged; Busby stepped out of the vehicle and the officers asked for the keys to the trunk and for permission to open the trunk, which Busby gave. Powers, Busby, and the weapons were then taken to the state patrol office, though Busby was not charged. There is testimony that during the trip Powers was intoxicated or appeared to be intoxicated.

Mr. Larry Miller also testified concerning the theft of his rifles on December 14, 1976; at trial he identified the three rifles taken from the Busby vehicle as being the three rifles stolen from his residence. Evidence was adduced that the three rifles taken from the Busby vehicle in Missouri had been manufactured outside of the state of Missouri.

I. The Allowable Unit of Prosecution

Of the many errors Powers has alleged, the most significant is the allegation that he was erroneously indicted and convicted on three counts for the simultaneous receipt of three firearms. Powers argues that the statutory phrase "to receive any firearm" ² is ambiguous and does not instruct whether the simultaneous receipt of the guns constitutes one offense or three separate offenses under the statute. The appellant urges the court to adopt the rationale of United States v. Kinsley, 518 F.2d 665, 666 (8th Cir. 1975), and merge the latter three counts:

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).

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).

Id. at 666-67.

In Kinsley the appellants had been convicted on 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). ³ Each count involved a separate weapon. Under § 1202(a)(1) punishment is prescribed for a felon "who receives, possesses, or transports in commerce or affecting commerce * * * any firearm * * * " (emphasis added).

As in Kinsley, the statute in the present case, § 922(h)(1), utilizes the word "any" to define the offense, a word which frequently gives rise to Bell -type ambiguity. United States v. Kinsley, supra, 518 F.2d at 667.

Attempting to define "any firearm" in accordance with the legislative intent, the Kinsley court examined the § 1202(a)(1) statutory language, the Act's legislative history, and the statutory scheme, but these sources failed to dispel the ambiguity. Kinsley concluded: "The Supreme Court has recently reiterated that problems of this sort (uncertainty as to the proper unit of prosecution) must be resolved in favor of the criminal defendant unless Congress has 'plainly and unmistakably' defined the federal crime." United States v. Kinsley, supra, 518 F.2d at 670. Accordingly, Kinsley's four count conviction, which carried consecutive sentences, was remanded for resentencing.

The government argues that for the following reasons Kinsley is inapplicable to this case: receipt, not possession, is charged here, and different firearms statutes are involved. We find these distinctions unpersuasive.

The government first argues that its burden is greater under the receipt statute than under the possession statute as it must prove that "each firearm traveled in interstate commerce at a time and between states different from the other firearms." This, however, proves only that the government must show the requisite interstate nexus, which in this case required the proof that the three guns were manufactured in three different states. An interstate nexus is, however, also an element of a § 1202(a)(1) possession offense. Since Barrett v. United States, 423 U.S. 212, 96 S.Ct. 498, 46 L.Ed.2d 450 (1976), it has been clear that § 922(h) broadly prohibits a felon's receipt of any firearm which has been shipped in interstate commerce, without the limitation that the unlawful receipt itself be a part of the interstate movement. Id. at 216, 96 S.Ct. 498. Since the recent opinion of the Court in Scarborough v. United States, 431 U.S. 563, 575, 97 S.Ct. 1963, 1969, 52 L.Ed.2d 582 (1977), a § 1202(a) possession case, it is clear that the interstate nexus requirement under that statute is also minimal:

(W)e see no indication that Congress intended to require any more than the minimal nexus that the firearm (has) been, at some time, in interstate commerce.

It is the unlawful receipt of the firearms which Congress has defined as a criminal act, and where the acquisition of several firearms is accomplished simultaneously in a single theft, ⁴ we see no greater burden than where the government must prove the simultaneous possession of multiple weapons. ⁵

By inference this court has expressed a willingness, in a proper case, to extend the Kinsley rationale to a receipt case under § 1202(a)(1). In United States v. Steeves, 525 F.2d 33 (8th Cir. 1975), this court refused to apply Kinsley because the government had in fact proved separate receipt of the firearms:

We do not read Kinsley, however, as holding that the receipt of separate firearms on separate occasions constitutes only one offense simply because the weapons are kept in a single possession and are ultimately seized at the same time and on the same premises. And we are satisfied that if a convicted felon receives a firearm on one occasion and later receives another firearm on another occasion, he is guilty of two offenses, assuming that prior to the respective receipts the two guns had moved in interstate commerce.

In view of what has been said, it follows that if the defendant unlawfully received the respective weapons at different times or on different occasions and if prior to his receiving them the weapons had moved in interstate commerce, the defendant was guilty of two offenses rather than one, and the district court did not err in refusing to merge the two counts.

Id. at 39 (emphasis added). See also United States v. Rosenbarger, 536 F.2d 715, 721 (6th Cir. 1976) ("We are of the opinion that only one offense is charged under the terms of § 1202(a)(1) regardless of the number of firearms...