United States v. Bass, No. 69 Cr. 881.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Lawrence Kessler, New York City, for defendant
• Citation: 308 F. Supp. 1385
• Parties: UNITED STATES of America v. Denneth BASS, Defendant.
• Docket Number: No. 69 Cr. 881.
• Decision Date: 19 February 1970

308 F. Supp. 1385

UNITED STATES of America
v.
Denneth BASS, Defendant.

No. 69 Cr. 881.

United States District Court, S. D. New York.

February 19, 1970.

Robt. M. Morgenthau, U. S. Atty., for the Southern District of New York, Thomas J. Fitzpatrick, Asst. U. S. Atty., of counsel for the Government.

Lawrence Kessler, New York City, for defendant.

308 F. Supp. 1386

MEMORANDUM

FRANKEL, District Judge.

Defendant has been found guilty by a jury under two counts of an indictment charging that on two specified occasions, having been previously convicted of a state felony, he possessed a firearm, thus violating 18 U.S.C. App. § 1202(a) (1). That statute says in pertinent part:

"Any person who * * * has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony * * and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both."

It was stipulated that defendant had been convicted in the Supreme Court of New York, Bronx County, on or about February 1, 1968, of attempted grand larceny in the second degree, a felony. Thereafter, it was proved, on July 29 and July 30, 1969, he had in his possession a firearm, a pistol and then a shotgun, respectively.

There was no allegation in the indictment and no attempt by the prosecution to show that the possession of the firearm on either occasion transpired "in commerce or affecting commerce * *." The absence of this element, defendant now urges, vitiates the conviction. Contending that the statute was intended to reach possession of firearms by convicted felons only if such possession was shown in fact to be "in commerce or affecting commerce," he moves for an order in arrest of judgment or for a judgment of acquittal.

For reasons which follow, the court holds erroneous the statutory construction upon which the motion is predicated.

To begin with, there is some modest, if by no means decisive, force in the government's grammatical analysis of the statutory text. The words "in commerce or affecting commerce" follow "transports," not "possesses," and there are words of approval in the books for the canon that such qualifying phrases, especially where the commas are arrayed like those here in question, should be deemed to relate only to the last antecedent. See F. T. C. v. Mandel Brothers, 359 U.S. 385, 389-390, 79 S.Ct. 818, 3 L.Ed.2d 893 (1959); T. I. McCormack Trucking Co. v. United States, 298 F. Supp. 39, 41 (D.N.J.1969); 2 Sutherland, Statutory Construction § 4921 (3rd ed. 1943). As is often the case, however, see K. Llewellyn, The Common Law Tradition 522-28 (1960), there is a contradictory canon in defendant's arsenal: "When several words are followed by a clause which is applicable as much to the first and other words as to the last, the natural construction of the language demands that the clause be read as applicable to all." Porto Rico Ry. Light & Power Co. v. Mor, 253 U.S. 345, 348, 40 S.Ct. 516, 64 L.Ed. 944 (1920); United States v. Standard Brewery, 251 U.S. 210, 218, 40 S.Ct. 139, 64 L.Ed. 229 (1920); Buscaglia v. Bowie, 139 F.2d 294, 296 (1st Cir. 1943); 2 Sutherland, loc. cit. supra.

Here, as elsewhere, then, the battle of canons and commas leaves us to seek for clues more promising to the legislative meaning.

The more substantial indicia in the statutory language and the pertinent, if somewhat sketchy, items of legislative history serve in total effect to refute defendant's argument. When the statute before us was enacted, the Congress and its constituencies were deeply disturbed by a recent history of horrible assassinations. At the same time the economic and human costs of individual and "organized" lawlessness were subjects of highly vocal concern. In that setting, the legislative findings are promptly intelligible and apposite here. The statute reported, inter alia, these centrally significant judgments of legislative fact:

"* * * that the receipt, possession, or transportation of a firearm by felons, veterans who are other than honorably discharged, mental incompetents, aliens who are illegally in the

308 F. Supp. 1387

country, and former citizens who have renounced their citizenship, constitutes —

...