United States v. Burton

• Decision Date: 01 December 1972
• Docket Number: No. 23654-4.,23654-4.
• Parties: UNITED STATES of America, Plaintiff, v. Harold Edward BURTON, Defendant.
• Court: U.S. District Court — Western District of Missouri

351 F. Supp. 1372

UNITED STATES of America, Plaintiff, v. Harold Edward BURTON, Defendant.

No. 23654-4.

United States District Court, W. D. Missouri, W. D.

December 1, 1972.

COPYRIGHT MATERIAL OMITTED

J. Whitfield Moody, First Asst. U. S. Atty., Kansas City, Mo., for plaintiff.

Austin F. Shute, Kansas City, Mo., for defendant.

MEMORANDUM AND ORDER

ELMO B. HUNTER, District Judge.

This is a jury-waived case in which the defendant is charged by way of a second count of a two count indictment with violating 18 U.S.C. § 922(e). The first count under 18 U.S.C. App. § 1202(a)(1) charging the defendant with the unlawful possession and transportation of a firearm in interstate commerce has been tried before a jury with a resulting finding of guilty.

All of the facts of this case are stipulated as follows:

(1) That on or about the 11th day of January, 1972, at Kansas City, Missouri, in the Western District of Missouri, defendant Harold Edward Burton did deliver a suitcase, admitted as Government's Exhibit No. 1 herein, without objection subject to defendant's pretrial motion to suppress evidence, to Braniff Airlines, a common carrier, for transportation and shipment in interstate commerce from Kansas City, Missouri, to Minneapolis, Minnesota, which suitcase contained a loaded firearm, to wit, a .357 Magnum Smith and Wesson revolver, Serial No. S-283727, and the ammunition therefore, consisting of six rounds of firearm ammunition, all of which has been admitted as Government's Exhibit No. 2, without objection subject to the defendant's pretrial motion to suppress evidence.

(2) It is further stipulated and agreed that Harold Edward Burton purchased a round-trip ticket from Kansas City, Missouri, to Minneapolis, Minnesota, on or about January 11, 1972, and was preparing to board a Braniff airline flight departing Kansas City, Missouri, for Minneapolis, Minnesota, and that the suitcase, Government's Exhibit No. 1, and the firearm and ammunition therein, Government's Exhibit No. 2, would have been loaded onto the flight for which the defendant had purchased a ticket to Minneapolis, Minnesota, and was preparing to board at Kansas City, Missouri.

(3) It is further stipulated and agreed that Harold Edward Burton did not give written or oral notice to the common carrier or any employee thereof, that such firearm or ammunition was to be transported or shipped and the defendant further did not personally deliver said firearm or ammunition into the custody of the pilot of the flight for which he had purchased a ticket, or any other employee of the common carrier, or otherwise advise them of its presence in the suitcase, except as described in Paragraph One of this stipulation.

(4) It is further stipulated and agreed that defendant Harold Edward Burton is not a licensed importer, licensed manufacturer, licensed dealer, or licensed collector of firearms or ammunition, and that the suitcase and firearm and ammunition contained therein was not being shipped to such a licensed importer, licensed manufacturer, licensed dealer or licensed collector of firearms, but was to be delivered to the defendant Harold Edward Burton at Minneapolis, Minnesota.

Title 18, Section 922(e) United States Code states:

It shall be unlawful for any person knowingly to deliver or cause to be delivered to any common or contract carrier for transportation or shipment in interstate or foreign commerce, to persons other than licensed importers, licensed manufacturers, licensed dealers, or licensed collectors, any package or other container in which there is any firearm or ammunition without written notice to the carrier that such firearm or ammunition is being transported or shipped; except that any passenger who owns or legally possesses a firearm or ammunition being transported aboard any common or contract carrier for movement with the passenger in interstate or foreign commerce may deliver said firearm or ammunition into the custody of the pilot, captain, conductor or operator of such common or contract carrier for the duration of the trip without violating any of the provisions of this chapter.

Therefore, it is incumbent on the Court to apply the stipulated facts to the applicable law to determine the guilt or innocence of the defendant. Before this may be done, however, it is first necessary to analyze various challenges raised by the defendant by way of a motion for judgment of acquittal.

Reserving the discussion on the sufficiency of the evidence until it has been decided whether or not the charge is properly submitted, it is next contended that the government's evidence should be suppressed in that it was a product of illegal search and seizure in violation of the fourth amendment. For the reasons enunciated in the order overruling the motion to suppress prior to the trial of the first count, this contention has been previously found to be without merit. United States v. Burton, 341 F.Supp. 302 (W.D.Mo.1972).

It is also alleged that because the defendant has previously been convicted under Count I, the government is collaterally estopped from proceeding on this count and that the prosecution here constitutes double jeopardy. It is apparent from a reading of Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L. Ed.2d 469 (1970), that this case does not involve the application of collateral estoppel in the manner urged by the defendant. Had the jury found the defendant innocent of the initial count, the doctrine may well have precluded trial here. As to the contention that this trial would be in violation of the defendant's fifth amendment right to be free from being twice placed in jeopardy for the same offense, it is evident that the evidence needed to secure a conviction of the present charge would not have sustained a conviction of the former charge. The first charge contains an element not necessary for the second, that is, the prior conviction of a felony. The second charge differs in many respects from the first, concerning the delivery to a carrier, and the notice required. Therefore, the trial of the second charge would not be a successive prosecution for the same offense, charged initially and the double jeopardy ban would not apply. United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966); Note, Twice in Jeopardy, 75 Yale L.J. 262, 277 (1965).

The final assertion warranting discussion concerns an attack on the validity of the statutory provision 18 U.S.C. § 922(e). In order to determine whether the statute was intended to prohibit conduct such as here resulted in the returning of the indictment, it is necessary to delve into the legislative history of the act which this statute was a part.

Sections 921-928 of Title 18 were enacted together and constituted Public Law 90-618, more commonly cited as The Gun Control Act of 1968. The purpose of the bill was "to strengthen Federal controls over interstate and foreign commerce in firearms and to assist the States effectively to regulate firearms traffic within their borders". House Report No. 1577, 3 U. S.Code, Cong. and Admin.News, p. 4411 (90th Congress, 2nd Session 1968). It appears from the congressional reports that the provisions were not specifically designed to halt the highjacking of airplanes, but were instead aimed at curbing the growing use of firearms through a strengthening of federal control of the interstate firearms traffic. In order to effectuate this objective, the subject legislation placed various controls over the sale, shipment, and transportation of firearms and ammunition in interstate commerce. In order to allow the states to effectively police their gun control legislation, it was thought necessary to restrict and regulate interstate movement of firearms. Although the Omnibus Crime Control and Safe Streets Act of 1968 contained several provisions regulating firearms, Congress thought it necessary to pass tighter restrictions on the shipment of destructive devices and to include a provision for notice to carriers of the contents of any package containing any firearm or ammunition. House Report, p. 4413. To implement this objective the Gun Control Act provides, inter alia:

(a) penalties for any person, other than a licensed importer, manufacturer, or dealer, from engaging in the business of importing, manufacturing, or dealing in firearms or ammunition, or in the course of such business to ship, transport, or receive any firearm or ammunition in interstate or foreign commerce; (§ 922a1)

(b) penalties for any licensed importer, manufacturer, dealer, or collector to ship or transport in interstate or foreign commerce any firearm or ammunition to any person other than a licensed importer, manufacturer, dealer, or collector, with certain limited exceptions; (§ 922a2)

(c) penalties for any person, other than a licensed importer, manufacturer, dealer or collector, to transport into or receive in the state where he resides any firearm obtained by him from outside that state, with certain limited exceptions; (§ 922a3)

(d) penalties for any person, other than a licensed importer, manufacturer, dealer, or collector, to transport in interstate or foreign commerce any destructive device, except as specifically authorized by the Secretary consistent with public safety and necessity; (§ 922a4)

(e) penalties for any person knowingly to deliver or cause to be delivered to any common or contract carrier for transportation or shipment in interstate or foreign commerce to persons other than licensed importers, manufacturers, dealers, or collectors any package or container containing a firearm

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