United States v. Castellana, 72-327-Cr-T-H.

• Decision Date: 29 June 1977
• Docket Number: No. 72-327-Cr-T-H.,72-327-Cr-T-H.
• Parties: UNITED STATES of America v. Salvatore CASTELLANA, also known as Sam Castellana.
• Court: U.S. District Court — Middle District of Florida

433 F. Supp. 1309

UNITED STATES of America v. Salvatore CASTELLANA, also known as Sam Castellana.

No. 72-327-Cr-T-H.

United States District Court, M. D. Florida, Tampa Division.

June 29, 1977.

COPYRIGHT MATERIAL OMITTED

Eleanore J. Hill, Asst. U. S. Atty., Tampa, Fla., for plaintiff.

James R. Yon, Tampa, Fla., for defendant.

ORDER

CHARLES R. SCOTT, Senior District Judge.

This case is before the Court on a motion of defendant Salvatore Castellana to dismiss the present indictment. In 1959, 1960 and 1962 defendant had been convicted in the Hillsborough County Criminal Court for lottery law offenses. On September 11, 1968, defendant was granted a pardon for those offenses by the Florida Board of Pardons.

Defendant was indicted on November 28, 1972, for violating 18 U.S.C. App., § 1202(a)(1),¹ which forbids a previously convicted felon to receive or possess a firearm that has moved in interstate commerce. After an initial appearance on December 4, 1972, defendant pled not guilty at his arraignment on February 2, 1973. On February 27, 1973, trial was set to commence during the weeks of March 19 or 26, 1973.

At the pre-trial conference on March 9, 1973, trial was set for a day certain on March 26, 1973. Defendant's motion to suppress statements and real evidence, filed on February 22, 1973, was heard on March 26, 1973. The next day the Court orally granted the motion to suppress, entering a written opinion in support of the order on May 2, 1973, United States v. Castellana, 369 F.Supp. 376 (M.D.Fla.1973). Pursuant to 18 U.S.C. § 3731,² the government appealed; and on January 17, 1974, the Court of Appeals affirmed this Court's order. United States v. Castellana, 488 F.2d 65 (5th Cir. 1974). However, a rehearing en banc was granted on March 1, and on September 6, 1974, the Fifth Circuit Court of Appeals en banc affirmed in part and reversed in part this Court's order. United States v. Castellana, 500 F.2d 325 (5th Cir. 1974), reh'g en banc 488 F.2d 65. The mandate from that decision was issued by the Court of Appeals on October 2, 1974.

This case, on May 28, 1975, was again set for trial to commence July 7, 1975. Because of a hung jury, a mistrial was declared on July 8, 1975. Finally, on March 5, 1976, defendant filed the present motion to dismiss. The Court held a hearing on that motion on April 22, 1976, and a further hearing on May 20, 1976. Since that time the motion to dismiss has been under advisement.

Defendant's motion presents the issue whether the pardon granted him on September 11, 1968, exempts him from operation of 18 U.S.C. App., § 1202(a)(1).

In 1968, as a major part of its effort to stem the rising tide of crime in the United States, Congress enacted the Omnibus Crime Control and Safe Streets Act. The Act sought to curb crime in a number of different ways, one of which was to ban possession of firearms by persons who were deemed unfit to carry them. That function was embodied in Title VII of the Act, comprising 18 U.S.C. App., §§ 1201-1203.³

Among those persons barred by Title VII from carrying firearms are felons, veterans who have received a dishonorable discharge, persons who have been adjudged mentally incompetent, former citizens who have renounced their citizenship, and aliens who are unlawfully in the United States. The penal provisions of the statute, which are contained in § 1202, impose a maximum possible punishment of a $10,000.00 fine and two years imprisonment.

But Title VII does not penalize all persons who seemingly come within its proscriptive terms. Section 1203 exempts two classes of persons from operation of the statute: (1) prisoners who have expressly been entrusted with a firearm by a competent prison official; (2) persons who have been pardoned by the President of the United States or the chief executive of a state and have been expressly authorized by the President or such chief executive to carry a firearm. Section 1203(1) is plainly inapplicable to defendant Castellana because it refers to prisoners. Section 1203(2) refers to persons who have received pardons for their past offenses.

Defendant's September 11, 1968, pardon provides (after describing defendant's three convictions):

". . . Therefore, be it known that the said Sam Castellana, be, and he is hereby granted a full and complete pardon of the above offenses, thereby restoring to him full and complete civil rights."

Does defendant Castellana, by virtue of his pardon, come within the terms of the § 1203(2) exemption. In order to resolve this issue, the Court must first determine the meaning of § 1203(2).

I.

A court's objective in construing a federal statute is "to ascertain the congressional intent and give effect to the legislative will." Philbrook v. Glodgett, 421 U.S. 707, 713, 95 S.Ct. 1893, 1898, 44 L.Ed.2d 525, 533 (1975); Craig v. Finch, 425 F.2d 1005, 1008 (5th Cir. 1970). Legislative intent is the lode star of statutory construction. Louisiana Power & Light Company v. United Gas Pipe Line Company, 456 F.2d 326, 333 (5th Cir.), reversed on other grounds, Federal Power Commission v. Louisiana Power & Light Company, 406 U.S. 621, 92 S.Ct. 1827, 32 L.Ed.2d 369 (1972). The most important indicium of legislative intent is the statute's plain language. United States v. Second National Bank of North Miami, 502 F.2d 535, 540 (5th Cir. 1974), cert. denied, 421 U.S. 912, 95 S.Ct. 1567, 43 L.Ed.2d 777 (1975); Ray Baillie Trash Hauling, Inc. v. Kleppe, 477 F.2d 696, 707 (5th Cir. 1973), reh'g. denied, 478 F.2d 1403, cert. denied, 415 U.S. 914, 94 S.Ct. 1410, 39 L.Ed.2d 468 (1974); District of Columbia National Bank v. District of Columbia, 121 U.S.App.D.C. 196, 348 F.2d 808, 810 (1965). The plain language of § 1203(2) indicates that a pardon exempts a convicted felon from the penal provisions of § 1202 only if he is expressly authorized by the pardoning executive to receive, possess or transport in commerce a firearm. The conjunction "and" links the two prongs of § 1203(2), making each of them an essential element of the exemption.

Where statutory language is clear and unequivocal, it is not necessary to resort to interpretative devices. March v. United States, 165 U.S.App.D.C. 267, 506 F.2d 1306, 1313 (1974); Arkansas Valley Industries, Inc. v. Freeman, 415 F.2d 713, 717 (8th Cir. 1969); General Electric v. Southern Construction Co., 383 F.2d 135, 138 (5th Cir. 1967), cert. denied, 390 U.S. 955, 88 S.Ct. 1049, 19 L.Ed.2d 1148 (1968). Nevertheless, the rules of statutory construction fully support the plain meaning of § 1203(2).

The principle of expressio unius est exclusio alterius requires that § 1203 be strictly construed: by not expressing possible exemptions in § 1203 Congress impliedly excluded them from consideration. Hawkeye Chemical Co. v. St. Paul Fire & Marine Ins. Co., 510 F.2d 322, 326 (7th Cir. 1975), cert. denied, 421 U.S. 965, 95 S.Ct. 1955, 44 L.Ed.2d 452 (1975). Several courts have given § 1203 such a construction. For example, in United States v. Liles, 432 F.2d 18 (9th Cir. 1970), the court held that since Congress did not expressly exempt from § 1202(a)(1) felons whose convictions were later reversed, such persons were subject to the statute's proscriptions. In United States v. Tobin, 408 F.Supp. 760 (W.D.Pa. 1976), the court held that a change in the state drug laws, reducing the crime of marijuana possession from a felony to a misdemeanor, was not a stated exception to § 1202(a)(1) and therefore the defendant, a convicted felon under the former state statute, remained liable. Since § 1203 explicitly exempts only prisoners who have been entrusted with a firearm, and pardoned felons who have been expressly authorized to carry a firearm, it implicitly excludes other persons from exempt status.

Second, the plain meaning of § 1203(2) is supported by the legislative history of Title VII. The title's sponsor, Senator Russell Long, made the following comments on the Senate floor:

"Senator Long of Louisiana: I have prepared an amendment which I will offer at an appropriate time, simply setting forth the fact that anybody who has been convicted of a felony . . . is not permitted to possess a firearm, and he would be punished by a sentence not to exceed two years in the penitentiary or a $10,000 fine, or both.

"It might be well to analyze, for a moment, the logic involved. When a man has been convicted of a felony, unless — as this bill sets forth — he has been expressly pardoned by the President and the pardon states that the person is to be permitted to possess firearms in the future, that man would have no right to possess firearms. He would be punished criminally if he is found in possession of them." 114 Cong.Rec. 13,868 (1968).

"What the amendment seeks to do is make it unlawful for a firearm — be it a handgun, a machine gun, a long-range rifle or any kind of firearm — to be in the possession of a convicted felon who has not been pardoned and has therefore lost his right to possess firearms. It would not apply to a person pardoned by a Governor or a President if the pardon specifically provides that he will have the right to carry firearms. He would then have that right. Otherwise, he would not have it." 114 Cong.Rec. 14,773 (1968).

The explanations of sponsoring legislators deserve great respect in ascertaining the meaning of statutes. National Woodwork Manufacturers Ass'n v. N.L.R.B., 386 U.S. 612, 640, 87 S.Ct. 1250, 1265-66, 18 L.Ed.2d 357, 375 (1967); City of New York v. Train, 161 U.S.App.D.C. 114, 494 F.2d 1033 (1974), aff'd, 420 U.S. 35, 95 S.Ct. 839, 43 L.Ed.2d 1 (1975). In a recent case involving the "in commerce or affecting commerce" language of 18 U.S.C. App., § 1202(a)(1), the Supreme Court relied heavily upon the remarks of Senator Long in construing the subsection. See Scarborough v. United States, ___ U.S. ___, ___ _ ___, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977).

A third rule of construction which supports the plain meaning of § 1203(2) is the principle that stat...