United States v. Day, 72-1898.
| Decision Date | 05 April 1973 |
| Docket Number | No. 72-1898.,72-1898. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Roy Ernest DAY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
George I. Cline, Morehead, Ky., for defendant-appellant; George I. Cline, Diederich, Cline & Wilhoit, Morehead, Ky., on brief.
Kenneth P. Glover, Office of Regional Counsel, Bureau of Alcohol, Tobacco and Firearms, Cincinnati, Ohio, for plaintiff-appellee; Eugene E. Siler, Jr., U. S. Atty., E. D. Kentucky, James Cook, Asst. U. S. Atty., E. D. Kentucky, Lexington, Ky., on brief.
Before PHILLIPS, Chief Judge, LIVELY, Circuit Judge, and YOUNG, District Judge.*
Appellant, Roy Ernest Day, was convicted in May 1972, after a jury trial, of dealing in firearms without a license. 18 U.S.C. § 922(a) (1).1 At the same trial, he was also convicted of five counts of receiving and possessing firearms in interstate commerce. 18 U.S.C. App. § 1202(a) (2).2 Day was sentenced to a total of five years imprisonment and fines totalling $10,000.
The evidence elicited at trial showed that, on four separate occasions in early 1970, Day sold a total of seven handguns to Special Investigator Charles H. Stone of the Alcohol, Tobacco and Firearms Division of the Treasury Department. All of the sales took place in Day's home in Morehead, Kentucky. A search warrant, obtained by Treasury agents after relating the above mentioned four sales in an affidavit to a United States Commissioner, was executed on March 20, 1970, at which time a total of 96 firearms, worth about $12,000, were seized from Day's home and adjacent house trailer. Sixty of the guns were new hand guns still in the manufacturer's original packages. There also was testimony from Day himself on cross-examination that he had sold at least one other gun to at least one other person.
During the trial, the Government called as one of its witnesses Special Investigator Sylvester Yockey of the Alcohol, Tobacco and Firearms Division. The apparent purpose of Yockey's testimony was to show that the guns possessed by Day had been manfactured outside the state of Kentucky and had moved in interstate commerce before Day possessed and received them.
Two separate and distinguishable types of testimony were offered by Yockey. First, he testified where the guns were manufactured and gave testimony, based on a document prepared by the historian of the Smith & Wesson gun manufacturing firm, as to the approximate dates of manufacture of the guns bought by the agents in the sales and seized in the search of Day's house. The document from which Yockey was testifying listed the various models produced by Smith and Wesson and the serial numbers of the models and the periods during which they had been produced.
For example, at one point in his testimony Yockey was asked the approximate date of manufacture of a .38 Smith & Wesson model 12, serial number C951878. He replied as follows:
The defense objected to this evidence as hearsay. The objection was overruled.
After a trial recess, Yockey testified as to the exact dates of manufacture and shipment of the guns in evidence. Apparently this information was obtained by telephone during the recess from an agent in Yockey's office and was the result of the investigation conducted under Yockey's supervision. The report itself was never introduced as evidence by the Government, nor was its introduction or presence ever sought by the defense.
On appeal, Day asserts error in his conviction under 18 U.S.C. § 922(a) (1), his conviction under 18 U.S.C. App. § 1202(a) (2), and in the admissibility of certain testimony of Yockey. We examine these contentions separately.
I. 18 U.S.C. § 922(a) (1) Conviction.
Three contentions are urged upon this court regarding Day's conviction under § 922(a) (1) for engaging in the business of dealing in firearms without a license.
First, Day claims that Congress, in enacting the statute, intended to punish only those who deal in firearms in interstate commerce.
His reliance on United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), to support this interpretation of the statute is misplaced. Bass was a decision interpreting § 1202(a) (1) of the Omnibus Crime Control and Safe Streets Act of 1968. Although convictions under one statute often accompany conviction under the other, as in this case, the statutes are not identical and, actually, are quite different.
The statute interpreted by Bass makes it a crime for a person in any one of five categories to "receives, possesses, or transports in commerce or affecting commerce, . . . any firearm . . . ." The Supreme Court, in its majority opinion announced by Mr. Justice Marshall, ruled that the phrase "in commerce or affecting commerce" modifies "receive" as well as "possess" and "transport." The Court held this as a matter of statutory construction on the basis of a reading of the statute and the accompanying legislative history. It is important to note that Bass was based on statutory construction grounds, not constitutional grounds.
The Bass decision and its analysis of § 1202(a) (1) are totally inapposite to the question before this court—the proper interpretation of § 922(a) (1). The statute at issue here provides:
The indictment below made no reference to any interstate nexus and Day claims this was fatal error. He asserts that Congress intended to bar only interstate unlicensed dealing in firearms. He apparently contends that the phrase "in interstate or foreign commerce" modifies "importing, manufacturing or dealing in firearms." This statute, unlike the section construed in Bass, is not ambiguous. The statutory language is unmistakably clear. Two separate classes of offenses are outlined. One type is the engaging in "the business of importing, manufacturing, or dealing in firearms or ammunition." The other type of proscribed activity is shipping, transporting or receiving any firearm "in interstate or foreign commerce." A license is required for both types of activity.
Section 922(a) (1) was first enacted as part of Title IV of the Omnibus Crime Control & Safe Streets Act of 1968. P.L. 90-351. It was later re-enacted as part of Title I of the Gun Control Act of 1968. P.L. 90-618. The section is the same in both Acts. Unlike the Bass statute, there is available in the case of § 922(a) (1) clear and convincing legislative history:
S.Rep. No. 1097, 90th Cong., 2d Sess., 1968 U.S.Code Cong. & Admin.News, pp. 2114, 2202 (emphasis added).
The House report on the same section when it was later passed as part of the Gun Control Act of 1968 reflects the identical Congressional intention:
H.R.Rep. No. 1577, 90th Cong., 2d Sess., 1968 U.S.Code Cong. & Admin.News, pp. 4410, 4418 (emphasis added).
There can be no doubt that the Congress intended, and through its words accomplished, the regulation of unlicensed intrastate sales of firearms. Three other circuits have been asked to impose the language of Bass to § 922(a) (1) and have found, as we do, that it is inapplicable. Mandina v. United States, 472 F.2d 1110 (8th Cir. 1973); United States v. Redus, 469 F.2d 185 (9th Cir. 1972); United States v. Ruisi, 460 F.2d 153 (2d Cir.), cert. denied, 409 U.S. 914, 93 S.Ct. 234, 34 L.Ed.2d 176 (1972).
The second argument advanced by Day regarding his § 922(a) (1) conviction is that even if Congress intended to punish unlicensed intrastate firearms sales, it was powerless to do so and was acting unconstitutionally.
In Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971), the Supreme Court analyzed anew the scope of Congressional power to regulate purely intrastate activities under the Commerce Clause. As the Court stated:
"The Commerce Clause reaches, in the main, three categories of problems.
First, the use of channels of interstate or foreign commerce which Congress deems are being misused, . . . Second, protection of the instrumentalities of interstate commerce, . . . Third, those activities affecting commerce." 402 U.S. at 150, 91 S.Ct. at 1359.
The Perez Court reaffirmed,...
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