United States v. Jordan, Crim. A. No. 187-70-R.
Decision Date | 18 January 1971 |
Docket Number | Crim. A. No. 187-70-R. |
Citation | 321 F. Supp. 713 |
Parties | UNITED STATES of America v. Cabell Clay JORDAN. |
Court | U.S. District Court — Eastern District of Virginia |
David G. Lowe, Asst. U. S. Atty., Richmond, Va., for plaintiff.
Beecher E. Stallard, Richmond, Va., for defendant.
On December 20, 1969, at approximately 2:00 a. m., City of Richmond Police officers entered the defendant's home pursuant to a search warrant for illegal sale of whiskey. As the officers entered the house, they noticed that the defendant had a Colt .38 caliber pistol in his bathrobe. The defendant, having previously been convicted of a felony, was then arrested and subsequently prosecuted and found guilty of unlawful possession of a firearm. There was no evidence indicating that the pistol had ever been out of the defendant's home.
Title VII of the Gun Control Act of 1968, found in 18 U.S.C., Appendix sections 1201-1203 (following 18 U.S.C., section 5037), provides in part:
At the trial, the defendant raised several questions attacking the constitutionality of the above statutes and the validity of his prosecution thereunder. Before passing final judgment, the court permitted counsel for the defendant to cite additional authority in support of his contentions.
The first point that the defendant urges upon the court is that the indictment was defective in that it did not allege that the defendant possessed the firearm "in commerce or affecting commerce" which, the defendant contends, is an essential element of the crime which must be proved. Secondly, the defendant urges that the presumptions established by section 1201; i. e., the possession of a firearm by a convicted felon, constitutes a burden on interstate commerce is unconstitutional in light of Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), because there is no rational basis for determining that the mere possession of a firearm by a felon constitutes a burden on commerce.
Identical contentions were made in United States v. Wiley, 309 F.Supp. 141 (D.Minn.1970). There the defendant, having previously been convicted of an armed robbery was tried for possession and receipt of a semi-automatic rifle. In answering the defendant's contention that there was a defective indictment because it did not include the language "in commerce or affecting commerce," the district court looked to the legislative findings of fact in section 1201; i. e., that possession of a firearm by those mentioned burdens commerce, and held that the words "in commerce or affecting commerce" in section 1202 were mere surplusage and in any event only modified the word "transports," and not "receives" or "possesses." As to the second contention that the presumption established by section 1201 cannot be used since there was no logical nexus between possession of firearms by a convicted felon and the resulting burden on commerce, the district court held that the validity of section 1202 must be determined by whether Congress "had a rational basis for finding the prohibition necessary to the protection of commerce." In holding that the Gun Control Act met this test, the court said (309 F.Supp. 143):
In addition to agreeing with the Wiley decision both as to its reasoning and result, we also conclude that our decision is not inconsistent with either Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943) or Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), on which the defendant heavily relies. In Tot, the defendant was prosecuted under section 2 (f) of the Federal Firearms Act1 which made it a crime for anyone previously convicted of a crime of violence to receive a firearm or ammunition shipped or transported in interstate commerce. The Act further provided that the possession of any firearm or ammunition by any such person shall be presumptive evidence that the firearm or ammunition was shipped, transported or received in interstate commerce. Tot was convicted of receiving a firearm in 1938 after having previously been convicted of two violent crimes, with no evidence that the gun had been received by him in interstate commerce. Since it had already been decided in the court below that the offense created by the Act is confined to the receipt of firearms or ammunition as part of an interstate shipment, and did not extend to receipt in an intrastate transaction, the question that the Supreme Court had to resolve was whether the statutory presumption could be used to establish the fact of an interstate shipment. In answer to this question the Supreme Court said (319 U.S. 467, 63 S.Ct. 1245):
"Under our decisions, a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from proof of the other is arbitrary because of lack of connection between the two in common experience."
The court then reversed the conviction and held that the fact that a convicted felon possesses a firearm does not necessarily mean that he received it in interstate commerce. While Tot would control the decision in the present case if the crime was confined to the receipt of a firearm, the Federal Firearms Act (now repealed) did not include as a crime the "possession" of a gun. Thus the question is whether the mere possession of a firearm by a convicted felon affects the free flow of commerce or constitutes a burden upon...
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...see United States v. Scales, 599 F.2d 78 (5th Cir.1979); or where the residence was the defendant's own home, see United States v. Jordan, 321 F.Supp. 713, 717 (E.D.Va.1971), rev'd on other grounds, 453 F.2d 884 (4th Cir.1972). Defendant's short period of residence in his mother's house did......
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United States v. Jordan, 71-1260.
...for appellee. Before HAYNSWORTH, Chief Judge, and BUTZNER and RUSSELL, Circuit Judges. PER CURIAM: This is an appeal from a conviction, 321 F.Supp. 713, for possession of a firearm in violation of the Gun Control Act, 18 U.S.C. App. § 1202(a). The Supreme Court has recently held that a conv......