United States v. Lebman

• Decision Date: 05 July 1972
• Docket Number: No. 71-2281.,71-2281.
• Citation: 464 F.2d 68
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Hyman LEBMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

464 F.2d 68 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Hyman LEBMAN, Defendant-Appellant.

No. 71-2281.

United States Court of Appeals, Fifth Circuit.

June 2, 1972.

Rehearing Denied July 5, 1972.

Joel W. Westbrook, Sheehy, Cureton, Westbrook, Lovelace & Nielsen, Waco, Tex., for defendant-appellant.

Seagal V. Wheatley, former U. S. Atty., Reese L. Harrison, Jr., Asst. U. S. Atty., San Antonio, Tex., Harry H. Ellis, Dallas, Tex., William S. Sessions, U. S. Atty., San Antonio, Tex., James F. Gaulding, Asst. Regional Counsel, I. R. S., Dallas, Tex., for plaintiff-appellee.

Before WISDOM, GOLDBERG and CLARK, Circuit Judges.

WISDOM, Circuit Judge:

Hyman Lebman appeals from his judgment of conviction entered upon a guilty plea to three counts of violations of 18 U.S.C. §§ 922(b) (3), 922(b) (5), and 922(m), provisions of the Gun Control Act of 1968. We affirm.

On September 11, 1970, a federal grand jury returned an indictment against Lebman and two others charging seventeen counts of violations of Chapter 44, title 18, United States Code, 18 U.S.C. §§ 921-928, and one count of conspiracy, 18 U.S.C. § 371. Lebman was named in the first ten substantive counts and in the conspiracy count. Lebman entered a guilty plea on the first three substantive counts. The counts, all arising from the same transaction, charged Lebman with (1) aiding and abetting a licensed firearm dealer to sell and deliver a firearm "to a person not residing in the State of Texas whom he then and there knew and had reasonable cause to believe did not reside in the State of Texas, where such licensed firearms business was located, in violation of Section 922(b) (3), title 18, United States Code,¹ (2) aiding and abetting a licensed firearm dealer to sell and deliver a firearm "to a purchaser and to fail to note in records required to be kept pursuant to 18 U.S.C. § 923, the name, age, and place of residence of such purchaser, in violation of Section 922(b) (5), title 18, United States Code",² and (3) aiding and abetting a licensed firearm dealer "to make a false entry in records kept pursuant to Section 923, Title 18, United States Code, and regulations promulgated thereunder . . . in violation of Section 922(m), title 18, United States Code".³ Lebman's guilty plea was accepted and a judgment of conviction entered. After entry of the conviction, but prior to sentencing, Lebman filed a "Motion in Arrest of Judgment" urging grounds similar to those raised on this appeal. The motion was denied, and Lebman received a fine of five hundred dollars and a sentence of twelve months on each count to run concurrently. The sentences were suspended, and Lebman was placed on five years' unsupervised probation.

On appeal, Lebman challenges the constitutionality of the statutory provisions under which he was convicted. He argues, first, that 18 U.S.C. §§ 922(b) (3), 922(b) (5), and 922(m) (see footnotes 1-3) are not supported by the commerce power of Congress in that the statutes do not require the proscribed conduct to have any relation to interstate commerce. Stated otherwise, Lebman contends that Congress may not, by criminal sanctions, regulate this intrastate transaction.

Lebman is, however, incorrect in his assertion that the power of Congress to regulate commerce under Article I, Section 8, of the Constitution does not extend to intrastate transactions. "If it is interstate commerce that feels the pinch, it does not matter how local the operation which applies the squeeze". United States v. Women's Sportswear Mfrs. Ass'n., 1949, 336 U.S. 460, 464, 69 S.Ct. 714, 716, 93 L.Ed. 805, 811.

The power of Congress over interstate commerce is not confined to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end, the exercise of the granted power of Congress to regulate interstate commerce. See M\'Culloch v. Maryland, 4 Wheat. 316, 421, 4 L.Ed. 579. Cf. United States v. Ferger, 250 U.S. 199, 39 S. Ct. 445, 63 L.Ed. 936.

United States v. Darby, 1941, 312 U.S. 100, 118, 61 S.Ct. 451, 459, 85 L.Ed. 609, 619. See Gibbons v. Ogden, 1824, 9 Wheat. 1, 22 U.S. 1, 6 L.Ed. 23; National Labor Relations Bd. v. Jones & Laughlin Steel Corp., 1937, 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893; Wickard v. Filburn, 1942, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122; Heart of Atlanta Motel v. United States, 1964, 379 U.S. 241, 85 S. Ct. 348, 13 L.Ed.2d 258.

Congress, in conjunction with the passage of Title IV of the Omnibus Crime Control and Safe Streets Act of 1968,⁴ made detailed findings as to the effect of the proscribed intrastate conduct on interstate commerce.⁵ These findings, when examined against the evidentiary background upon which they were based,⁶ convince us that Congress intended to and had the authority, under its commerce power, to regulate the intrastate transactions at issue here. See Perez v. United States, 1971, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686; Heart of Atlanta Motel v. United States, 1964, 379 U.S. 241, 85 S.Ct. 348, 13 L. Ed.2d 258.⁷ Lebman seeks to rely on United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (December 21, 1971) as authority for his argument that Congress was acting beyond its commerce power if it sought, by the statutory provisions at issue here, to regulate intrastate transactions. In Bass, the defendant was convicted of possessing a firearm in violation of 18 U.S.C. § 1202(a) (App.)⁸ He argued that Section 1202(a) required that he possess a firearm "in commerce or affecting commerce". The Court, after concluding that "the statutory materials are inconclusive on the central issue of whether or not the statutory phrase `in commerce or affecting commerce' applies to `possesses' and `receives' as well as `transports' 92 S.Ct. at 522, adopted the narrower reading of the statute—"the phrase `in commerce or affecting commerce' is part of all three offenses, and the present conviction must be set aside because the Government has failed to show the requisite nexus with interstate commerce". 92 S.Ct. at 522.

In United States v. Nelson, 5 Cir. 1971, 458 F.2d 556, this Court, in a case dealing with the constitutionality of 18 U.S.C. § 922(a) (6),⁹ distinguished Bass with language equally applicable to the statutory provisions at issue in the present case.

The instant case differs from Bass in several respects. First, appellant was convicted under 18 U.S.C.A. § 922(a) (6) see footnote 9, which, in contrast with § 1202(a) (1) that was at issue in Bass, contains no language referring to interstate commerce. The statute is thus not ambiguous on its face, unlike § 1202(a) (1). Secondly, § 922 is part of Title IV of the Omnibus Crime Control and Safe Streets Act of 1968. The legislative history of this Title is fairly extensive and convinces us that Congress intended to reach appellant\'s conduct irrespective of its immediate nexus with commerce. The statutory provisions facing the Supreme Court in Bass is part of Title VII of the same act. The legislative history of Title VII is, as noted by the Court in Bass, virtually nonexistent. The Court was, therefore, left with only minimal legislative guidance. Thirdly, the Congressional Declaration of Purpose set out in § 901 of the Omnibus Crime Act clearly indicates Congress\' purpose to regulate the acquisition of firearms by felons without regard to the nexus of each individual acquisition with interstate commerce. * * *

It seems clear from the language of § 922(a) (6), from its legislative history, and from the declaration of Congressional purpose that Congress meant to regulate all sales of the types of firearms covered by the Omnibus Crime Act, not just those sales in which the Government can prove some specific connection with interstate commerce. * * *

Moreover, we believe that acquisition of firearms is more closely related to interstate commerce than mere possession. Therefore, while the Supreme Court in Bass impliedly expressed some reservations about Congress\' power to regulate possession of firearms, we entertain no doubt that it has the power to regulate their acquisition without requiring proof of a nexus with interstate commerce in each individual case.

See also United States v. Menna, 9 Cir. 1971, 451 F.2d 982. As in Nelson, §§ 922(b) (3), 922(b) (5), and 922(m), unlike § 1202(a), are unambiguous on their face, in that they contain no reference to interstate commerce, and are accompanied by legislative history and a statement of purpose¹⁰ and findings indicating a desire to reach intrastate transactions.¹¹ The statutory interpretation of an ambiguous statute in Bass does not preclude the result we reach in the present case.¹²

Assuming that Congress, as we have held, could constitutionally enact the challenged statutes under the commerce power and intended to reach intrastate transactions under the statutes, Lebman argues that Section 922(b) (3) (see footnote 1), the basis of count one, is constitutionally defective in other respects. Lebman argues that the statute unconstitutionally inhibits the nonresident firearms purchaser's right to travel. See Shapiro v. Thompson, 1969, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600.¹³ Assuming, but not deciding, that Lebman has standing to raise the constitutional objection of a non-resident firearms purchaser, his argument must, nevertheless, fail. We are unable to discern any inhibition on the non-resident firearms purchaser's right to travel occasioned by a statute regulating the sale of firearms to a non-resident by a licensed dealer. Nor do we find that the distinction in Section 922(b) (3) between residents and non-residents is "wholly irrelevant to the achievement of Congress's . . . objective". McGowan v. Maryland, 1961, 366 U.S. 420, 425, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393, 399. This is particularly true...