United States v. Liles, No. 25793.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: MERRILL and HUFSTEDLER, Circuit , and JAMESON
• Citation: 432 F.2d 18
• Parties: UNITED STATES of America, Appellee, v. John Richard LILES, Appellant.
• Docket Number: No. 25793.
• Decision Date: 30 September 1970

432 F.2d 18 (1970)

UNITED STATES of America, Appellee,
v.
John Richard LILES, Appellant.

No. 25793.

United States Court of Appeals, Ninth Circuit.

September 30, 1970.

432 F.2d 19

Darrell E. Ries (argued), Ries & Kenison, Moses Lake, Wash., for appellant.

Dean C. Smith (argued), U. S. Atty., Carroll D. Gray, Asst. U. S. Atty., Spokane, Wash., for appellee.

Before MERRILL and HUFSTEDLER, Circuit Judges, and JAMESON,^* District Judge.

HUFSTEDLER, Circuit Judge:

Defendant Liles appeals from a conviction for violating Title VII of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. app. §§ 1201-1203 (possession of a firearm by a convicted felon).

In February 1969 Liles was convicted of a felony by a federal district court. He was released on his own recognizance during the pendency of his appeal. In October 1969, while at liberty, Liles entered the sporting goods section of the Tri-State Store in Moses Lake, Washington, and told a salesman that he wanted to buy a western type holster and belt for what appeared to be a revolver he showed the salesman. Shortly thereafter, Liles was indicted for violating the gun control provisions of the Omnibus Crime Act which, inter alia, makes it unlawful for anyone who has been convicted of a felony, with stated exceptions, to possess a firearm. 18 U.S.C. app. § 1202. He was convicted on February 26, 1970. Although he did not learn of it until after this conviction, Liles' earlier felony conviction had been reversed by the United States Court of Appeals for the Fifth Circuit on February 25, 1970. (United States v. Duke, 423 F.2d 387.) Liles' counsel made appropriate and timely motions to bring the new development to the court's attention. The motions were denied and this appeal followed.

Appellant makes several contentions: First, that the indictment was defective in that it failed to allege an essential element of the offense, specifically that the defendant possessed a firearm in commerce or affecting commerce among the states; second, that the gun control provisions are unconstitutional as beyond the legislative authority of Congress because they deal with local matters; third, that the evidence introduced was insufficient to prove that the object he had was, in fact, a firearm; and finally, that Congress did not intend the prohibitions of Title VII to apply to convicted felons whose convictions were later reversed.

Liles' first two contentions were decided adversely to him in United States v. Daniels (9th Cir. 1970) 431 F. 2d 697, in which we held that possession of firearms had sufficient effect upon interstate commerce to support exercise of congressional power and that the fact that the firearm was in, or affected, commerce is not an element of the offense stated in Title VII.

Appellant's third contention is a challenge to the sufficiency of the evidence to prove that the object he possessed was a "firearm" within the meaning of 18 U.S.C. app. § 1202(c) (3). Title VII defines a firearm as a weapon "which will or is designed to or may readily be converted to expel a projectile by the action of an explosive." He argues here, as he did below, that the Government...