United States v. Nuccio

• Decision Date: 16 January 1974
• Docket Number: No. 73-2416. Summary Calendar.,73-2416. Summary Calendar.
• Citation: 487 F.2d 462
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Salvadore J. NUCCIO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

487 F.2d 462 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Salvadore J. NUCCIO, Defendant-Appellant.

No. 73-2416. Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

November 16, 1973.

Rehearing and Rehearing Denied January 16, 1974.

Michael F. Barry, New Orleans, La., for defendant-appellant.

Gerald J. Gallinghouse, U. S. Atty., Mary Williams Cazalas, Stephen A. Mayo, Asst. U. S. Attys., New Orleans, La., for plaintiff-appellee.

Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

Rehearing and Rehearing En Banc Denied January 16, 1974.

PER CURIAM:

Appellant Nuccio was convicted by a jury in the Eastern District of Louisiana of having violated 18 U.S.C. § 1202(a)(1). We affirm.

Appellant's only substantial claim on appeal is that 18 U.S.C. § 1202(a)(1) was not proven by the government to be applicable in his case. That statute says, in part: "Any person who has been convicted by a court of the United States or of a State or any political sub-division thereof of a felony and who receives, possesses, or transports in commerce or affecting commerce, . . . any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both." Appellant argues that the government failed to show any nexus between appellant's receipt and possession of the pistol and interstate commerce. The test as to what must be shown by the government has been clearly delineated by the Supreme Court in United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). The Court said, ". . . we conclude that the Government meets its burden here if it demonstrates that the firearm received has previously traveled in interstate commerce." 404 U.S. at 351, 92 S.Ct. at 524. This circuit recently reiterated that position in United States v. Thomas, 5 Cir. 1973, 485 F.2d 557.

Testimony at trial demonstrated that the weapon found on Nuccio was shipped from New York City to Dallas, Texas, and then to Golden Meadow, Louisiana. This court has carefully examined the record below and find the government met the requirements of Bass and Thomas, supra.

Appellant's other contentions concern double jeopardy, search and seizure, self-incrimination and jury composition. We have considered all of these contentions and have found them to be without merit.

Affirmed.

* Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.