United States v. Phillips

• Court: U.S. Court of Appeals — Eighth Circuit
• Writing for the Court: VAN OOSTERHOUT, Circuit , JOHNSEN, Senior Circuit , and HEANEY, Circuit
• Citation: United States v. Phillips, 432 F.2d 973 (8th Cir. 1970)
• Decision Date: 21 September 1970
• Docket Number: No. 19975.,19975.
• Parties: UNITED STATES of America, Appellee, v. Thomas W. PHILLIPS, Appellant.

432 F.2d 973 (1970)

UNITED STATES of America, Appellee, v. Thomas W. PHILLIPS, Appellant.

No. 19975.

United States Court of Appeals, Eighth Circuit.

September 21, 1970.

Richard Marx, St. Louis, Mo., for appellant, and filed brief.

Richard M. Minkoff, Atty., Dept. of Justice, St. Louis, Mo., for appellee, and filed brief, Daniel Bartlett, Jr., U. S. Atty., St. Louis, Mo., on the brief.

Before VAN OOSTERHOUT, Circuit Judge, JOHNSEN, Senior Circuit Judge, and HEANEY, Circuit Judge.

JOHNSEN, Senior Circuit Judge.

Appellant Thomas W. Phillips was convicted on a jury trial and sentenced to two years imprisonment for violation of 18 U.S.C. § 922(g), which, as here pertinent, makes it "unlawful for any person * * * who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year * * * to transport any firearm * * * in interstate * * * commerce".

The prior conviction alleged against appellant was for the offense under 18 U.S.C. § 500 of forging postal money orders. The unlawful transportation charged was the carrying of a .25 caliber Junior Colt pistol from Indianapolis, Indiana, to St. Louis, Missouri. Appellant was arrested, with the gun on his person, at the St. Louis Municipal Airport after he had deplaned from a nonstop flight between the two cities.

Four contentions are urged for reversal: (1) that § 922(g) is unconstitutional as violating the Fifth Amendment's privilege against self-incrimination; (2) that such subsection is further unconstitutional as violating the Fifth Amendment's guarantee against double jeopardy as to appellant's alleged forgery offense; (3) that additionally the Sixth Amendment's right to confrontation was violated by the restrictions imposed upon appellant's cross-examination of a witness named Bell; and (4) that beyond these constitutional defects, his conviction was also violative of due process, in that the evidence was insufficient to entitle the jury to return a verdict of guilty against him.

We find all of these constitutional claims to be unsubstantial, and we affirm the conviction.

The argument on the first contention is that the receiving of any evidence against a defendant as to a prior felony conviction puts the stamp of bad character upon him in relation to the question of his guilt on a firearm charge; and that the statutory subsection thus imposes "an unconstitutional burden upon a defendant to testify, to explain the conviction, and to waive his right to remain silent".

A variety of constitutional assaults has heretofore been made upon 15 U.S.C. § 902(e), the predecessor of 18 U.S.C. § 922(g), and upon 18 U.S.C.App. § 1202(a) (1), a counterpart to § 902(e). On the period and range covered by these attacks, and with the lack of any doubt by any court in relation to them as to the general validity of such a legislative control as is involved in § 922(g), we should have supposed that the constitutionality of § 922(g) would by this time be regarded as having become fully and acceptedly settled.

Among the judicial utterances which have thus been made, there may be noted representatively the expressions in Cases v. United States, 131 F.2d 916, 919 (1 Cir.1942); United States v. Lauchli, 371 F.2d 303, 314 (7 Cir.1966); United States v. DePugh, 266 F.Supp. 453, 455 (D.C.W.D.Mo.1967), aff'd DePugh v. United States, 393 F.2d 367 (8 Cir.1968), cert. den. 393 U.S. 832, 89 S. Ct. 101, 21 L.Ed.2d 102; and United States v. Wiley, 309 F.Supp. 141 (D.C. Minn.1970).

But if the solid judicial view which has heretofore obtained as to the absolute right of Congress to prohibit the transportation in interstate commerce of firearms by convicted felons can be argued not to carry a sufficient implicational sweep against the form in which appellant's contention has here been cast, a brief additional expression should suffice to dispose of this attempted variant in constitutional veil as to the subsection.

First, it should be noted that the production of a public record of prior conviction against a defendant, to establish his status as member of a class to which the interstate transportation of firearms has been prohibited, clearly does not constitute any furnishing of evidence by such a defendant to the Government. And parenthetically, even in respect to the facial premise of appellant's argument, it might be observed that it would be difficult to see how any explanation that could have competency would be able to be made by such a defendant of his prior conviction. But if conceivably some element of explanation could competently be open to him, his election to take the witness stand for this purpose as against remaining silent is no different in its dilemma than the choice which he is required to face in respect to any other evidence produced against him at his trial.

However incriminating a defendant's taking of the witness stand to deny or diminish the force of evidence against him may turn out to be, his absolute right to have remained silent without any implication against him therefrom, leaves whatever testimony may so occur from him as not constituting compelled self-incrimination. As the Court said in Williams v. Florida, 399 U.S. 78, 83-84, 90 S.Ct. 1893, 1897, 26 L.Ed.2d 446 (1970):

"The defendant in a criminal trial is frequently forced to testify himself and to call other witnesses in an effort to reduce the risk of conviction * * *. That the defendant faces such a dilemma demanding a choice between complete silence and presenting a defense has never been thought an invasion of the privilege against compelled self-incrimination".

On appellant's second contention — that of double jeopardy — the argument made is that, since one who has not previously been convicted of a felony may transport a gun in interstate commerce, the effect of convicting a prior felon therefor "is really to...