United States v. Rubino

• Decision Date: 30 September 1970
• Docket Number: Crim. No. 14628.
• Citation: 320 F. Supp. 613
• Parties: UNITED STATES of America, Plaintiff, v. Joseph M. RUBINO, a/k/a Joe Conti, a/k/a Joe Reis, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

320 F. Supp. 613

UNITED STATES of America, Plaintiff, v. Joseph M. RUBINO, a/k/a Joe Conti, a/k/a Joe Reis, Defendant.

Crim. No. 14628.

United States District Court, M. D. Pennsylvania.

September 30, 1970.

Thomas H. Henderson, Jr., U. S. Dept. of Justice, Philadelphia, Pa., for plaintiff.

James T. McHale, Peter T. O'Malley, Scranton, Pa., for defendant.

MEMORANDUM

NEALON, District Judge.

Defendant, Joseph M. Rubino, has been indicted for possession of a firearm, viz., a .38 caliber Colt revolver, after having been previously convicted of a felony in violation of 18 U.S.C.A. App. § 1202, popularly known as the Gun Control Act of 1968. He has filed Motions for a Bill of Particulars, for Discovery and Inspection, to Dismiss, and to Suppress certain evidence, and these motions are now before the Court for disposition.

MOTION FOR BILL OF PARTICULARS

Defendant submitted five areas in which a bill of particulars was sought, viz., (a) the date and sentence of defendant's felony conviction, (b) the exact manner in which defendant's alleged possession violated the Congressional findings as set forth in Section 1201 of the Act; (c) the exact method by which defendant possessed a firearm in commerce; (d) the exact method by which any alleged possession of a firearm by the defendant affected commerce, and (e) the names and addresses of all informants. The Government agreed to furnish the information relating to defendant's felony conviction as sought in (a) above, but resisted the remaining requests. As to those particulars in dispute, the defendant has not advanced any reasons, either in brief or in oral argument, in support of his request. It must be remembered that a defendant is not entitled to a bill of particulars as a matter of right, Wyatt v. United States, 388 F.2d 395 (10th Cir. 1968), and it must appear that such additional information is necessary for him to prepare his defense and to avoid prejudicial surprise at trial. The information sought in (b), (c) and (d) above relates more to the validity of the Congressional findings than to the preparation of a defense. There is no requirement that the Government prove the "exact manner" and "exact method" of the effect of defendant's possession. Moreover, the preliminary disclosure of the names of all informants is clearly unwarranted. The motion for bill of particulars, except to the extent acquiesced in by the Government, will be denied.

MOTION FOR DISCOVERY AND INSPECTION

The Government has agreed to allow defendant to inspect and copy all documents itemized in the motion and to permit inspection of the revolver identified in the Indictment so that this motion is now moot.

MOTION TO DISMISS

Defendant has moved to dismiss the Indictment, alleging that (1) the presumption that defendant's prior conviction and his present intrastate possession of a firearm established that he is burdening commerce, etc., violates the due process clause of the Fifth Amendment; (2) by registering and obtaining a permit under the Pennsylvania Uniform Firearms Act, 18 P.S. § 4628, he was compelled to incriminate himself in violation of the Fifth Amendment, and (3) the Gun Control Act is arbitrary, discriminatory and unreasonable in that the test of unfitness to carry a gun which Congress established (conviction of a felony) is not relevant to the protection of the public.

With reference to point (1), defendant relies heavily on Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943). Tot is clearly inapposite to the case at bar. The statute involved in Tot proscribed the receipt by certain criminals of a firearm which had been "shipped or transported in interstate * * * commerce" and possession of a firearm created the presumption that it was so shipped or transported. The statute here raises no such presumption and is not predicated on receipt of goods as a part of interstate transportation, but concerns itself with receipt, possession or transportation "in commerce or affecting commerce." Therefore, the thrust is directed to activities burdening commerce, Cf. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964), and not to interstate transportation as such.

Defendant's point (2) is similarly without merit. There is no constitutial attack here on the registration requirements of the Pennsylvania statute and, at this stage of the proceedings, there is no apparent relationship between it and this prosecution. Any further belaboring of this contention is unnecessary.

As to point (3), Congressional action is valid if there is a rational basis for finding the prohibition necessary to the protection of commerce. Katzenbach v. McClung, 379 U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964). Forbidding possession of firearms to classes of specially risky people in order to avoid burdening commerce or risks to the President and...