Frank James Stevens v. United States

CELEBREZZE, Circuit Judge

(dissenting) .

I respectfully dissent. I believe that the words “in commerce or affecting commerce” in 18 U.S.C. (App.) § 1202 (a) (1) (Supp.V.1970) modify not only the word “transports,” but also the words “receives” and “possesses.” I therefore believe that the Appellant’s indictment for the mere possession of a *167 firearm under section 1202(a) (1) should have been dismissed, and his conviction overturned. In finding the contrary, the majority overlooks two important canons of statutory construction, and misapprehends a third.

First, if a criminal statute is capable of inconsistent interpretations, the ambiguity is resolved in favor of lenity. See, e. g., Bell v. United States, 349 U.S. 81 , 75 S.Ct. 620 , 99 L.Ed. 905 (1955); United States v. Phelps, Crim. Nos. 14,465 & 14,468 (M.D.Tenn., Feb. 10, 1970). The more lenient interpretation of-section 1202(a) (1) is that requiring the Government to prove that receipt or possession was “in commerce or affecting commerce.”

“It may fairly be said to be a presupposition of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment. This in no wise implies that language used in criminal statutes should not be read with the saving grace of common sense with which other enactments, not cast in technical language, are to be read.” Bell v. United States, supra, 349 U.S. at 83 , 75 S.Ct. at 622 .

This quotation suggests the second principle, which the majority overlooks: an ambiguous statute will be construed to avoid an absurd or illogical result. See, e. g., United States v. Bass, 434 F.2d 1296 (2d Cir., 1970). The Government argues that the word “transports” is the only word modified by the “in commerce or affecting commerce” requirement; the majority of this panel finds that this interpretation is buttressed by the draftsmen’s placement of commas. Technically precise as this argument may be, as the Court in Bass pointed out, it leads to an illogical conclusion:

“Interpreting the commerce requirement to modify only the ‘transports’ clause means that, although intrastate receipt and possession are punishable under the statute, intrastate transportation is not. Moreover if both ‘receipt’ and ‘possession’ are punishable without regard to the interstate elements, the modifying clause is meaningless, since there can scarcely be ‘transportation,’ whether intrastate or interstate, without an accompanying receipt or possession. Thus, in order to argue that a commerce requirement is not imposed by the statute on ‘receipt’ or ‘possession,’ the government is forced to take the position that the commerce requirement of the statute is either totally illogical or mere surplusage.” United States v. Bass, supra, at 1298 .

The third and most substantial difficulty I have with the majority’s construction of section 1202(a) (1) is that it raises, rather than avoids, serious constitutional doubts. See Zwickler v. Koota, 389 U.S. 241, 249 , 88 S.Ct. 391 , 19 L.Ed.2d 444 (1967); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348 , 56 S.Ct. 466 , 80 L.Ed. 688 (1936) (concurring opinion of Mr. Justice Brandéis); Blodgett v. Holden, 275 U.S. 142, 148 , 48 S.Ct. 105 , 72 L.Ed. 206 (1927). I believe the majority’s construction of this statute compels the use of a statutory presumption that presents substantial constitutional questions.

In order to sustain its burden of proof in a criminal proceeding, the Government must prove beyond a reasonable doubt each element of the crime with which the defendant is charged. See e. g., Turner v. United States, 396 U.S. 398, 405 , 90 S.Ct. 642 , 24 L.Ed.2d 610 (1970); Tot v. United States, 319 U.S. 463, 466-467 , 63 S.Ct. 1241 , 87 L.Ed. 1519 (1943); United States v. Adams, 293 F.Supp. 776, 783-784 (S.D.N.Y. 1968). This is not to say that, under appropriate circumstances, some elements may not be inferred by the jury from facts proven, or be supplied by a constitutional statutory presumption. Tot v. United States, supra, 319 U.S. at 467 , 63 S.Ct. 1241 . Where, as in the instant case, Congress enacts a criminal statute pursuant to its commerce power, either interstate commerce or an adverse effect on interstate commerce is an element of the crime. Cf. Mortensen v. United States, 322 U.S. 369 , 64 S.Ct. 1037 , 88 *168 L.Ed. 1331 (1944); Hattaway v. United States, 399 F.2d 431, 433 (5th Cir. 1968). As any other element it must be proved by direct or circumstantial evidence, or supplied by a statutory presumption. The majority holds that direct or circumstantial proof of commerce is unnecessary to sustain a conviction under section 1202(a) (1). To so hold, the majority must find a statutory presumption in section 1202(a) (1) to the effect that a firearm possessed by an individual previously convicted of a felony is a burden on interstate commerce. I believe this presumption is constitutionally impermissible.

It has long been established that in order for a criminal statutory presumption to be constitutional, there must be a “rational connection between the facts proved and the fact presumed.” Tot v. United States, supra, 319 U.S. at 467 , 63 S.Ct. at 1245 . See United States v. Romano, 382 U.S. 136 , 86 S.Ct. 279 , 15 L.Ed.2d 210 (1965); United States v. Gainey, 380 U.S. 63 , 85 S.Ct. 754 , 13 L.Ed.2d 658 (1965). Precisely when a “connection” is to be considered “rational” is a question that the Supreme Court has not completely answered. In Leary v. United States, 395 U.S. 6, 36 , 89 S.Ct. 1532, 1548 , 23 L.Ed.2d 57 (1969), the Court stated that a criminal statutory presumption will “be regarded as ‘irrational’ or ‘arbitrary,’ and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.” (Emphasis added.) In a footnote to Leary, 395 U.S. at 36, n. 64 , 89 S.Ct. 1532 , and in a subsequent case, Turner v. United States, 396 U.S. 398 , 90 S.Ct. 642 , 24 L.Ed.2d 610 (1970), the Court strongly suggested that if proof of an element of a crime is to be supplied by a statutory presumption, then in order for the presumption to be constitutional, the “connection” between the fact proved and the fact presumed must be the same as the Government’s burden of proof of all other elements of the crime, i. e., beyond a reasonable doubt.

In order to sustain the presumption the majority finds in section 1202(a) (1) under the Leary standard, we must “at least” be able to say with “substantial assurance” that it is more likely than not that a firearm possessed by an individual previously convicted of a felony will be used in such a manner as to be a burden on interstate commerce. 1

The Supreme Court has instructed that unless common sense tells us that the presumed fact is at least more likely than not to flow from the proved fact, then the Court must make a “highly empirical” study, granting to the factual finding of Congress “significant weight.”

“ ‘The process of making the determination of rationality is, by its nature, highly empirical, and in matters not within the specialized judicial competence or completely commonplace, significant weight should be accorded the capacity of Congress to amass the stuff of actual experience and cull conclusions from it.’ 380 U.S. at 67 , 85 S.Ct., at 757 .” Leary v. United States, supra, 395 U.S. at 35 , 89 S.Ct. at 1547 .

Since the determination of rationality in the instant case is not one within “specialized judicial competence,” or “completely commonplace,” or involving “common sense,” 395 U.S. at 46 , 89 S.Ct. 1532 , it is improper to judicially notice, without a “highly empirical” study of the facts reviewed by Congress in creating the presumption, that 51 percent or more of the guns possessed by previously convicted felons burden interstate commerce. Nor can we make a “highly empirical” study of the “stuff of actual experience” amassed by Congress, because the legislative history, which the majority quotes in the appendix to its opinion, recites no facts or statistics from which the determination of rationality *169 can be made, see 395 U.S. at 38-39 , 89 S.Ct. 1532 . As the majority points out, ante p. -, no congressional committee studied the section prior to its enactment, and there was no committee report. “All that is present in the ‘debates’ is statements by the bill’s author based on nothing but conjecture and a series of inferences which, if accepted, would support federal legislation concerning almost any criminal matter.” United States v. Bass, supra, 434 F.2d at 1300 . The majority relies heavily upon the “congressional finding” in section 1201 (1) that the possession of firearms by certain individuals is a burden on commerce. Unsupported by the requisite legislative findings, this congressional edict does not make the presumed fact “more likely than not” true. The majority further cites Senate Report No. 1097, 90th Cong. 2d Sess. (1968) to prove that “[tjhere can be no serious doubt that the possession of firearms by convicted felons is a threat to interstate commerce.” Ante, p. 152. There is nothing in that report, however, to prove that it is “more likely than not” that a gun possessed by a previously convicted felon will be a burden on commerce, or, as the majority states it, “used to hijack airplanes, rob banks insured by the' Federal Deposit Insurance Corporation or commit other crimes seriously affecting commerce.” Ante, p. 152. See 2 U.S. Code Cong, and Admin.News, pp. 2163-2168 (1968). The section of that report dealing with firearms does not even consider the subject of the use of guns by recidivists. Id.

To establish the constitutionality of the construction it urges upon the Court, the Government relies upon such cases as Maryland v. Wirtz, 392 U.S. 183 , 88 S.Ct. 2017 , 20 L.Ed.2d 1020 (1968); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 , 85 S.Ct. 348 , 13 L.Ed.2d 258 (1964); Katzenbach v. McClung, 379 U.S. 294 , 85 S.Ct. 377 , 13 L.Ed.2d 290 (1964). In each of these cases, however, the statutes were construed in such a manner as to apply only to individuals or enterprises engaging in activities interfering, however minimally, with interstate commerce. For example, in Katzenbach v. McClung, supra, the statute applied only to restaurants serving a substantial amount of food which moved in interstate commerce, or serving food to interstate travelers. In Heart of Atlanta, supra, the statute applied only to establishments refusing accommodations to interstate travelers and transient guests. In Maryland v. Wirtz, supra, the statute applied only to companies engaged in commerce or the production of goods for commerce. In Wickard v. Filburn, 317 U.S. 111 , 63 S.Ct. 82 , 87 L.Ed. 122 (1942) the statute applied only to growers of commodities whose goods moved in interstate commerce. In United States v. Darby, 312 U.S. 100 , 61 S.Ct. 451 , 85 L.Ed. 609 (1941), upon which the Government also relies, the statute applied only to manufacturers of goods in interstate commerce. Furthermore, in each of the cases on which the majority relies, the Court found that Congress had probed the commerce clause bases of the statutes and made substantial findings. It was, therefore, possible for the Court to accord “significant weight” to the “capacity of Congress to amass the stuff of actual experience and cull conclusions from it.” Leary v. United States, supra, 395 U.S. at 35 , 89 S.Ct. at 1548 . There being no meaningful legislative history in this case, it is impossible for us to do so.

On the slender basis of the legislative which avoids this constitutional infirmity, as well as impermissible harshness, United States v. Phelps, Crim. Nos. 14,465 and 14,468 (M.D.Tenn., Feb. 10, history of Section 1202(a) (1), this Court could do no more than speculate whether Congress found a “rational connection” between the possession of firearms by persons previously convicted of felonies, and an effect on interstate commerce. Such speculation falls far short of the “substantial assurance” required by Leary . Leary v. United States, supra, 395 U.S. at 52-54 , 89 S.Ct. 1532 .

The only interpretation of the statute 1970), and absurdity, United States v. *170 Bass, 434 F.2d 1296 (2d Cir., 1970), is that which requires that receipt and possession, as well as transportation, be shown, in each ease, to have been “in commerce or affecting commerce.” No such showing was made in the instant case.

I would reverse the judgment of conviction.

. In view of my determination that this presumption does not withstand constitutional scrutiny under the Leary standard, I do not reach the question whether the stricter standard applies.