United States v. Ronald Gene Honaker

RALPH B. GUY, Jr.,

concurring.

I concur in Judge Hood’s opinion and write additionally only to further clarify why I believe this is the correct result. It is axiomatic that the starting point for any attempt at statutory interpretation is the plain language of the statute itself. See, e.g., United States v. Ron Pair Enter., Inc., 489 U.S. 235 , 109 S.Ct. 1026 , 103 L.Ed.2d 290 (1989). Title 18 U.S.C. § 922 (j) provides in pertinent part:

It shall be unlawful for any person to receive, conceal, store, barter, sell, or dispose of any stolen firearm ... which is moving as, which is a part of, which constitutes, or which has been shipped or transported in, interstate or foreign commerce, knowing or having reasonable cause to believe that the firearm ... was stolen.

It is unclear from this language whether the firearm in question had to have been stolen at the time it moved' in interstate commerce in order to make out an offense under the statute. The statute may be construed narrowly, as the district court did, so that the phrase “which has been shipped in interstate commerce” pertains only to stolen firearms. Alternatively, it could be read so that the phrase “which has been shipped in interstate commerce” only modifies the word *163 “firearm,” and that “stolen” refers to the status of the firearm at the time of the reception or concealment. Under this latter construction, 'the government need only prove that the firearm travelled in interstate commerce at some point.

In resolving such ambiguity, recourse to legislative history and other sources revealing the objectives of Congress in enacting § 922(j) is appropriate. See, e.g., McElroy v. United States, 455 U.S. 642, 658 , 102 S.Ct. 1332, 1341 , 71 L.Ed.2d 522 (1982).

Section 922(j) had its origin as part of the Federal Firearms Act, Ch. 850, 52 Stat. 1250 § 2(h) (1938). It originally provided that:

It shall be unlawful for any person to receive, conceal, store, barter, sell or dispose of any firearm or ammunition or to pledge or accept as security for any loan any firearm or ammunition moving or which is part of interstate or foreign commerce, and which while so moving or constituting such part has been stolen, knowing, or having reasonable cause to believe, the same to have been stolen.

Upon the enactment of the Gun Control Act of 1968, Pub.L. 90-618, 92 Stat. 1213, 1221 (1968), the provision was revised to read as follows:

It shall be unlawful for any person to receive, conceal, store, barter, sell, or dispose of any stolen firearm or stolen ammunition, or to pledge or accept as security for a loan any stolen firearm or stolen ammunition, which is moving as, which is part of, or which constitutes interstate or foreign commerce, knowing or having reasonable cause to believe that the firearm or ammunition was stolen.

The statute, as revised, was codified as 18 U.S.C. § 9220 ).

Those decisions that construed § 922(j), as it was then written, limited its application to embrace only firearms stolen prior to their movement in interstate commerce and then received or concealed prior to the termination of that movement.

For example, in United States v. Ruffin, 490 F.2d 557 (8th Cir.1974), defendants were stopped by police officers in St. Louis, Missouri, for a traffic violation and were found to be in possession of a .45 automatic pistol which had been stolen in Illinois. Id. at 558 . As a result, defendants were convicted of concealing a stolen pistol in violation of 18 U.S.C. § 922 (j). On appeal, the Eighth Circuit reversed, holding that the statutory language as it read then

clearly require[d] a continuing relationship with interstate commerce at the time of the alleged concealment. The fundamental issue is whether the government has carried its burden of proof that the gun was still moving or was still part of interstate commerce at the time defendants concealed it. If the gun had come to rest in Missouri, after it was stolen in Illinois ... the interstate character of the transaction would be over, and defendants could not be found guilty of any federal crime.

Id. at 561 (emphasis in original). See also United States v. Jones, 564 F.2d 1315, 1316 (9th Cir.1977) (concluding it is essential that the stolen firearm be in commerce when the offense is committed).

We adopted a position similar to the one taken in Ruffin in United States v. West, 562 F.2d 375 (6th Cir.1977), cert. denied, 435 U.S. 922 , 98 S.Ct. 1484 , 55 L.Ed.2d 515 (1978). In West , the defendant, a United Parcel Service employee in Nashville, Tennessee, stole two pistols from a package of firearms originating in Dalton, Georgia, and on its way to Santa Fe, New Mexico. West subsequently was charged and convicted of violating § 922(j) as it was then written. We reversed, noting that the handguns “were not stolen at the time they crossed state lines into Tennessee.” Id. at 377.

Thus, prior to 1990, the consensus among the circuits was that, for a conviction under § 922(j): (1) the defendant’s receipt or concealment of the stolen firearm must have occurred before the weapon ceased its movement in interstate commerce; and (2) the theft of the firearm must have preceded its travel in interstate commerce.

In 1989, an amendment to § 922(j) was included in the proposed “Comprehensive Violent Crime Control Act,” H.R. 2709, 101st *164 Cong.2d Sess. (1989). The amendment read as follows:

Section 922(j) of title 18, United States Code, is amended by striking out ‘or which constitutes,’ and inserting in lieu thereof ‘which constitutes, or which had been shipped or transported in,’ [interstate or foreign commerce].

H.R. 2709, § 102. Appearing before a subcommittee of the House Judiciary Committee, Assistant Attorney General Edward S.G. Dennis explained that the amendment “would expand federal jurisdiction to permit federal prosecution for trafficking in firearms which have been stolen or have had the serial number removed or altered and which have moved in interstate commerce at any time.” Comprehensive Violent Crime Control Act of 1989: Hearing on H.R. 2709 Before the Sub-comm. on Crime of the House Committee on the Judiciary, 101st Cong.2d Sess. 79-80 (1990).

Although the 1989 Comprehensive Violent Crime Control Act was not passed by Congress, the proposed amendment to § 922(j) was enacted into law as part of Title XXII of the Crime Control Act of 1990, Pub.L. 101-647, 2201 , 104 Stat. 4789 , 4856 (1990). The amendment resulted in the revision of § 922(j) to its present form. Interestingly, the House Report that accompanied the Crime Control Act of 1990 contained a detailed explication of the Act’s firearm provisions, noting that the provisions “were principally drawn from H.R. 2709, the Administration’s ‘Comprehensive Violent Crime Control Act of 1989,’ ” and citing Assistant Attorney General Dennis’ testimony regarding § 922(j). H.R.Rep. No. 681(1), 101st Cong.2d Sess. (1990), reprinted in 1990 U.S.Code Cong. & Admin.News 6472, 6510. The House Report then explained that “[s]ection 702 amends section 922(j) to expand Federal jurisdiction to permit prosecution for transactions involving stolen firearms and firearms missing serial numbers where the firearms have already moved in interstate or foreign commerce.” Id.

The district court, after drawing upon largely the same sources, felt that the 1990 amendment to § 922(j) only was intended to overrule the basic holding in Ruffin , bringing within the scope of the statute all firearms that were stolen at the time they moved through interstate commerce, without regard to the interstate character of the firearms at the time of their receipt and concealment. However, nothing in the legislative history indicates that the sole purpose of the amendment was to address Ruffin-like situations. Indeed, just the opposite is true. Assistant Attorney General Dennis’ statement plainly suggests the amendment was designed to “expand federal jurisdiction” over the trafficking of stolen firearms “which have moved in interstate commerce at any time. ” The House Report speaks of “firearms [which] have already moved in interstate or foreign commerce.”

I take such language to mean that Congress sought to deploy the full extent of federal jurisdiction, as emanating from the Commerce Clause, to combat trafficking in stolen weapons. If Congress had intended § 922(j) to be limited in its application only to transactions in firearms that had been stolen prior to their shipment in interstate commerce, I presume it knew how to say so clearly. See United States v. Yermian, 468 U.S. 63, 73 , 104 S.Ct. 2936, 2942 , 82 L.Ed.2d 53 (1984). 1

. Shortly before amending § 922(j), Congress revised both the Dyer Act, 18 U.S.C. § 2313 , and the National Stolen Property Act, 18 U.S.C. § 2315 , to contain precisely the jurisdictional limitation the district court found in § 922(j). For example, Congress amended 18 U.S.C. § 2313 to make subject to punishment "[w]hoever receives, possesses, conceals, stores, barters, sells, or disposes of any motor vehicle or aircraft, which has crossed a State or United States boundary after being stolen, knowing the same to have been stolen....” Pub.L. 98-847 § 203 , 98 Stat. 2754 , 2770 (1984) (emphasis added). Similarly, Congress amended 18 U.S.C. § 2315 to embrace properly "which having crossed a State or United States boundary after being stolen, unlawfully converted, or taken.” Pub.L. 99-646 § 746 , 100 Stat. 3592 , 3618 (1986) (emphasis added). As the Ruffin court held, prior to the 1990 amendment, "[t]he language relating to interstate commerce under § 922(j) [was] virtually identical to the earlier language of... 18 U.S.C. §§ 2313 and 2315.” Ruffin, 490 F.2d at 561 . If, in amending § 922(f), Congress had desired to maintain such parallel construction, I think it likely that it would have made clear that the statute only applied to firearms which had been *165 transported in interstate commerce “after being stolen."