United States v. Ronald Gene Honaker

*165 DAVID A. NELSON, Circuit Judge,

dissenting.

The 1990 amendment to 18 U.S.C. § 922 (j) did not change the statutory language that was at issue 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). Like the district court, I believe that we are still bound by the interpretation given that language in West .

The version of the statute in effect when West was decided made it a federal crime knowingly to receive a “stolen firearm ... which is moving as ... interstate or foreign commerce....” With the amendment adopted in 1990, it became unlawful knowingly to receive a “stolen firearm ... which is [so] moving ... or which has been shipped or transported[] in interstate or foreign commerce _” (Emphasis supplied.)

The amendment added the phrase set out here in italics, but it made no change in the words “stolen firearm.” Neither did the amendment make any change in the basic structure of the sentence in which those particular words appeared. “In both the original and amended versions of § 922©,” as Magistrate Judge Aaron Brown noted in a report and recommendation approved here by the district court, “the phrase ‘stolen firearm ’ precedes and modifies the subsequent interstate commerce language.”

As used in both versions of the statute, the words “stolen firearm” are capable of more than one meaning. They could refer to a firearm that had already been stolen by the time it crossed a state line, and they could refer to a firearm stolen either before or after the crossing of a state fine. Our decision in West teaches that the words have the former meaning; a firearm is not a “stolen firearm,” according to West , unless it has been stolen by the time the interstate commerce language comes into play.

I do not read the amendment as changing this. What the amendment changed — and all that it was designed to change, as far as the legislative history discloses —was the requirement (noted in United States v. Ruffin, 490 F.2d 557 (8th Cir.1974)) that the stolen firearm actually be moving in interstate commerce at the time of its receipt by the defendant. Assistant Attorney General Edward S.G. Dennis described this requirement in the prepared statement he presented on March 6, 1990, to the House Judiciary Committee’s Subcommittee on Crime: “Under 18 U.S.C. 922(j).and (k),” Mr. Dennis explained, “it is an offense to traffic in [stolen] firearms but only if they are actually moving in or a part of interstate commerce at the time of the offense. ” (Emphasis supplied.) 1

By eliminating the “actually moving” requirement, the proposed legislation described by Mr. Dennis would effect a relatively modest expansion of federal jurisdiction: it would merely “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.” Id. at 79-80.

As I read the Dennis statement, it did not say that federal jurisdiction would be expanded to the extent of permitting federal prosecution of anyone stealing any firearm that had ever moved in interstate commerce — as almost every firearm in this country has, at one time or another — -whether or not the weapon was a “stolen firearm” at the time it crossed a state line. To make a federal crime out of virtually every theft of a firearm would be to effect a rather dramatic expansion of the jurisdiction of the federal courts — and if that had been the intent of Congress, one supposes that someone in Congress, or someone explaining the legislation pending before Congress, would have mentioned it. No one did.

Section 102 of the crime bill proposed in 1989 by the Bush Administration contained the amendments to 18 U.S.C. §§ 922 (j) and 922(k) ultimately adopted in the Crime Control Act of 1990. Captioned “COMMERCE NEXUS FOR TRAFFICKING IN STOLEN FIREARMS,” § 102 provided, in subsection' (a), that 18 U.S.C. § 922 (j) would be amended “by striking out ‘or which constitutes’ and *166 inserting in lieu thereof ‘which constitutes, or which has been shipped or transported in,’.” The accompanying section-by-section analysis explained simply that these amendments “would expand federal jurisdiction, consistent with other firearms provisions, to permit prosecution of transactions in stolen firearms ... in eases in which the firearms have previously moved in interstate or foreign com-merce_” (Emphasis supplied.) 2 If the words “stolen firearms,” as used in this explanation, were intended to mean anything other than what our court had held in West that they meant, Congress was remarkably reticent about saying so.

Looking at the language of § 922(j) as amended, at the design of the statute as a whole, and at the object and policy of the amendment as explained by its proponents, I can find no clear indication that Congress meant to change the meaning of “stolen firearms.” My colleagues on the panel having taken a different view of the matter, I respectfully dissent.

. Hearing before the Subcommittee on Crime of the Committee of the Judiciary, 101st Cong., 2d Sess. 80 n. 10 (1990).

. 135 Cong.Rec. 13,070, 13,078 (1989). The section-by-section analysis of the corresponding section of the Crime Control Act of 1990, similarly, describes the purpose of that section as one of expanding federal jurisdiction "to permit prosecution for transactions involving stolen firearms ... where the firearms have already moved in interstate or foreign commerce.” H.R.Rep. No. 101-681(1), 101st Cong., 2d Sess. 106 (1990), reprinted in 1990 U.S.Code Cong. & Admin.News 6472, 6510 (emphasis supplied).