Petitioners Brief — Scarborough v. United States

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

No. 75-1344

RICHARD A. SCARBOROUGH,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR PETITIONER

PHILIP J. HIRSCHKOP

LEONARD S. RUBENSTEIN

108 North Columbus Street

Posi Office Box 1226

Alexandria, Virginia 22313

(703) 836-5555

Attorneys for Petitioner.

——

Washington, D.C. + THIEL PRESS - (202) 638-4521

(1)

TABLE OF CONTENTS —_

CE. 6 an a a a 066 6.88 60566 6b 4S C SOO l

JURISDICTIONAL STATEMENT ............2.0006-, |

gob eb 0 e666 408 6886s 2

QUESTION PRESENTED... wc ccccccccvccccccccecs 2

Dee GE BD GEES ccc ccee ce ceeeeseesesees 2

ARGUMENT:

A Conviction Under 18 U.S.C. App. §1202(a) for

Possession of a Firearm in Commerce or Affecting

Commerce by a Convicted Felon Cannot be Sus-

tained Merely Upon a Showing That the Possessed

Firearm Has Previously Traveled in Interstate Com-

merce at Any Time, However Remote...........+++: 6

A. The Language of §1202(a) Is Directed Only

At Possession Offenses Occurring Contem-

poraneously With Commerce.......---+++++eee5% 7

B. To Permit Prosecution For Possession Of A

Firearm Without A Contemporaneous Nexus

To Commerce Would Interfere With The

Allocation Of State And Federal Jurisdiction

In A Federalist System Without A Clear

Intent By Congress To Do So ..... 2. eee eee e eee 15

CONCLUSION. .....-ccccccccccccesecesesecens 25

TABLE OF AUTHORITIES

Cases:

Barrett v. United States, 423 U.S. 212 (1976) .... 8, 9, 11, 17

Bell v. United States, 349 U.S. 81 (1955). .......25646- 12

Carter v. United States, No. 75-2215 (6th Cir. 1976),

petition for cert, filed, 45 U.S.L.W. 3165 (U.S.

Je. 28, 1976) (No. 75-1882)... 20... eee eee eee 13, 22

Clay v. United States, 403 U.S. 698 (1971).........4.. 10

Erlenbaugh v. United States, 409 U.S. 239 (1972) ..... 9, 21

Gregory v. City of Chicago, 394 U.S. 111 (1969)........ 10

Heart of Atlanta Motel v. United States, 379 U.S.

nn tS ae 24

(it)

Cases, continued: Page

Heublein v. South Carolina Tax Commission, 409

Ws BE CREVED coccccsvececceces beseeveseone 17

Hicks v. Miranda, 422 U.S. 332 (1975)........... coeoe

Huffman v. Pursue, Ltd., 420 U.S. 592 (1975).......... 23

McBoyle v, United States, 283 U.S. 25 (1931).......... 13

National League of Cities v. Usery, 96 S.Ct. 2465

CEE cco 6b ee eee ees eres ersceseeeresoesone 23

Rewis v. United States, 401 U.S. 808 (1971)

WEUTTEERIEITTCEEL LETTE 12, 17, 20, 21, 22, 23

Rizzo v. Goode, 423 U.S. 362 (1976). .........22008- 23

Sicurella v, United States, 348 U.S. 385 (1955) ......... 10

Stromberg v. California, 283 U.S. 359 (1931). .......... 10

United Bhd. of Carpenters and Joiners v. United

States, 380 USB. SOE (1947) 2. cc cccccccccvcsecs 10

United States v. Bass, 404 U.S. 336 (1971)......... passim

United States v. Bell, 524 F.2d 202 (2nd Cir.

., PPUPREPELETETELTLTELECTTELEE 14, 17, 19, 22

United States v. Brown, 472 F.2d 1181 (6th Cir.

BOGE ce Cece chee Sees e ee eedsoeeseseseceoers 14

United States v. Bumphus, 508 F.2d 1405 (10th

SS PPPPTTTETOLULELEPET TELE 22

United States v. Bush, 500 F.2d 19 (6th Cir. 1974) ...... 13

United States v. Campos-Serrano, 404 U.S. 293

i, errr errr re Sr rr rr ss ee Te eee ee ee 13

United States v. Cassity, 509 F.2d 682 (9th Cir.

. Perrrerrrererrrrrerre er rrrereLerTieee. 22

United States v. DeMet, 486 F.2d 816 (7th Cir. 1973),

cert. denied, 416 U.S. 969 (1974) .......2 2c ee eeee 24

United States v. Enmons, 410 U.S. 396 (1973) ......... 16

United States v. Five Gambling Devices, 346

UB. GO CIGGE) 2c ce Go ccc ccccesecsesececes 16, 17

United States v. Goodie, 524 F.2d 515 (5th

Cis. 1978) on cccccccccccccccccccccesececoes 22

a

(112)

Cases, continued: Page

United States v. Huddleston, 415 U.S. 814

Preys rT re ee ere eee PPT eT 24

United States v. Hunter, 478 F.2d 1019 (7th Cir.),

cert. denied, 414 U.S. 857 (1975) ..........00006- 24

United States v. Jones, 533 F.2d 1387 (6th

Ge SUD ce cceneseccccefecsicconcescers 13, 22

United States v. Kelly, 519 F.2d 251 (8th Cir.),

cert. denied, 423 U.S. 926 (1975) ........ 11, 14, 19, 22

United States v. Lathan, 531 F.2d 955 (9th Cir.

BPO 60 6 660'00.66666.66 86 SS sb SeeO Ce He eee ee 22

United States v. Ressler, 536 F.2d 208 (7th Cir.

. SPR eT TT rerTRELELTeL Cree rTeLii 22

United States v. Sacco, 491 F.2d 995 (9th Cir. ~~

SETUP cee ess racdoesseeeseccccocesesecsceees 24

United States v. Scarborough, No. 74-1193 (4th

eS | & . WPrrrererrer ceric 22

United States v. Steeves, 525 F.2d 33 (8th Cir.

_., Perr rrrrTrerrervrrreraererrerertreeeel 22

United States v. Thomas, 485 F.2d 557 (5th Cir

_, Perr ereverrerevereecereeerREELEl 22

United States v. Walker, 489 F.2d 1353 (7th Cir.

1973), cert. denied, 415 U.S. 982 (1974) ........ 21, 22

United States v. Wiltberger, 18 U.S. (5 Wheat)

i TP rrrrrrrrere reer errereeereree 13

Universal Camera Corp. v. NLRB, 340 U.S.

| Se ae ae er a ee 11

Weinberger v. Hynson, Westcott and Dunning,

Rats, GER TLR, GEO CASTE n cc ccc ccc ccesscccesees 13

Younger v. Harris, 401 U.S. 37 (1971)... ...222 ee eeee 23

Statutes:

Tre TTT ee Te Tee CTC T TEE 18

FPS OT TTT TIE TET Ee TEE 9, 10, 11, 19

ED 0 6 y's 6-6 066600 00 48 tees passim

Statutes, continued:

I oe be, oor gee

a ts

a i a ane a

eae

State statutes regulating sale to or possession by

convicted felons of firearms

Other Authorities:

114 Cong. Rec. 13,867-869 (1968)..............

114 Cong. Rec. 14,772-775 (1968)

U.S. Department of the Treasury, Bureau of Alcohol,

Tobacco and Firearms, Frearms Regulation

(1976)

ese @€8 ee oe ee 6886 8 ¢

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

No. 75-1344

RICHARD A. SCARBOROUGH,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR PETITIONER

OPINION BELOW

The opinion of the United States Court of Appeals for

the Fourth Circuit is not published and attached as an

appendix to the Petition for a Writ of Certiorari.

JURISDICTIONAL STATEMENT

The judgment of the United States Court of Appeals

for the Fourth Circuit was entered on January 29, 1976.

1

2

On October 4, 1976, this Court granted the Petition

for a Writ of Certiorari limited to Question No. 1

presented by the Petition. Jurisdiction of this Court is

invoked pursuant to 28 U.S.C. §1254(1).

STATUTE INVOLVED

Title 18 U.S.C. App. §1202(a) provides in pertinent

part:

(a) Any person who—

(1) has been convicted by a court of the United

States or of a State or any political subdivision

thereof of a felony’...

*

and who receives, possesses, or transports in com-

merce or affecting commerce, after the date of

enactment of this Act, any firearm shall be fined no

more than $10,000 or imprisoned for not more than

two years, or both.

QUESTION PRESENTED

Whether the Court erred in holding that a convic-

tion under 18 U.S.C. App. §1202(a) for possession of a

firearm in commerce or affecting commerce by a

convicted felon is sustainable merely upon a showing that

the possessed firearm has previously at any time, however

remote, traveled in interstate commerce.

STATEMENT OF THE CASE

On September 8, 1972, Mr. Scarborough was convicted

in the Circuit Court of Fairfax County, Virginia, on

felony charges of possession with intent to distribute a

controlled drug [A. 2]. Subsequently, on August 1,

1973, petitioner was arrested, by a county policeman,

who then obtained a search warrant for any controlled

3

substance that might be found in Scarborough’s home.

Thereafter, several policemen made a search and seized

four weapons within the Scarborough residence, where

the petitioner lived with his wife.

Scarborough was subsequently charged in a one count

indictment alleging receipt and possession of the four

firearms in violation of 18 U.S.C.App. §1202(a) [A. 1].

During pretrial discovery in the District Court, the

Government acknowledged in a Bill of Particulars that

the possession of the four weapons affected commerce by

having previously traveled in commerce anywhere from

over three years to eighty years prior to petitioner’s state

felony conviction [A. 5].

On October 23, 1973, a jury trial was held before the ~

Honorable Albert V. Bryan, Jr., District Court Judge for

the Eastern District of Virginia, Alexandria Division. At

trial, numerous witnesses were called by the Government

in an attempt to establish that the seized weapons had

traveled in and affected interstate commerce [A. 6-9].

However, with regard to all four weapons, the proof

uniformly established movement in interstate commerce

prior to September 8, 1972, the date upon which the

petitioner became a convicted felon. The Universal

Enforcer was shown to have been shipped on May 21,

1969 [A. 8]; the Colt Cobra was shown to have been

shipped in mid 1969 [A. 6] ; the M-1 rifle was shown to

have been shipped in 1966 [A. 9]; and the fourth weap-

on was shown only to have been manufactured in France

at an uncertain time in the late 1800’s [A. 10]. The

evidence further bore out that petitioner had come into

possession of these firearms well before the date of his

state conviction [A. 10-11].

Because no evidence was introduced showing that

these guns had moved in or affected commerce at any

time after his state conviction, counsel for petitioner

4

moved for a judgment of acquittal at the close of the

Government’s case. The Court then dismissed that part of

the indictment alleging “receipt,” as there was not any

evidence of receipt of any weapon after the felony

conviction [A.12]. The case concerning possession,

however, continued. The Court later denied a proffered

instruction concerning the required nexus between

possession and commerce, which stated in pertinent part:

5

with interstate commerce beyond a reasonable

doubt, under the instruction which I gave you which

allows the government to meet that burden by

showing that the weapon or weapons had previously

been transferred in interstate commerce, there seems

to me to be not much of an issue on that score. ...

[A. 14].

Thereafter, on October 24, 1973 Scarborough, having

In order for the defendant to be found guilty of the

crime with which he is charged, it is incumbent

upon the Government to demonstrate a nexus

between the ‘possession’ of the firearms and

interstate commerce. For example, a person ‘pos-

sesses’ in commerce or affecting commerce if at the

time of the offense the firearms were moving

interstate or on an interstate facility, or if the

‘possession’ affected commerce. It is not enough

that the Government merely show that the firearms

at some time had traveled in interstate com-

merce... . [A. 12-13]

This instruction was based on this Court’s opinion in

United States v. Bass, 404 U.S. 336, 350 (1971).

Instead, the Court instructed the jury that:

... The government may meet its burden of proving

a connection between commerce and the possession

of a firearm by a convicted felon if it is demon-

strated that the firearm possessed by a convicted

felon had previously traveled in interstate com-

merce. ... [A-13]

It is not necessary that the government prove that

the defendant purchased the gun in some state other

than that where he was found with it or that he

carried it across the state line, nor must the

government prove who did purchase the gun....

[W]hile the government must prove the connection

previously been convicted of a felony, was found guilty

of possession of four firearms in commerce or affecting

commerce. On November 30, 1973, petitioner was

sentenced to confinement for a period of one year, said

sentence to run consecutiveiy with any current sentence.

Petitioner is presently free on bond for this conviction.

On January 29, 1976, the United States Court of

Appeals for the Fourth Circuit affirmed Scarborough’s

conviction, holding that mere possession of firearms that

have previously traveled in interstate commerce provides

a sufficient nexus between that possession and commerce

so as to support a conviction under 18 U.S.C. App.

§ 1202(a), regardless of whether the firearms came to rest

in the possession of an individual before having been

convicted of a felony.

6

ARGUMENT

A CONVICTION UNDER 18 U.S.C. App. §1202(a) FOR

POSSESSION OF A FIREARM IN COMMERCE OR

AFFECTING COMMERCE BY A CONVICTED FELON

CANNOT BE SUSTAINED MERELY UPON A SHOWING

THAT THE POSSESSED FIREARM HAS PREVIOUSLY

TRAVELED IN INTERSTATE COMMERCE AT ANY

TIME, HOWEVER REMOTE.

In United States v. Bass, 404 U.S. 336 (1971), the

Court held that under 18 U.S.C. App. §1202(a), a nexus

to interstate commerce must be shown with respect toa

convicted felon receiving, transporting, or possessing a

firearm. 404 U.S. at 347. The Court affirmed the Second

Circuit’s decision reversing Bass’ conviction, since the

Government failed to allege or prove any nexus with

interstate commerce. 404 U.S. at 347. The question

presented in this case concerns the degree of nexus to

commerce required to sustain a conviction for possession

of a firearm by a convicted felon. That question has

already been answered by a plurality of this Court.

In Part III of the Bass opinion, Justice Marshall, joined

by Justices Douglas, Stewart, and White, discussed the

necessary commerce nexus that must be proven with

respect to the “possession” and “receipt” offenses and

stated that a greater nexus must be shown for a

possession conviction than for a receipt conviction:

The Government can obviously meet its burden in a

variety of ways. We note only some of these. For

example, a person ‘possesses...in commerce or

affecting commerce’ if at the time of the offense the

gun was moving interstate or on an interstate

facility, or if the possession affects commerce.

Significantly broader in reach, however, is the

offense of ‘receiv[ing] . . . in commerce or affecting

commerce,’ for we conclude that the Government

7

meets its burden here if it demonstrates that the

firearm received has previously traveled in interstate

commerce.

404 U.S. at 350 (footnote omitted).

Concerned with the delicate balance between state and

tederal law enforcement, the Court in Bass declared, ““We

do not interpret §1202(a) to reach the ‘mere possession

of firearms.’”’ 404 U.S. at 350. The position of the

Government that a conviction for possession of a firearm

may be sustained merely upon a showing that the firearm

had at some time, however remote, traveled in commerce,

even though the gun had long since come to rest, clearly

seeks to make “mere possession”’ illegal.

The distinction between receipt and possession is well

founded. Although there is a conflict among the Circuits

concerning whether proof of a firearm’s prior travel in

interstate commerce is sufficient to convict for either

receiving or possessing, the more reasonable view is that

the crime of possession must hinge upon more than proof

that the gun had previously traveled in interstate

commerce prior to the individual’s felony conviction.

Principles of statutory construction, coupled with impor-

tant considerations inhering in principles of federalism,

judicial restraint and judicial economy, support the

proposition that conviction for possession must be

predicated upon proof of a contemporaneous effect upon

commerce.

A. The Language Of §1202(a) Is Directed Only

At Possession Offenses Occurring Contempora-

neously With Commerce.

In United States v. Bass, 404 U.S. 336 (1971), the

Court found the language of Title VII of the Omnibus

Crime Control and Safe Streets Act of 1968, Pub. L.

8

90-351, 82 Stat. 197, 18 U.S.C. App. §1202(a), to be too

ambiguous to be read so broadly as to dispense with the

requirement of a nexus with interstate commerce as an

element of each offense listed in §1202(a). If the reach

of the statute as a whole is opaque, however, the language

concerning the proper commerce nexus required to state

an offense is not. Adherence to the most elementary

principle of statutory construction that the plain meaning

of words must be respected necessarily leads to the

conclusion that the crime of possession is only cognizable

if there is a contemporaneous nexus with commerce.

Section 1202 of Title VII in pertinent part provides:

(a) any person who—

(1) has been convicted by a court of the United

States or of a State or any political subdivision

thereof of a felony, .. .

and who receives, possesses, or transports in

commerce or affecting commerce, after the date

of the enactment of this Act, any firearm shall be

fined not more than $10,000 or imprisoned for

not more than two years, or both.

Since the commerce language in this statute, “receives,

possesses, or transports in commerce or affecting com-

merce”’ is in the present tense, it can fairly be read to

reach only a contemporaneous use of or effect on

commerce. The commerce language contrasts sharply

with the tense Congress used regarding the prior felony

conviction requirement of §1202(a), “has been con-

victed. ...”” As this Court explained last Term in Barrett

v. United States, 423 U.S. 212 (1976), the Court must

recognize Congress’ use of different tenses within the

same statute in the construction of that statute and

follow their varying effects.

9

In Barrett, unlike here, the interstate commerce

reference in the statute, 18 U.S.C. §922(h), was in the

present perfect tense,’ thereby “denoting an act that is

completed.” 423 U.S. at 216. The Court explained

further, “had Congress intended to confine §922(h) to

direct interstate receipt, it would have so provided, just as

it did in other sections of the Gun Control! Act.” 423

U.S. at 217. Congress did precisely that in §1202(a).

There it used the present tense, thereby conveying that

only a contemporaneous connection to commerce would

sustain a conviction. And just as in Barrett, this Court

must adhere to the language Congress chose, for

“Congress knew the significance and meaning of the

language it employed.” 423 U.S. at 217.

Thus, unlike §922(h), §1202(a) encompasses only

crimes with a present connection to commerce. That

difference cannot be ignored, since “no conclusion can be

drawn from Title IV [§922(h)] concerning the correct

interpretation of Title VII [$1202].” United States v.

Bass, 404 U.S. 336, 344 (1971). The fact that two

statutes serve related purposes does not permit the Court

to ignore clear differences in language and scope between

them. Erlenbaugh v. United States, 409 U.S. 239, 244-47

(1972). Indeed, it is fitting that the commerce language

of §1202(a) is more confining than that in §922(h),

ISection 922(h) provides, in pertinent part:

It shall be unlawful for any person—

(1) who is under indictment for, or who has

been convicted in any court of, a crime

punishable by imprisonment for a term exceed-

ing One year;

* * * .

to receive any firearm or ammunition which has

been shipped or transported in interstate or

foreign commerce.

10

since §1202(a) includes a broader range of offenses than

§922(h), including simple possession. As will be made

clear below, principles of federalism. dictate that firearm

possession offenses are more properly subjects of state

enforcement, so that the narrower federal role contem-

plated by §1202(a) for prosecuting such offenses than is

available for receipt offenses under §922(h) is perfectly

comprehensible. Accordingly, the differences in language

between §922(h) and §1202(a) make sense, and must be

respected.

In this case, those principles of construction inevitably

require the reversal of Scarborough’s conviction, since

Scarborough’s possession had no contemporaneous nexus

with commerce. As is clear from the record, subsequent

to his felony conviction, the firearms which are the

subject of this prosecution merely rested in Scar-

borough’s house.” Accordingly, statutory language itself

2A ithough there was some evidence that Scarborough ordered

parts for one of the weapons after his felony conviction, the jury

was instructed that it could find Scarborough guilty if it simply

found that “the firearm possessed by a convicted felon had

previously traveled in interstate commerce.” A. 14. Indeed, the trial

court virtually directed the jury to return a verdict of guilty based

only on the prior interstate travel of the gun: “...under the

instruction which I gave you which allows the government to meet

that burden by showing that the weapon or weapons had

previously been transferred in interstate commerce, there seems to

me to be not much of an issue on that score.” [A. 14].

Thus, the Court need not reach the question whether

ordering parts for a firearm already in possession estabiishes the

requisite commerce nexus. So long as the jury was told that it

could—and should—convict Scarborough simply on the basis of

the gun’s travel prior to his felony conviction, his conviction

here must be reversed. Clay v. United States, 403 U.S. 698, 704

(1971); Gregory v. City of Chicago, 394 U.S. 111 (1969); Sicurella

v. United States, 348 U.S. 385 (1955); United Bhd. of Carpenters

and Joiners v. United States, 330 U.S. 395, 408-09 (1947);

Stromberg v. California, 283 U.S. 359 (1931).

11

suffices to find a requirement of a contem,; >raneous

nexus with commerce in § 1202(a).

A contrary result is not suggested by analysis of the

legislative history of §1202(a). The Court in Bass

concluded that the legislative history failed to provide a

clear purpose which could guide the courts in interpreting

the statute. 404 U.S. at 346. See, Universal Camera Corp.

v. NLRB, 340 U.S. 474 (1951). There is some indication

in the Senate debates, however, that the intent of

Congress in enacting both this Section and §922(h) was

to prevent a convicted felon’s ‘‘acquisition”’ of a firearm

subsequent to a felony conviction. See Barrett v. United

States, 423 U.S. 212 (1976). As the Eighth Circuit

noted in United States v. Kelly, 519 F.2d 251, 253 n.3

(8th Cir.), cert. dented, 423 U.S. 926 (1975), Senator

Long, the statute’s sponsor, consistently used the word

“acquire,” as if synonomous with the word “receive.” °

3Excerpts from Senator Long’s statements on the floor of the

Senate amply illustrate this point:

A lot of people have objected to the Dodd gun

bill on the theory it would make it difficult for

honorable people—who have a right to have

weapons for the defense of their homes to

acquire weapons—and would make it somewhat

cumbersome and burdensome for people to cross

state boundaries seeking an opportunity to hunt

or engage in other sports activities, as they have

historically done in this country.

114 Cong. Rec. 13,868 (1968).

It would be a bother to them, and it would not

really prevent what it seeks to prevent in that it

would not have, for example, prevented Oswald

from acquiring the weapon with which he killed

John Kennedy. And it would not have kept the

assassin of Martin Luther King from acquiring

the weapon he used for that dastardly act.

Id. | Footnote continued]

12

Senator Long’s language in the debate focusing on

the prevention of the acquisition of weapons by con-

victed felons is appropriate. The conviction justi-

fies restricting a person’s access to weapons, as the

person has already inflicted injury to society. It is quite a

different matter, however, to punish a person who has

acquired a gun prior to a felony conviction and who does

nothing with it after the conviction except to store it in

his house. Certainly if the individual does bring the

weapon into commerce in the manner suggested in Part

III of Bass, the federal police power should be invoked;

but if he does not, there is no justification for punishing

him.

The rules of statutory construction also compel a

greater commerce nexus to convict for possession than

for receipt. It is well settled that if a criminal statute is

capable of inconsistent interpretations, the ambiguity

should be resolved in favor of lenity. See e.g., United

States v. Bass, 404 U.S. 336, 347 (1971); Rewts v. United

States, 401 U.S. 808 (1971); Bell v. United States, 349

U.S. 81 (1955). Penal statutes must be strictly construed

to provide fair notice as to what conduct is specifically

proscribed. See United States v. Bass, 404 U.S. 336,

The killer of Medgar Evers, the murderer of the

three civil rights workers in Mississippi, the

defendants who shot Capt. Lemuel Penn (on a

highway while he was driving back to Washington

after completion of reserve Military duty) would

all be free under present federal law to acquire

another gun and repeat those same sorts of crime

in the future.

114 Cong. Rec. 14,773 (1968).

The assassin of George Lincoln Rockwell and the

murderer of Malcolm X could lawfully acquire a

gun upon their release from prison and kill again.

Id.

13

348 (1971); McBoyle v. United States, 283 U.S. 25, 27

(1931) (Holmes, J.). In the absence of a legislative dir-

ective, it is not the province of the Court to imply one.

As Chief Justice Marshall wrote in United States v. Wilt-

berger, 18 U.S. (5 Wheat) 76 (1820):

The rule that penal laws are to be construed strictly,

is perhaps not much less old than [statutory]

construction itself. It is founded on the tenderness

of the law for the rights of individuals; and on the

plain principle that the power of punishment is

vested in the legislative, not the judicial department.

It is the legislature, not the court, which is to define

a crime, and ordain its punishment.

18 U.S. (5 Wheat) at 95.

And, as the Court explained in Bass, “where there is

ambiguity in a criminal statute, doubts are to be resolved

in favor of the defendant.” 404 U.S. at 348. Therefore,

the statute should be interpreted to require a contempo-

raneous nexus to commerce to convict for possession of a

firearm by a felon.

Finally, statutes should be construed to preserve their

integrity. Weinberger v. Hynson, Westcott and Dunning,

Inc., 412 U.S. 609, 633 (1973); United States v.

Campos-Serrano, 404 U.S. 293 (1971). Section 1202(a)

proscribes three separate offenses: receiving, possessing,

or transporting firearms in commerce by a convicted

felon. If the commerce nexus is held by the Court to

occur when the gun came into possession of the

convicted felon, then the crime is not possession at all,

but receipt, and the Court’s interpretation would merge

the two crimes. This approach was taken by the Sixth

Circuit, Carter v. United States, No. 75-2215 (6th Cir.

1976), petition for cert. filed, 45 U.S.L.W. 3165 (U.S. Je.

28, 1976) (No. 75-1882); United States v. Jones, 533

F.2d 1387 (6th Cir. 1976); United States v. Bush, 500

14

F.2d 19 (6th Cir. 1974); United States v. Brown, 472

F.2d 1181 (6th Cir. 1973), but is plainly incorrect: the

crimes are listed as separate and distinct in §1202(a), and

there is no justification available to treat them as one.

The observation of the Sixth Circuit in United States v.

Brown, supra, that “‘one cannot very well possess a

firearm without receiving it,” 472 F.2d at 1182, merely

states a truism that avoids the difference between receipt

and possession. To sustain a convictior. for receipt under

§1202(a), for example, proof of possession is not

enough:

Under a receiving charge, the government assumes

the additional burden of proving that receipt of the

firearm occurred in the district where the prosecu-

tion takes place.... Venue is a fact which must

always be established at trial. There are also several

instances when a felon can possess a weapon

without the possibility of being subject to a charge

of receiving it. A felon could, for example, have

received a gun before he was convicted of a felony

or he could have received it beyond the statute of

limitations for a receiving offense and yet still be in

possession.

United States v. Kelly, 519 F.2d 251, 258

(8th Cir.), cert. denied, 423 U.S. 926 (1975) (foot-

note and citations omitted).

The blurring of the distinction between receipt and

possession by the Sixth Circuit, as one court explained,

“obliterates the carefully drawn distinction between the

separate offenses made by the Supreme Court in Bass and

eviscerates the language of the statute which provides for

three discrete crimes.” United States v. Bell, 524 F.2d

202, 208 n.7 (2nd Cir. 1975). Even more disturbing, the

effect of this approach is to punish Scarborough for

receipt of firearms prior to the time such receipt was

15

unlawful, since at the time he received the gun, he had

not been convicted of a felony.

Moreover, adoption of the Government’s reading

would create additional problems as applied to a person’s

first felony trial. As soon as a judgment of conviction is

entered, if he possessed any firearms which had previously

traveled in commerce, he would immediately be in

violation of §1202(a). If a person could not afford bond

and thereafter entered a guilty plea, he could conceivably

never have an opportunity to relinquish possession.

Following acceptance of the plea, the Government could

immediately seize any weapons in the defendant’s

possession and initiate federal proceedings under

§1202(a). Although this situation may seem unduly

hypothetical, such a result could legally occur if it is held

that possession need not have a contemporaneous effect

upon commerce.

B. To Permit Prosecution For Possession of a

Firearm Without A Contemporaneous Nexus To

Commerce Would Interfere With The Allocation Of

State and Federal Jurisdiction In A Federalist

System Without A Clear Intent By Congress To Do

So.

The Government’s view of §1202(a) necessarily

challenges the premise upon which Bass rests: the

allocation of criminal jurisdiction between the states and

the federal government. For the Government to prevail,

the Court must reject principles of federalism supporting

Bass which are deeply rooted in federal jurisprudence,

and involve. considerations to which this Court has

become increasingly sensitive.

This Court has already held that, in view of its

ambiguity, hasty enactment, and paucity of legislative

16

history, §1202(a) must be narrowly construed to avoid

intruding into traditional areas of state criminal jurisdic-

tion. United States v. Bass, 404 U.S. 336, 349-50 (1971).

In Bass, the Court echoed United States v. Five Gambling

Devices, 346 U.S. 441, 450 (1950), where the Court, in

an opinion by Justice Jackson, warned that only an

“unmistakable intention” by Congress would permit it to

interpret an anti-gambling statute as purporting to

eliminate the requirement of a nexus with interstate

commerce. Such an interpretation would have an

“extreme impact upon affairs considered normally

reserved to the States,” 346 U.S. at 450, and could not be

construed so casually. In Bass, the Court reaffirmed these

principles:

[U] nless Congress conveys its purpose clearly, it will

not be deemed to have significantly changed the

federal-state balance. Congress has traditionally been

reluctant to define as a federal crime conduct

readily denounced as criminal by the States... . In

traditionally sensitive areas, such as legislation

affecting the federal balance, the requirement of

clear statement assures that the legislature has in

fact faced, and intended to bring into issue, the

critical matters involved in judicial decision.

404 U.S. at 349 (footnotes omitted).

Since ‘‘absent proof of some interstate commerce nexus

in each case, §1202(a) dramatically intrudes upon

traditional state criminal jurisdiction,” 404 U.S. at 350

(emphasis added), the Court construed the statute to

include an interstate commerce nexus as an element of

each offense listed in that Section.

Since Bass, the Court has continued to interpret

federal criminal statutes consistent with these guidelines.

In United States v. Enmons, 410 U.S. 396 (1973), for

17

example, the Government attempted to prosecute union

members under the Hobbs Act, 18 U.S.C. §1951, for

violence which erupted in a labor strike. The Court there

recognized that the control of picket line violence was

traditionally a state prerogative, so that “it would require

statutory language much more explicit than that before

us to lead to the conclusion that Congress intended to

put the Federal Government in the business of policing

the orderly conduct of strikes.” 410 U.S. at 411. The

Court went on to state that the Hobbs Act could not be

construed, as written, to justify “such an extraordinary

change in federal labor law of such an unprecedented

incursion into the criminal jurisdiction of the states.”” 410

U.S. at 411. Cf, Heublein v. South Carolina Tax

Commussion, 409 U.S. 275 (1972); Rewis v. United

States, 401 U.S. 808 (1971).

In accordance with these principles, the Court in Bass

required, as an element of each §1202(a) offense, proof

of a nexus between the defendant’s act and interstate

commerce. For the crimes of receipt or transport of a

firearm, that nexus is straightforward enough, and proof

will be simple. Those offenses necessarily involve either a

transaction or movement, so are traditionally understood

to be directly within commerce. Even in cases where the

individual receipt or transport transaction does not

involve interstate commerce, the tr: saction itself is

properly said to be in commerce. See .'arrett v. United

States, 423 U.S. 212 (1976). As one Court of Appeals

put it, receipt and transport have a definite “federal

jurisdictional! flavor,”’ United States v. Bell, 524 F.2d 202,

209 (2nd Cir. 1975). Federal statutes generally punish

offenses concerning movement or acts affecting com-

merce, e.g., 18 U.S.C. §1951 (obstructing or affecting

interstate commerce or movement of commodities in

18

commerce by robbery or extortion); 18 U.S.C. §875

(transmitting kidnapping threats by means of interstate

commerce); 18 U.S.C. §2421 (transporting women in

interstate commerce for prostitution).

Mere possession of a firearm, on the contrary, is not so

obviously linked to commerce. Unlike receipt or trans-

port, possession is not normally in commerce, nor does it

affect commerce. in this case, the connection between

Scarborough’s possession of a firearm after conviction

and commerce could hardly be more distant. Prior to his

felony conviction, Scarborough’s guns passed through

interstate commerce; since his conviction, the relevant

triggering event for §1202(a), they have had no connec-

tion with commerce of any sort. They have not been

used; they have not even been moved. It is for that reason,

as Bass recognized, that possession is the kind of crime

which is “traditionally local criminal conduct,” 404 U.S.

at 350, the regulation of which belongs in the states and

has been left there by Congress.* Federal concern and the

*Thirty-seven states and the District of Columbia prescribe

whether convicted felons may possess or buy firearms. This list

excludes regulation of the use of machine guns by convicted felons.

See Ala. Code. tit. 14, §174(a) (1958); Alaska Stat. §11.55.030

(1970); Ariz. Rev. Stat. Ann. §13-909(A) (1956); Ark. Stat. Ann.

§41-3103(1)(a) (1947); Cal. Penal Code §12021(a) (1970); Colo.

Rev. Stat. Ann. §18-12-108 (1973); D.C. Code §22-3203(2)

(1973); Fla. Stat. Ann. §790.23(1) (1976); Hawaii Rev. Stat.

§134-7(b) (1968); ill. Rev. Stat. tit. 38, §24-3.(a)(3) (Smith-Hurd

1976); Ind. Stat. Ann. §35-23-4.1-6 [Burns 10-4751f] (1975);

Kan. Stat. Ann. §21-4204(1){b) (1974); Ky. Rev. Stat. Ann.

§527.040(1) (1969); La. Rev. Stat. Ann. §14:95.1 (West 1976);

Me Rev. Stat. Ann. tit. 15, §393 (1964); Md. Ann. Code tit. 27,

§445(c) (1976); Mass. Gen. Laws Ann. ch. 140, §122 (1972);

Mich. Stat. Ann. §28.92 (1962); Minn. Stat. Ann. §624.713(1)(b)

(West 1976); Miss. Code Ann. §97-37-5 (1972); Neb. Rev. Stat.

§ 28-1011.15 (1975); Nev. Rev. Stat. §202.360 (1973); N.H. Rev.

Stat. Ann. ch. 159:3 (1955); N.J. Stat. Ann. 2A:151-8 (1969);

[Footnote continued]

19

expenditure of federal resources for prosecution of a fel-

on’s possession of a firearm is consistent with federalism

only if that possession directly affects commerce as im Jus-

tice Marshali’s example in Bass. Otherwise, not only would

federal activity interfere with state enforcement, but

state and federal efforts would largely be duplicative,

United States v. Kelly, 519 F.2d 251, 254 n. 5 (8th Cir.),

cert. dented, 423 U.S. 926 (1975). Further, federal

prosecutions would unnecessarily “further burden the

district courts with additional criminal litigation.’”’ United

States v. Bell, 524 F.2d 202, 209 (1975). Without a

concerted policy by Congress, that balance cannot be

changed.

It is these considerations which compel reinforcement

of the Court’s analysis in Part III of Bass, where the

Court explained the limited circumstances in which

possession is cognizable as a federal offense under this

statute.” The Government claims that the passage in Part

Ill of Bass is mere dicta. or in any event does not restrict

prosecution for possession even where, as here, the

N.Y. Penal Law §265.01(4) (McKinney 1976) N.C Gen. Stat.

§14-415.1 (1975); N.D. Cent. Code §62-01-04(1) (1960); Ohio

Rev. Code Ann. §2923.13(A) (Page 1975); Okla. Stat. Ano. fit.

21, $1283 (1976); Ore. Rev. Stat. §166.270 (1975); Pa. Stat.

Ann. tit. 18, §6105 (1973); R.J. Gen. Laws Ann. §11-47-5 (1956);

S.C. Code Ann. §16-129.2(a) (Cum.Supp. 1975); S.D. Compiled

Laws Ann. §23-7-3 (1967); Temn. Code Ann. §39.4904 (Cum.

Supp. 1974); Tex. Code Ann. tit. 10, ch. 46, §46.05(2) (Vernon

1974); Utah Code Ann. §76-10-503 (Supp. 1975); and Wash.

Rev. Code Ann. §9.41-040 (1961).

Seven of the above states enacted legislation withim tine last

three years (Ilil., Ky., La., Minn., N.Y., N.C., Temm). Adiditiomally ,

municipalities and counties throughout the cowmtry regulate

firearms within their respective jurisdictions. See U.S. Department

of the Treasury, Bureau of Alcohol, Tobacco and Firearms,

Firearms Regulation (1976).

5Possession of a firearm by a convicted felon is not am offense

under 18 U.S.C. §922(h). See n.1 supra.

20

possession originated prior to the felony conviction. But

to adopt the Government’s position and ignore the

restrictions contained in that passage would either

emasculate the integrity of the statute or the principles of

federalism which support it.

If the Court determines that the interstate commerce

nexus is satisfied here, the Court must adopt one of two

equally untenable positions: first, it may incorporate the

crime of possession into the crime of receipt, thereby

eliminating the distinction between receipt and posses-

sion, see pages 13-14, supra; or second, it may use the

most trivial connection to commerce to sustain a con-

viction, thereby demeaning the federalism principles that

support the statute.

If the crime of simple possession remains distinct from

the crime of receipt, then the only commerce nexus

possible becomes so remote as to be trivial. Possession

carries with it nothing more than the mere potential of

the entry of the firearm into the stream of commerce. If

that is enough to satisfy the commerce requirement, it

would so impoverish principles of federalism upon which

Bass rests that Bass would be overruled in fact if not in

name. Accordingly, the facts purporting to meet the

nexus requirement must be substantial enough to

demonstrate the respect for federalism demanded by the

imposition of a nexus requirement in the first place. The

Court emphasized the importance of that connection in

Rewts v. United States, 401 U.S. 808 (1971), where it

held that, in statutes which do not demonstrate a clear

intent by Congress to intrude on traditional areas of state

criminal jurisdiction, and which require a commerce

nexus in individual cases, the transactions at issue may

not have the nexus satisfied by a trivial link to commerce.

EE Sat. nee eee ey oem ne one

21

In Rewis, the Court held that the operator of a

gambling establishment could not be prosecuted under

the Travel Act, 18 U.S.C. §1952, simply because some of

his customers came from another state. The Court there

explained that where federal prosecutions could seriously

alter federal-state relationships concerning criminal juris-

diction, and where there is no explicit Congressional

intent to so jeopardize the existing federal-state balance,

the Court must construe the commerce nexus require-

ments strictly. See Erlenbaugh v. United States, 409 U.S.

239, 245 (1972) (Travel Act applies to criminal activity

“which in all cases was materially assisted in its

operations by the availability of facilities of interstate

commerce.”’).

Since the Court has already determined in Bass that

Congress did not intend § 1202(a) to change federal-state

spheres of enforcement, the nexus requirements articu-

lated in Rewts with respect to the Travel Act apply with

equal force here. In light of Rewits, the Court’s

illustration in Part III of Bass of the offenses cognizable

under § 1202(a) can only be understood as implementing

those nexus requirements. The Court there restricted the

possession crimes of §1202(a) to those where a strong

nexus can be demonstrated, but does not restrict receipt

crimes, which are by their nature in or affecting

commerce.

Understood in that light, the examples proffered in

Part Ill of Bass, relating to the Government’s burden of

proof, are not irrelevant plumage for an Opinion. Rather,

they show that in order to preserve federalism, each

offense in §1202(a) requires a different sort of nexus

with commerce. As Justice, then Judge Stevens, noted in

United States v. Walker, 489 F.2d 1353 (7th Cir. 1973),

cert. denied, 415 U.S. 982 (1974), “the entire opinion

22

demonstrates that Mr. Justice Marshall’s choice of

language was deliberate and precise.” 489 F.2d at 1357.

Significantly, every Circuit that has required a showing of

contemporaneous affect upon commerce for the posses-

sion offense recognized the federalism concerns voiced in

Bass. See United States v. Ressler, 536 F.2d 208 (7th Cir.

1976); United States v. Lathan, 531 F.2d 955 (9th Cir.

1976); United States v. Steeves, 525 F.2d 33 (8th Cir.

1975); United States v. Bell, 524 F.2d 202 (2nd Cir.

1975); United States v. Kelly, 519 F.2d 251 (8th Cir.),

cert. denied, 423 U.S. 926 (1975); United States v.

Cassity, 509 F.2d 682 (9th Cir. 1974). Cf., United

States v. Goodie, 524 F.2d 515 (5th Cir. 1975);

United States v. Walker, 489 F.2d 1353 (7th Cir.

1973); cert. denied, 415 U.S. 982 (1974); United

States v. Thomas, 485 F.2d 557 (5th Cir. 1973). Circuits

holding to the contrary have conspicuously ignored these

fundamental precepts of federalism. See e.g., United

States v. Scarborough, No. 74-1193 (4th Cir. Jan. 29,

1976); United States v. Jones, 533 F.2d 1387 (6th Cir.

1976); Carter v. United States, No. 75-2215 (6th Cir.

1976), petition for cert. filed, 45 U.S.L.W. 3165 (U.S. Je.

28, 1976) (No. 75-1882); United States v. Bumphus, 508

F.2d 1405 (10th Cir. 1975). Accordingly, the most

stringent nexus requirement must be imposed on the

Government to prove possession of a firearm by a

convicted felon.

More is at stake here, though, than simply applying the

Court’s recent interpretation of federal firearms statutes.

If the Court declines to follow Rewis and Bass, and

instead accepts Scarborough’s meager nexus to interstate

commerce in this case as sufficient, it would necessarily

weaken the concepts of federalism, and the concommit-

tant respect for state activity, which this Court has a

23

special duty to protect. This Court has repeatedly

emphasized the measured and deliberate manner in which

federal interference by any branch inio activities tradi-

tionally understood to be within the scope of state

prerogative must take. As the Court stated in Younger v.

Harris, 401 U.S. 37 (1971):

[T]he National Government, anxious though it may

be to vindicate federal rights and federal interests,

always endeavors to do so in ways which will not

unduly interfere with legitimate activities of the

States.

401 U.S. at 44.

These principles have been recently reaffirmed by the

Court in the Younger context. See, e.g., Hicks v. Miranda,

422 U.S. 332 (1975); Huffman v. Pursue, Ltd., 420 U.S.

592 (1975). Furthermore, just last Term, the Court held

that the commerce clause, though normally sufficient to

sustain federal power over state activities, could not

overcome affirmative limitations on Congress’ authority

inherent in state sovereignity. National League of Cities v.

Usery, 96 S.Ct. 2465 (1976). In addition, it held that

federal equitable relief should not be available to enjoin

state activities where the result of such relief would

disrupt legitimate operations of the internal affairs of

Government. Rizzo v. Goode, 423 U.S. 362 (1976). If

only the most tangential link to interstate commerce is

required to overtake an important aspect of state criminal

law, little remains of federalism in any context.

To be sure, neither Rewts nor restraints on the nexus

requirements of § 1202(a) inherent in federalism apply to

every federal criminal statute premised on interstate

commerce. Congress has the power to confer federal

authority to prosecute crimes previously in the state

domain, and even eliminate the requirement of individual

24

proof that a particular transaction has a_ specific

connection with interstate commerce. That result may

only be accomplished, however, where two conditions

have been met. First, Congress must explicitly and clearly

decide to accomplish that end. See e.g., United States v.

Huddleston, 415 U.S. 814, 832 n.11 (1974); United

States v. DeMet, 486 F.2d 816 (7th Cir. 1973), ceri.

denied, 416 U.S. 969 (1974) (Prosecutions under

Hobbs Act, 18 U.S.C. §1951, require only the slight-

est proof of connection with interstate commerce be-

cause of legislation to the full extent of Congressional

power); United States v. Sacco, 491 F.2d 995 (9th Cir.

1974); United States v. Hunter, 478 F.2d 1019 (7th Cir.),

cert. denied, 414 U.S. 857 (1973) (18 U.S.C. $1955,

regulating interstate gambling business, requires no proof

of direct interstate commerce). Second, it must make

specific findings that the action it seeks to take has a

rational connection to the commerce power upon which

it is based. Heart of Atlanta Motel v. United States, 379

U.S. 241 (1964).

That neither of those conditions is met here is beyond

dispute. On the contrary, the statute has been found by

this Court to be both ambiguous and the product of

last-minute legislating rather than careful and deliberate

study.® United States v. Bass, 404 U.S. 336 (1971).

6F ollowing Senator Long’s remarks, several Senators com-

mented that, although the purpose behind §1202(a) was com-

mendable, further study of the proposed amendment by a

Conference Committee would be desirable. At this time, however,

several Senators called for a vote and the amendment was passed

without further discussion. See 114 Cong. Rec. 14,775 (1968).

RO er ES Re CRED eT

25

CONCLUSION

For the foregoing reasons, the judgment of the Court

of Appeals, affirming petitioner’s conviction, should be

reversed.

Respectfuliy submitted,

PHILIP J. HIRSCHKOP

LEONARD S. RUBENSTEIN

108 North Columbus Street

Post Office Box 1226

Alexandria, Virginia 22313

(7035) 836-5555

Attorneys for Petitioner.