Respondents Brief — Scarborough v. United States

| MICHAEL RGBAK, JR_CLERK

No. 75-1344 eee tS

Gn the Supreme Court of the United S

OctoBeR TERM, 1976

Ps

‘

a

RicuarD A. SCARBOROUGH, PETITIONER

v.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

ROBERT H. BORK, ;

Solivitor General,

RICHARD L. THORNBURGH,

Assistant Attorney General,

RICHARD A. ALLEN,

\ Assistant to the Solicitor General,

SIDNEY M. GLAZER,

WILLIAM C. BROWN,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

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Introduction and summary of argument__.....----------

Argument :

18 U.S.C. App. 1202(a) (1) prohibits a convicted felon

from possession of firearms that have previously

been transported in interstate commerce__...~-~-~-- 9

A. The language and statutory scheme demonstrate

that Section 1202(a)(1) prohibits possession of

any firearm that has moved in commerce_-_-.----- 9

1. The statutory phrase “affecting com-

merce” covers firearms that have moved

5 CUTIE. c cccdisivntnindibucahtione 9

2. The statutory scheme shows that Congress

intended in Section 1202(a) (1) to pro-

hibit felons from possessing firearms

that have moved in commerce_._------ 16

B. The legislative history confirms that Congress

intended to prohibit the possession by felons of

firearms that have moved in commerce___._..-- 19

C. United States v. Bass, 404 U.S. 336, does not pre-

clude construing Section 1202(a)(1) as covering

possession of a firearm that has moved in

oO to oe

CRITE cccwnntibinussennbansswntsconetiitititin 25

GORE ccctqiste Miwhdbbichndicmbaliticnebisiiins 30

CITATIONS

Cases:

American Fur Co. v. United States, 2 Pet, 358... -- 29

Barrett vy. United States, 423 U.S. 212_--_-- 10, 18, 19, 28, 29

Cohens v. Virginia, 6 Wheat. 264....--....-.------- 27

Fry v. United States, 421 U.S. 542.-......--.---.--. 10

(Dp

26—-353—76-——1 >

ul ul

Cases—Continued Pace Statutes—Continued Pose

Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186----- 12 18 U.S.C. 245(b) (3) -------------------- 2-2-2202 -0° il

Heart of Atlanta Motel, Inc. v. United States, 379 , 18 U.S.C, 922(c)----------------------- 992-0900" 17

WE Cl iin cna pe sshtiiiginsn de ch aqnnendcsinetione 29 18 U.S.C, 922(d).-------------------------2222-°°7 17

Huddleston v. United States, 415 U.S. 814.----------- 29 18 U.S.C. 922( f) --------------2- 9 nnn nnn" 17

Katzenbach v. McClung, 379 U.S: 204..------------- 11, 22 18 U.S.C. 922(g) --------------------------------7 8, 8, 16

National Labor Relations Board v. Reliance Fuel 18 U.S.C. 922(h)--------. ---------------------"- 8, 15, 16

cg YES RE SE i 18 U.S.C. 922(k) ----------------------------"--0°° 1s

Stevens v. Uniicd States, 440 F. 2d 144....----.------ 20 18 U.S.C. 923.------------------------- snanncoccen 17

United States v. American Building Maintenance In- 18 U.S.C. App. 1201------------------------------- 2,10

Denctegn, GIT, Dra acces nc cimninstntntb binned 11, 12 18 U.S.C. App. 1202(a)------------- 2, 3, 6, 9, 12, 15, 26, 28

United States vy. Bass, 404 U.S. 336_..--------------- 6, 18 U.S.C. App. 1202(a) (1) ----------------------- passim

9, 12, 16, 25, 26, 27, 28, 29 18 U.S.C. App. 1202(c) ------------------------"-""

United States v. Bell, 524 F. 2d 202_.--.---.--------- 6, 26 18 U.S.C. App. 1202(c) (3) ------------------------- >

United States v. Bonham, 477 F, 2d 11387__----------- 14 18 U.S.C. 1931------------------------- a 12

United States v. Brown, 472 F. 2d 1181_.------------ 26 18 U.S.C. 1951---------- eae nnneea------ weeneen---- il

Unga States v. Bumphus, 508 F. 2d 1405.----------- 26 18 U.S.C. 2481.....-.---- wen nnnonnnneeenene------- 12

United States v. Burns, 529 F, 2d 114..-------------- 2% 29 U.S.C. 141.-----------------------"> won-------- 11

United States y. Bush, 500 F. 2d 19..--------------.- 26 99 U.S.C. 149----------------- 2-22-22 - oon nnn 11

United States v. Cassity, 509 F. 2d 682_..------------ 26 20 U.S.C. 152(7) ------ ----------2- oon n nnn nenn= 11

United States v. Giannoni, 472 F. 2d 136, certiorari 99 U.S.C. 158(b) (4) -------------------- +2 een 2-9 11

Goulet: 608 BIG: CW ccinccstitisttblalttticdiionss Site EE 26 99 U.S.C. 160(a)---------------------- 2-22 o on 11

United States vy. Gill, 490 F, 2d 233, certiorari denied, 99 U.S.C, 185..-.-------------0--"-"""" ee eneeae---

GD Ta Beith tli hitieicsineebbibbtieciintmtinictieincetiin 11 29 U.S.C. 186.-------------------- oon nnn nn nn eenn= 11

United States v. Haley, 500 F. 2d 303_-..---.-------- 19 29 U.S.C, 187---------------------""""" woneeceror= 11

United States v. Holland, 445 F. 2d 701_-_:---------- 14 29 U.S.C. 504() (2) ---------------------------"-°" 11

United States v. Jones, 553 F. 2d 1387__-_---_-__-___- 26 30 U.S.C. 803.------------------------" socceseeco= 11

United States v. Kelly, 519 F. 24 251.--.-.---------- 26 42 U.S.C. 2000a (c) --------------------- Seueeeessus 11

United States v. Lathan, 531 F.2d 955 -..-....------- 26 Miscellaneous :

United States y. Malone, 538 F. 20 250__....---- 26 114 Cong. Ree. (1968) :

United States v. Mullins, 476 F. 2d 664__.___________ 26 Page 13867_----------------------- weececeneo= 20

United States vy. Pacente, 503 F, 2d 543, certiorari Page 13868... ..---- 22 e nnn nnn nnn nnn sn nnnnnnnn= we

pi Lk Ry Tp sae 11 Pages 13868-13869_.-------------------------- 17, 21

United States v. Ressler, 53% F. 2d 208 26° Page 14744.---------------------------------- 23

United States v. Steeves, 534 F. 2d 33_..-.----------- 26 Pages 14773-14775----------------- ee 2%

United States v. Sullivan, 33% U.S, 689_..-------- ee 10 Page 14774.-------------------en renner nnn 16

United States v. Wrightw 10 Page 14775-------- been en nen nenen en cenneennnns 20)

Statutes: Page 14798_----------------------- eono------- 20

Te RSE PORN TCM Beis ae 1 Page 16286..----------------------------=---- 16, 24

6) CE STE PART Are u Page 16298_.---------------------- w---------- 24

Sof OO Rae, Var awe ul Page 16300_..--------------------- a 20

| Og SRS Re ae iW

|

Gu the Supreme Court of the United States

OctoBeR TERM, 1976

No. 75-1344

RicnarpD A. SCARBOROUGH, PETITIONER

Vv.

UniTep States or AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion of the court of appeals (Pet. App.

‘ la-6a) is reported at 539 F. 2d 331.

JURISDICTION

The judgment of the court of appeals was entered

on January 29, 1976. On February 26, 1976, the Chief

Justice extended the time for filing a petition for a

writ of certiorari to and including March 19, 1976.

The petition was filed on March 17, 1976, and was

granted on October 4, 1976.

(1)

2

QUESTION PRESENTED

Whether 18 U.S.C. App. 1202(a), which makes it

unlawful for a convicted felon, among others, to re-

ceive, possess or transport a firearm “in commerce

or affecting commerce,” covers possession of a firearm

which previously has been shipped or transported in

interstate commerce.

STATUTES INVOLVED

18 U.S.C. App. 1201 provides:

The Congress hereby finds and declares that

the receipt, possession, or transportation of a

firearm by felons, veterans who are discharged

under dishonorable conditions, mental incom-

petents, aliens who are illegally in the country,

and former citizens who have renounced their

citizenship, constitutes—

(1) a burden on commerce or threat af-

fecting the free flow of commerce,

(2) a threat to the safety of the Presi-

dent of the United States and Vice Presi-

dent of the United States,

(3) an impediment or a threat to the

exercise of free speech and the free exer-

cise of a religion guaranteed by the first

amendment to the Constitution of the

United States, and

(4) a threat to the continued and effec-

tive operation of the Government of the

United States and of the government of

each State guaranteed by article IV of the

Constitution.

3

18 U.S.C. App. 1202(a) provides in pertinent part:

Any person who—

(1) has een 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 enact-

ment of this Act, any firearm shall be fined not

more than $10,000 or imprisoned for not more

than two years, or both.

18 U.S.C. App. 1202(¢) provides in pertinent part:

As used in this title—

(1) “commerce” means travel, trade, traffic,

commerce, transportation, or communication

among the several States, or between . the

District of Columbia and any State, or between

any foreign country or any territpry or posses-

sion and any State or the District of Columbia,

or between points in the same State but through

any other State or the District of Columbia or

a foreign country; * * *.

18 U.S.C. 922(g) provides in pertinent part:

Tt shall be unlawful for any person—(1) who

is under indictment for, or who has been con-

victed in any court of, a crime punishable

by imprisonment for a term exceeding one

year * * * to ship or transport any firearm or

ammunition in interstate or foreign commerce.

18 U.S.C. 922(h) provides in pertinent part:

It shall be unlawful for any person—(1) who

is under indictment for, or who has been econ-

victed in any court of, a crime punishable

4

by imprisonment for a term exceeding one

year * * * to receive any firearm or ammunition

which has been shipped or transported in inter-

state or foreign commerce.

STATEMENT

After a jury trial in the United States District

Court for the Eastern District of Virginia, petitioner

was convicted, as a previously convicted felon, of

possession in commerce or affecting commerce of four

firearms, in violation of 18 U.S.C. App. 1202(a) (1)

(App. 1). He was sentenced to one year’s imprison-

ment. The court of appeals affirmed (Pet. App. la-6a;

539 F. 2d 331).

The evidence showed that in 1972 petitioner was

convicted in a Virginia state court of possession of

narcotics with intent to distribute, a felony (App. 2).

In August 1973, law enforcement officials seized four

firearms from petitioner’s bedroom in Falls Church,

Virginia, in the execution of a state warrant for a

search of his residence for narcotics (App. 11-12).

Each of the four firearms—a .30 caliber Universal

Arms Company Enforcer, a .38 caliber Colt revolver,

a .30 caliber United States M-1 carbine, and a St.

Etienne French Ordnance revolver—had been trans-

ported in interstate commerce prior to possession by

petitioner. The Universal Arms Company Enforcer

was manufactured in Florida and was shipped to Vir-

1 The district court acquitted petitioner on another portion of

the indictment charging him with receipt of the firearms, on the

ground that the government had not established that the receipt

occurred after the felony conviction (App. 12).

5

ginia, where it was sold to petitioner in 1970 (App.

7-8).? The Colt revolver was manufactured in Con-

necticut and had been shipped to a firearms dealer in

North Carolina in 1969 (App. 6-7). The M-1 carbine

had been shipped from an arsenal in Illinois to an in-

dividual in Maryland in 1966 (App. 8-9). The French

revolver was manufactured in France during the nine-

teenth century (App. 9-10).

The court gave the following instruction on the

relationship between possession and commerce (App.

14):° ;

The government may meet its burden of prov-

ing a connection between commerce and the pos-

session of a firearm by a convicted felon if it is

demonstrated that the firearm possessed by a

convicted felon had previously traveled in inter-

state commerce.

* * * * *

* The evidence showed also that petitioner had ordered a re-

placement stock for the Universal Enforcer in 1973, one year after

his conviction for a felony, and that the stock was subsequently

shipped in interstate commerce from Florida to Virginia (Trial

Transcript of reporter Webb, pp. 125-128, 137). A stock, in itself,

is not a firearm as defined in 18 U.S.C. App. 1202(c) (3).

* The trial court refused to give petitioner’s proposed instruc-

tion, which provided in pertinent part (App. 12-13) : “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 com-

merce. For example, a person ‘possesses’ 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.”

226-353—76——2

6

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 pur-

; chase the gun.

The court of appeals affirmed, ruling that “the Con-

gressional purpose as expressed in the statute itself

was that it was only necessary to establish that the

firearm had previously traveled in imterstate com-

merce to make out the offense whether of possession

or of receipt and that [U united States v. Bass, 404 U.S.

336] did not hold otherwise” (Pet. App. 4a; 539

F. 2d at 333). Noting that both “receives”? and

“possesses” in Section 1202(a) are modified by the

same phrase, “in commerce or affecting commerce,”’

the court held that the statute should not be con-

strued to require proof of a greater interstate com-

meree nexus for possession than for receipt.

The court considered and expressly declined to

follow United States v. Bell, 524 F. 2d 202, 205, in

which the Second Cireuit ruled that, while the receipt

offense requires only that the firearm had previously

traveled in commerce, the possession offense re-

quires possession contemporaneous with interstate

movement.

INTRODUCTION AND SUMMARY OF ARGUMENT

Petitioner contends (Br. 7) that the offense of

possession of firearms under 18 U.S.C. App. 1202(a)

(1) extends only to possession that has a **contempo-

raneous” cus with interst:

ous” nexus with interstate commerce, and does

7

not cover possession of firearms that have merely

previously moved in commerce, Petitioner concedes

(Br. 6-7) that the offense of receiving a firearm

under Section 1202(a)(1) covers a firearm that

previously moved in interstate commerce.

Petitioner’s construction of the possession offense

under Section 1202(a)(1) would exempt from the

scope of federal gun control legislation broad cate-

gories of individuals and conduct that Congress in-

tended to cover when it enacted that section. Petition-

er’s construction would permit convicted felons who

received firearms before their felony convictions or

before the enactment of the statute legally to retain

possession of those weapons. As a practical matter,

petitioner’s construction would also permit convicted

felons to retain possession of firearms received after

their felony convictions or the enactment of thie

statute when the time or place the felon received the

firearm is not susceptible to proof—for example,

when the firearms were obtained surreptitiously.

Petitioner’s construction, therefore, would create a

significant loophole in the statutory scheme, whose

principal objective was to keep firearms out of the

hands of convicted felons and other dangerous and

irresponsible persons.

A. 1. The language of Section 1202(a)(1) shows

that convicted felons and certain other dangerous and

irresponsible persons are prohibited from both receiv-

ing and possessing any firearm that had previously

travelled in interstate commerce. Congress’ use of the

phrase “in commerce or affecting commerce” mani-

8

fests a legislative intent to prohibit far more than

receiving or possession of firearms contemporaneously

with interstate movement. It reflects an intent broadly

to prohibit the receiving and possession of firearms

that have had any significant nexus with interstate

commerce, including firearms that have previously

moved in commerce.

Neither the language of the statute nor any rational

legislative purpose supports petitioner’s distinction

between the interstate commerce nexus necessary to

establish the receiving offense and the nexus necessary

to establish the possession offense. The nature of the

receiving and the possession offenses demonstrates

that both may be established by proof that the fire-

arms which are received or possessed have moved in

interstate commerce. |

2. The entire scheme of the federal gun control leg-

islation confirms that Section 1202(a)(1) prohibits

convicted felons from possessing firearms that have

previously moved in interstate commerce. Virtually

every provision of the statute is designed to keep fire-

arms out of the hands of felons and other dangerous

individuals. To construe Section 1202(a)(1) so as to

permit felons to retain possession of firearms in cer-

tain common circumstances would create a gap in the

statute and would undermine its central purpose. ur-

thermore, petitioner’s construction of Section 1202(a)

(1) would make that section largely superfluous, in

view of 18 U.S.C. 922(g), which already prohibits

convicted felons from transporting firearms ‘‘in inter-

state or foreign commerce.”

9

R. The legislative history of Section 1202(a) (1)

shows that Congress intended to prohibit as broadly as

possible the possession of firearms by convicted felons

without regard to whether the possession was in the

course of interstate movement of the firearm. There

is no indication in that history that the possession

offense was to be restricted as petitioner urges.

C. This Court’s opinion in United States v. Bass,

404 U.S. 336, does not establish that the possession

offense under Section 1202(a) requires proof of pos-

session contemporaneous with movement of the fire-

arm in interstate commerce. The degree of proof of an

interstate nexus for both the receiving and possession

offenses was not an issue before the Court in Buss,

and dicta in the Court’s opinion which touched tan-

gentially on that issue should not foreclose full con-

sideration of the question in this case.

ARGUMENT

18 U.S.C. APP. 1202(a) (1) PROHIBITS A CONVICTED FELON

FROM POSSESSION OF FIREARMS THAT HAVE PREVIOUSLY

BEEN TRANSPORTED IN INTERSTATE COMMERCE

A. THE LANGUAGE AND STATUTORY SCHEME DEMONSTRATE THAT SEC-

TION 1202(a) (1) PROIIIBITS POSSESSION OF ANY FIREARM THAT ILAS

MOVED IN COMMERCE

1. The statutory phrase “affecting commerce” covers firearms that

have moved in commerce

Section 1202(a)(1) provides criminal penalties for

any convicted felon

who receives, possesses, or transports in com-

merece or affecting commerce, after the date of

enactment of this Act, any firearm * * *,

10

There can be no doubt about the power of Congress

under the Commerce Clause to prohibit felons from

possessing firearms that have moved in commerce. Cf.

United States v. Sullivan, 332 U.S. 689, 698 (Congress

has power “under the commerce clause to regulate the

branding of articles that have completed an inter-

state shipment and are being held for future sales in

purely local or intrastate commerce”). The power to

regulate commerce “extends to those activities intra-

state which so affect interstate commerce * * * as to

make regulation of them appropriate means to the

attainment of a legitimate end, and the effective execu-

tion of the granted power to regulate interstate

commerce” (United States vy. Wrightwood Dairy Co.,

315 U.S. 110, 119); ef. Barrett v. United States, 423

U.S. 212; Fry v. United States, 421 U.S. 542, 547.

Indeed, in its findings at the beginning of Title VII of

the Omnibus Crime Control and Safe Streets Act of

1968, which includes Section 1202(a)(1), Congress

expressly stated (18 U.S.C. App. 1201) that “the

receipt, possession, or transportation of a firearm by

felons * * * constitutes—(1) a burden on commerce

or threat affecting the free flow of commerce * * *,”

The only issue in this case, therefore, is whether

Congress in fact exercised its broad power over com-

merece to prohibit the possession of firearms that have

moved in commerce when it prohibited possession

“affecting” commerce.

The term “affecting commerce” is a comprehensive

concept reflecting the exercise by Congress of the full

a a i a i i i i i i i le

11

extent of its power to regulate commerce. Cf. United

States v. American Building Maintenance Tidustries,

422 U.S. 271, 280:

Congress * * * repeatedly ackuowledged its

recognition of the distinction between legisla-

tion limited to activities “in commerce,” and an

assertion of its full Commerce Clause power

so as to cover all activity substantially affect-

ing interstate commerce.

See, also, National Labor Relations Board vy. Reliance

Fuel Corp., 371 U.S. 224, 226.

Congress’ understanding of the broad reach of the

term “affecting commerce’’ is reflected in numerous

statutes employing that term. Thus, for example, in

42 U.S.C. 2000a(c), Congress defined “operations

affecting commerce”’ to include establishments, a sub-

stantial proportion of whose product “has moved in

commerce” (emphasis supplied). See Katzenbach vy.

McClung, 379 U.S. 294, 302. Similarly, 18 U.S.C.

1951, which punishes “[w]hoever in any way or

degree * * * affects commerce * * * by robbery or

extortion * * *” reaches conduct related to the in-

trastate distribution of products that have come to

rest in a state after their interstate movement. United

States vy. Pacente, 503 F. 2d 543, 550 (C.A. 7), cer-

tiorari denied, 419 U.S. 1048; United States v. Gill,

490 F. 2d 233, 236-237 (C.A. 7), certiorari denied,

417 U.S. 968. See, also, e.g., 7 U.S.C. 2132(d), 2134,

2141 and 2142; 18 U.S.C. 245(b) (3); 29 U.SC. 141,

142, 152(7), 158(b)(4), 160(a), 185, 186, 187, and

904(a)(2); 380 U.S.C. 803.

12

Unlike the phrase “affecting commerce,” the words

‘‘in commerce” have a narrower reach: they ordinarily

cover only those activities that are actually within the

flow of commerce or directly connected with it. See,

e.g., Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186;

United States v. American Building Maintenance

Industries, supra.‘

Since Congress made Section 1202(a) applicable

to conduct that is either ‘‘in commerce or affecting

’ it intended to cover possession that af-

fected commerce because the firearm had moved in

commerce. The use of the disjunctive “or” shows that

Congress did not limit the reach of the statute to

possession that is “in commerce,’’ as petitioner’s in-

terpretation of the statute would do. Indeed, peti-

tioner’s theory in practical effect would read the

words “affecting commerce” out of the statute and

would nullify the effect of the express finding made

in Section 1201 that possession of firearms by con-

victed felons constitutes a “threat affecting the free

flow of commerce.”’

commerce,’

The phrase “in commerce or affecting commerce”

modifies not only ‘‘transports,’’ but also “receives”

and “possesses.” United States v. Bass, 404 U.S. 336.

The Court concluded in Bass that the government

shows a sufficient nexus with commeree under the

* Examples of its use in criminal statutes are found in 18 U.S.C,

§22(k) (transporting “in interstate or foreign commerce” firearms

whose serial numbers have been removed) ; 18 U.S.C. 2421 (trans-

porting women “in interstate or foreign commerce” for the pur-

pose of prostitution: and 18 U.S.C, 1231 (transporting strike-

breakers “in interstate or foreign conimerce”),

“13

“receiv[ing]” offense “if it demonstrates that the fire-

arm received has previously traveled in interstate

commerce’ (404 U.S. at 350). As we show below

(pp. 17-24), the congressional objective in Section

1202(a) was to bar felons and other dangerous per-

sons from possessing firearms. In terms of that pur-

pose, there is no reason why Congress would have

wished to require proof of a greater nexus with

commerce for the possession offense than for the re-

ceipt offense.

To the contrary, since prohibiting possession was

the primary objective of the provision, Congress could

not have intended to require the government to show

a closer connection with commerce in possession than

in receipt cases. In view of that primary objective,

there is no reason why Congress would have intended

to prohibit a conyeted felon from initially receiving

a firearm that had previously moved in commerce, but

would have intended to prohibit possession of such a

weapon only when that weapon is actually moving in

commerce. In either situation, the offense is estab-

lished by showing that the receipt or possession

“affects” commerce in that the firearm moved in com-

merce prior to its receipt or possession.

Although petitioner asserts (Br. 17-21) that the re-

ceipt of a firearm has an inherently closer nexus to

interstate commerce than possession, this generaliza-

tion does net withstand analysis. The relative closeness

of the nexus to the interstate movement of the receipt

or possession of a firearm depends not upon the in-

herent nature of the acts of receiving or possessing

226-353—76——-3

14

but upon the particular circumstances. In most in-

stances, possession follows immediately upon receipt,

and both acts have the same nexus to the prior move-

ment of the firearm in interstate commerce.

Furthermore, in some cases a felon may receive a

firearm in his own state that came to rest in that state

months or years before he received it. Although peti-

tioner agrees that such a receipt would be punishable

under the statute, the act of receiving has no greater

nexus to interstate commerce than the act of possess-

ing the firearm. Thus, even in those cases where

the government is able to prove when and where a

felon received his firearm and thus to show that he

received it after his felony conviction or after the

enactment of the statute, that proof may not show any

greater nexus between the receipt and interstate com-

merce than appeared from his possession alone.’

Petitioner argues (Br. 13), however, that if pos-

session requires proof only that the firearm previously

moved in commerce, the offenses of possession and re-

ceipt under Section 1202(a) (1) would merge, in viola-

° Petitioner suggests that prohibiting a convicted felon from

retaining possession of a firearm acquired before his conviction

might lead to the inequitable result that a person would become

guilty of possession in violation of Section 1202(a)(1) at the

instant he is convicted of a felony, even though he may not be able

to dispossess himself of the weapon (Pet. Br. 15). Since possession

involves some element of control (see, ¢.g., United States v. Bon-

ham, 477 F. 2d 1137 (C.A. 3): United States y. Holland, 445 F. 2d

701 (CLA.D.C.) ), petitioner’s hypothetical is without basis. To the

extent that a recently convicted felon exercises only that degree of

control necessary to relinquish possession in an otherwise legal

manner. we submit that his conduct would not constitute an offense

under Section 1202(a)(1).

15

tion of the principle that statutes should be construed

to preserve their integrity. Under our construction,

however, the offenses of receipt and possession under

Section 1202(a)(1), while overlapping, are not coex-

tensive. A person may possess a firearm in violation

of the statute without having received it illegally—

for example, where the receipt predated the enactinent

of the Act or the felony conviction, or where the fire-

arm had not yet moved in interstate commerce at the

time of its receipt.

It was primarily for this reason that Section

1202(a)(1) added possession to the offenses pro-

scribed elsewhere in the statute. Under 18 U.S.C.

922(h), a convicted felon who had received a firearm

prior to the enactment of the statute or his felony

conviction could legally retain possession thereafter.

The legislative history shows that an object of Section

1202(a)(1) was to ensure that convicted felons could

not retain possession of firearms acquired previously

(see discussion, infra, pp. 17-24).

Indeed, under petitioner’s theory that the offense of

possession under Section 1202(a)(1) requires that the

possession be contemporaneous with the interstate

movement, there would be little difference between

the offenses of possession and transportation, since

the proof necessary to sh w transportation would

usually also establish possession. _

Petitioner further argues (Br. 7-9) that a con-

gressional intent to restrict Section 1202(a)(1) to

conduct that has a contemporaneous connection with

interstate commerce is shown by the use of the present

16

tense in the phrase “receives, possesses, or transports

in commerce or affecting commerce.’ But the Court

in Bass recognized that the receipt of a firearm that

previously had moved in interstate commerce violates

the section, even though that offense is described in

the present tense. 404 U.S. at 350. The act of receiv-

ing or possessing a firearm “affect[s]’’ commerce if

the firearm previously moved in commerce, and the

tense of the operative verbs defining the offense sheds

no light on what kind of nexus the statute requires.

%. The statutory scheme shows that Congress intended in Section

1202(a)(1) to prohibit felons from possessing firearms that

have moved in commerce

Title VII of the Omnibus Crime Control and Safe

Streets Act of 1968, which includes Section 1202

(a)(1), must be construed in conjunction with the

gun-control legislation contained in Title IV of that

Act, which it was intended to “complement” (114

Cong. Rec. 16286 (1965); see also id. at 14774; ef.

United States v. Bass, 404 U.S. 336, 342).° Title IV

makes it unlawful for convicted felons “to ship or

transport any firearm or ammunition in interstate or

foreign commerce” (18 U.S.C. 922(g¢)), and “‘to re-

ceive any firearm or ammunition which has been

shipped or transported in interstate or foreign com-

merce” (18 U.S.C. 922(h)).

* ‘The provisions of Title IV of the Omnibus Crime Control] and

Sr fe Streets Act were reenacted without relevant change in the

Gun Control Act of 1968, 82 Stat. 1214. For convenience, those

provisions are referred to collectively here as Title IV.

17

Under petitioner’s interpretation of Section 1202

(a)(1), the possession offense under that section

would have no broader scope than the crimes of re-

ceipt and transportation of firearms “in commerce’

under Title IV. As set forth below (pp. 19-24), the

legislative history shows that the purpose of Section

1202(a)(1) was to insure “that anybody who has been

convicted of a felony * * * is not permitted to pos-

sess a firearm * * *, * * * [Section 1202(a) (1) ] sim-

ply strikes at the possession of firearms by the wrong

kind of people” (114 Cong. Ree. 13868-13869 (1968) ).

The intent of Congress in Section 1202(a)(1) to ban

the possession of firearms by convicted felons and

other persons who cannot be trusted with those

weapons would be frustrated if the possession offense

in that section is not broader in scope than the receipt

and transportation “in commerce’”’ offense in Title IV.

In addition to the prohibitions upon the receipt and

transportation of firearms in commerce by convicted

felons and other dangerous persons, Title IV regu-

lates and prohibits a broad range of activities involv-

ing firearms, including the licensing of dealers in

firearms (18 U.S.C. 923), recordkeeping and _ notifi-

cation requirements relating to the sale or disposition

of firearms (18 U.S.C. 922(¢)), prohibition of the

sale or disposition of firearms to felons and other

potentially dangerous individuals (18 U.S.C. 922(d)),

and prohibition of the common carriage in interstate

commerce of firear.as in violation of the statute (18

USC. 922(f)). Virtually every provision in the

entire statutory scheme evinces a legislative plan to

18

prohibit certain classes of dangerous persons from

possessing firearms. As this Court stated in Barrett

v. United States, 423 U.S. 212, 218, 220:

The very structure of the Gun Control Act

demonstrates that Congress did not intend

merely to restrict interstate sales, but sought

broadly to keep firearms away from the per-

sons Congress classified as potentially irrespon-

sible and dangerous.* * *

¥ * * * ¥

* * * Its broadly stated principal purpose was

“to make it possible to keep firearms out of the

hands of those not legally entitled to possess

them vecause of age, criminal background, or

incompetency.” S. Rep. No. 1501, 90th Cong.,

2d Sess., 22 (1968).

Petitioner’s theory that Title VII protects only pos-

session of firearms moving in commerce would create

serious loopholes in the congressional plan to control

firearms by prohibiting felons and other dangerous in-

dividuals from possessing them. For example, under

petitioner’s theory the statute would not reach indi-

viduals whose possession of firearms began before the

statute was enacted or before their convictions.’ It

also would bar prosecution of many felons who ac-

quire their firearms surreptitiously (such as from

illegal sources or by theft), since as a practical matter

the government frequently would be unable to show

‘Such individuals would not be guilty of receipt under Section

1202(a)(1) by the terms of that section and would not be guilty

of possession under petitioner’s construction because the possession

would not be “contemporancons” with the movement of the fire-

arms in commerce.

19

the time when or the place where possession was ac-

quired.® In all those situations, however, the evil at

which the legislation was divected—the possession of

firearms by dangerous persons—is no less present than

in cases where the possession is contemporaneous with

the firearm’s movement in commerce. In endeavoring

to write an effective gun-control law, Congress did not

intend to leave such a serious loophole.

As this Court said in Barrett v. United States,

supra, 423 U.S. at 219, in rejecting a construction

which would have created a similar gap in Title IV:

Congress surely did not intend to except from

the direct prohibitions of the statute the very

act it went to such pains to prevent indirectly,

through complex provisions, in the other sec-

tions of the Act.

B. THE LEGISLATIVE HISTORY CONFIRMS THAT CONGRESS INTENDED TO

VROHIBIT TITER POSSESSION BY FELONS OF FIREARMS THAT HAVE

MOVED IN COMMERCE

The legislative history of Title VII of the Omnibus

Crime Control and Safe Streets Act of 1968 confirms

that Congress intended to supplement the gun-control

provisions of Title IV of the Act by broadly pro-

* Such individuals would not be guilty of possession under peti-

tioner’s construction because the possession would not be con-

temporaneous with interstate commerce. They could not be con-

victed of receipt without proof that the receipt occurred after the

felony conviction and after the enactment of the Act and without

proof that the receipt occurred in the district where the prosecu-

tion takes place. In some circumstances, the facts concerning

possession may support an inference with respect to time and place

of receipt (see, e.g., /nited States v. Haley, 500 F. 2d 303 (C.A. 8),

but in many cases such an inference may not be possible.

20

scribing the possession of firearms by convicted

felons. It shows that Congress used the words ‘‘affect-

ing commerce” broadly, that it did not limit the

coverage of the possession offense in Title VII to

firearms that were being transported in commerce, and

that it did not differentiate between the scope of the

possession and receipt offenses of 18 U.S.C. App. 1202

(a)(1).

Title VII was introduced by Senator Long on the

floor of the Senate on May 17, 1968, and was agreed

to by the Senate by a voice vote on May 23, without

having been referréd to any committee.’ 114 Cong.

Rec. 14775 (1968). Accordingly, there were no legisla-

tive hearings and no committee reports on the statute.

The legislative history of Title VII consists primarily

of an explanation of the statute by its sponsor,

Senator Long.”

Senator Long stated explicitly several times that

the purpose of the proposed legislation was broadly

to prohibit convicted felons and other potentially

dangerous or irresponsible persons from possession of

* Title VII was introduced as an amendment to 8. 917. 114 Cong,

Rec. 15867 (1968). After the amendment passed, the Senate voted

to amend H.R. 5037, a crime bill pre viously enacted by the House

of Representatives, by deleting the House language and substitut-

ing the text of S.917. 114 C ong. Ree. 14798 (1968). As amended.

H.R. 5037 was returned to the House and approved on June 6,

1968, without further committee study. 114 Cong. Ree. 16300

(1968). The legislation, entitled the Omnibus Crime ¢ ‘ontrol and

Safe Streets Act of 1968, was signed into law by the President on

June 19, 1968,

* The entire legislative history of Title V.I is set forth as an

appendix to ‘~ opinion in Stevens v. United States, 440 F.2d 144.

152-166 (CLA. 6).

21

firearms." In introducing his amendment, he com-

mented (114 Cong. Ree. 13868-13869 (1968) ) :

I have prepared an amendment which I will

offer at an appropriate time, simply setting

forth the fact that anybody who has been con-

victed of a felony * * * is not permitted to

possess a firearm * * *.

It might be well to analyze, for a moment,

the logic involved. When a man has been con-

victed of a felony, unless—as this bill sets

forth-—he has been expressly pardoned by the

President and the pardon states that the person

is to be permitted to possess firearms in the

future-that man would have no right to possess

firearms. He would be punished criminally if he

is found in possession of them.

* * ca * *

[A] bill such as this could have prevented

the assassination of President Kennedy by Lee

Oswald. * * * For reasons involved in this bill,

he would not have been permitted to possess

firearms. And if he had managed to come into

the possession of firearms illegally, most likely

he would not have been such a good shot,

because he would not have been able to practice

the use of firearms, because people would have

been aware that he had no right to possess or

transport them.

* ” * * *

The legislative history does not support petitioner’s conten-

tion (Pet. Br. 12) that Senator Long and Congress focused on “the

prevention of the acquisition of weapons by convicted felons * * *”

(emphasis supplied). The primary concern with possession is re-

flected in virtually every sentence in the legislative history.

22

It seems to me that this simply strikes at

the possession of firearms by the wrong kind of

people. It avoids the problem of imposing on

an honest hardwave store owner the burden of

keeping a lot of records and trying to keep up

with the ultimate disposition of weapons sold.

It places the burden and the punishment on

the kind of people who have no business

possessing firearms in the event they come into

possession of them.

That the legislation was not intended to be limited

to the mere regulation of the possession of firearms

that were moving in interstate commerce is shown by

Senator Long's reliance, in supporting the constitu-

tionality of Title VIT, on this Court’s decisions recog-

nizing the broad reach of the Civil Rights Act of 1964

(see Heart of Atlanta Motel, Inc. v. United States,

379 U.S. 241, and Katzenbach v. McClung, supra) (114

Cong. Ree. 13868 (1968)):

For example, there was much debate and dis-

cussion about the constitutionality of the Civil

Rights Act of 1964, but many of the items and

transactions reached by the broad swath of the

Civil Rights Act of 1964 were reached by virtue

of the power of Congress to regulate matters

affecting commerce, not just to regulate inter-

state commerce itself. * * * So if you want to

do something about this matter, the present

state of the law, as interpreted by the Supreme

Court, would clearly permit you to reach either

the possession or the transportation of weapons,

in that this could affect commerce.

23

In a colloquy with Senator McClellan, Senator Long

again made it clear that Title VII applied to posses-

sions of firearms not moving in interstate commerce

at the time of the possession (114 Cong. Ree. 14744

(1968) ) :

Mr. McClellan. I have not had an opportunity

to study the amendment. * * * The thought that

occurred to me, as the Senator explained it, is

that if a man had been in the penitentiary, had

been a felon, and had been pardoned, without

any condition in his pardon to which the able

Senator referred, granting him the right to bear

arms, could that man own a shotgun for pur-

poses of hunting.

Mr. Long of Louisiana. No, he could not. He

could own it, but he could not possess it.

Mr. MeClellan. I beg the Senator’s pardon?

Mr. Long of Louisiana. This amendment does

not seek to do anything about who owns a fire-

arm. He could not carry it around; he could

not have it.

Mr. McClellan. Could he have it in his home ?

Mr. Long of Louisiana. No, he could not.

Prior to the Senate’s passage of the Act, Senator

Long summed up the purpose of Title VIT (114 Cong.

Ree. 14773-14775 (1968) ):

What the amendment seeks to do is to make

it unlawful for a firearm * * * to be in the pos-

session of a convicted felon * * *.

* * * * *

This amendment would proceed on the theory

that every burglar, thief, assassin, and mur-

derer is entitled to carry a gun until the com-

24

mission of his first felony; but, having done

that, lie is then subject to being denied the right

to use those weapons again.

These views were echoed hh more general terms in

the House by Congressman Machen (114 Cong. Ree.

16286 (1968)) ™:

Title VII prohibits the unlawful possession

or receipt of firearms by felons, veterans who

have been other than honorably discharged,

mental incompetents, aliens who are illegally in

the country, and former citizens who have re-

nounced their citizenship. I believe this pro-

vision is necessary to a coordinated attack on

crime and also a good complement to the gun-

control legislation contained in title IV of this

bill.

Finally, there is no indication in the legislative his-

tory that Congress in Title VII intended to proscribe

only possession by felons of firearms where the pos-

session was part of the interstate movement.

*® Congressman Pollock’s remarks further support the construe-

tion that we urge. He said (114 Cong. Rec. 16298 (1968) ) : “This

section makes it a Federal crime to take, possess, or receive a fire-

arm across State lines when the person involved: First, has been

convicted of a crime punishable by imprisonment for a term ex-

ceeding 1 year; * * *, The overall thrust is to prohibit possession

of firearms by criminals or other persons who have specific records

or characteristics which raise serious doubt as to their probable use

of firearms in a lawful manner. I agree with this provision and feel

this title alone provides the gun legislation portion necessary

under this bill, without need for enactment of title IV.” This

statement that the “overall thrust is to prohibit possession,”

coupled with the statement that the statute makes it a crime to

possess or receive a firearm across state lines, fairly may be read

to proscribe possession by a felon of a firearm that has crossed

state lines in the past. It draws no distinction between receipt and

possession with respect to the necessary nexus with commerce.

one ewes soe

25

C. UNITED STATES vy. BASS, 404 U.S. 336, DOES NOT PRECLUDE CONSTRUING

SECTION 1202(a)(1) AS COVERING POSSESSION OF A FIREARM THAT HAS

MOVED IN COMMERCE

In United States v. Bass, 404 U.S. 336, the defend-

ant was convicted of possessing firearms in violation

of Section 1202(a)(1). The proof showed only that

the defendant was a convicted felon who possessed

firearms; “[t]here was no allegation in the indictment

and no attempt by the prosecution to show that either

firearm had been possessed ‘in commerce or affecting

commerce.’ ” 404 U.S. at 338. This Court held that

the words “in commerce or affecting commerce” modi-

fied not only “transports” but also “receives” and

“possesses,” and that Bass’s conviction could not

stand “because the Government has failed to show the

requisite nexus with interstate commerce’ (404 U.S.

at 347). The Court then made the following statement

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

Having concluded that the commerce require-

ment in § 1202(a) must be read as part of the

“possesses” and “receives” offenses, we add a

final word about the nexus with interstate com-

merce that must be shown in individual cases.

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 inter-

state 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 Govern-

ment meets its burden here if it demonstrates

26

that the firearm received has previously tray-

eled in interstate commerce.

Petitioner interprets this statement as establishing

that the prior movement of a firearm in commerce is

not sufficient to establish the offense of possession

under Section 1202(a)(1).’* The statement, however,

does not sustain the gloss petitioner would place upon

' Since Bass, the courts of appeals have divided over the quan-

tum of interstate connection required in a prosecution for posses-

sion under Section 1202(a). In addition to the court of appeals in

this case, the Sixth Circuit and the Tenth Circuit have concluded

that proof of previous interstate movement of the firearm provides

a sufficient commerce nexus. United States v. Jones, 533 F. 2d 1387

(C.A. 6): United States v. Bum phus, 508 F, 2d 1405 (C.A, 10)

(dictum): United States vy. Bush, 500 F. 2d 19 (CA. 6) ; United

States v. Mullins, 476 F. 2d 664 (CLA. 4): United States y. Brown,

472 F. 2d 1181 (C.A. 6). Conversely, three other circuits have in-

dicated that while a demonstration that the firearm has previously

traveled in interstate commerce will suffice for the receipt offense

in Section 1202(a), the possession offense requires proof that the

possession was in fact contemporaneous with an interstate move-

nent, United States v. Ressler, 536 F. 2d 208 (CLA, 7); United

States v. Bell, 524 F. 2d 202 (C.A. 2); United States v. Steeves,

925 F.2d 33 (CLA. 8) (dictum) ; United States v. Kelly, 519 F, 2d

291 (CLA. 8) (dictum). An apparent intra-circuit conflict exists

within the Ninth Cireuit on the issue. Compare United States v.

Burns, 529 F.2d 114 (C.A. 9), with United Siates v. Malone, 538

IF, 2 250 (CA. 9), and United States vy. Cassity, 509 F. 2d 682

(CLA. 9).

: Even the courts that have adopted petitioner's construction of

Section 1202(a) have permitted the jury to draw broad inferences

of receipt from the fact of possession. Fo: example, in United

States Vv. Lathan, 531 F.2d 955 (C.A. 9). the court upheld a con-

Viction for receipt solely on the basis of evidence that the firearm

had been manufactured outside of California. transported to Cali-

fornia in 1962 and found in 1974 in the possession of a defendant

who had been convicted in 1971. See. also, United States v.

(rrmmnons, AF2 F.2d 136 (CLA. 9), certiorari denied, 411 U.S. 935.

ee eee

27

it, and it cannot fairly be read as disposing of this

ease. As the court of appeals noted here (Pet. App.

4a; 539 F. 2d at 333):

[T]he Court in Bass was not * * * fixing

precise criteria for establishing the degree of

proof of interstate commerce movement re-

quired under the statute for the offenses of

reccipt and possession. This is plain from the

language of the Court to the effect that “[t]he

Government can obviously meet its burden [of

proving a commerce nexus] in a variety of

ways” under the statute and observed that it

was noting “only some of these.”

The Court’s statement in Bass that the offense of

receiving a firearm “in commerce or affecting com-

merce” could be established by showing that the

firearm had previously traveled in interstate com-

merce does not preclude the conclusion that the

offense of possessing a firearm “in commerce or af-

fecting commerce” can be established by the same

showing. Indeed, the Court recognized that the gov-

ernment could meet its burden of proof of an inter-

state nexus “in a variety of ways,”’’ one of which was

that “the possession affects commerce”—a statement

which the Court did not further define. To the extent

that the Court’s observations in Bass suggest that

the offense of possession requires something more

than proof that the firearm previously traveled in

interstate commerce, that dictum should not control

the present case, where “the very point [merely

touched on in Bass] is presented for decision” (Co-

hens v. Virginia, 6 Wheat. 264, 399).

28

In Barrett v. United States, 423 U.S. 212, the Court

refused to follow dicta in Bass (404 U.S. at 342-343)

suggesting that Title IV of the Act does not cover

intrastate transactions. In rejecting those dicta and

holding the Act applicable to the intrastate transfer

of firearms that was unrelated to their prior inter-

state movement, the Court pointed out (423 U.S. at

222-223) that the question was not before the Court

in Bass and that the issue of the reach of Title IV

was now “at hand with the benefit of full briefing and

an awareness of the plain language of § 922(h), of the

statute’s position in the structure of the entire Act,

and of the legislative aims and purpose.” Similarly,

the question of the nexus with interstate commerce

necessary for the offense of possession under Section

1202(a) is before the Court, and should not be fore-

closed by general statements in a case where the issue

Was not presented.

Petitioner further contends (Br. 15-24) that the

considerations of federalism upon which Bass rested

in part support his restrictive interpretation of the

commerce requirement of Section 1202(a). Bass held

only that in Section 1202 Congress had not manifested

the intent “to effect a significant change in the sensi-

tive relation between federal and state criminal juris-

diction” (404 U.S. at 349) that would result from

construing the section as dispensing with proof of any

interstate nexus at all. It pointed out (id. at 350,

emphasis added) that “[a]bsent proof of some inter-

state commerce nexus in each ease, §1202(a) dra-

29

matically intrudes upon traditional state crime

jurisdiction.”

Nothing in Bass, however, suggests that the

“federal-state balance’ (id. at 349) would be imper-

missibly disrupted by holding that the necessary

interstate nexus for the possession offense is estab-

lished by proof that the firearm previously moved in

interstate commerce. The Court indicated in Bass (td.

at 350) that the government could prove the offense

of receipt by demonstrating that “the firearm received

has previously traveled in interstate commerce.” The

application of the same standard of proof to the pos-

session offense would produce no greater upsetting of

the traditional federal-state balance in criminal law

than its application to the receipt offense sanctioned

in Bass. Similarly, in Barrett, supra, the Court up-

held the application of Title IV of the Act to a local

firearm transaction that traditionally would be the

subject of state criminal prosecution.

In view of the language of the statute and the pur-

pose of Congress, there is no occasion here to apply

the rule of lenity which petitioner invokes (Pet. Br.

12-13) to narrow the scope of the possession offense.

Although penal laws are to be construed strictly, they

“ought not to be construed so strictly as to defeat the

obvious intention of the legislature.’” American Fur

Co. v. United States, 2 Pet. 358, 367; United States

v. Bass, supra, 404 U.S. at 351; Huddleston v. United

States, 415 U.S. 814, 831.

30

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

Rosert H. Bork,

Solicitor General.

RicHarp L. THORNBURGH,

Assistant Attorney General.

RicHarp A. ALLEN,

Assistant to the Solicitor General.

SIDNEY M. GLazer,

WituraMm C. Brown,

Attorneys.

JANUARY 1977.

S SOVERN@ENT PRINTING OF