Opposition — Goodroe v. United States

In the Supreme Court of the

Octoper Term, 1976

CHARLES GOODROE. PETITIONER

v.

Unrrep STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO TH!

CNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

Wape H. McCeree. Jr..

Solicitor General,

Bensamin R. Crvicerri,

Assistant Attorney General,

Micuaer W. Farrer.

Wittiam C. Brows,

Attorneys,

Department of Justice.

Washington, D.C. 20530.

In the Supreme Court of the United States

OctToper Term, 1976

No. 76-1327

CHARLES GOODROE, PETITIONER

Vv.

Unitep STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCLIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The court of appeals affirmed without opinion (Pet. App.

A).

JURISDICTION

The judgment of the court of appeals was entered on

February 28, 1977. The petition for a writ of certiorari was

filed on March 25, 1977. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether 18 U.S.C. 922(h), prohibiting a convicted

felon (among others) from receiving any firearm that “has

been shipped or transported in interstate or foreign com-

merce,” extends to the receipt of a firearm in an intrastate

transaction that occurred after the first rm iail sale of the

firearm following its interstate shipment.

(1)

5

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>. Whether. if it does. the statute is constitutional.

3. Whether petitioner's sentence to five years’ imprison-

ment for violating Section 922(h) was improper because

his conduct also violated 18 U.S.C. App. 1202(a), which

provides for a maximum of only two years’ imprison-

ment.

4. Whether petitioner was denied due process by the

return of a superseding indictment.

STATUTES INVOLVED

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

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

indictment for. or who has been convicted in any

court of. a crime punishable by imprisonment for a

term exceeding one year***to receive any

firearm or ammunition which has been shipped or

transported in interstate or foreign commerce.

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

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 enactment of this Act, any firearm shall

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

more than two years. or both.

STATEMENT

Following a jury trial in the United States District Court

for the Eastern District of Pennsylvania, petitioner was

convicted, as a previously convicted felon, of receiving a

firearm that had been shipped in interstate commerce, in

violation of 18 U.S.C. 922(h). He was sentenced to five

years’ imprisonment. The court of appeals affirmed (Pet.

App. A).

3

On April 9. 1973. petitioner was convicted in a Penn-

sylvania state court of burglary. a felony (Tr. 92).' On

November 24, 1975. during a search of petitioner's resi-

dence in Philadelphia. Pennsylvania, pursuant to a warrant,

law enforcement officers discovered a .32 caliber revolver

(Tr. 36, 48-52). Petitioner was present at the time of the

search: he admitted that the weapon was his and that he had

purchased it from an individual in Philadelphia ap-

proximately two years before (Tr. 52-53, 68). The revolver

had been manufactured in Massachusetts, shipped to a

Pennsylvania dealer in 1973, and sold to a customer in

Pennsylvania in February 1974 (Tr. 80, 97, 101).

ARGUMENT

|. 18 U.S.C, 922(h) makes it unlawful for a convicted

felon “to receive any firearm or ammunition which has been

shipped or transported in interstate or foreign commerce.”

Petitioner contends that Section 922(h) does not apply to

him because his intrastate acquisition of the revolver took

place after the first retail sale following its interstate

shipment.

This claim is foreclosed by Barrett v. United States, 423

U.S. 212. in which the Court held that Section 922(h)

applies. in accordance with its unambiguous language, to all

acquisition of firearms by convicted felons, in intrastate as

well as interstate transactions, provided there has been an

interstate movement of the firearm at some time in the past.

Although the specific transaction in Barrett was the first

retail sale after an interstate shipment of the firearm.

petitioner's effort to limit that case to its narrow facts is

unpersuasive. The Court approved the jury instruction that

“Tr.” reters to the trial transcript. “S.H. Tr.” refers to the transcript

of the pretrial suppression hearing.

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the interstate commerce requirement of Section 922(h) is

satisfied if the firearm at some time in its past has traveled in

interstate commerce (423 U.S. at 215): ruled that “the

persons Congress classified as potentially irresponsible and

dangerous * * * are comprehensively barred by the Act

from acquiring firearms by any means” (423 U.S. at 218);

and held that the language of Section 922(h), which “is

directed unrestrictedly at the felon’s receipt of any firearm

that ‘has been’ shipped in interstate commerce” and “con-

tains no limitation to a receipt which itself is part of the

interstate movement * * * ‘means exactly what it says’ ~

(423 U.S. at 216).° See also Scarborough v. United States,

No. 75-1344. decided June 6, 1977. slip op. 6-7.

2: Petitioner also contends that. if Section 922(h) ap-

plies to his case, then the statute is beyond Congress’ power

to enact under the Commerce Clause (Pet. 13-14).

Congress has broad power under the Commerce Clause

to regulate the transfer of goods after they have been

shipped in interstate commerce. See United States v.

Sullivan, 332 U.S. 689, 698 (Congress may “regulate the

branding of articles that have completed an interstate

shipment and are being held for future sales in purely local

or intrastate commerce”). Moreover, Congress may impose

criminal sanctions for the purpose of regulating even purely

intrastate activities, where the cumulative impact of that

class of activities substantially affects interstate commerce.

Perez ¥. United States, 402 U.S. 146; Heart of Atlanta

Motel, Inc. \. United States, 379 U.S. 241. Where the class

of activities is regulated and that class is within the reach of

Petitioner's reliance on United States \. Ruffin, 4990 F. 2d SS7(C.A.

8). is unavailing. Ruffin was decided prior to this Court's decision in

Barrett and was based on the proposition, expressly reyected in Barret,

that Section 922(h) applies only when “at the time the [firearm] was

received if Was part of an interstate transportation” (490 F. 2d at 560).

5

federal power, courts may not™ ‘excise, as trivial, individual

instances’ ~ of the class. Perez v. United States, supra, 402

U.S. at 154.

Congress has properly found that the possession and

receipt of firearms by felons constitutes “a burden on

commerce or threat affecting the free flow of commerce.”

18 U.S.C. App. 1201. Thus, the regulation of the receipt by

felons of firearms that have moved in interstate commerce.

whether the receipt occurs in interstate or wholly intrastate

transactions, falls clearly within the permissible bounds of

the commerce power. See Scarborough v. United States,

supra. slip op. 9: United States v. Rosenbarger 536 ¥. 2d

715, 718(C.A. 6): United States v. Day, 476 F. 2d 562(C.A.

6): Mandina vy. United States, 472 F. 2d 1110 (C.A. 8),

certiorari denied, 412 U.S. 907; United States v. Nelson, 458

F. 2d 556(C.A. 5): cf. Huddlestonv. United States, 415 U.S.

814, 833.

3. Petitioner's conviction and sentencing under Sec-

tion 922(h) was not improper simply because his conduct

also violated 18 U.S.C. App. 1202(a), which authorizes a

lesser maximum term of imprisonment than Section

922(h). See 18 U.S.C. 924(a). Although the prohibitions of

the two sections are directed to some of the same per-

sons, each statute also reaches persons not covered by

the other. See United States v. Bass, 404 U.S. 336, 342

‘The rationa! basis for this finding is apparent. See Heart of Atlania

Morel, supra, 379 U.S. at 258. As the Siath Circuit observed in Srevens

\. United States, 440 F. 2d 144, 151-152. the unquestionably high rate of

recidivism among convicted felons and the widespread use of firearms in

the commission of crimes affecting commerce leaves “ao serious doubt

that the possession of firearms by convicted felons is a threat to

interstate commerce.” See also Mandina vy. United States, 472 F. 2d

1110, 1113-1114(C_A. 8), certiorari denied. 412 U.S. 907: United States

v. Nelson, 458 F. 2d $56, $59 (CA. §).

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n. 9. Moreover. although a felon who receives a firearm

that has been shipped in interstate commerce violates both

sections (see 404 U.S. at 350). Section 1202(a) ts much

broader in coverage, encompassing the receipt. posses-

sion, or transportation of all firearms “in commerce or

affecting commerce.” It was not unreasonable for Con-

gress to authorize a lesser penalty tor this more broadly

defined crime, and petitioner is not immune from pros-

ecution under Section 922(h) simply because his act also

happened to violate the proscriptions of a seconé statute.

United States y. Phillips, 522 F. 2d 388, 393 (C.A. 8): see

United States v. Green, 494 F. 2d 820. 826-828 (C.A. §).

certiorari denied, 419 U.S. 1004: cf. United States\. Beacon

Brass Co., 344 U.S. 43.

Finally. since both sections were initially enacted as part

of the Omnibus Crime Control and Safe Streets Act of 1968.

82 Stat. 197, 228, 236.4 petitioner cannot argue that Section

1202(a) repealed by implication the more severe penalty

provisions of Section 922(h). Cf. Edwards v. United States.

312 U.S. 473, 483-484. Rather. given the differences in

coverage between the two statutes. they “can exist and be

useful. side by side.” Edwards v. United States, supra, 312

U.S. at 484.

4. Petitioner argues (Pet. 15-17) that he was denied due

process because. following his initial indictment under

Section 1202(a) and his rejection of a suggested plea

bargain, a superseding indictment was returned charging

him with violating Section 922(h) and exposing him to the

greater punishment authorized by that section. The

superseding indictment. however, was returned on

*Both 18 U.S.C 922 and 18 U.S.C. App. 1202 were amended without

relevant change by different titles of the Gun Control Act of 1968, 82

Stat. 1213, 1216, 1236.

>

February 24, 1976. shortly after this Court's decision of

January 13. 1976. in Barrett v. United States, supra.

Contrary to petitioner's suggestion. the superseding

indictment was not sought by the prosecutor to punish

petitioner for declining to accept a plea bargain. Rather, as

the district court correctly found (see S.H. Tr. 57-58, 97-99),

the government was motivated to seek the superseding

indictment by the Barrett decision, which had made it clear

that Section 922(h) was applicable to petitioner's conduct.

This factual determination that prosecutorial vindictiveness

played no role in this case does not warrant further review.*

‘There is no reason to hold this petition pending the outcome in

Bordenkircher \. Haves, No. 76-1334. certiorari granted June 6, 1977.

The issue in that case is whether a prosecutor may. in order to induce a

defendant to accept a plea bargain. threaten to bring an additional

indictment for a more serious crime. and then actually bring such an

indictment when the defendant persists in asserting his right to go to

trial. In Haves the prosecutor explicit!y warned the defendant that he

would be indicted for a more serious crime if he did not accept the

offered plea bargain (see $47 F. 2d 42. 43). and acknowledged that no

event “occurred between the issuance of the first indictment and the

issuance of the second to influence his decision except petitioner's

insistence upon his right to trial” (id. at 44). In the present case. by

contrast, no such threat was ever conveyed to petitioner. an intervetung

event of controlling significance (this Court's decision in Barrerr) ‘ook

place. and the district court found that the return of the second

indictment was not prompted by the prosecutor's displeasure (if any

there was) over petitioner's refusal! to accept a plea bargain.. Thus. even

if the court of appeals grant of habeas corpus in Haves ts affirmed. there

is NO reasonable prospect that the outcome of the present case would be

affected in any respect

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CONCLUSION

The petition for a writ of certiorari snould be denied.

Respectfully submitted.

Wape H. McCree, Jr.,

Solicitor General.

BENJAMIN R. CiviLeTTi,

Assistant Attorney General.

MicHaeL. W. FARRELL.

Wittiam C. Brown,

Attorneys.

June 1977.

DOJ-1977-06